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The International Criminal Court’s Ad Hoc Jurisdiction Revisited

Published online by Cambridge University Press:  27 February 2017

Carsten Stahn ,
Mohamed M. El Zeidy  and
Héctor Olásolo
Carsten Stahn
Affiliation:
International Criminal Court
Mohamed M. El Zeidy
Affiliation:
Office of the Prosecutor General of the Arab Republic of Egypt
Héctor Olásolo
Affiliation:
International Criminal Court
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Extract

Article 12(3) of the Rome Statute of the International Criminal Court (ICC), which allows a state that is not a party to the Statute to “accept the exercise of jurisdiction by the Court” by way of a declaration lodged with the registrar, is one of the Statute's most inconspicuous provisions. It has attracted only brief notice either in the general literature on the jurisdiction of the ICC or in the particular context of the debate over U.S. objections to the Court's third-party jurisdiction. Few writers have looked closely at the provision's construction and procedural regime, and the first declaration made by a state under this provision—by the Ivory Coast in February 2005—has gone almost unnoticed in international theory and practice.

Type
Developments at the International Criminal Court
Information
American Journal of International Law , Volume 99 , Issue 2 , April 2005 , pp. 421 - 431
Copyright
Copyright © American Society of International Law 2005

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References

1 See Hans, Peter Kaul, Preconditions to the Exercise of Jurisdiction, in 1 The Rome Statute of the International Criminal Court: a Commentary 583, 610 (Cassese, Antonio, Gaeta, Paola, & John R.W.D., Jones eds., 2002)Google Scholar [hereinafter Cassese Commentary]; Williams, Sharon A., Preconditions to the Exercise of Jurisdiction, in Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article By Article 329 (Triffterer, Otto ed., 1999)Google Scholar [hereinafter Triffitrer Commentary]; Wilmshurst, Elizabeth, Jurisdiction of the Court, in The International Criminal Court: the Making of The Rome Statute—Issues, Negotiations, Results 127 (Lee, Roy S. ed., 1999)Google Scholar [hereinafter Lee Commentary]; Inazumi, Mitsue, The Meaning of the State Consent Precondition in Article 12 (2) of the Rome Statute of the International Criminal Court: A Theoretical Analysis of the Source of International Criminal Jurisdiction, 49 Netherlands Int’l L. Rev. 159 (2002)CrossRefGoogle Scholar; Stahn, Carsten, Gute Nachbarschaft um jeden Preis? Einige Anmerkungen zur Anbindung der USA an das Statut des Internationalen Strafgerichtshofs, 60 Zeitschrift Für Ausländisches Öffentliches Recht Und Völkerrecht 631 (2000)Google Scholar.

2 See Wedgwood, Ruth, The International Criminal Court: An American View, 10 Eur.J. Int’l L. 93, 102 (1999)Google Scholar; Hafner, Gerhard, Boon, Kristen, Anne, Rübesame, & Huston, Jonathan, A Response to the American View as Presented by Ruth Wedgwood, 10 Eur. J. Int’l L. 108, 118 (1999)Google Scholar.

3 See ICC Press Release, Registrar Confirms That the Republic of Côte d’lvoire Has Accepted the Jurisdiction of the Court (Feb. 15, 2005). ICC materials, including the Rome Statute (corrected as of January 16, 2002), Rules of Procedure and Evidence, press releases, and information on cases and situations, are available online at the Court’s Web site, <http://www.icc–cpi.int>. Many of the documents concerning the Rome Statute itself, including the associated negotiations and reports, are available at the United Nations’ Web site on the ICC, <http://www.un.org/law/icc/>. An exhaustive collection of documents is available at the Web site of the Coalition for the International Criminal Court, <http://www.iccnow.org>.

4 Wedgwood, supra note 2, at 101.

5 Schabas, William A., Introduction to the International Criminal Court 75 (2d ed. 2004)Google Scholar.

6 For a discussion of self–referrals, see Mohamed M., El Zeidy, The Ugandan Government Triggers the First Test of the Complementarity Principle: An Assessment of the First State’s Party Referral to the ICC, 5 Int’l. Crim. L. Rev. 83, 99–110 (2005)Google Scholar; Kress, Claus, ‘Self Referrals’ and ‘Waivers of Complementarity’: Some Considerations in Law and Policy, 2 J. Int’l Crim. Just. 944 (2004)CrossRefGoogle Scholar; Gaeta, Paola, Is the Practice of ‘Self–Referrals’ a Sound Start for the ICC? 2 J. Int’l Crim. Just. 949 (2004)CrossRefGoogle Scholar.

7 See Article 12 (2) of the Rome Statute (“the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3”) (emphasis added)).

8 Palmisano, Giuseppe, The ICC and Third States, in 1 Essays on the Rome Statute of the International Criminal Court 391, 393 (Lattanzi, Flavia & Schabas, William A. eds., 1999)Google Scholar.

9 Reciprocity is understood here in a different sense than the procedural right to refer a dispute to an international jurisdiction and the corresponding possibility to be sued. It refers to the structural balance of rights and obligations of states parties and third states under the ICC as a treaty system.

10 See, in particular, Rule 44(2) of the Rules of Procedure and Evidence.

11 See the last sentence of Article 12(3).

12 See Wedgwood, supra note 2, at 101 (“third–party jurisdiction is reserved for international wars, where the state in whose territory the offence occurred is likely to consent”).

13 See Article 12(3) (“If the acceptance of a State which is not a Party to this Statute is required under paragraph 2”) in conjunction with Article 12(2)(a)–(b).

14 See Schabas, William A., Prosecution at the International Criminal Court: Some Random Thoughts, at 3 (Apr. 14, 2003), at <http://www.icc–cpi.int/library/organs/otp/schabas.pdf>>Google Scholar.

15 Emphasis added.

16 Holmes, John T. Jurisdiction and Admissibility, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 321, 325 (Lee, Roy S. ed., 2001)Google Scholar.

17 Schabas, supra note 14, at 3. Holmes, supra note 16, at 326, notes that the “approach of having the Registrar make the inquiry to the State at the request of the Prosecutor was preferred by delegations since a direct inquiry by the Prosecutor might raise a presumption that an investigation was under way before the appropriate procedural requirements were met.”

18 On some of the ambiguities of self–referrals, see Gaeta, supra note 6 , at 951–52, El Zeidy, supra note 6, at 105, and Kress, supra note 6, at 948.

19 The complementarity regime applies in cases of declarations under Article 12 (3). One may therefore argue that the state making an Article 12(3) declaration shares part of its jurisdictional powers with the Court. For a broader discussion, see Héctor Olásolo, the Triggering Procedure of the International Criminal Court, sec. III.2.3 (forthcoming 2005).

20 See Kaul, supra note 1; Williams, supra note 1, at 339–41.

21 Article 13 specifies three situations in which the Court may “exercise its jurisdiction”—namely, where (1) a situation “is referred to the Prosecutor by a State Party in accordance with article 14,” (2) a “situation . . . is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations,” and (3) the “Prosecutor has initiated an investigation in respect of such a crime in accordance with Article 15.”

22 Article 14 concerns the referral of situations by states parties.

23 Article 15 specifies the regime governing propria motu proceedings by the prosecutor.

24 Héctor Olásolo, Corte Penal Internacional: ¿Dónde Investigar? 186–87 (2003).

25 For a discussion of the possibility of a waiver in light of the Statute’s complementarity regime, see El Zeidy, supra note 6, at 99–105. See Kress, supra note 6, at 946–48; see generally Mohamed M., El Zeidy, The Principle of Complementarity: A New Machinery to Implement International Criminal Law, 23 Mich. J. Int’l L. 869, 971–72, 972 nn.401–02 (2002)Google Scholar.

26 For an explanation why proceedings following the ad hoc acceptance of jurisdiction under Article 12 (3) come within the ambit of proprio motu proceedings under Article 15, see part III below.

27 Article 15 (4) mandates the pretrial chamber to consider whether “there is a reasonable basis to proceed with an investigation” and whether “the case appears to fall within the jurisdiction of the Court,... without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.”

28 For an excellent survey, see Kirsch, Philippe and Robinson, Darryl, Referral by Slates Parties, in Cassese Commentary, supra note 1, at 619 Google Scholar. The question of which category of states should be permitted to file complaints before the Court was discussed in the 1995 Ad Hoc Committee’s report. Some delegations argued that any state party should be permitted to lodge a complaint to the prosecutor “with respect to the serious crimes under general international law.” Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50th Sess., Supp. No. 22, para. 112, UN Doc. A/50/22 (1995). Other delegations held the view, however, that “only the States concerned that had a direct interest in the case . . . should be entitled to lodge complaints to avoid the substantial costs involved in a lengthy investigation in response to frivolous, politically motivated or unsubstantiated complaints.” Id. This view also found support in the 1996 Preparatory Committee’s report. See 1 Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN GAOR, 51st Sess., Supp. No. 22, paras. 145–47, UN Doc. A/51/22 (1996). In the report of the 1997 intersessional meeting, held in Zutphen, the Netherlands, the reference to complaints filed by non–state parties appeared between square brackets under Article 6 but was not supported. See Preparatory Committee on the Establishment of an International Criminal Court, Report of the Intersessional Meeting from 19 to 30 January 1998 in Zutphen, the Netherlands, at 36, UN Doc. A/AC.249/1998/L.13.

29 Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/2/Add.1, at 35–36, 39 (1998)Google Scholar.

30 See Report of the International Law Commission on the Work of its Forty–sixth Session, UN GAOR, 49th Sess., Supp. No. 10, at 89, UN Doc. A/49/10 (1994) (“On balance the Commission believes that resort to the Court by way of complaint should be limited to States parties. This may encourage States to accept the rights and obligations provided for in the Statute and to share in the financial burden relating to the operating costs of the Court. Moreover in practice the Court could only satisfactorily deal with a prosecution initiated by complaint if the complainant is cooperating with the Court under Part 7 of the Statute in relation to such matters as the provision of evidence, witnesses, etc.”).

31 Emphasis added.

32 Emphasis added.

33 See Holmes, supra note 16, at 325.

34 Note that in the case of states parties, the Statute operates on the assumption that jurisdiction must be secured first. This result may be derived from the language of Articles 12(2) and 13(a). Article 12(2) provides that in “the case of article 13, paragraph (a) . . . , the Court may exercise its jurisdiction if [either the territorial State or the State of nationality of the suspect or both] are Parties to this Statute.” The implication is that where a “situation .. .is referred to the Prosecutor by a State Party,” the Court would be competent to exercise its jurisdiction over the situation in question only if the territorial state, the state of nationality of the suspects, or both are already parties to the Statute.

35 Holmes, supra note 16, at 325.

36 Id. at 326.

37 See Article 15(2).

38 Morten Bergsmo and Jelena Pejic take a different view, arguing that “[b]oth written and oral testimony of the nature referred to [in Article 15 (2)] would be investigative steps that can be taken . . . and will not necessarily require the consent of one or more States in order to be executed.” Bergsmo, Morten & Pejic, Jelena, Prosecutor, in Triffterer Commentary, supra note 1, at 359, 366 Google Scholar.

39 Abd El, Raof Mahdy, Sharh Al, Kawaied Al Amah Lel Eigraat, Al Genaiah [Explaining The General Rules of Criminal Procedure] 414, 423 (2003)Google Scholar; Salamah, Maamon M., Kannon Al Eigraat Al Genaiah Moalakan Alaihy Bel Fikh Wa Ahkam Alnaqd [Law of Criminal Procedure In Light of Scholarly Doctrine and The Jurisprudence of the Court of Cassation] 380 (1980)Google Scholar.

40 Salamah, Maamon M., 1 Al Eigraat Al Genaiah Fee Al Tashriaa Al.-Masry [Criminal Procedure In Egyptian Legislation] 676 (2003–2004)Google Scholar.

41 See Articles 299, 306, and 421 of Spain’s Code of Criminal Procedure.

42 For a discussion of the problem of “asymmetric liability” posed by the term “crime in question” in Article 12(3), see Wedgwood, supra note 2, at 102; Kaul, supra note 1, at 611.

43 This interpretation is supported by Wilmshurst, supra note 1, at 139–40, and Palmisano, supra note 8, at 393–94. Others, like Holmes, supra note 16, at 326, point out the ambiguous character of Article 12(3) (“Rule 44, sub–rule 2 addressed a major issue, which was considered during the negotiations on this Part, relating to a need to clarify article 12, paragraph 3, of the Statute. Paragraph 1 of article 12 uses the phrase ‘with respect to the crimes’ referred to in article 5, whereas paragraph 3 uses the phrase ‘crime in question’. This difference in drafting in the Statute gave rise to concerns among delegations and commentators.”). This ambiguity has also been pointed out by Ruth Wedgwood in The United States and the International Criminal Court: Achieving a Wider Consensus Through the “Ithaca Package,” 32 Cornell Int’l L.J. 535 (1999).

44 Palmisano, supra note 8, at 393–94.

45 Haffner, Boon, Riibesame, & Huston, supra note 2, at 118.

46 Palmisano, supra note 8, at 393.

47 See Kaul, supra note 1, at 611.

48 The expression “situation” is mentioned in Articles 13(a)–(b), 14, 15(5), 18(1), and 19 (3). For a discussion of the difference between situations and cases, see Silvia A., Fernández de Gurmendi, The Role of the International Prosecutor, in Lee Commentary, supra note 1, at 175, 180–81 Google Scholar, Yee, Lionel, The International Criminal Court and the Security Council: Articles 13(b) and 16, in Lee Commentary, supra note 1, at 143, 147–48 Google Scholar, and Zeidy, El, supra note 25, at 914–15 Google Scholar. See Héctor, Olásolo, The Triggering Procedure of the International Criminal Court, Procedural Treatment of the Principle of Complementarity, and the Role of the Office of the Prosecutor, 5 Int’l. Crim. L. Rev. 121, 123–31 (2005)Google Scholar.

49 Holmes, supra note 16, at 326–27.

50 Rule 44(2) followed a proposal concerning jurisdiction, admissibility, and applicable law submitted by France on November 23, 1999, UN Doc. PCNICC/1999/WGRPE/DP.43. The French proposal did not provide an answer to the question as to whether states not parties to the Statute could extend the potential jurisdiction of the ICC to specific criminal acts or to situations. During the debates following the presentation of the French proposal at the third session of the preparatory commission (November 29–December 17, 1999), the Spanish delegation supported the systematic interpretation of Article 12(3) in light of Articles 13, 14, 15, 18, and 53.1, .3–.4. As a result, the Spanish delegation tabled a proposal that made clear that Article 12(3) declarations should cover situations of crisis, as opposed to specific criminal acts. The majority of delegates supported the Spanish proposal, which was included within Rule 2.1(b) of the Discussion Paper Submitted by the Coordinator Concerning Part 2 of the Statute, on Jurisdiction, Admissibility and Applicable Law, UN Doc. PCNICC/1999/WGRPE(2)/RT.1 (1999).

51 Héctor, Olásolo, The Prosecutor of the ICC Before the Initiation of Investigations: A Quasi–Judicial or a Political Body ? 3 Int’l. Crim. L. Rev. 87, 98–101 (2003)Google Scholar.

52 See An. 15(4).

53 Wedgwood, supra note 2, at 102.

54 See Holmes, supra note 16, at 327.

55 Article 11(1) provides: “The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.”

56 See Schabas, supra note 5, at 72.

57 Saland, Per, International Criminal Law Principles, in Lee Commentary, supra note 1, at 189, 196–97 Google Scholar.

58 UN Doc. A/CONF.183/C.1/L.76/Add.3, at 1–2 (1998) (on file with authors); Schabas, supra note 5, at 72.

59 Witschel, Georg & Wiebke, Rückert. Articfe 7(1)(i)—Enforced Disappearance of Persons, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, supra note 16, at 98, 102 Google Scholar.

60 Report of the Preparatory Committee for the International Criminal Court, Finalized Draft Text of the Elements of Crimes, Art. 7(1)(i), UN Doc. PCNICC/2000/L.2/Add.2 (“Crime Against Humanity of Enforced Disappearance of Persons”), reprinted in Schabas, supra note 5, at 289. A joint reading of elements 7 and 8 of that crime, taken together with footnote 24 (to Article 7(1)(i)), suggests that both the actus reus and mens rea must, in principle, occur after the Statute’s entry into force. Witschel and Rückert, supra note 59, at 102, observe, however, that “[proposals to state explicitly that arrest, detention, abduction and refusal (i.e., the whole actus reus) had to occur after the entry into force did not find general agreement.”

61 See SC Res. 955, para. 1 (Nov. 8, 1994); see also Statute of the International Criminal Tribunal for Rwanda. The Statute and cases of the ICTR are available at the Tribunal’s Web site, <http://www.ictr.org>. The Tribunal maintains a public “judicial database” of case records at <http://157.150.221.3/>.

62 Prosecutor v. Ngeze, Decision on the Prosecutor’s Request for Leave to Amend the Indictment, No. ICTR–97–27–1, para. 3 ( Nov. 5, 1999) (“[M]any of the events, while related to a time period preceding 1994, provide a relevant background and a basis for understanding the accused’s alleged conduct in relation to the Rwanda genocide of 1994.. .. Thus, such information is directly relevant to events that occurred in 1994. The Chamber has considered the totality of the facts alleged and has noted that the Prosecution does not rely solely on the information in the paragraphs cited by the Defence, but also on facts related to the accused’s alleged criminal conduct during 1994.”).

63 Prosecutor v. Nahimana, Decision on the Prosecutor’s Request for Leave to File an Amended Indictment, No. ICTR-96-11-T, paras. 27–28 (Nov. 5, 1999) (paragraph number omitted).

64 Prosecutor v. Nsengiyumva, Decision on the Defence Motions Objecting to the Jurisdiction of the Trial Chamber on the Amended Indictment, No. ICTR-96-12-1, paras. 27–28 (Apr. 13, 2000) (paragraph number and citation omitted); see Nahimana v. Prosecutor, Decision on the Interlocutory Appeals, No. ICTR 96-11-AR72, at 6 (Sept. 5, 2000).

65 Prosecutor v. Nsengiyumva, Decision on the Defence Motions Objecting to the Jurisdiction of the Trial Chamber on the Amended Indictment, paras. 27–28; Prosecutor v. Kabiligi, Decision on the Defence Motions Objecting to a Lack of Jurisdiction and Seeking to Declare the Indictment Void ab initio, No. ICTR-96-34-I, paras. 33, 38–39 (Apr. 13, 2000); Bagosora v. Prosecutor, Interlocutory Appeal from Refusal to Reconsider Decision Relating to Protective Measures and Application for a Declaration of ‘Lack of Jurisdiction,” No. ICTR-98-41-A (May 2, 2002).

66 Dec. 16, 1966, 999 UNTS 171 & 302 (respectively).

67 Lovelace v. Canada, Communication No. 24/1977, paras. 10–11, UN Doc. CCPR/C/13/D/24/1977 (1981); Gueye v. France, Communication No. 196/1985, para. 5.3, UN Doc. CCPR/C/35/D/196/1985 (1989); Kulomin v. Hungary, Communication No. 521/1992, para. 11.2, UN Doc. CCPR/C/50/D/521/1992 (1996); Kurowskiv. Poland, Communication No. 872/1999, para. 6.4, UN Doc. CCPR/C/77/D/872/1999 (2003).

68 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS No. 5, 213 UNTS 222. The Convention and its protocols are available at <http://conventions.coe.int/>.

69 Veeber v. Estonia, App. No. 37571/97, para. 54 (Eur. Ct. H.R. Nov. 7, 2002); Sovtransavto Holding v. Ukraine, App. No. 48553/99, para. 58 (Eur. Ct. H.R.July 25, 2002).

70 Loizidou v. Turkey, 1996–VI Eur. Ct. H.R. 2216, para. 41, discussed in Beate Rudolf, Case Report: Loizidou v. Turkey (Merits), 91 AJIL 532 (1997).

71 For further discussion on the doctrine of “continuing crime” and the ICC, see El Zeidy, supra note 6, at 93–99.

72 See Héctor, Olásolo & Ana, Pérez Cepeda, The Notion of Control of the Crime and Its Application by the ICTY in the Stakić Case, 4 Int’l. Crim. L. Rev. 475, 476, 498 (2004)Google Scholar.