‘There’s life in the old dog yet …,’ or: the news of the death of Art. 124 Rome Statute were premature

Ukraine, the ICC and Artwork. 124 Rome Statute

On August 15, 2024, Ukrainian President Volodymyr Zelenskiy submitted to the Ukrainian parliament a invoice on the ratification of the Rome Statute of the Worldwide Legal Court docket and its amendments. Ukraine may thus within the foreseeable future change into the a hundred and twenty fifth contracting social gathering of the Rome Statute. On the identical time, the invoice nevertheless stresses that Ukraine will ratify the Rome Statute with a provision that for a interval of seven years after the ratification enters into power for Ukraine it “won’t recognise the jurisdiction of the Worldwide Legal Court docket over its residents for crimes beneath Article 8 of the Rome Statute”. Put in any other case, the Ukrainian authorities has indicated that it’s going to make use of Artwork. 124 Rome Statute. Mentioned provision, which was extremely controversial on the time the Rome Statute was negotiated and adopted, supplies:

“Article 124 Transitional Provision

However article 12, paragraphs 1 and a couple of, a State, on turning into a celebration to this Statute, could declare that, for a interval of seven years after the entry into power of this Statute for the State involved, it doesn’t settle for the jurisdiction of the Court docket with respect to the class of crimes referred to in article 8 when a criminal offense is alleged to have been dedicated by its nationals or on its territory. A declaration beneath this text could also be withdrawn at any time. The provisions of this text shall be reviewed on the Overview Convention convened in accordance with article 123, paragraph 1.”

But, the exclusionary impact of the envisaged Ukrainian declaration as to the Court docket’s jurisdiction (in contrast to the earlier declarations made in accordance with Artwork. 124 Rome Statute by France and Colombia respectively, which was later withdrawn by France and has expired) is restricted to nationals of Ukraine, and won’t prolong to crimes dedicated by non-Ukrainian nationals on Ukrainian soil, i.e. within the case at hand notably Russian nationals.

What can be related is that pending its ratification of the Rome Statute, Ukraine had on two events, specifically on 17 April 2014, after which once more on 8 September 2015, lodged two advert hoc declarations beneath Artwork. 12, para. 3 of the Rome Statute, accepting the jurisdiction of the ICC over alleged crimes dedicated on its territory from 21 November 2013 onwards. Therefore, it’s on that foundation that the ICC could since then, and certainly has already, train jurisdiction for crimes coming throughout the jurisdiction of the ICC dedicated on the territory of Ukraine since 21 November 2013 together with, however not restricted to, warfare crimes, as outlined in Artwork. 8 Rome Statute, and whatever the nationality of the perpetrator. Put in any other case, as of as we speak the ICC has jurisdiction additionally so far as attainable warfare crimes dedicated, or to be dedicated, by Ukrainian nationals in the course of the present Russian-Ukrainian armed battle are involved.

This raises the query what’s the interrelationship between the mentioned two Ukrainian advert hoc declarations on the one hand, and its forthcoming accession to the Rome Statute (to be accompanied by the aforementioned restricted Artwork. 124 declaration) on the opposite. Apart from, the event sheds mild on the continued relevance of Artwork. 124 Rome Statute as such.

Genesis of Artwork. 124 Rome Statute

As analyzed in additional particulars elsewhere by me, the very thought of a transitional provision, at the moment nonetheless contained in Article 124 Rome Statute, solely appeared in the course of the final days of the Rome Diplomatic Convention as a way to safe the acceptance of the draft Statute by sure States, however particularly that of France, which not surprisingly later grew to become one of many two (and perhaps quickly three) States which thus far have made use of Article 124 Rome Statute.

Specifically France, in addition to a number of different everlasting members of the Safety Council, had in the course of the negotiation course of taken the view that in regard of at the very least each, warfare crimes and crimes in opposition to humanity, the consent of the State of nationality of the alleged perpetrator ought to be required to ensure that the Court docket to be ready to train jurisdiction, until, clearly, a state of affairs had been referred to the Court docket by the Safety Council. Shortly earlier than the tip of the Rome Diplomatic Convention, and as a part of a political compromise, the components, which thus far continues to be to be present in Article 124 Rome Statute was agreed upon, which, as talked about, empowers a State to, for a interval of seven yr from the date of the entry into power of the Rome Statute for that State, forestall the Court docket from exercising its private or territorial warfare crimes-related jurisdiction so far as the State in query is worried.

What’s essential so far as Ukraine’s purported Artwork. 124 declaration is worried is that such declaration, given its wording, could thus at the very least at first look be restricted in its exclusionary impact to the train of the Court docket’s private jurisdiction (i.e. within the case at hand over Ukrainian nationals) with out on the identical time having any impact on the Court docket’s territorial jurisdiction (i.e. within the case at hand over Russian nationals committing warfare crimes on Ukrainian soil). It’s this query, in addition to the impact ratione temporis of the envisaged Ukrainian Artwork. 124 declaration that may henceforth be thought of. One has to nevertheless first take into account the difficulty of the pending deletion of Artwork. 124 Rome Statute.

Pending deletion of Article 124 Rome Statute

From the very outset, and given its controversial character, Article 124 Rome Statute was topic to a compulsory overview course of. This led, as mentioned elsewhere in additional element right here and Zimmermann right here), to an modification to the Rome Statute which was adopted on the eleventh plenary assembly of the 14th Meeting of States Events on 26 November 2015 by consensus. In step with Artwork. 121, para. 4 Rome Statute, this deletion of Artwork. 124 will nevertheless solely change into efficient as soon as it has been ratified by 7/8 of the present 124 (and as soon as Ukraine itself has ratified the Rome Statute 125) State events of the Rome Statute. Therefore, the modification wants 109 ratifications; thus far, nevertheless, solely 23 State events have ratified the mentioned modification. What’s extra is that not one of the three States which have ratified the Rome Statute after the adoption of the modification offering for the deletion of Artwork. 124 Rome Statute, specifically Armenia, El Salvador and Kiribati, has concurrently additionally ratified the mentioned protocol, nor can or not it’s anticipated that Ukraine will achieve this.

Accordingly possibilities that Artwork. 124 Rome Statute will certainly be deleted within the foreseeable future are, to say the least, slim, if present in any respect. Nonetheless, given that previously solely France and Colombia had made use of Artwork. 124 and each of their Artwork. 124-declarations have lapsed, it had been argued that at the very least de facto Artwork. 124 Rome Statute has misplaced most, if not all, of its relevance (however see Zimmermann right here, p.517 for a considerably extra nuanced view). The actual fact that it appears by now somewhat possible that Ukraine will make use of Artwork. 124 Rome Statute confirms its continued relevance. As a matter of truth, for States contemplating to accede to the Rome Statute and which are at the moment events to an ongoing (non-international or worldwide) armed battle, similar to Colombia on the time of its accession and now Ukraine, making use of Artwork. 124 Rome Statute may even represent a political condicio sine qua non to beat home opposition to acceding to the Rome Statute.

Scope ratione personae of Ukraine’s envisaged Artwork. 124 declaration

As talked about, Ukraine’s future Artwork. 124 declaration will, in contrast to the earlier ones made by France and Colombia, solely intention to divest the ICC from exercising its private jurisdiction over Ukrainian nationals with out on the identical time hindering the Court docket from exercising jurisdiction over nationals of different States, i.e. within the case at hand Russian nationals. This raises the query whether or not such a extra restricted Artwork. 124 declaration is permissible and consistent with the mentioned provision.

This query is to not be blended up with the essentially totally different query of the so-called ‘constructive’ or ‘damaging’ understanding of Artwork. 124 Rome Statute (however see Heller for such proposition). The difficulty of the ‘constructive’ versus ‘damaging’ understanding of Artwork. 124 difficulty solely relates (simply as within the case of the controversy of the damaging versus constructive understanding of Artwork. 121, para. 5 Rome Statute regarding the modification process so far as the crime of aggression is worried) to the query whether or not an Artwork. 124 declaration however the Court docket may nonetheless train its jurisdiction on the idea of the acceptance of the Court docket’s jurisdiction by one other State (‘constructive understanding’) or somewhat not (‘damaging understanding’). Put in any other case this distinction solely pertains to the query as as to if e.g. within the case of France the Court docket might have exercised jurisdiction in case of French nationals committing warfare crimes on the territory of a State social gathering whereas its Artwork. 124 declaration was in power (‘constructive understanding’) or somewhat not (‘damaging understanding’) (for particulars see Zimmermann, right here, Artwork. 123, marginal observe 5). It doesn’t due to this fact relate to the query right here into consideration. What’s extra, opposite to what was claimed (“Zimmerman(sic!)’s entry on Artwork. 124 (…) is (…) unclear”), it has already beforehand been made clear that, whereas a damaging understanding of Artwork. 124 Rome Statute is the right interpretation of the mentioned provision (ibid., marginal observe 7 in nice), any such Artwork. 124 declaration does bar the train of jurisdiction by the Court docket solely “throughout the limits of its content material’, which clearly implies that it is perhaps restricted in its scope.

Such interpretation stands in line, at the beginning, with the very wording of Artwork. 124 Rome Statute (see for such proposition already additionally Zimmermann, Artwork. 124, marginal observe 10), which supplies for such exclusion regarding crimes ‘dedicated by its nationals or on its territory”/”sur son territoire ou par ses ressortissants” (emphasis added). In any other case the textual content would have offered for an exclusion of the Court docket’s jurisdiction ‘crimes dedicated by its nationals and crimes dedicated on its territory”/”sur son territoire et par ses ressortissants”. Apart from, one can not however assume that the Rome Statute goals at offering for as a lot jurisdiction to be exercised by the Court docket as attainable. Lastly, additionally it is value noting, that Artwork. 124 itself supplies for a partial choose out ratione materiae (i.e. regarding warfare crimes solely, however not vis-à-vis genocide and crimes in opposition to humanity) which could have the impact to de facto defend perpetrators from one facet of a battle (who may need dedicated warfare crimes, however not crimes in opposition to humanity or acts of genocide), whereas perpetrators from the opposite facet may nonetheless be prosecuted for having dedicated these different classes of crimes. There may be thus cause to imagine that Artwork. 124 didn’t wish to foreclose one other partial choose out ratione personae (as now envisaged by Ukraine) both.

The little or no follow by simply two contracting events, i.e. France and Colombia, which had excluded each, the Court docket’s jurisdiction ratione loci and rationae personae of their respective Artwork. 124 declaration can neither be thought of to be normatively related in any method by any means (however see Heller: “which may be why France and Colombia every handled the Court docket’s territorial and nationality jurisdiction as package deal deal after they issued their Artwork. 124 declarations”).

Nonetheless, at the very least as a matter of judicial coverage, this leaves a considerably bitter style as solely attainable warfare crimes dedicated by people preventing on one facet of the armed battle in Ukraine will then be topic to the Court docket’s jurisdiction.

Artwork. 124 and the Court docket’s (continued) jurisdiction on the idea of Ukraine’s advert hoc declarations

Up to now the Court docket’s jurisdiction vis-à-vis Ukraine relies on its advert hoc declarations made prior to now beneath Artwork. 12, para. 3 Rome Statute. This raises the query whether or not they may change into out of date as soon as the Rome Statute will enter into power for Ukraine consistent with Artwork. 126, para. 2 Rome Statute at the very least so far as the Court docket’s jurisdiction from that cut-off date onwards is worried.

But, provided that Artwork. 124 solely makes reference to Artwork. 12, para. 1 and a couple of Rome Statute (however to not Artwork. 12, para. 3), the Court docket will proceed to have the ability to train jurisdiction over Ukrainian nationals so far as any attainable warfare crimes they could have dedicated previous to the entry onto power of the Rome Statute for Ukraine. Put in any other case, the long run Ukrainian declaration to be made beneath Artwork. 124 won’t have retroactive impact. It’s nevertheless much less clear whether or not this result’s additional confirmed (however see Heller for such considerably undercomplex proposition) by the truth that Artwork. 124 refers back to the State in query not accepting the Court docket’s jurisdiction “for a interval of seven years after the entry into power” of the Statute (emphasis added; for extra particulars on the temporal scope of Artwork. 124 declarations see Zimmermann, Artwork. 123, marginal observe 9). As a matter of truth, this ‘after the entry into power’ components may additionally be interpreted to exclude the Court docket’s jurisdiction for a seven yr ready interval in toto whilst far attainable warfare crimes dedicated ex ante are involved for which the Court docket would in any other case have jurisdiction on the idea of a previous Artwork. 12, para. 3 declaration.

Extra sophisticated is the interrelationship between these earlier (‘limitless’) advert hoc declarations and the Ukrainian accession (to be mixed with an Artwork. 124 declaration). As a matter of truth the Court docket has been be adamant, together with by adopting Rule 44 RPE and in its jurisprudence (see for particulars Heler), about ensuring that Artwork. 12, para. 3 declarations usually are not misused to restrict the Court docket’s jurisdiction to crimes dedicated by one facet to an (armed) battle solely. This raises the query whether or not, as soon as such State later turns into a contracting social gathering, it might simply attain such purpose at the very least partially so far as warfare crimes are involved by making use of Artwork. 124 Rome Statute.

It’s submitted that any Artwork. 12, para. 3 declaration doesn’t robotically unfastened its authorized relevance advert futurum as soon as a State that has beforehand made such a declaration accedes to the Rome Statute. As a matter of truth, a State acceding to the Rome Statute may even have an curiosity to have e.g. sure of its nationals which are concerned in an armed battle as overseas mercenaries in a separate armed battle to be nonetheless topic to the Court docket’s warfare crimes associated jurisdiction on the idea of a situation-specific earlier advert hoc declaration, whereas on the identical time submitting an Artwork. 124 declaration excluding its nationals in any other case from the Court docket’s private warfare crimes-related jurisdiction when ratifying the Rome Statute.

The ultimate query then arises whether or not such State could nevertheless on the very least on the time it accedes to the Rome Statute present that its Artwork. 12, para. 3 declaration will change into ineffective as soon as the Rome Statute enters into power for mentioned State. As a matter of truth, there is no such thing as a provision within the Rome Statute that precludes  such chance. What’s extra is that in accordance with the ILC’s ‘Guiding Rules relevant to unilateral declarations of States able to creating authorized obligations’ unilateral declaration made by a State can’t be revoked provided that completed arbitrarily. But, the actual fact of a State acceding to the Rome Statute offering in its Artwork. 124 expressis verbis for the opting out chance as to warfare crimes revoking an all-embracing Artwork. 12, para. 3 declaration together with the Court docket’s warfare crimes-related jurisdiction can’t be perceived as being arbitrary in nature. (see in the identical vein Heller). It’s uncertain, nevertheless, whether or not a one yr ready interval (as proposed by Heller) in analogy with Artwork. 127 Rome Statute is acceptable. Moderately, as a way to keep away from frictions with the Court docket’s treaty-based jurisdiction it appears that evidently acceding States should be entitled to terminate their Artwork. 12, para. 3 declarations with impact on the primary day of the month after the sixtieth day following the deposit by such State of its instrument of accession, i.e. on the time the State turns into sure by the treaty by advantage of Artwork. 126, para. 2 Rome Statute. On the identical time, it must be assumed that in analogy with Artwork. 127, para. 2, 2nd sentence Rome Statute a State terminating its Artwork, 12, para. 3 declaration stays obliged to cooperate with regard to pending proceedings within the foundation of such a declaration, the exclusion advert futurum of the Court docket’s warfare crimes-related jurisdiction by advantage of an Artwork. 124 declaration however (see additionally Heller for a similar proposition)

Concluding remarks

By 2024, the Rome Statute has now been in power for 22 years. On the identical time  it appears that evidently it has, by now, exploited nearly all of its potential of attracting additional ratifications. It’s thus much more to be welcome {that a} State like Ukraine, sufferer of an armed aggression and social gathering to a serious enduring armed battle threating its very existence, by now considers becoming a member of the Rome Statute.

Submitting concurrently a declaration beneath Artwork. 124 Rome Statute may thus be thought of a comparatively small worth to be paid to ensure that such step to be taken by Ukraine much more so since different States have completed so in considerably much less precarious conditions, France being a very related instance at hand. One may wonder if Ukraine would have even thought of in any respect acceding to the Rome Statute offered the modification deleting Artwork. 124 Rome Statute was already in power.

Solely time will inform whether or not on the long run what impact, if in any respect, the deletion of Artwork. 124, if ever it had been to happen, may then have on attainable future ratifications of the Rome Statute, offered additional ratifications of the Rome Statute is perhaps forthcoming within the subsequent years. In any case, it appears that evidently generally, because the saying has it, the information of the dying of Artwork. 124 Rome Statute had been untimely.