Appeals Chamber Confirms Retroactive Ad Hoc Jurisdiction
I had an interesting — and respectful — disagreement with André de Hoogh last week concerning the right of non-states parties to retroactively accept the jurisdiction of the Court pursuant to Article 12(3) of the Rome Statute. I argued in my post that Palestine could accept the Court’s jurisdiction retroactive to whenever it became a state under international law. Andre challenged that claim in the comments, arguing that “[i]n view of the clear intention expressed in article 11(2) to grant the Court only prospective jurisdiction in regard to members, there is no compelling reason or rationale to judge this issue differently for non-members under article 12(3).”
As if on cue, the Appeals Chamber has just weighed in on the retroactivity issue in the context of Cote d’Ivoire’s ad hoc acceptance of the Court’s jurisdiction under Article 12(3). Cote d’Ivoire filed its Article 12(3) declaration on 18 April 2003 but accepted the Court’s jurisdiction retroactive to 19 September 2002. Laurent Gbagbo later challenged the temporal scope of the declaration, arguing that it applied only retroactively — that it gave the Court jurisdiction over events that occurred between 19 September 2002 and 18 April 2003, but not over events that occurred subsequent to 18 April 2003. (Which would obviously mean the Court did not have jurisdiction over the crimes with which he is charged.) The Appeals Chamber rejected that argument, and in doing so it made clear that Article 12(3) permits non-member states to accept the Court’s jurisdiction both retroactively and prospectively:
83. In this context, the Appeals Chamber notes that the Statute also serves the purpose of deterring the commission of crimes in the future, and not only of addressing crimes committed in the past. This supports the interpretation that article 12 (3) of the Statute does not prevent a State from accepting the jurisdiction of the Court prospectively, with the consequence that the Court has jurisdiction in respect of any future events that may fall within one or more of the categories of crimes in article 5 of the Statute, as applicable.
84. The Appeals Chamber therefore concludes that the phrase “crime in question” in article 12 (3) of the Statute neither limits the scope of a declaration to crimes that occurred in the past nor to crimes committed in a specific “situation”. A State may accept the jurisdiction of the Court generally.
This is an important decision, because it means that Article 12(3) would permit Palestine to accept the Court’s jurisdiction retroactive to when it became a state. (A difficult question, one I did not attempt to answer in my post.) It also means that Palestine could submit an Article 12(3) declaration and then immediately ratify the Rome Statute, thus becoming an ICC member-state while preserving the Court’s retroactive jurisdiction.
Whether the Palestinians will pursue either course remains to be seen.