Appeals Chamber Confirms Retroactive Ad Hoc Jurisdiction

by Kevin Jon Heller

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.

8 Responses

  1. Dear all,
    following the English wording of Art. 11 (2) I think it is pretty clear that André’s interpretation is more accurate, for it clearly appears that the declaration has to be made prior to the entry into force. 
    However, this argument is refutable. The French version of Art. 11 (2) – being equally authentic (according to Art. 128) – provides, that :  “Si un État devient Partie au présent Statut après l’entrée en vigueur de celui-ci, la Cour ne peut exercer sa compétence qu’à l’égard des crimes commis après l’entrée en vigueur du Statut pour cet État, sauf si ledit État fait la déclaration prévue à l’article 12, paragraphe 3 (italics added).”
    Nota bene, the correct translation of the English wording would have been sauf si ledit Ètat a fait la declaration”. Or the English translation of the French text would be, unless the Sate “ makes a declaration”.
    Accordingly, a simple interpretation of art. 11 (2) according to Art. 31 (1) VCLT won’t settle this problem.
    Does the Appeals Chamber refer to the ambiguous wording of Art. 11 (2) at some point?

  2. I agree with the retroactivity analysis of the Rome Statute that you presented, and which the Appeals Chamber appears to have confirmed. However, I have two general questions.

    First, what leads you to believe that Palestine could only accept jurisdiction retroactively to when it first became a State, and not retroactively to when the Statute first came into force, even if that was prior to the moment that Palestine became a State? Israel’s exercise of criminal jurisdiction over Eichmann for acts done prior to Israeli Statehood serves as precedent for the proposition that States can exercise criminal jurisdiction over universal jurisdiction crimes committed prior to when they became a State. And if they may lawfully exercise such jurisdiction, then they may transfer it to the ICC. It appears that all that the Statute requires is that the entity conferring jurisdiction on the Court by means of an Article 12(3) declaration be a State at the time of the declaration. (Perhaps jurisdiction under Article 12(2)(a) requires that the act was done on territory that belonged to that State at the time of commission? But does jurisdiction pursuant to Article 12(2)(b) require that the act was done by a person who was a national of the State at the time of commission, or would the Court have jurisdiction over someone who subsequently became a national of a State Party?)

    Second, I wonder whether the issue of Statehood is the only hurdle to the exercise of jurisdiction. In this regard, I would ask the following:

    1) Do the Oslo Accords bind the Palestinian State? There could be some sort of analogy to Art. 10 of the Draft Articles on State Responsibility (“The conduct of an insurrectional movement which becomes the new Government of a State shall be considered an act of that State under international law.”) Of course, that Article deals with the attribution of conduct for the purposes of State Responsibility, and not for the purposes of the continuance of legal obligations.

    2) If so, is Article XVII of the Interim Agreement properly interpreted as an legally-binding agreement by Palestine not to exercise criminal jurisdiction in Area C or over Israeli citizens, at least as an interim matter (i.e., until negotiations are successful)?

    3) If so, may the Palestinian State cede criminal jurisdiction which it has agreed not to exercise to the ICC?

    4) If not, may the ICC, consistently with the principle of due process, exercise criminal jurisdiction that was not legally ceded to it?

    It’s pretty apparent that there are a number of debatable points in the argument I just sketched out. In particular, even if the first three points are correct, the fourth does not necessarily follow, as any putative agreement under the Oslo Accords not to exercise criminal jurisdiction over Area C or Israeli citizens would exceed the limits of an Article 98(2) agreement that the Court must recognize.

    Nevertheless, I do believe that, should any case ever actually be brought, this due process issue will be raised alongside any issues of Statehood. Also, I would expect a third defense argument along the lines that the green line, as an armistice line and explicitly not a former international frontier between Israel and Jordan, does not establish the border of the occupied territory, and thus there is no relevant frontier for determining whether the obligation of non-transfer of ones population into occupied territory has been breached.

    I’d love to hear your thoughts on these issues as I am completely uncertain about them.

  3. Daniel Wisehart: I read the English text differently. The phrase “has made a declaration” means that the State must have made a declaration prior to some other event. There are three events mentioned earlier in the Article 11(2): 1) the State becoming Party to the Statute; 2) the Statute’s entry into force; 3) the Court’s exercise of jurisdiction. In my view, the most natural way to read the temporal scope of the phrase “has made a declaration” would be as referring to the third event, which is closest to it in the sentence. In other words, the State must have made an Article 12(3) declaration prior to the Court’s exercise of jurisdiction–not prior to the coming into force of the Statute. As you note, the French text supports this view.

    Furthermore, I think the relationship indicated by the use of the present perfect tense in English is one of logical priority, not temporal priority. Thus, as a logical matter, a State must have made an Article 12(3) declaration so that the Court can exercise retroactive jurisdiction–one is logically prior to the other. As a temporal matter, it seems likely that the general rule that all of the requirements of jurisdiction must exist at the moment the Court is seized should apply. Thus, the Article 12(3) declaration must be lodged at a time prior to the indictment if the Court is to be permitted to exercise retroactive jurisdiction pursuant to it. The French text also accords with this view.

  4. Thanks Kevin for keeping track of the developments at the ICC (I am not tracking them in such a detailed manner). The Appeals Chamber certainly weighs in on your side, though it does not appear to have considered the question of retroactive jurisdiction in too much detail. This can be explained, of course, by the fact that Gbagbo argued that the jurisdiction accepted in a declaration under article 12(3) of the Statute cannot be prospective.

    The point that Daniel raises also weighs in on the side of Kevin’s position, though there are some difficulties with this. First, the French text of article 11(2), speaking in the present tense as it does, would appear to allow any State becoming a party to make the declaration of article 12(3). This still appears to rule out an actual State party making such a declaration, putting it in a position of inequality with non-parties. Secondly, article 12(3), allowing a declaration accepting the Court to exercise its jurisdiction over the crime in question, does not address the retroactive or prospective character of such jurisdiction. The Appeals Chamber’s decision therefore supports Kevin’s position, but also does not provide any arguments on the issue whether retroactive jurisdiction is covered.

    The Appeals Chamber, as far as I can tell from a quick scan, does not address the ambiguities involved; having taken a look at the Spanish text of article 11(2) of the Statute (“… a menos que éste haya hecho una declaración de conformidad con el párrafo 3 del artículo 12.”), it seems to me that it does not use present tense, but I don’t know Spanish so I could be mistaken. Perhaps other colleagues could chip in on the differences in the various language versions.

  5. André: The Spanish is present perfect, like the English. As for your note about the French, I’m unsure if you are translating “devient” as “becoming”. That would be “devenant”. In any case, all three languages use the present tense for the first verb (i.e., If a State “becomes” a Party), while English and Spanish refer use the present perfect for the final verb (i.e., unless it has made a declaration), while French uses the present (i.e., unless it makes a declaration). As I see it, the French text simply doesn’t indicate when the declaration needs to have been made, while the English and Spanish texts require the declaration to have been made prior to some event, most likely the date of the exercise of jurisdiction (or, as I see, simply logically prior to that event).

    The Arabic, from what I know of the language (2 years of study in university) seems to confirm this, although someone who knows the language in practice will have to look at this more closely. The first verb is in the past tense (إذا أﺻﺒﺤﺖ دوﻟﺔ ﻣﻦ اﻟﺪول ﻃﺮﻓﺎ=If a State became a Party). The final verb is in the present perfect tense (ﻣﺎ ﻟﻢ ﺕﻜﻦ اﻟﺪوﻟﺔ ﻗﺪ أﺻﺪرت إﻋﻼﻧﺎ=unless the State has made a declaration), and not in the past perfect tense (which would be ما لم كانت الدولة قد أﺻﺪرت إﻋﻼﻧﺎ=unless the State had made a declaration). In my view, this is meaningful. Unlike the European languages, the Arabic version of this text is drafted not from the perspective of an observer at the moment the State becomes (present tense) a Party. Rather, it is drafter from the perspective of an observer at some later date, such that the State becoming a Party is considered a past event. If the drafter had meant to indicate that the declaration had to have been made prior to the State becoming a Party, it would have had to use the past perfect tense for the declaration. However, it only uses the present perfect tense, indicating that the declaration need only have occurred prior to the perspective of the later observer, and not prior to the State’s becoming a Party. Furthermore, the text indicates that the entry into force of the Statute occurred even prior to the State’s becoming a Party. Thus, it is pretty clear to me in the Arabic version that the implication is that the declaration need only have been made prior to the perspective of the observer. In all likelihood, the observer should be situated at the date of the exercise of jurisdiction, which is the only other event mentioned in the paragraph.

    In any case, all of this language is taken from Article 11(2). I don’t think Article 12(3) changes anything. As I see it, Article 12(3) is a broader provision, permitting States to make declarations for various purposes and at various times. On its face, it deals with the situation of a non-State Party making a declaration recognizing the jurisdiction of the Court over the crime in question. Article 11(2) specifies that another use of an Article 12(3) declaration is to permit a State which becomes a Party to the Statute to recognize the Court’s retroactive jurisdiction. The grammatical analysis (which could certainly be supplemented by a rational one) indicates that Article 11(2) permits an Article 12(3) declaration to have this effect so long as it is done prior to the exercise of jurisdiction (or rather, indicates that such a declaration is a logical prerequisite for the exercise of retroactive jurisdiction).

  6. Russian seems to bolster the point. I know Polish, not Russian, but the grammatical principles are similar: the first verb is in the present, while the final verb is in the simple future (i.e., it is the present-tense form of a perfective verb, and thus refers to a single action occurring sometime in the future). Thus, if the perspective is from an observer presently at the time the State becomes a Party (and after the Statute has come into force), the use of the simple future indicates that the declaration has yet to be made at that moment.

    Can anyone comment on the Mandarin text?

  7. Thanks Daniel for a very elaborate and consolidated response, and with further explanation even of the Arabic language version (NB: my earlier reference to Daniel was to Daniel Wisehart; I was writing my comment when the next Daniel responded). However, I disagree with this interpretation for various reasons.

    First, article 12(3) specifically allows declarations by non-parties and there is no indication whatsoever in that provision that parties could also make the declaration referred to in paragraph 3.

    Secondly, the language of article 11(2) clearly suggests a ‘general rule’ and ‘exception’ structure. Thus article 11 stipulates that the jurisdiction of the Court is prospective (paragraph 1) and in particular that it is prospective with respect to any particular State that becomes a party later than entry into force of the Statute at its temporal baseline in 2002 (first part, paragraph 2).

    Thirdly, it is clear that the exception of the second part of paragraph 2 refers back the first part of that same paragraph and not to paragraph 1. Hence, the jurisdiction that might exist before entry into force for any particular State that becomes a party is dependent on that State having made (or in the French text, makes) a declaration under article 12(3), i.e. when it is a non-party.

    Finally, the problem then is that everybody reads into article 12(3) that the declaration could establish retroactive jurisdiction (back to the temporal baseline of entry into force in 2002), even though the text of article 12(3) does not specify this. The decisions emanating from the ICC in relation to Ivory Coast support retroactive jurisdiction, but do not provide argument on the interpretation of the relevant provisions.

  8. André, Thanks for the response. As I see it, the crux of your argument is that Article 12(3) only provides for declarations by non-Parties, and thus that the reference to it in Article 11(2) must refer to a declaration occurring before the State becomes a Party. I see the force of the point and note that Kevin responded to it last time around by asserting that Article 12(3) was not precisely drafted, which is what I had assumed in the past. I’ll have to think about it. If Article 12(3) did not limit itself to declarations by non-parties, the ordinary meaning of Article 11(2) would be clear to me as noting that the general rule is that jurisdiction is not retroactive, but that Parties can make a special declaration accepting retroactive jurisdiction if they wish. However, you are right that Article 11(2) must be read in the context of Article 12(3) and I’ll have to think about it. In any case, given that positions like Kevin’s rely on the view that Article 12(3) was not precisely drafted, a prudent counsel to the Palestinians would advise them to make a “retroactive” 12(3) declaration as a non-Party prior to acceding to the Statute. That would be their best chance of obtaining retroactivity, if that is in fact what they want.

    If retroactivity is possible, I’m still interested in the next question: whether it would be bounded by the date at which Palestine became a State (assuming that it later than the date of entry into force in 2002), or whether Palestine could retroactively accept jurisdiction over acts done back to the 2002 entry into force of the Statute that were performed on its current territory and by its current nationals. Is there any limit in the Statute or inherent in the concept of due process that would bound the retroactive effect to the period during which Palestine was a State?

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