The ICC’s Retroactive Jurisdiction, Revisited

[Alexander Wills is an LLM student at Leiden University]

Kevin’s earlier posts (here, here and here), and the robust discussion they provoked, centred on two key questions:

• Can Article 12(3) declarations can have effect retroactively; and
• Can State Parties lodge declarations under Article 12(3)?

I don’t propose to repeat the points Kevin made earlier, but to briefly provide some additional material suggesting an affirmative answer to both questions.

Rule 44(1)

Rule 44(1) of the Rules of Procedure and Evidence provides that

The Registrar, at the request of the Prosecutor, may inquire of a State that is not a Party to the Statute or that has become a Party to the Statute after its entry into force, on a confidential basis, whether it intends to make the declaration provided for in article 12, paragraph 3.

This clearly suggests that State Parties for whom the Statute entered into force after 1 July 2002 can make article 12(3) declarations.  Any such declaration would also necessarily be retroactive, as the Court would already have jurisdiction prospectively under Articles 11(2) and 12(1).  Rule 44(1) thus apparently envisions a situation in which the Prosecutor wishes to open an investigation into crimes committed in a state that later became party to the Statute, and asks that state whether it would accept the exercise of the Court’s jurisdiction over those earlier crimes.

Kony

In addition to Laurent Gbagbo and Côte d’Ivoire’s 12(3) declaration, the Pre-Trial Chamber also obliquely touched on both questions in issuing arrest warrants for Kony and his co-defendants.  Uganda is a State Party, but the Statute only entered into force for it from 1 September 2002.  In order to fill the temporal gap between 1 July and 1 September, the Prosecution relied on Uganda’s ‘Declaration on Temporal Jurisdiction’, presumably made under Article 12(3), which purported to retroactively accept the exercise of the Court’s jurisdiction from 1 July 2002.  The Pre-Trial Chamber acknowledged the Ugandan declaration and issued the arrest warrants for Kony and his co-defendants in respect of crimes allegedly committed since 1 July 2002.  In doing so it implicitly endorsed the Ugandan declaration, even though it was made after Uganda became a State Party and purported to accept the Court’s jurisdiction retroactively.

However, as a disclaimer it should be noted that none of the charges against Kony and his co-defendants actually concerned conduct occurring between 1 July and 1 September 2002, and thus the question of the Court’s temporal jurisdiction during this period was not technically in issue and therefore may not have been closely scrutinised by the Pre-Trial Chamber.

Travaux to article 12(3)

Finally, the travaux to article 12(3) show that the non-party acceptance mechanism was always viewed as being retroactive in nature.  In the 1994 ILC Draft Statute, the Prosecutor could only initiate an investigation following a State Party’s complaint, and the Court could only exercise its jurisdiction over a person with respect to a crime if (at a minimum) both the custodial and territorial states consented.  State Parties could ‘opt in’ by making a general or limited acceptance of the Court’s jurisdiction.  However, under Article 22(4) non-party custodial or territorial states could only consent on an ad hoc basis where their consent was necessary for the Court to exercise its jurisdiction – that is, after a complaint had already been made.

This ad hoc, retroactive mechanism was retained with occasional minor changes in wording in the various successive drafts, including the 1998 Preparatory Committee draft that formed the basis for negotiations at the Rome Conference.  Indeed, the final Statute Article 12(3) was drafted in terms almost identical to Article 22(4) of the 1994 ILC Draft.  A review of the travaux thus reveals a clear understanding at all stages of the process that non-party declarations would be ad hoc and have retroactive effect.  If anything, the general or prospective effect of such declarations would appear to be less well-founded (though it has of course now been upheld by the Appeals Chamber in Laurent Gbagbo).

Conclusion

None of the above points, nor those made by Kevin, are completely dispositive: the unclear drafting of Article 12(3), read in conjunction with Article 11(2), has made sure of that.  However, unless and until the Assembly of States Parties gets around to fixing it, there are nevertheless a number of compelling reasons to believe that Article 12(3) declarations can be made by State Parties, and that they can have retroactive effect.