[Ailsa McKeon is a BA/LLB (Hons I) from the University of Queensland.]
Growing numbers of men and women are travelling to the Middle East to fight for ‘ISIS’. Political figures from several Western nations, including Australia, the UK, Canada and Norway, have publicly asserted that these individuals should be stripped of citizenship of their countries of origin to protect, punish and deter. Yet, however well-intentioned this strategy may appear, it could also have negative consequences for the ICC’s jurisdiction if these individuals are accused of crimes within its remit.
Revocation of citizenship is contrary to international law if it renders any individual stateless. It is possible nonetheless, as shown, for example, by Burma/Myanmar’s treatment of Rohingya people. The idea is less controversial when applied to those with multiple nationalities who would retain at least one. Regardless, revocation of citizenship in any case would be a complicating factor for ICC jurisdiction.
Art 25(1) of the Rome Statute gives the ICC jurisdiction over natural persons only. Art 12 sets out the preconditions for the ICC’s exercise of jurisdiction in relation to the crimes specified in Art 5(1). Essentially, it requires the State on whose territory the relevant conduct occurred, or of which the person accused of the crime is a national, to be a party to the Rome Statute or to have consented to the Court’s jurisdiction in respect of the particular crime alleged. The exception is where the UN Security Council, acting under Chapter VII of the UN Charter, refers a situation to the Prosecutor in which a crime within the ICC’s competence appears to have been committed. The ICC can then exercise jurisdiction whether or not the relevant State is a party. However, such referrals may be impeded by the exercise of the veto power by any of the five permanent Security Council members.
Where an individual commits acts alleged to constitute crimes within the ICC’s jurisdiction before revocation, they can be pursued as a national of a ratifying nation based on Art 12(1): that is, at the time the crime is said to have been committed, the person was a national of a State Party, which, by becoming a State Party, accepted the court’s jurisdiction over its territory and nationals. Subsequent withdrawal of citizenship cannot change that. However, the ability later to exercise that jurisdiction is a distinct issue, as will be discussed below in relation to Art 127.
In the reverse situation, where an individual commits such conduct only after withdrawal of citizenship of a State Party, the existence of jurisdiction is unlikely. It seems that in the continued absence of territorial jurisdiction, the ICC would be unable to commence proceedings due to lacking jurisdiction ratione personae. This challenging prospect presently confronts the ICC, as Western nations foreshadow action to revoke citizenship of foreign fighters. Prosecutor Bensouda released a statement in April 2015 indicating that, although the situation continues to be monitored, the Office of the Prosecutor is not currently in a position to commence investigation or prosecution of any individual involved with ISIS from a State party. As the Prosecutor observes, neither Iraq nor Syria (nor many of their neighbouring States) is party to the Rome Statute: as such, the ICC would rely on personal jurisdiction to prosecute any foreign fighter alleged to be most responsible for mass crimes. In the event that personal jurisdiction is removed, the ICC would be rendered powerless over such individuals.
The situation with respect to crimes continuing either side of revocation is more indeterminate, in the same manner as continuing crimes commenced prior to the Rome Statute’s entry into force. This is relevant because the precise point at which revocation of citizenship would take effect with respect to any particular individual under various national legislative regimes is unknown.
The most direct analogy as to loss of jurisdiction over continuing crimes arises under the Statute of the ICTR. (Similar circumstances affect the ECCC, however the issue has not been addressed there.) Art 7 defines the ICTR’s temporal jurisdiction to “extend to a period beginning on 1 January 1994 and ending on 31 December 1994”. The ICTR held in the Nahimana appeal that “[criminal] responsibility could not be based on criminal conduct prior to 1 January 1994, but… evidence of pre-1994 acts could nonetheless have probative value”. However, nothing was said in that case of conduct occurring after 31 December 1994; the same conclusion cannot necessarily be drawn regarding the evidentiary value of subsequent conduct as to possible earlier criminality in this context. Regardless, this ruling seems to confirm the view that jurisdictional limits are applied strictly, even for continuing crimes that are commenced before, but not completed until after, jurisdiction is removed. Loss of jurisdiction by the ICC would therefore prevent determination of culpability or innocence.
A less obvious parallel may be drawn with the law of diplomatic protection. Where an individual with immunity loses nationality of the State from which it was derived prior to commencement of criminal proceedings, the individual will also lose the protection of that State in respect of a wrong they committed while its national. As a result, proceedings may ensue against an individual who had held diplomatic protection at the time of allegedly committing a wrong, where otherwise they could not. However, that situation is distinguishable from the one of present concern: there, a pre-existing bar is removed so that jurisdiction is allowed, while in the case of revocation of citizenship, jurisdiction exists until its substratum is displaced by the revocation. This does not speak in favour of ICC jurisdiction existing in respect of continuing crimes where the elements of the crime are not complete until after citizenship is revoked.
A contrasting analogy may be made with the withdrawal of ratification of the Rome Statute. Art 127(2) states:
“… [a State Party’s] withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”
This provision foresees politically-motivated withdrawals and operates so that the ICC retains the ability to exercise jurisdiction over individuals already being investigated or prosecuted, despite the State Party’s ouster of its jurisdiction otherwise. Art 127 explicitly applies only to State Party withdrawal from the entire Rome Statute, operating to displace the rebuttable presumption that a treaty cannot be denounced unilaterally unless it is shown that this possibility was intended by the parties or that a right of withdrawal exists by implication from express terms.
The obverse consequence implied by Art 127(2) is that proceedings may not be commenced in the ICC in respect of the territory or nationals of a State that has withdrawn with effect as per Art 127(1). This position seems also to apply to persons whose citizenship of a State Party has been revoked, even where a continuing crime was allegedly commenced while citizenship of a State Party remained in force, for the reason observed earlier that such jurisdiction has been lost by the time the crime is complete. Further, given its specificity, Art 127 cannot be applied directly to revocation of citizenship to suggest that jurisdiction will continue over individuals whose investigation or prosecution has been commenced, but whose citizenship is subsequently revoked. Rather, in the absence of express provision to that effect, it appears that proceedings would have to be abandoned. This proposition is confirmed by the terms of Art 12(2), which relevantly provides that “the Court may exercise its jurisdiction if… the State of which the person accused of the crime is a national” is a State Party or has accepted the jurisdiction of the Court in accordance with Art 12(3). Although the crime remains within the ICC’s competence, personal jurisdiction is absent where the person is no longer a national of a ratifying State.
Were any ratifying nation to follow through with revoking a foreign fighter’s citizenship, it is arguable that this act would breach the obligation under Art 86, “in accordance with the provisions of [the] Statute, [to] cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” In fact, it would make it substantially more difficult for the ICC to pursue individuals suspected of involvement in the most egregious crimes where those crimes are not commenced or completed until after the revocation.
This issue is a live one. Foreign fighters are firmly positioned within ISIS’s leadership structure and in active operations, while allegations of war crimes and crimes against humanity have already been made against the group. There is a clear possibility that foreign fighters may warrant investigation and prosecution by domestic or international authorities. It should therefore be of concern that an essentially administrative act by a State Party may seriously impede ICC involvement where a State is unwilling or unable to proceed.