[John B. Bellinger III is a partner in the international and national security law practices at Arnold & Porter LLP in Washington, DC and an adjunct senior fellow in international and national security law at the Council on Foreign Relations. He served as The Legal Adviser for the Department of State from 2005–2009.]

Julian invited me to respond to his post about my op-ed on the international law applicable to intervention in Syria.

It is not accurate to say that the op-ed “endorses non-legal intervention in Syria.” Indeed, it does not “endorse” intervention at all.

But I can see how Julian may have been misled, since he linked to a reprint in the San Antonio Express News of my original op-ed in the Washington Post. The Texas paper (perhaps not surprisingly, given views of international law in Texas) entitled my article “International law has failed Syria; it’s time to intervene” — which was quite the reverse of what the op-ed said. The Washington Post more accurately titled my article (in the print editions): “Aiding Syria: Easier said than done — International law presents many obstacles to a quick U.S. intervention.” (Note: Op-ed writers don’t get to approve the headlines given to their articles.)

In fact, I pointed out that the Obama Administration had been prudent to be cautious about intervening in Syria. I said:

Intervention without an international legal basis could make it more difficult for Washington to criticize other countries if they intervene in neighboring states based on less laudable motives. Inserting more arms into an already unstable region risks more bloodshed, and those weapons could fall into the hands of groups hostile to U.S. interests, as happened in Libya.

But I added that “As the violence in Syria increases…the president is likely to feel compelled to provide more than political support and non-lethal aid.”

Julian asks at the end of his post:

If one really thought international legality was so crucial, wouldn’t it be better to seek out a plausible legal theory, rather than simply rely on muddy political formulations? For instance, wouldn’t it be easier just to recognize the Syrian opposition as the government of Syria, and get their consent?

In fact, I suggested exactly this possibility. I said

If the Syrian Opposition Council becomes more inclusive and can legitimately claim to represent the majority of Syrians, and if it excludes terrorist groups and other extremists, the administration may conclude that it is legally permissible to provide military assistance based on the council’s consent.

Of course, there are also other potential legal rationales for intervention, including a possible argument for a No Fly Zone that would extend from Turkey into Syria, based on a Turkish theory of self-defense. But I did not have space to describe these alternative theories.

There are counter-arguments to each of these theories. So I also noted the possibility that

the administration could intervene in a limited way to protect civilians without asserting a legal basis, as the Clinton administration did with its participation in the 1999 NATO bombing campaign of Kosovo, to protect Kosovars from atrocities committed by Serbia.

My concluding paragraph did not endorse intervention. It simply stated that if the violence in Syria continues, the Obama Administration (and other governments) “may” conclude that they need to intervene, whether they can come up with a good legal basis or not.

The indefatigable Glenn Greenwald has unearthed an even more appalling appropriation of Dr. King by the military — a Department of Defense news article entitled “King Might Understand Today’s Wars, Pentagon Lawyer Says.”  The lawyer in question is none other than Jeh Johnson, former DoD General Counsel.  Here is what he says:

In the final year of his life, King became an outspoken opponent of the Vietnam War, Johnson told a packed auditorium. However, he added, today’s wars are not out of line with the iconic Nobel Peace Prize winner’s teachings.

“I believe that if Dr. King were alive today, he would recognize that we live in a complicated world, and that our nation’s military should not and cannot lay down its arms and leave the American people vulnerable to terrorist attack,” he said.

This is a stunning example of the myth I mentioned in my previous post — that US violence is always used for noble purposes and always promotes peace.  Nearly everything that Dr. King said about Vietnam applies with equal force to the war on terrorism; now as then, instead of trying to understand the complicated relationship between the US and its supposed enemies, the US simply assumes it can kill its way to peace and security.  Not to put too fine a point on it, but the idea that Dr. King would support the US drone program and the war in Afghanistan (to say nothing of the war in Iraq) is both completely absurd and an insult to his memory.

I am very rarely rendered speechless, but this appropriation of Martin Luther King by the Air Force Global Strike Command Programming Division (nearly) did the trick:

The Department of Defense is a leader in equal opportunity for all patriots seeking to serve this great nation. . . The vigilant warriors in AFGSC understand they are all equal and unified in purpose to provide a safe, secure and effective deterrent force for the United States. . .

Dr. King would be proud to see our Global Strike team – comprised of Airmen, civilians and contractors from every race, creed, background and religion – standing side-by-side ensuring the most powerful weapons in the U.S. arsenal remain the credible bedrock of our national defense. . . Our team must overlook our differences to ensure perfection as we maintain and operate our weapon systems. . . Maintaining our commitment to our Global Strike team, our families and our nation is a fitting tribute to Dr. King as we celebrate his legacy.

It is a wonderful thing that the US military is desegregated.  And the military deserves credit for so rapidly adjusting to the end of “Don’t Ask, Don’t Tell.”  But to say that maintaining the strength of the US military is a “fitting tribute” to Dr. King is simply perverse. I can’t do better than Glenn Greenwald, who wrote a great post yesterday about the phenomenal speech Dr. King gave at Riverside Church in NYC on 4 April 1967 condemning US militarism and advocating refusal to serve in the military.  I’ll simply offer a few paragraphs from the speech about the US’s “liberation” of Vietnam…

As a gauge of the temperature of the American foreign policy establishment, it is hard to do better than the Council on Foreign Relations.  And that uber-establishment organization has recently released a pretty hard-hitting critique of the Administration’s drone strike policy.  It is not a knee-jerk attack, but a substantive policy critique, part of which is that existing laws aren’t quite sufficient to regulate drone attacks properly.  Hence, the U.S. should:

■ explicitly state which legal principles apply—and do not apply—to
drone strikes and the procedural safeguards to ensure compliance to
build broader international consensus;
■■ begin discussions with emerging drone powers for a code of conduct
to develop common principles for how armed drones should be used
outside a state’s territory, which would address issues such as sovereignty,
proportionality, distinction, and appropriate legal framework;

Relatively uncontroversial stuff, although easier said than done.  I do sense a slight shift in the establishment, which is moving very slightly against drone strikes.  But it will be interesting to see whether this shift turns into a broader based policy change.

Former Bush State Department Legal Adviser John Bellinger has a complicated op-ed arguing that the U.S. should be prepared to intervene militarily in Syria, even if its intervention is not strictly legal.  His argument is complicated because he rejects the idea that any intervention in Syria now, even with the agreement of the Syrian Opposition, would violate existing international law.

A few days ago, I criticized Judge Pohl’s rejection of al-Nashiri’s claim that there was no armed conflict between the US and al-Qaeda at the time of the acts alleged in his indictment — such as the attack on the USS Cole in 2000 – thereby depriving the military commission of jurisdiction over those acts.  Judge Pohl’s decision relied almost exclusively on two facts: (1) Congress enacted, and Obama signed, the Military Commissions Act of 2009, which gave the commissions jurisdiction over acts committed prior to 9/11; and (2) the government referred charges against al-Nashiri knowing full well that the acts in question took place prior to 9/11.  Those facts, according to Judge Pohl, suffice to establish that there was an armed conflict between al-Qaeda and the US at the time of al-Nashiri’s acts.

As I explained in the post, Judge Pohl’s argument doesn’t make sense on its own terms.  But I think there is an even deeper problem with the decision: it conflicts with Hamdan II, in which the D.C. Circuit rejected the government’s claim that material support for terrorism (MST) was a war crime.  Central to that decision was the D.C. Circuit’s insistence that the military commissions can only prosecute acts that qualify as war crimes under the international law of war; whether they are war crimes under the so-called “U.S. common law of war” is irrelevant:

Third, and perhaps most to the point, [the Government's] cases do not establish that material support for terrorism was a war crime recognized under international law as of 1996 to 2001 when Hamdan committed his conduct, which is the relevant inquiry under 10 U.S.C. § 821. The Government contends that those Civil War precedents illuminate what it calls the “U.S. common law of war” – not the international law of war. But the statutory constraint here imposed by 10 U.S.C. § 821 is the international law of war. As the Government told the Supreme Court in Quirin, “This ‘common law of war’ is a centuries-old body of largely unwritten rules and principles of international law which governs the behavior of both soldiers and civilians during time of war.” Brief for the United States at 29, in Quirin, 317 U.S. 1 (emphasis added) (citation omitted). To be sure, U.S.precedents may inform the content of international law. But those Civil War precedents fail to establish material support for terrorism as a war crime under the international law of war as of 1996 to 2001. And even the Government admits that material support for terrorism was not an international-law war crime as of 1996 to 2001.

In short, material support for terrorism was not an international-law war crime under 10 U.S.C. § 821 at the time Hamdan engaged in the relevant conduct.

Here is my question: doesn’t the D.C. Circuit’s insistence in Hamdan II that the criminality of conduct must be determined according to the international law of war contradict Judge Pohl’s conclusion in al-Nashiri that Congress and the President have the authority to determine the existence of armed conflict?  The idea that the existence of armed conflict is determined by the subjective perceptions of the fighting parties is foreign to IHL; indeed, the modern view — encapsulated in the ICTY’s seminal decision in Tadic – is predicated on the idea that the existence of armed conflict is a purely objective question, one determined by the facts on the ground, irrespective of the subjective perception of the parties to the hostilities.  Under the international law of war, in other words, states and non-state actors don’t decide when they are engaged in an armed conflict; the hostilities themselves make that decision for them.

Given Hamdan II, I don’t see how Judge Pohl’s decision in al-Nashiri can be sustained.  The existence of armed conflict is an essential element of every war crime; an act that takes place outside of armed conflict may violate a state’s domestic criminal law, but it does not violate IHL. So if the military commissions have jurisdiction only over acts that violate “the international law of war,” they do not have jurisdiction over acts that took place during hostilities that do not satisfy the Tadic test.  And that is true regardless of the US’s subjective perceptions of its “armed conflict” with al-Qaeda.

I have no idea whether the DC Circuit, if presented with the question, would be true to its own principles and apply Hamdan II to al-Nashiri.  I am also far from confident that the DC Circuit would apply Tadic correctly and conclude that there was no armed conflict between the US and al-Qaeda at the time of al-Nashiri’s acts.  But if I were al-Nashiri’s lawyers, I’d raise the issue as soon as I could.

Okay, I’m exaggerating.  But only slightly.  As Wells Bennett notes today at Lawfare, Judge Pohl has rejected al-Nashiri’s contention that the US and al-Qaeda were not engaged in hostilities (an armed conflict in IHL terms) at the time of the acts alleged in his indictment — primarily the attack on the USS Cole in 2000 – thereby depriving the military commission of jurisdiction over those acts. I have explained before (see here and here) why al-Nashiri’s argument is correct. Unfortunately, but completely unsurprisingly, Judge Pohl disagrees.  It is worth examining his four-page decision in detail, because it illustrates why the military commissions are so deeply and irremediably flawed.

Here is the first substantive paragraph:

Whether hostilities existed on the date  of the acts alleged to have been committed by the accused is as much a function of the nature of hostilities as any particular legally significant act by either the legislative or executive branches of government. Whether hostilities existed on the dates of the charged offenses necessarily is a fact-bound determination; moreover, whether a state of hostilities existed is as much a function of the will of the organization to which the accused is alleged to belong to as the U.S. government. In determining whether hostilities exist or do not exist, the enemy gets a vote.[1] Whether Al Qaeda, the organization of unprivileged enemy belligerents to which the accused is alleged to be a member, considered itself to be at war with the United States on the date of the alleged law of war violations is a factor among many to be considered by the trier of fact and is as relevant as any judgments made or withheld by the President or the Congress.

This is patently incorrect.  Whether a state is engaged in an armed conflict with a non-state actor is a purely factual determination, one that depends (sound familiar?) on the organization of the non-state actor and the intensity of hostilities between the non-state actor and the state.  Full stop. Whether a non-state actor believes it is “at war” with a state is irrelevant to that determination; it is not “a factor among many.”

But perhaps Judge Pohl is aware of legal precedent that I’m not.  After all, he footnotes his claim! So let’s see what the footnote says (emphasis mine):

“In connection with the plan of a campaign we shall hereafter examine more closely into the meaning of disarming a nation, but here we must at once draw a distinction between three things, which as three general objects comprise  everything else within them. They are the military power, the country, and the will of the enemy. The military power must be destroyed, that is, reduced to such a state as not to be able to prosecute the war. This is the sense in which we wish to be understood hereafter, whenever we use the expression “destruction of the enemy’s military power.” The country must be conquered, for out of the country a new military force may be formed. But if even both these things are done, still the war, that is, the hostile feeling and action of hostile agencies, cannot be considered as at an end as long as the will of the enemy is not subdued also…” Carl von Clausewitz, On War Book I Chapter 2 (1832) (emphasis added). In other words, whether the enemy has the will to make war is determinative of whether hostilities begin to exist, continue to exist, or have been terminated.

Yes, indeed: Judge Pohl’s only citation for the idea that a non-state actor can declare war against a state is an 1832 quote from Clausewitz about conflicts between states.  Had he chosen to do so, of course, Judge Pohl could have provided a slightly more relevant — and slightly more recent — citation, such as Quincy Wright’s widely-accepted conclusion that insurgents, “not being recognized states, have no power to convert a state of peace into a state of war.  So their declaration or recognition of war would have no legal effect.”  Judge Pohl must have missed that one.

Onward to the next paragraph…

[Peter Margulies is a Professor of Law at the Roger Williams University School of Law focusing on the balance of liberty, equality and security in counter-terrorism, and author of Law's Detour: Justice Displaced in the Bush Administration (NYU Press 2010).]

The days of Donald Rumsfeld chiding “Old Europe” are gone, but targeted killing has renewed debate on counter-terrorism strategies between the US and Europe.  Boundaries of the Battlefield, a symposium sponsored last week by The Hague’s Asser Institute and coordinated by Asser researcher and Opinio Juris contributor Jessica Dorsey, offered an opportunity to explore those differences and find common ground.  The symposium, co-sponsored by the International Centre for Counter-Terrorism, IHCL Platform, Konrad Adenauer Foundation, City of The Hague, and the Dutch Foreign Ministry, was especially valuable against the backdrop of former UK Legal Adviser Daniel Bethlehem’s new AJIL piece (see Ashley’s discussion here) on self-defense against non-state actors.  This first post will flag the debate at the conference on targeted killing and what Ken Anderson has called “naked self-defense.” A second post will analyze another issue that has roiled relations between the US and its allies: the clash between the law of armed conflict (LOAC) and international human rights law (IHRL).

The targeted killing debate started with law on the initiation of hostilities, aka the jus ad bellum.  In Daniel Webster’s 1841 Caroline formulation, the use of force in self-defense requires an imminent threat.  A number of conference participants, supporting the position taken by Bethlehem, favored a broad view of imminence.  I argued that the agility and clandestine nature of terrorist groups precluded waiting until the precise moment before an expected attack.  Rather, responses to violent non-state actors may appropriately trade off imminence and probability, intervening at an earlier stage to address what Chris Slobogin has called the…

My friend Luc Reydams, who teaches at Notre Dame (which clearly has a better faculty than football team…), has just finished an absolutely superb — and extremely timely — essay on the relationship between US and Rwanda and its role in facilitating impunity for Kagame and his cronies.  Here is the abstract of the essay, which is available on SSRN:

This article examines whether the ICTR was doomed from the start to be a court of ‘victor’s justice.’ I explore the issue by re-examining the politics of the ICTR’s creation. Hundreds of declassified diplomatic telegrams (‘cables’) and intelligence reports of the US Department of State shed new light on this process. My analysis concentrates on the strategy of the RPF vis-à-vis the international community and the responses of the United Nations and United States. In a previous publication, I claim that US leadership is a necessary (but not a sufficient) condition for successful international prosecutions. Building on that research, I argue that understanding the evolution of the relation between Washington and Kigali – from an early, almost accidental support of the RPF to nearly unconditional backing – can help explain RPF impunity. I do not suggest that Washington planned to shield Kagame from international prosecution, or that the US was the only Security Council member to embrace him. However, once Washington entered into a partnership with the ‘new’ Rwanda, it was committed to moving forward – and this implied burying the past and oftentimes also ignoring the present. The result was victor’s justice in Arusha – and seemingly endless war in neighboring Congo.

I know Luc has just begun the process of finding a good home for the essay.  If you’re an editor of a good international-law journal, you should snap it up!

In the comments to my first post on the ICC and retroactive jurisdiction, Johnboy4546 suggested that the Palestinians might self-refer only the situation in the West Bank to the Court.  Such a referral would have two clear advantages for the Palestinians: (1) it would prevent the OTP from investigating Hamas’s rocket attacks, which are almost always launched from Gaza, as well as crimes committed by Fatah-related groups in Gaza (such as the murder of civilians); and (2) Israel would be extremely unlikely to prosecute the crime the Palestinians would want the OTP to investigate in the West Bank, the direct or indirect transfer of the civilian population into occupied territory, thereby ensuring that Israel could not take advantage of the Rome Statute’s principle of complementarity.

It’s a creative suggestion — and one that I’ve been hearing with increasing regularity from people sympathetic to the Palestinian cause.  (I’ve just returned from a wonderful conference in Tel Aviv, a trip that included giving three different presentations in one day — a new record for me.)  But would such a geographically-limited self-referral be possible?

On balance, I don’t think so.  There is no question that a state can self-refer crimes committed on a portion of its territory; that is how the ICC treated Uganda’s referral of the situation in Northern Uganda.  (Uganda only referred crimes committed by the LRA, but the Court recharacterized that self-referral on the ground that Article 14(1) of the Rome Statute limits states to referring “situations.”)  The Security Council also limited its Sudan referral to crimes committed in Darfur.  Those referrals would seem to suggest that Palestine could refer only the situation in the West Bank to the Court.  (I am assuming for sake of argument that the Palestinian state includes both West Bank and Gaza.)

The problem is that such a geographically-limited referral would frustrate the spirit, if not the letter, of Article 14(1).  As is widely acknowledged, the drafters limited Article 14(1) to situations precisely to prevent states from using referrals to target their political opponents.  (A legitimate fear, as Uganda’s original self-referral indicates.)  By requiring states to refer situations instead of cases, Article 14(1) ensures that the OTP will always be able to investigate crimes committed by both parties to a conflict.

And therein lies the problem with a hypothetical West Bank referral. Such a referral would obviously be designed to enable the Court to investigate crimes committed by Israel while preventing it from investigating crimes committed by Hamas.  Functionally, then, a West Bank referral would be no different than Uganda’s self-referral of the LRA’s crimes.  The Court would be very unlikely to accept such a referral simply because it was framed in geographic terms.  After all, Uganda could have referred only those parts of Uganda in which the LRA operated instead of specifically — and clumsily — targeting the LRA. I doubt that the Court would have permitted Uganda to accomplish indirectly what it could not accomplish directly.

Nor is that all: even if the Court would be willing to accept a West Bank referral, Palestine might find it difficult to prevent the OTP from investigating its own crimes.  To begin with, the OTP could simply decline to investigate a referral that was limited to the West Bank — on the basis of either insufficient gravity or the “interests of justice” —  and then use its proprio motu powers to initiate a broader investigation.  I’m skeptical that the current OTP would be foolish enough to conduct any investigation into one of the most politicized conflicts in history.  But if it did, it would certainly not be foolish enough to investigate only one side of that conflict.

Moreover, it is not clear that an investigation into the West Bank would preclude the OTP from investigating crimes committed in Gaza.  In Mbarushimana, the defendant argued that because the DRC’s self-referral was limited to crimes committed in the Ituri region, the Court did not have jurisdiction over the crimes he allegedly committed in North and South Kivu.  The Pre-Trial Chamber rejected that argument on the ground that, in fact, the DRC had not limited its self-referral to Ituri.  But it also suggested — obliquely — that, had the referral been so geographically limited, the Court might still have had jurisdiction over at least some acts committed outside of Ituri.  Consider the following paragraphs (emphasis added):

16. The issue at stake is to determine whether the facts underlying the charges brought by the Prosecutor against Mr Mbarushimana can be said not to exceed the territorial, temporal and possibly personal parameters defining the situation under investigation. More specifically, according to the test developed by the Chamber in the present case, it is required that the crimes referred to in the Prosecutor’s application for a warrant of arrest for Mr Mbarushimana occurred in the context of the ongoing situation of crisis that triggered the jurisdiction of the Court through the Referral by the DRC. As already clarified by the Chamber, such a situation can include not only crimes that had already been or were being committed at the time of the referral, but also crimes committed after that time, in so far as they are sufficiently linked to the situation of crisis which was ongoing at the time of the referral.

21. The Chamber takes note of the DRC Observations, clarifying that; in submitting the Referral, the competent authorities did not intend to limit the Court’s jurisdiction to one or more particular provinces within its territory. As already determined by the Chamber, the territorial and temporal scope of a situation is to be inferred from the analysis of the situation of crisis that triggered the jurisdiction of the Court through the referral. Crimes committed after the referral can fall within the jurisdiction of the Court when sufficiently linked to that particular situation of crisis.

Although far from the picture of clarity, these paragraphs seem to imply that the Court’s understanding of the situation underlying a state’s self-referral is more important than the specific parameters of the referral itself.  As long as there is a sufficient nexus between a particular crime and the facts that motivated the state to refer the situation in question, the Court has jurisdiction over that crime.

I don’t want to push that interpretation too strongly.  The PTC’s comment regarding territorial jurisdiction was dicta, given how it construed the DRC’s self-referral.  But the rationale is the same for both temporal and territorial jurisdiction: states should not be able to craft self-referrals that prevent the Court from exercising jurisdiction over crimes that, in an objective analysis, really do fall within the parameters of the situation in question.  That principle explains why Uganda could not self-refer only the LRA’s crimes to the Court — and it explains why Palestine should not be able to impose geographic restrictions on a situation that would effectively limit the OTP to investigating crimes committed by Israel.

I’m gearing up for a Spring Semester teaching at Temple’s Tokyo campus.  As part of my preparations, I’ve begun to read-into some of the maritime boundary disputes between China and Japan that have caused so much friction between the two nations of late.  Recent news reports have emphasized (i) China’s moves by air and sea to challenge Japanese control over waters surrounding what the Japanese refer to as the Senkaku Islands (or the Diaoyu Islands if you’re on China’s side) and (ii) how the new Japanese government may be more hawkish in responding to such measures.  So, perhaps it’s not surprising that China’s now also beginning to push its case legally, invoking UNCLOS’s provisions on delineating continental shelf rights beyond its 200 nautical mile Exclusive Economic Zone.

Specifically, UNCLOS Article 76 provides in paragraphs 7-9:

7. The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by coordinates of latitude and longitude.

8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.

9. The coastal State shall deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. The Secretary-General shall give due publicity thereto.

China submitted its initial continental shelf claim in 2009.  This past Friday, December 14, China provided an additional “partial submission” on its claims to the East China Sea.  Here’s the key take-away from that submission:

The geomorphological and geological features show that the continental shelf in the East China Sea (hereinafter referred to as “ECS”) is the natural prolongation of China’s land territory, and the Okinawa Trough is an important geomorphological unit with prominent cutoff characteristics, which is the termination to where the continental shelf of ECS extends.  The continental shelf in ECS extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea of China is measured.

You can access the full text of China’s submission here (and, if you’re interested, you can also read  Japan’s earlier submissions or see here for the Japanese Foreign Ministry’s take).

I don’t hold out much hope that UNCLOS or the Continental Shelf Commission will actually determine a resolution to this on-going dispute.  But, I am hopeful that China’s move to legal argumentation may give both sides a forum in which cooler heads can prevail, in stark contrast to other existing fora where things have gotten quite heated (see, e.g., the Japanese government’s move to buy the islands, or the scrambling of military aircraft to respond to Chinese vessels transiting the territory).  In any case, the legal and political ramifications of this dispute clearly will bear close watching.

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: