Book review: The Jurisdiction of the International Criminal Court over Nationals of Non-States Parties, Monique Cormier

[Parisa Zangeneh is a PhD student at the Irish Centre for Human Rights, National University of Ireland, Galway, where she  is a recipient of the Hardiman Scholarship.]

Photo: Parisa Zangeneh

Monique Cormier’s recent book focuses on a problem that has plagued the International Criminal Court (ICC, Court) since its inception: its potential (in)ability to exercise jurisdiction over nationals of non-States Parties (NSPs) to the Rome Statute. On the final page, the author predicts that “it is only a matter of time before a significant test of the Court’s jurisdiction over nationals of non-States parties takes places in circumstances where the Security Council is not involved.” Potential cases arising from the Situation in Palestine, the Situation in Bangladesh/Myanmar, and the Situation in Afghanistan, for example, are on the horizon that may implicate individuals who are citizens of NSPs, providing support for her prediction. This timely and pertinent study could not come at a better point in in the Court’s progression.

On page one, she opens her study with a quote from Ambassador Anne W Patterson, former Acting US Representative to the United Nations (UN):

“‘[t]he United States continues to fundamentally object to the view that the ICC should be able to exercise jurisdiction over the nationals, including government officials, of States not party to the Rome Statute. This strikes at the essence of the nature of sovereignty.’”

The choice of introducing the reader to the topic, as encapsulated in this statement, in the context of an official’s statement to the Security Council, is inspired and serves a dual purpose. Patterson’s statement perfectly articulates the topic of the book while also serving as a perfect example of the type of legal and political challenges posed to the Court.  The US, a persistent opponent of the ICC, vehemently denies that the Court has a right to exercise jurisdiction over its nationals. Of course, the US is not the only state to pose such a threat to the Court’s ability to operate, which presents Cormier (and the reader) with the chance to explore a subject area that is rich with examples of live cases and also hypothetical situations on this subject. The utility of such a study is intellectual, practical, and political. As the ICC faces the constant spectre of attacks from states that feel threatened by the ICC, Cormier demonstrates that a firm articulation of the ICC’s jurisdiction and its legal basis is needed with regards to the nationals of NSPs. The Court will also need a clear basis for its jurisdiction, should it attempt to wade into a situation involving the territory of states that are neither States Parties to the Rome Statute nor Members of the United Nations, perhaps by way of a UN Security Council Referral.

In her Concluding Remarks, Cormier suggests that the ICC may need to have its own Tadić moment in which the Court clearly articulates its own jurisdiction. Such a decision would be in effect an identity-defining moment in its jurisprudence, and given the recent controversies over the February 5 Palestine decision, such a decision may indeed be useful in terms of clarifying the legal basis of the Court’s jurisdiction over NSPs and in other areas of jurisdictional ambiguity. It is debatable whether the Palestine decision was bold enough, specific enough, or clear enough in addressing these issues to constitute the equivalent of a Tadić in the ICC’s jurisprudence. However, the difference in force and magnitude may have something to do with the context in which it was made. The International Criminal Tribunal for the former Yugoslavia (ICTY, Tribunal) was established under Chapter VII of the UN Charter with support from the Security Council (UNSC, SC). The ICC was established under the Rome Statute as an institution separate from the UN, and unfortunately, it was established without the latter’s political clout. At the moment, the ICC does not have the political strength to make a grand legal or political statement. Also, Judge Cassese was willing to stake out the Court’s legal identity on the world stage. In his own words:

“we exploited the Tadić case to draw as much as possible from a minor defendant to launch new ideas, and be creative. Actually, Tadić offered us the opportunity to pronounce on the legality of the Tribunal, whether the Tribunal had been set up in conformity with the law, the question of whether it would be appropriate to make a distinction between war crimes committed in internal or civil war and international conflict, and also the question of the extent to which a civil war may turn into an international war.”

In the context of challenges to the Tribunal’s legality, the Appeals Chamber took the chance to make a clear statement on its jurisdiction and to address questions of international humanitarian law that set the course for its future practice and jurisprudential development. The ICC, in contrast, has not made a similar, identity-defining decision, but this is most probably due to the extreme hostility that it faces from powerful states, as well as the fragility of its ability to operate without the backing of the UN, especially the UNSC. This is not to say that the ICC has lacked opportunities to do so. The Pre-Trial Chamber (PTC) had the opportunity to make such an impact when it issued its April 2019 Afghanistan decision, yet it took a far more cautious approach.

While Cormier describes the framework and theories that may provide the legal basis for the ICC’s jurisdiction over NSP nationals, she avoids discussing the political issues and rationales for whether it would be possible, or even practicable, for the Court to make progress in some of the most pressing cases, such as the Afghanistan situation. Her book focuses on the legal issues that underpin the Court’s jurisdiction under the framework of the Rome Statute. The angle provides a clear analytical structure that may serve as a theoretical basis for the Court to follow in future cases involving NSPs and their nationals. An interesting area for further study may be the legality of conduct by hostile NSPs designed to thwart the Court’s ability to operate.

One of the strengths of Cormier’s work is the range of case studies that she uses while keeping them short and analytically pertinent to the thematic areas that she explores. She uses case studies to point to potential shortcomings and/or ambiguities in the Court’s legal framework and its ability to exercise jurisdiction, which indicates the complexity of the cases and contexts in which the Court operates and how multidimensional the legal matrix can become with regards to each. Cormier’s use of case studies also shows the high level of organization with which she has designed the book. She is able to pull apart multiple situations and to examine them from different perspectives. The benefit to the reader is that this technique shows the complexity of the cases, the legal issues that arise, and also the political and theoretical implications for different approaches to providing legal justifications and rationalizations for the Court’s jurisdiction. The slight challenge to this approach is that there is the risk of getting lost in the details of the case studies, as each is factually and legally interesting.

The book also raises many cutting-edge legal questions that are playing out in international litigation before the Court at the moment, such as in the situations in Afghanistan and Palestine. The case studies provide insight into the real-world applicability of the theoretical exercise of analyzing the ICC’s jurisdiction, particularly regarding delegation of jurisdiction theories. Both the Afghanistan and Palestine case studies stem from cases that involve agreements that limit the ability of states to exercise criminal jurisdiction over foreign nationals in the context of conflict, potentially having the effect of creating immunity, which Cormier analyzes in relation to their applicability to the situations before the ICC. The Afghanistan case study refers to the Military Technical Agreement (MTA, agreement) which was entered into by the International Security Assistance Force (ISAF) and the Interim Administration of Afghanistan. In an annex to the MTA, Section 1(3) (Jurisdiction) states:

“The ISAF and supporting personnel, including associated liaison personnel, will under all circumstances and at all times be subject to the exclusive jurisdiction of their respective national elements in respect of any criminal or disciplinary offences which may be committed by them on the territory of Afghanistan. The Interim Administration will assist the ISAF contributing nations in the exercise of their respective jurisdictions.”

The arrangement “essentially gave Department of Defense personnel immunity from Afghanistan’s criminal jurisdiction”. Section 1(4) states:

“The ISAF and supporting personnel, including associated liaison personnel, will be immune from personal arrest or detention. ISAF and supporting personnel, including associated liaison personnel, mistakenly arrested or detained will be immediately handed over to ISAF authorities. The Interim Administration agree that ISAF and supporting personnel, including associated liaison personnel, may not be surrendered to, or otherwise transferred to the custody of, an international tribunal or any other entity or State without the express consent of the contributing nation. ISAF Forces will respect the laws and culture of Afghanistan.”

Cormier argues that the agreement does not affect Afghanistan’s ability to delegate jurisdiction to the ICC, as Afghanistan still retains the right to exercise criminal jurisdiction over nationals of other states on its territory. Presumably, this means that an agreement to abstain from exercising its jurisdiction over foreign nationals does not mean that a state has relinquished the right to do so as a matter of domestic or international law, or to enter into treaties as a sovereign state. For the purposes of the ICC, Afghanistan’s sovereignty is undiminished, and therefore, it still retains the right to delegate jurisdiction to the Court. This is a convincing argument. Cormier also notes that a similar issue arose regarding a potential conflict between the Oslo Accords and the Rome Statute in the Palestine case study. A discussion of the role of occupation in relation to the situations in Afghanistan and Palestine would be relevant, as it raises questions of statehood, the legality of restrictions on possible criminal investigations and prosecution of potential violations of international humanitarian law, and delegation of jurisdiction issues.

Cormier’s book is well-organized, and her writing is concise. She also takes full advantage of the various case studies and hypothetical situations that could arise before the Court in order to analyze the theoretical underpinnings of the Court’s jurisdiction – and to solve the problem of whether or not the ICC may be able to exercise jurisdiction over nationals of NSPs. It is an interesting and informative addition to the literature.