02 Feb Patterns of Noncompliance in Article 12(3) Cases at the ICC
[Kyle Shen is a Visiting Assistant Professor at Occidental College, and studies international organizations’ roles in transitional justice and regime change.
The author is grateful to Jeffrey Zerda for comments that greatly improved this blogpost. All errors remain his own.]
Within the last two years, two situations under investigation by the ICC have seen the outbreak of major conflicts with allegations of systemic violations of international humanitarian and criminal law. Both the conflicts in Gaza and in Ukraine occur under the umbrella of ICC jurisdiction, yet again raising the perennial questions of whether the ICC offers effective deterrence against mass atrocities.
Both situations began life at the ICC under a non-party declaration of jurisdiction. More than a legal category, this procedural mechanism indicates a unique set of political circumstances that explain the higher likelihood of noncompliance in these cases. The political and procedural history of these types of cases offers evidence rejecting categorical dismissal of the ICC’s relevancy while offering strategies to promote compliance in similar cases should they arise in the future.
The Rome Statute to the International Criminal Court (“Rome Statute”) establishes the fundamental procedures and norms for the ICC, including substantive crimes, the structure of the court, and also importantly jurisdiction: under what conditions does the Court have authority to act on a situation? Under Article 12(3) of the Rome Statute, states which are not parties to the Rome Statute also may issue a declaration accepting the jurisdiction of the Court for a particular event, crime, or conflict. This ad hoc declaration of jurisdiction has been used four times. It was used first by Côte d’Ivoire in 2003 and Uganda in 2004, both cases where the State had signed the Rome Statute but where there existed gaps in temporal jurisdiction due to delays in ratification or to the timing of the alleged acts.
More recently, Ukraine and Palestine both requested an intervention by the ICC citing Article 12(3). In each case, the relevant government had not joined as a State Party when it submitted a declaration to the Court granting jurisdiction to investigate a specific conflict and timeframe. Ukraine’s initial letter requested ICC jurisdiction following the annexation of Crimea by Russia in 2014. In 2015, Ukraine followed with another letter, recognizing jurisdiction of the Court regarding alleged crimes taking place within Ukrainian territory since 20 February 2014, for an indefinite duration. As of January 2024, Ukraine has signed but not ratified the Rome Statute.
Indeed, the nature of the conflicts in both Ukraine and Palestine establish a litany of concerns for human rights, humanitarian, and international criminal law (ICL). In Ukraine, the ICC warrants for the arrest of Vladimir Putin and Maria Lvova-Beleva included war crimes for the unlawful deportation of children and the unlawful forced transfer of population. The ICC Prosecutor has suggested a reasonable basis to believe the commission of war crimes and crimes against humanity have occurred in Ukraine since the initiation of jurisdiction in 2014. Furthermore, the United Nations Commission of Inquiry on Ukraine found a number of humanitarian law violations, including both indiscriminate and disproportionate attacks, the use of prohibited munitions, intentional attacks on civilians, forced transfer, summary executions, torture and inhuman treatment, and sexual violence.
Palestine referred a situation to the ICC on 1 January 2015 under a non-State Party Declaration. The following day, it joined as a State Party to the Rome Statute. The 1 January declaration granted temporal jurisdiction over crimes taking place for an indefinite duration commencing on 13 June 2021. In 2021, the Pre-Trial Chamber recognized the jurisdiction of the Court over the Palestinian territories, including Gaza and the West Bank. Although later becoming recognized as a State Party to the Rome Statute, the story of ICC jurisdiction in Palestine begins with the 12(3) declaration.
In the current conflict in Gaza, there are troubling reports including the potential targeting of civilians, the unlawful usage of civilians as human shields, and indiscriminate targeting resulting in civilian casualties. The facts and their appropriate legal characterization will continue to emerge through investigations, reporting and ongoing litigation such as what we have recently seen at the ICJ.
If a goal of the ICC is to deter further violations of international law, then both the Ukraine and Gaza conflicts pose a challenge to the ICC’s ability to secure compliance. Does the jurisdiction of the ICC lead to deterrence of the actions prohibited under the Rome Statute? If not, why not?
Why do States Seek ICC Jurisdiction?
Article 12(3) is not only a legal mechanism for extending ICC jurisdiction but also indicates a selection effect. The political conditions that would motivate a State to choose this mechanism also suggest a higher likelihood for noncompliance, regardless of any actions by the ICC prosecutor or the Court.
Empirically, the research on why States agree to the jurisdiction of the ICC offers some mixed findings. Simmons & Danner argue that States facing the prospect of conflicts are the most likely to join the Rome Statute through an effort to provide a credible commitment toward international norm compliance. Chapman & Chadoin, in contrast, argue that the ICC largely speaks to a favorable audience, securing buy-in from States that were going to comply with international norms even without the ICC.
Any State seeking only jurisdiction for a specific conflict represents a challenging example for both theories. These scenarios reflect States neither embracing the credible commitment that State Party status might offer, nor the buy-in from already compliant States. A non-party declaration requires a degree of voluntary participation with respect to a specific set of events, alongside concern these events pose a risk of violations of ICL. A State with these inclinations would likely seek to build domestic capacity to address violations of international law. However, neither States have mustered the political will to fully join the Rome Statute, suggesting that there may be an upper limit on capacity or willpower to securing compliance with international law (or at least appear to be credibly doing so). These are conflicting conditions which may suggest heightened sensitivity toward ICL violations, but also two complicating political factors: an increased likelihood of conflict and a reduced domestic institutional willpower or capacity to respond to norm violations.
What can the ICC Reasonably Expect to Accomplish in Article 12(3) Contexts?
Given that the political contexts that generate an Article 12(3) declaration would also lend themselves to an increased likelihood of conflict, the ICC already faces a challenge for securing compliance in such cases. What, then, is within the reasonable expectation of outcomes of such cases, if not a perfect record of deterrence against international crimes?
The drafting history of Article 12(3) provides some guidance on what the aspirations were for Article 12(3), showing that 12(3) was a part of the network of preconditions to jurisdiction expanding the ICC’s reach and influence. In addition to this textual analysis, there also are empirical questions of compliance and deterrence. What does deterrence look like? What effects are reasonable to expect in the particularly fraught contexts where one might expect to see an Article 12(3) situation? The answer to these questions has important ramifications for how observers of the ICC ought to understand the Court’s effects in the future.
The drafting history of Article 12(3) of the Rome Statute suggests that this paragraph was intended to be an important mechanism for extending the jurisdiction of the Court. The International Law Commission’s 1994 draft statute envisioned the ad hoc jurisdiction as the primary mechanism of jurisdiction. One of the key topics of debate at the Rome Conference was whether the ICC would hold automatic or case-by-case jurisdiction. In the end, the Rome Statute established a standing jurisdiction for the ICC over State Parties. However, what would eventually become Article 12(3) was expressly discussed at the Rome Conference and remained as a part of the final draft. This contemplation and adoption suggests that the drafters of the Rome Conference saw the paragraph as complementary to the Court’s jurisdiction over the State Parties, assisting the Court in expanding its authority and influence even in hard-to-reach contexts.
As a part of the Court’s jurisdictional reach, the self-referral mechanism should also ideally encourage compliance by deterring the commission of international crimes within the territory of States which have availed themselves of an Article 12(3) declaration.
Studying the question of the ICC and empirical measures of deterrence, Jo & Simmons argue that the ICC has some conditional deterrence through two mechanisms. First, they propose a prosecutorial mechanism whereby domestic prosecutors and judicial institutions develop capacities to investigate alleged crimes and indict suspects within a domestic context. Second, they propose a socialization mechanism where ICC norms take on power among civil society and other actors on the ground, establishing social pressure to deter crimes. Applying their theory to examine civil wars and the relationship between ICC ratification and deterrence against the intentional targeting of civilians, they find evidence that adoption of ICC jurisdiction through ratification is associated with an increase in domestic statutes implementing ICL and also with a decline in the intentional targeting of civilians in civil war contexts.
While finding that the ICC can secure deterrence in some conditions, the mechanisms that Jo & Simmons articulate suggest low expectations for deterrence in the case of a 12(3) declaration. In the context of both Ukraine and Palestine, the conflicts originated from parties beyond the control of the government which filed the declaration. In Ukraine, the conflict arose due to Russian violations of Ukraine’s territorial integrity. Prosecutorial deterrence in such a context would pose little control where the foreign aggressor has sought to displace existing governing institutions and impose institutions friendly to itself.
In Palestine, the Palestinian Authority filed the original declaration, but this governing body has no authority over Hamas, which holds authority in the Gaza Strip and which initiated the strikes on civilians in Israel. Prosecutorial deterrence likely has little constraining effects where the actor is a sufficiently powerful rival to the governing authority or where the State is attacked by an external actor. The weakness of the institutions that likely contributed to the decision to seek 12(3) jurisdiction also means that the prosecutorial mechanism is less persuasive for would-be violators of international law.
Similarly, for the social deterrence mechanism, external or hostile domestic actors would be resistant to civil society or social groups seeking to promote a culture of compliance.
The specific conditions giving rise to a 12(3) declaration produce heightened challenges to the enforcement of ICL. The conflicts giving rise to 12(3) declarations are precisely the contexts where one may also expect a heightened risk of conflict and of violations of ICL. Furthermore, findings in the empirical literature also suggest these conditions correlate negatively with mechanisms for securing domestic compliance with ICL norms.
How should the ICC or other international organizations respond when and if similar situations arise in the future? By accounting for the selection effect and the political conditions that precede a 12(3) declaration, observers can diagnose whether a situation calls for a heightened level of support or scrutinization. While the mechanisms for securing compliance face steep challenges in these cases, they also provide some levers for addressing any deficiencies in deterrence and compliance. This can come through increased coordination and engagement with domestic actors and institutions, including with civil society and perhaps even possible militant organizations, or through preparing the capacity to monitor and investigate concerns as they arise in potential future conflicts within the territory.
This discussion rejects unconditional skepticism of the ICC’s potential effects on deterring grave violations of international humanitarian law, human rights, and criminal law. Instead, citing the empirical research on the Court’s deterrent effects, it explains why we have seen such concerning violations in two recent cases. The legal work of the Court can never be decontextualized from the parallel contexts of international and domestic politics. These contexts shape the options available to the ICC and do constrain its work, but they also can identify key areas for focused support.