Legal Issues Regarding Ukraine’s Potential Art. 124 Declaration

[I serve as the ICC Prosecutor’s Special Adviser on War Crimes. This post is written in my academic capacity and does not reflect the position of the Office of the Prosecutor.]

It is being widely reported that President Zelensky has submitted the Rome Statute to Ukraine’s parliament for ratification. If so, that is great news: although Ukraine’s two Art. 12(3) declarations give the ICC jurisdiction over crimes committed on Ukrainian territory after 21 November 2013, ratification of the Rome Statute will send an important message about Ukraine’s commitment to the Court and to international criminal justice generally.

Ukraine’s intent to ratify the Rome Statute, however, comes with an asterisk. According to my University of Copenhagen colleague Iryna Marchuk, Ukraine also intends to file a declaration that would prohibit the Court from exercising jurisdiction over war crimes committed by Ukrainian nationals for the first seven years of its membership in the Court. That declaration would be based on Art. 124 of the Rome Statute:

Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.

Art. 124, which was designed to be a transitional provision, has never been popular with states and has been formally invoked only twice — by Colombia and by France. Indeed, in 2015, the Assembly of State Parties (ASP) adopted by consensus an amendment that would delete Art. 124 from the Rome Statute. That amendment has not entered into force, however, because it has not been ratified by 7/8 of state parties, as required by Art. 121(4). To the contrary, only 23 state parties have ratified the amendment.

I don’t want to debate the wisdom of Ukraine invoking Art. 124 in this post. Instead, I want to focus on two difficult legal issues that the Court’s judges would eventually need to address if Ukraine invokes Art. 124 in the manner being reported. The first is what effect, if any, an Art. 124 declaration would have on Ukraine’s second Art. 12(3) declaration, which accepted the Court’s jurisdiction “on an open-ended basis to encompass ongoing alleged crimes committed throughout the territory of Ukraine from 20 February 2014 onwards.” The second issue is whether the Rome Statute permits Ukraine to make an Art. 124 declaration that excludes the Court’s jurisdiction only over war crimes committed by Ukrainian nationals — thus leaving intact the Court’s jurisdiction over war crimes committed by Russian nationals on Ukraine’s territory.

Art. 124 vs. Art. 12(3)

The legal issue here is straightforward, if not easy to solve. Ukraine’s second Art. 12(3) declaration gives the Court jurisdiction over any crime committed on Ukrainian territory after 20 February 2014, regardless of the nationality of the perpetrator. So even though all of the charges in the Ukraine situation have focused on Russian nationals, nothing would prohibit the OTP from bringing charges against Ukrainian nationals if the circumstances warranted. Ukraine’s Art. 124 declaration, however, would exclude the Court’s jurisdiction over war crimes committed by Ukrainian nationals for seven years after the Rome Statute enters into force. How — if at all — could the conflict between the two declarations be resolved? Would the Court continue to have jurisdiction over war crimes committed by Ukrainian nationals, despite the Art. 124 declaration, by virtue of the open-ended Art. 12(3) declaration? Or would the Court lose such jurisdiction once the Rome Statute entered into force for Ukraine? Moreover, if the latter position is correct, when would the Court lose jurisdiction — only over Ukrainian war crimes committed after entry into force, or over all Ukrainian war crimes within the temporal scope of the second Art. 12(3) declaration?

This conflict, if it materialises, would be unprecedented. Only two other non-state-parties, Palestine and Cote d’Ivoire, have ever filed an Art. 12(3) declaration. Neither situation, however, sheds light on the potential Ukraine situation: although both Palestine and Cote d’Ivoire ratified the Rome Statute after accepting the Court’s jurisdiction via Art. 12(3), they did not invoke Art. 124 when they did so. Moreover, Palestine’s self-referral of the situation in Palestine three years later expanded the scope of the situation relative to its Art. 12(3) declaration.

One aspect of the conflict, I think, can be uncontroversially resolved. Even if Ukraine’s Art. 124 declaration would supersede its Art. 12(3) declaration, it could only do so prospectively. That is clear from Art. 124, which precludes the Court’s jurisdiction “for a period of seven years after the entry into force of this Statute for the State concerned… when a crime is alleged to have been committed by its nationals or on its territory.” Any war crime committed by a Ukrainian national after 20 February 2014 but before the Rome Statute entered into force for Ukraine, therefore, would remain within the Court’s jurisdiction.

The more difficult issue would be a Ukrainian war crime committed after the Rome Statute entered into force for Ukraine. Would jurisdiction over that war crime be governed by the Art. 12(3) declaration (thus jurisdiction) or by the Art. 124 declaration (thus no jurisdiction)? Mark Klamberg takes the former position, writing on Twitter that Art. 12(3) would continue “with full effect,” because an ad hoc acceptance of jurisdiction, “once activated, cannot be recalled in relation to the same situation, not even by joining the statute as a party.” Mischa Gureghian Hall agrees.

I disagree. To begin with, I don’t think it would be entirely accurate to describe giving effect to an Art. 124 declaration as “recalling” Ukraine’s earlier open-ended Art. 12(3) declaration. “Modifying” seems more accurate, because an Art. 124 declaration would leave untouched Ukraine’s acceptance of the Court’s jurisdiction over crimes against humanity and genocide. That does not dispose of the legal issue, of course, because we still need to determine whether an Art. 124 declaration can modify an earlier open-ended Art. 12(3) declaration with regard to war crimes. But it does put the issue in perspective.

With regard to the legal issue itself, I am not convinced that an open-ended Art. 12(3) declaration continues in perpetuity regardless of the declaring state’s wishes. Art. 127 permits a state party to terminate the Court’s prospective jurisdiction by notifying the UN Secretary-General that it is withdrawing from the Rome Statute, with that notification becoming effective one year later. (The Court’s jurisdiction continues over crimes committed either prior to notification or during the one-period.) There is no similar provision in the Rome Statute that permits a state to terminate an Art. 12(3) declaration, which might suggest that the Klamberg/Hall position is correct. It seems unlikely, however, that the drafters of Art. 12(3) intended open-ended declaration to remain in force forever. Such an interpretation of Art. 12(3) would provide states with a powerful incentive to avoid open-ended declarations in favour of temporally limited ones that might evolve in unforeseen and undesirable ways. That would complicate matters both for the Court and for the state concerned: whenever a non-party state wanted the ICC’s investigation to continue beyond the temporal parameters of an earlier ad hoc acceptance of jurisdiction, it would have to file a new Art. 12(3) declaration and the OPT would have to conduct a new preliminary examination and open a new investigation. Such a cumbersome process, one that would obviously be subject to the political vagaries of the state concerned, is difficult to reconcile with the purpose of Art. 12(3), which is to provide the Court with a flexible mechanism to exercise jurisdiction over crimes committed on the territory or by the nationals of non-member states.

Given the purpose of Art. 12(3), I think it’s possible — perhaps even likely — that the Court’s judges would read into the Art. 12(3) process something analogous to the withdrawal provisions in Art. 127. If so, a state would be entitled to terminate an open-ended Art. 12(3) declaration by giving notice to the Court. The Court’s prospective jurisdiction would then end one year from the date of notification, while jurisdiction would continue over crimes committed in the situation prior to that date.

The Scope of Art. 124

If the judges agreed with Klamberg and Hall about Art. 12(3), the second legal issue — whether a state can make an Art. 124 declaration that excludes the Court’s jurisdiction over war crimes committed by its nationals but leaves the Court’s jurisdiction intact over war crimes committed on its territory — would be irrelevant in the Ukraine situation. The Court would continue to have jurisdiction over both types of war crimes in perpetuity based on Ukraine’s second Art. 12(3) declaration.

If the judges agreed with me, however, they would then have to address the second legal issue. If Ukraine formally notified the Court that it was withdrawing its second Art. 12(3) declaration and replacing it with an Art. 124 declaration that purported to exclude only the Court’s jurisdiction over Ukrainian war crimes, would the limited Art. 124 declaration be valid? Does the Rome Statute actually permit a state filing an Art. 124 declaration to pick and choose between the Court’s territorial and nationality jurisdiction?

I can find very little scholarship on this (admittedly esoteric) issue. Moreover, the one substantive discussion of the issue, Andreas Zimmermann’s entry on Art. 124 in the Triffterer/Ambos commentary on the Rome Statute, is frustratingly unclear. At one point, Zimmermann suggests that an Art. 124 declaration must exclude the Court’s territorial and nationality jurisdiction over war crimes; it cannot exclude only one:

[W]hile States may choose to consent or not to the jurisdiction of the Court through declarations provided for in article 12(3) of the Statute, the scope of such declarations is predetermined by the ICC legal framework. Most notably rule 44 of the Rules explicitly limits the discretion of States in framing the situation that may be investigated by the Court…. Rule 44 of the Rules was adopted in order to ensure that States that chose to stay out of the treaty could not use the Court “opportunistically”. Indeed, there were concerns that the wording of article 12(3) of the Statute, and specifically the reference to the acceptance of jurisdiction “with respect to the crime in question”, would allow the Court to be used as a political tool by States not party to the Statute who could selectively accept the exercise of jurisdiction in respect of certain crimes or certain parties to a conflict’.

Given how the drafters of the Rome Statute and the judges have addressed Arts. 14 and 12(3), it seems highly unlikely that they would interpret Art. 124 to permit a state newly ratifying the Rome Statute to give the Court jurisdiction over war crimes committed by its enemies while excluding from the Court’s jurisdiction its own war crimes. Indeed, that may be why France and Colombia each treated the Court’s territorial and nationality jurisdiction as a package deal when they issued their Art. 124 declarations, opting-out of both when they ratified the Rome Statute.

Conclusion

It remains to be seen whether Ukraine will go ahead with its plan to ratify the Rome Statute while attempting to use Art. 124 to exclude the Court’s jurisdiction over war crimes committed by Ukrainian nationals. For the reasons I have discussed in this post, I think an Art. 124 declaration would modify Ukraine’s earlier open-ended acceptance of the Court’s jurisdiction via Art. 12(3) as long as Ukraine formally withdrew its second Art. 12(3) declaration. I do not believe, though, that a state can use Art. 124 to pick and choose between the Court’s territorial and nationality jurisdiction. So I think Ukraine, if it does go ahead with its plan, will ultimately have to choose between withdrawing its Art. 124 declaration or excluding not only the Court’s jurisdiction over Ukrainian war crimes, but also the Court’s jurisdiction over Russian war crimes as well. I would certainly hope — and expect — Ukraine to make the former choice in that situation.

These are my academic opinions, nothing more. In terms of predicting what the Court’s judges would do, I am far more confident about the scope of Art. 124 declarations than the effect of an Art. 124 declaration on a previous ad hoc acceptance of jurisdiction. It may well be that the judges will agree with Klamberg and Hall that an open-ended Art. 12(3) declaration continues in perpetuity — even after a state joins the Court and makes an Art. 124 declaration. I don’t think that is the best interpretation of the relationship between Art. 12(3) and Art. 124, but that would ultimately be for the judges to decide.