ICC Jurisdiction in Ukraine and Article 124: Does Article 12(3) Leave the Stage Lit on War Crimes?

[Mischa Gureghian Hall is a Researcher and Senior Status student in Law at the University of Oxford, University College, and a Legal Assistant at the International Residual Mechanism for Criminal Tribunals.]

On 25 October 2024, Ukraine deposited its instrument of ratification of the Rome Statute with the UN Secretary-General, completing the process of ratification of the statute of the International Criminal Court (ICC) which it began in late August of this year. Ukraine will accordingly become a State Party on 1 January 2025 pursuant to Article 126(2) of the Statute. In the past two months, Ukraine’s laudable achievement has been overshadowed by its government’s deeply unwise decision to adopt, alongside ratification, a so-called ‘transitionary declaration’ under Article 124 of the Statute. This little-used provision provides that, for up to seven years following ratification, a State may choose not to recognize the Court’s jurisdiction over war crimes under Article 8 when committed by its nationals or on its territory. The concerning invocation by Ukraine of this “opt-out” clause is intended to calm unfounded domestic anxieties that the Court may target members of the Ukrainian military.

This post does not aim to revisit all the issues dealt with in several previous analyses, but rather assess a narrow but fundamental question: what is the exact nature of the jurisdictional exclusion envisioned under Article 124? The answer to this complex question is of great consequence, ultimately being essentially dispositive of the relationship between Ukraine’s Article 124 declaration and its previous temporally open-ended acceptance of the Court’s jurisdiction through a pair of declarations under Article 15(3) of the Statute, which furnishes the Court’s jurisdiction over a consenting non-State Party.

State Consent and Article 12(3)

The crux of the jurisdictional confusion created by Ukraine’s transitional declarations surrounds the fact that it appears to constrain jurisdiction over war crimes that Ukraine previously accepted in a temporally open-ended manner under its second Article 12(3) declaration in 2015. Heller notes that he is “not convinced that an open-ended Art. 12(3) declaration continues in perpetuity regardless of the declaring state’s wishes.” Owiso has similarly suggested that an Article 124 declaration should be permitted to supersede the Court’s ad hoc jurisdiction under Article 12(3) due to the principally consensual and voluntaristic nature of States’ obligations under international law.

While such contentions are initially compelling, they oversimplify the matter of State consent. An Article 12(3) declaration is a legal undertaking by the declaring State constituting “a unilateral manifestation of a state’s will by which it undergoes a legally binding commitment” (Eckart, p. 28; see also Nuclear Tests, para. 43). In understanding an ad hoc declaration as itself an expression of State consent, the a priori assumption that a subsequent Article 124 declaration would inherently supersede the former’s normative authority becomes less tenable. Nor can the lex posterior derogat legi priori doctrine be inflexibly applied as to afford superior normative value to an Article 124 declaration simply by virtue of it being lex posterior,given the text of the provision clearly envisions some degree of symbiotic interaction between it and Article 12(3). Namely, the article’s introductory adverbial clause (“Notwithstanding article 12, paragraphs 1 and 2”) specifies that the jurisdictional exception contemplated therein provides for the exclusion of jurisdictions under paragraphs 1 and 2 of Article 12, not paragraph 3. Zimmerman offers the following illustrative example where a State may seek to furnish the Court’s jurisdiction under Article 12(3) where it would otherwise be precluded under an Article 124 declaration:

[A] State acceding to the Rome Statute might even have an interest to have e.g. certain of its nationals that are involved in an armed conflict as foreign mercenaries in a separate armed conflict to be still subject to the Court’s war crimes related jurisdiction on the basis of a situation-specific previous ad hoc declaration, while at the same time submitting an Art. 124 declaration excluding its nationals otherwise from the Court’s personal war crimes-related jurisdiction when ratifying the Rome Statute.

The Revocability of an Article 12(3) Declaration

To resolve the conflict at hand, the answer to one question is crucial: can a State revoke a prior Article 12(3) declaration? If the answer is in the affirmative, then such an ad hoc declaration cannot be regarded as automatically superseded or modified by a subsequent Article 124 declaration as, absent a State’s revocation of the former, both remain equally valid expression of that State’s will. Certainly the notion that in making an Article 12(3) declaration a State become bound ad infinitum by the Court’s jurisdiction appears absurd. This would essentially leave a non-State Party that has filed such a declaration more stringently anchored to the Court than a State Party, as the latter retains the ability to withdraw from the statute, with a one-year delay, under Article 127. It is, moreover, difficult to imagine that States lodging Article 12(3) declaration truly intend to undertake a perpetual commitment from which they can never free themselves from, or that the drafters of the Statute intended to create such a system whereby Article 12(3) may restrain a non-State Party’s sovereignty more so than the Statute does a State Party.

The non-existence of a withdrawal option is also irreconcilable with an Article 12(3) declaration’s nature as a unilateral undertaking. Principle 10 Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, drawn up by the International Law Commission (ILC), provides that “[a] unilateral declaration that has created legal obligations for the State making the declaration cannot be revoked arbitrarily”. While its negative formulation lends some ambiguity to the matter, the ILC clarifies in its commentary that “[t]here can be no doubt that unilateral acts may be withdrawn or amended in certain specific circumstances” (p. 380, para. 2). Read in this light, Principle 10 clearly provides for the right of a State that has lodged an Article 12(3) declaration with the ICC the right to revoke such a declaration, so long as it is not withdrawn arbitrarily.  

Scholars have been quick to point out that the Rome Statute does not expressly provide a procedure for the revocation of an ad hoc declaration. In this vein, Heller argues that the Court may be receptive to a process by which a revocation goes into effect one year after it is made, mutatis mutandis to the process for the withdrawal of a State Party from the Statute under Article 127. Dannenbaum also notes the plausibility of such a procedure. Zimmerman, on the other hand, is skeptical about any such delay in the effect of a revocation, but suggests that, should the withdrawal of an Article 12(3) declaration accompany ratification of the Statute, it should be effected, at the earliest, upon the entry into force of the Statue in accordance with Article 126(2). In Nicaragua, the ICJ held that the revocation of “declarations with indefinite duration … should be treated, by analogy, according to the law of treaties, which requires a reasonable time for withdrawal from or termination of treaties that contain no provision regarding the duration of their validity” (para. 65). Thus, Heller and Dannenbaum’s position that the withdrawal of an open-ended Article 12(3) declaration would not be immediate but would require some time to go into effect is clearly closer in line with the applicable law, irrespective of whether such a delay would have to mirror that of Article 127 exactly in order to be “reasonable”.

The implication of the ability of a State to legitimately revoke a prior ad hoc declaration, albeit with a reasonable delay to go into effect, weighs heavily in favor of a symbiotic, rather than nullifying or modifying, relationship between an Article 124 declaration and a previous Article 12(3) declaration. Namely, the ability of a State to freely withdraw from a prior ad hoc declaration (and perhaps filing a new declaration temporally confined to the period before the entry into for of the Statute for it) would strongly suggest that where a State has not done so (as is the case with Ukraine), such a declaration would remain in force in a whole and unmodified manner. In this case, it thus necessary to proceed to the next question: if an Article 12(3) declaration remains fully in force post-ratification, can it furnish the Court with jurisdiction over war crimes that would otherwise appear precluded by an Article 124 declaration?

The Formal Status of an Article 124 Declaring State with Respect to War Crimes

Discussions of the interaction between Articles 12(3) and 124 have so far revolved around what Zimmermann has termed the “negative” and “positive” interpretations of Article 124. In summary, the negative interpretation posits that the jurisdictional exclusion contemplated by the provision is blanked preclusion of the Court’s exercise of jurisdiction with respect to war crimes for the relevant period either committed by the declaring State’s nationals or on its territory. The central implication of this interpretation is that the Court would be barred from acting even if its jurisdiction was furnished vis-á-vis another State Party, e.g., if nationals of the declaring State are alleged to have committed war crimes on the territory of another State Party, or similarly if the nationals of another State are alleged to have committed war crimes on the territory of the declaring State. Zimmermann and Heller endorse this interpretation, believing it to be closer in line with the stated intentions of the Statute’s drafters.

The alternative positive interpretation, however, argues that the effect of an Article 124 declaration is strictly confined to the declaring State’s non-recognition of the Court’s jurisdiction over war crimes pursuant to Article 12(1) and (2). This is the interpretation clearly better supported by the text of the Statute, which must always be priority in interpreting provisions of the Statute (see Arts. 31(1) and 32, Vienna Convention on the Law of Treaties (VCLT)). The text refers to the declaring State’s non-recognition of the Court’s jurisdiction over war crimes (“…does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8…” (emphasis added)) rather than the wholesale preclusion of the Court’s exercise of jurisdiction over the State’s nationals or territory.

Elsewhere, when the Statute envisions the type of jurisdictional exclusion proffered by the negative interpretation, it does not refer to non-recognition but explicitly to preclusion, e.g., Article 15 bis (5), which provides that “[i]n respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory” (emphasis added). The provision crucially does not refer to the acceptance or non-acceptance by the relevant States of the Court’s jurisdiction over the aggression, but outright precludes its exercise in the contemplated circumstances. When juxtaposed with the formulation of Article 124, this strongly indicates that the plain meaning of the latter’s text is concerned with non-recognition by the declaring State in line with the positive interpretation rather than total preclusion such as that suggested by the negative interpretation.

Despite proponents of the negative view’s reliance on the intent of the drafters, the latter ultimately constitutes a supplementary means of interpretation under Article 32 of the VCLT that cannot supersede the interpretation of the ordinary meaning of a provision’s text. Moreover, Dannenbaum has raised well-founded skepticism of drawing on the drafter’s intent to ascribe a broader meaning to the provision than that of the text, particularly in light of the consensus in favor of Article 124’s deletion amongst the current States Parties. Lastly, the positive interpretation better conforms to the general anti-impunity object and purpose of the Rome Statute.

The positive interpretation thus most aptly conceptualizes the declaring State as being in  “the same position as a non-party State with respect to war crimes but not genocide or crimes against humanity” (Schabas, p. 1520). The aforementioned introductory clause of Article 124, which specifically frames its juridical exclusion as an exception to Articles 12(1) and (2), frames the Article 124 as an exception not to the entire jurisdictional regime of Article 12, but only the particular facets of its embodied in two of its paragraphs. The declaring State expressing its temporary non-acceptance of the bases of jurisdiction ordinarily applicable to States Parties with regard to war crimes. The specification of the provisions Article 124 severs to exclude the applicability of strongly points to a transitionary declaration leaving undisturbed Article 12(3) as a jurisdictional basis available to the Court with respect to a declaring State.

By definition, non-State Parties do not recognize the Court’s jurisdiction under Articles 12(1) and (2). Similarly, by declaring its non-recognition of the Court’s jurisdiction over war crimes under these provisions, a State lodging an Article 124 declaration is left in the same place in a formal sense. In precluding the exercises of the Court’s jurisdiction vis-á-vis the grounds ordinarily applicable to a State Party in the context of Article 8 offences, Article 124 applies without prejudice to the means by which the Court may acquire jurisdiction over a non-State Party, which the declaring State effectively is with respect to war crimes. Thus, as de facto non-State Party with respect to Article 8, Ukraine may nevertheless consent to the Court’s jurisdiction with respect to war crimes under Article 12(3) in the same manner as any non-State Party would consent to the entire Rome Statute framework.

It is crucial to emphasize that the continued validity of Ukraine’s Article 12(3) declaration does not wholly override or nullify its present Article 124 declaration. An ad hoc declaration is defined by “territorial, temporal and possibly personal parameters” (Lubanga, para. 21), meaning that even a temporally unconstrained declaration such as Ukraine’s could not furnish an entirely open-ended jurisdiction comparable to that enjoyed by the Court over State Parties. As Klamberg observes, Ukraine’s 2015 declaration “concerns the Russia-Ukraine war, not all conflicts for eternity that Ukraine may be entangled in.” Thus the continued validity of Ukraine’s ad hoc declarations as a source of the Court’s jurisdiction would not nullify in toto its Article 124 declaration as the latter would still deprive the Court of jurisdiction for seven years, e.g., over Ukrainian nationals alleged to have committed war crimes in an entirely separate conflict on the territory of a non-State Party. Instead, this symbiotic co-application of Articles 12(3) and 124 properly reflects the fact that both provisions are designed to offer States some degree of flexibility in conferring jurisdiction upon the Court.

Conclusion

Ukraine’s move to invoke the Rome Statute’s embattled “opt-out” clause raises numerous abstract legal questions that are undeniably, as Heller’s says, esoteric. Amid such seemingly strictly academic debate, one can easily lose sight of practical relevance. If Ukraine’s cannot confine the exclusionary effect of its Article 124 declaration to only its nationals, but must instead apply it to both its nationals and its territory—the interpretation shared by Heller, Dannenbaum, myself, and others—then whether or not its prior Article 12(3) declarations continue to endow the ICC with jurisdiction over war crimes committed by Russian troops on Ukrainian territory will be the deciding factor militating either in favor of impunity or accountability.

While the exact legal effects of Ukraine’s Article 124 declaration stand to be clarified by the judges of Pre-Trial Chamber II, for the time being, it is necessary to closely scrutinize any effort by any party to any armed conflict to selectively tailor the jurisdiction of the ICC or any international criminal tribunal to insulate its own forces from accountability (cf. Gbagbo, para. 59). The interpretation presented above, whereby Ukraine’s prior open-ended Article 12(3) declaration remains a valid unilateral undertaking and basis for the ICC’s jurisdiction and where the positive understanding of Article 124 permits the co-application of the latter’s jurisdictional exclusion and Article 12(3), is not only true to the text of the Rome Statute, but best balances the rights of States Parties with the Court’s mission and goal to combat impunity for the most serious crimes of international concern in Ukraine and beyond.