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The Rome Statute of the International Criminal Court - A Commentary edited by Cassese, Antonio; Gaeta, Paola; Jones, John RWD (25th July 2002)

Volume I, s.3 Jurisdiction, 13 Jurisdiction Ratione Temporis

Stéphane Bourgon

From: The Rome Statute of the International Criminal Court

Edited By: Professor Antonio Cassese, Professor Paola Gaeta, Mr John R.W.D. Jones

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 August 2019

Subject(s):
Jurisdiction — Genocide — Crimes against humanity — Nullum crimen sine lege — War crimes

(p. 543) 13  Jurisdiction Ratione Temporis

I. General Overview

Pursuant to the provisions of its Statute,1 the International Criminal Court’s jurisdiction is strictly prospective. The ICC’s ratione temporis jurisdiction is limited to crimes committed after the entry into force of the Statute,2 which ensures against ex post facto prosecutions. The Statute will enter into force on ‘the first day of the month after the 60th day following the date of the deposit of the 60th (p. 544) instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations’.3 Following the entry into force of its Statute, the ICC will, as a permanent institution, have the power to exercise its jurisdiction over persons for the most serious crimes of international concern.4

The ICC’s ratione temporis jurisdiction is subject to certain preconditions. Where the Prosecutor has initiated an investigation—on the basis of a situation referred to it by a State Party or proprio motu5—the Court may exercise its jurisdiction only if the State on whose territory the crime was committed or the State of which the person accused is a national, is a Party to the Statute or has made a declaration accepting the exercise of jurisdiction by the Court with respect to the crime in question.6 Such a declaration may also be made by a State, which is a Party to the Statute, for crimes committed before the entry into force of the Statute for that State.7

The above precondition does not apply to the ratione temporis jurisdiction of the Court following an investigation conducted by the Prosecutor on the basis of a situation referred to it by the Security Council acting under Chapter VII of the United Nations Charter.8

Moreover, the ICC’s ratione temporis jurisdiction may be limited in various ways. For example, the Court may be barred from exercising jurisdiction for a fixed period of time following a request by the Security Council.9 The Court may also be barred from exercising its jurisdiction with respect to war crimes committed on the territory or by nationals of a State following a declaration by such a State, on becoming a party to the Statute, that it does not accept the jurisdiction of the Court in accordance with the opting out mechanism.10

II. Comparison with ratione temporis Provisions of the Nuremberg and Tokyo Tribunals, ICTY and ICTR

There are few similarities between the ratione temporis jurisdiction of the International Criminal Court and that of the International Military Tribunals, set up in the aftermath of World War II by the victorious nations, or that of the ad hoc International Criminal Tribunals created by the Security Council pursuant to (p. 545) Chapter VII of the United Nations Charter. Besides their different origins, these jurisdictions are limited and they are intrinsically linked to a specific conflict. Hence, they can hardly be distinguished from the events which gave rise to their creation. Besides, while the ICC will be a permanent institution whose jurisdiction is strictly prospective, the International Military Tribunals (Nuremberg and Tokyo) and International Criminal Tribunals for the former Yugoslavia and Rwanda are ad hoc institutions with various forms of retroactive jurisdiction.

Pursuant to the London Charter dated 8 August 1945 and the ‘Agreement for the Trial and Punishment of the Major War Criminals of the European Axis countries’,11 the Nuremberg Tribunal had the power to try and to punish persons who, acting in the interests of the European Axis countries had committed crimes mentioned in the Charter of the International Military Tribunal.12 While its temporal jurisdiction is not specifically mentioned, it is understood to cover and be limited to World War II.13 In the same vein, the temporal jurisdiction of the Tokyo Military Tribunal established on 19 January 1946 for ‘the just and prompt trial and punishment of the major war criminals in the Far east’ is also understood to cover and be limited to World War II.

As for the temporal jurisdiction of the International Criminal Tribunal for the former Yugoslavia, it is limited to the period between 1991 and a date to be determined by the Security Council upon the restoration of peace.14 Its jurisdiction ratione temporis is therefore open-ended, including possible future conflicts as the case may be.15 The International Criminal Tribunal for Rwanda, on the other hand, has jurisdiction over serious violations of international humanitarian law committed in a period beginning on 1 January 1994 and ending on 31 December 1994.16 While it is generally recognized that Genocide took place in Rwanda from 6 April 1994, the Security Council arbitrarily chose 1 January 1994 as the beginning of the ICTR ratione temporis jurisdiction with the aim of allowing the Tribunal to take into consideration all elements leading to the Genocide. The choice of this starting date was heavily criticized on the basis that the Rwanda Genocide was planned and prepared long before 1 January 1994. Both France and (p. 546) Rwanda argued strongly against this date. They would have preferred to use 1 October 1990 to give the Tribunal jurisdiction over all massacres, which led to the Genocide including planning and preparations before 1 January 1994. This date also corresponds to the start date of the Genocide pursuant to Rwanda’s organic law on Genocide and crimes against humanity committed since 1 October 1990.17 As for the end date, 31 December 1994, at least one permanent member of the Security Council was of the view that it could be reviewed if the Council deemed it necessary to cover later events.18 Moreover, it was acknowledged that certain acts could be committed before the start date and have effects that continue even after the end date. At the same time, certain acts commenced prior to the start date may be deemed to be continued afterwards. As for matters falling outside its temporal jurisdiction, the ICTR acknowledged that certain pertinent events occurred prior to 1994. It considered that these events could play a role only as background materials or evidence of crimes whose elements must have occurred in 1994 to be taken into consideration in charging the accused.19

The Nuremberg and Tokyo International Military Tribunals and the International Criminal Tribunals for the former Yugoslavia and Rwanda were not meant to operate long after the events which gave rise to their creation.20 In this respect, it is significant that paragraph 2 of Security Council Resolution 827 establishing the ICTY states that the Tribunal is created for ‘the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1st January 1991 and a date to be determined by the Secretary Council upon the restoration of peace.’

In comparison, the temporal jurisdiction of the ICC, stricto sensu, is only limited by the entry into force of the Statute. It is open ended and aimed at all of the most serious crimes of international concern committed thereafter worldwide.

For all these jurisdictions, another significant distinction exists between the ICC and the ad hoc Tribunals. This difference pertains to their relationship with the Security Council.

While the Security Council created both the ICTY and ICTR, they are independent Tribunals and the Council may not influence the exercise of their jurisdiction. The ICC on the other hand, which will be created pursuant to a multinational treaty, may be barred from exercising its jurisdiction for a fixed period of time by a resolution of the Security Council.21

(p. 547) In the same vein, while States may not evade the ICTY/ICTR’s jurisdiction as Member States which are bound by their decisions22 taken as subsidiary organs of the Security Council,23 the ICC operates by a different regime which even allows States to initially ‘opt out’ and thus evade its jurisdiction over war crimes for a period of seven years.24

III. Analysis and Critical Assessment of the Relevant Provisions of the Rome Statute

The International Criminal Court’s temporal jurisdiction, stricto sensu, is defined in Article 11 of its Statute. This provision however, cannot be considered in isolation as it is directly linked to Articles 12 (Preconditions to the exercise of jurisdiction), 13 (Exercise of jurisdiction), and 24 (Non-retroactivity ratione personae). Moreover, the ratione temporis jurisdiction of the Court may be limited by the operation of Articles 16 (Deferral of investigation or prosecution) and 124 (Transitional provision).

A. The Development of ICC Provisions with Respect to Jurisdiction ratione temporis

The first Report of the International Law Commission did not mention the temporal jurisdiction in the 1994 Draft Statute.25 In the 1996 Report of the Preparatory Committee on the Establishment of an ICC however, it was proposed by several delegations that the ratione temporis jurisdiction should be limited to crimes committed after the entry into force of the Statute.26 The Preparatory Committee proposed three options. First, it associated non-retroactivity of criminal conduct of the person with the nullum crimen sine lege principle. Secondly, it said that the Statute should only apply to conduct which takes place after the entry into force of the Statute. Thirdly, it defined the jurisdiction ratione temporis.

The Court would thus have jurisdiction only in respect of acts committed after the date of entry into force of the Statute and would have jurisdiction only in (p. 548) respect of acts committed by its nationals or on its territory or against its nationals after the deposit by a State of its instrument of ratification. It was also added that a State which was not a Party to the Statute should have the ability to agree, by an express declaration deposited with the Registrar, to the exercise of jurisdiction by the Court in respect of the crimes in the Statute. Furthermore, it noticed that the Security Council, acting under Chapter VII of the UN Charter, would be able to establish ad hoc tribunals and that the ICC would not have jurisdiction over the crimes over which these tribunals would have jurisdiction.

In the decisions of the Preparatory Committee of February 1997, the text which associated non-retroactivity ratione personae for criminal conduct with the nullum crimen sine lege principle was split27 in two articles. The following were added to the non-retroactivity article, all ‘in square brackets’: the State Party aspect of jurisdiction ratione temporis, the non-State Parties, and the role of the Security Council. Further to decisions taken by the Preparatory Committee of August 1997,28 Article 11(1) was added to the Statute. The Report of the Inter-Sessional Meeting of January 1998 then proposed, all ‘in square brackets’, the same wording as contained in Article 11(1) of the Statute in addition to provisions dealing with non-State Parties and the role of the Security Council. The Meeting also noted an interrelationship between this article and the article on non-retroactivity. This is the text, presented ‘in square brackets’ which was introduced at the Rome Conference under the title ‘Temporal Jurisdiction’.

B. Description of the Relevant Provisions and Critical Assessment

The relevant provisions of the Court’s ratione temporis jurisdiction can best be described under three main headings: the general rule or temporal jurisdiction based on the entry into force of the Statute, the exception or temporal jurisdiction based on State ratification or declaration after the entry into force of the Statute, and the limits to the Court’s temporal jurisdiction. For each of these headings, a general description and analysis of the applicable provisions is followed by a critique or commentary.

1. Temporal Jurisdiction Based upon the Entry into Force of the Statute—Application of the Non-retroactivity Principle

Pursuant to Article 11(1) of the Statute, the temporal jurisdiction of the International Criminal Court is strictly prospective. It is limited to crimes committed after the entry into force of the Statute on ‘the first day of the month after (p. 549) the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations’.29 Regardless of the situation which could trigger the exercise of its jurisdiction,30 crimes committed before the entry into force of the Statute are not included in the temporal jurisdiction.

The Statute assumes the position of automatic jurisdiction.31 When States become parties to the Statute, they accept the jurisdiction of the International Criminal Court for the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The Court does not have retroactive jurisdiction, as confirmed by Article 24 dealing with non-retroactivity ratione personae, which ensures against ex post facto prosecutions. The non-retroactive application of international legal instruments is a generally recognized principle of international law codified by the 1969 Vienna Convention on the Law of Treaties.32 The general rule33 is that a treaty does not bind a party with retroactive effect, in other words in relation to any act or fact which took place or any situation which ceased to exist before the entry into force of the treaty for that party.34 For example, the European Commission of Human Rights has held that the European Human Rights Convention had no retroactive effect.35 However, while it is recognized that the parties to a treaty may intend that it should have retroactive effect,36 the ICC Statute contains no such express intention.

This is somewhat regrettable considering that notorious criminals will thus evade the ICC’s jurisdiction for crimes committed in the past despite the fact that the States of which they are nationals or where their crimes occur may very well become parties to the Statute. Presuming they do, it is not clear however, whether these State Parties could upon entry into force of the Statute, express the intention to grant the ICC jurisdiction over specific crimes committed before the entry into force of the Statute for their own nationals. The answer to this question lies in the distinction which must be established between the ICC’s ratione temporis jurisdiction and the application of the nullum crimen sine lege principle37 which (p. 550) provides that no person may be held criminally responsible for conduct committed prior to the entry into force of the Statute unless such conduct constituted, at the time it took place, a crime within the jurisdiction of the Court. While the prosecution of acts which took place before the entry into force of the Statute would not be barred by the nullum crimen sine lege principle—as long as these acts constituted crimes at the time they were committed—it would fall outside of the scope of the ratione temporis jurisdiction of the ICC. Hence, it would appear to be possible for State Parties to agree to the exercise of such jurisdiction without necessarily violating the nullum crimen sine lege principle.

Another interesting issue with respect to the application of the non-retroactivity principle and Article 11 is that of continuing violations. These are violations which are committed prior to the entry into force of the Statute but which have effects that continue even afterwards or violations which are commenced prior to the entry into force of the Statute and deemed to be ‘continued’ afterwards.38 While the ICC Statute is silent on this issue, a parallel may be established with the ICTR whose temporal jurisdiction is limited to the period from 1 January to 31 December 1994. Indeed, the ICTR Appeals Chamber has had to address this issue39 and while it acknowledged that alleged facts which took place prior to 1994 could be useful in establishing the historical context of an indictment, it ruled that no facts pre-dating or post-dating 1994 could be used to support a count in the indictment. Accordingly, the ICTR Appeals Chamber has ordered the withdrawal of all references to facts (and crimes) prior to 1994 from specific counts of the indictment.

This decision is most interesting in the context of continuing violations in general and even more so with respect to the crime of genocide, which requires a special intent or dolus specialis.40 The intention or mens rea is the key point in the definition of genocide without which the offence cannot be classified as genocide. Thus, an individual cannot be found guilty of this crime if his specific intention to destroy in whole or in part that particular group is not established.41 Genocide being a crime which implies preparation and planning over time, the elements of this offence must be examined in the light of acts committed before the genocide itself if they help to establish the mens rea of the accused. This is why, as mentioned by Judge Shahabuddeen in his separate opinion: ‘evidence of earlier genocidal developments is admissible to prove the genocidal character of an act committed during the prescribed period’.42 Hence, it seems obvious and logical that the (p. 551) Security Council formally recognized the necessity to prove these facts in relation to all previous preparatory facts. Even though these allegations and information in support of them have occurred within a period previous to 1994, these crimes fall under the jurisdiction of the Tribunal. It is open to the Prosecutor therefore, to prove the specific intention to commit genocide on the basis of evidence which could be gathered before 1994. Only violations of international humanitarian law before 1994 will fall outside of the jurisdiction of the Tribunal. This is not the case when the crime of genocide falls within the jurisdiction of the Tribunal but there is evidence of the conspiracy or of the specific intention from a period prior to 1994. Establishing a parallel with the ratione temporis jurisdiction of the ICC, it appears on the basis of a literal interpretation of the Statute that the same reasoning would apply. Thus, all evidence gathered previously to the entrance into force of the Statute should be admissible to establish the mens rea of the accused for continuing violations.

2. Temporal Jurisdiction Based upon State Ratification after the Entry into Force of the Statute or Non-ratification

Pursuant to Articles 11(2) and 12(1), acceptance of the jurisdiction of the Court is required for any State to be bound by the Statute. However, this rule is subject to exceptions (a) for States which ratify the Statute after its entry into force and (b) even for States which have not accepted the jurisdiction of the Court.

(a)  States which ratify the Statute after its entry into force

In accordance with the non-retroactivity principle, where a State becomes a Party to the Statute after its entry into force, the Court’s temporal jurisdiction is limited to crimes committed after the entry into force of the Statute for that State. States which ratify the Statute after its entry into force may nevertheless stipulate, in accordance with Article 11(2), that they accept the jurisdiction of the Court for crimes committed before their ratification but after the entry into force of the Statute. Such acceptance cannot be implied. It must take the form of a declaration lodged with the Registrar and state clearly that the State accepts the exercise of jurisdiction by the Court. It appears that this declaration may be made at any time from the entry into force of the Statute for the State.43 It must be express, unequivocal and mention precisely the crime or situation for which the jurisdiction of the Court is recognized. In accordance with Article 12(3), a State which has made such a declaration ‘shall’ cooperate with the Court, without any delay or (p. 552) exception, in accordance with Part 9 of the Statute which sets out the main provisions relating to State cooperation.44

(b)  States which have not accepted the jurisdiction of the Court

While becoming a Party to the Statute is a requirement for any State to be bound by its provisions, a State which is not a Party to the Statute may nevertheless see its nationals prosecuted by the ICC. This situation may arise in a number of ways. First, a State which is not a Party to the Statute may recognize the Court’s jurisdiction over a specific crime or situation by making a declaration pursuant to Article 12(3). Such a declaration must be express, unequivocal, and precise.45 Secondly, even in the absence of such a declaration by a State which has not become a Party to the Statute, nationals of that State may nevertheless be brought before the ICC if the State on the territory of which their alleged crimes were committed is a Party to the Statute or has made a declaration pursuant to Article 12(3). This possibility, considered by some to be inconsistent with treaty practice, was harshly debated at the Rome Conference by States who advocated the requirement of consent by the State of nationality of the accused as a key condition for the Court’s jurisdiction. The United States for example, argued that subjecting US armed forces operating overseas to the jurisdiction of the Court even if the United States had not agreed to be bound by the Treaty, would be counterproductive as it would inhibit the United States from using their military to meet alliance obligations and to participate in multinational operations, including humanitarian interventions to save civilian lives.46 The majority of States, however, were strongly opposed to making this requirement a prerequisite as it could, in their view, paralyse the Court.47 Without addressing this issue at length, which goes beyond the scope of the present chapter, suffice it to say that in our submission, this concern is addressed by Article 1 dealing with the primacy of national courts.

Finally, another possibility for nationals of a State which is not Party to the Statute to be brought before the ICC arises from the operation of Article 13(b) which allows the Court to exercise its jurisdiction with respect to a crime referred to in Article 5, upon the referral to the Prosecutor by the Security Council—acting under Chapter VII of the Charter of the United Nations—of a situation in which one or more of such crimes appears to have been committed. Under this scenario, the nationals of any UN Member States may be prosecuted by the ICC even if the (p. 553) State on the territory of which the conduct in question occurred or the State of which the person accused is a national are not Parties to the Statute and have not made a declaration in accordance with Article 12(3).

While this appears contrary to the ratione temporis jurisdiction of the ICC, which is based on both the entry into force of the Statute and its ratification by States, it is in keeping with the powers of the Security Council under Chapter VII of the United Nations Charter. For the sake of international humanitarian law, the possibility for the Security Council to trigger the Court’s jurisdiction under these circumstances must be seen as a positive development. It implies of course that all preconditions for the exercise of these powers, including the determination by the Security Council of the existence of a threat to the peace, breach of the peace, or act of aggression will have been met. The Security Council could not, however, refer to the Court a situation where crimes under its ratione materiae jurisdiction appear to have been committed before the entry into force of the Statute as this would be contrary to Article 11. It would also amount to an extension of the Court’s jurisdiction and would certainly not be in conformity with the intention of States which clearly wanted the Court to be independent and to have international legal personality.48 Hence, not even the Security Council could trigger ICC prosecutions of the serious crimes alleged to have been committed in Sierra Leone or Cambodia. However, nothing could prevent the Security Council, acting under Chapter VII of the United Nations Charter, from creating ad hoc tribunals to ensure these crimes are prosecuted.49 Besides, in the light of the ICC Statute, it would be possible for the Security Council to refer to the Court a situation where crimes under its ratione materiae jurisdiction appear to have been committed after the entry into force of the Statute but with respect to nationals of a State on whose territory the conduct occurred or a State of which they are nationals, which is not a Party to the Statute or has not made a declaration pursuant to Article 13(3). As seen earlier, this would not amount to an extension of the Court’s jurisdiction.50

3. Limits to the ratione temporis Jurisdiction of the Court

In spite of the fact that the Statute appears to have been drafted with the aim of ensuring that it would have jurisdiction over any crime under its ratione materiae jurisdiction committed after its entry into force, even in the absence of ratification or declaration by a State on the territory of which these crimes were committed or a State of which the accused are nationals, the negotiation process by consensus, gave way to compromise which in fact limits its ratione temporis jurisdiction. Articles 16 (Deferral of investigation or prosecution) and 124 (Transitional provision) are examples of such compromise.

(p. 554) (a)  Deferral of investigation or prosecution at the request of the Security Council

Pursuant to Article 16 of the Statute, the Security Council may request a deferral of proceedings for a period of twelve months. Such a request must be included in a resolution adopted under Chapter VII of the United Nations Charter. Pursuant to Article 39 of the Charter, the Resolution must include a determination by the Council of the existence of a threat to the peace, breach of the peace or act of aggression. Thus, the request for deferral amounts to a measure, not involving the use of armed force, pursuant to Article 41 of the Charter.

The request for deferral found in Article 16 amounts to providing the Security Council with a veto power over the work of the ICC.51 While the Statute suggests that the Security Council’s deferral be for 12 months, which runs from the date of the Resolution, the Council may decide on a shorter period. Such a request may be renewed under the same conditions. As for the initial deferral, a Security Council Resolution adopted under Chapter VII of the United Charter is required. This article contains no limitation on the number of times a request for deferral may be renewed which implies that it could be indefinite. Hence, it allows the Security Council to block a case from reaching the Court. However, a non-renewal of a deferral request automatically allows the ICC to take up an investigation or prosecution where it was left off.

In accordance with Article 27 of the United Nations Charter, the Resolution including a request for the deferral of an investigation or a prosecution must be made by an affirmative vote of nine members, including the concurring votes of the five permanent members. It follows that no member of the Security Council alone is able to prevent the Court from investigating or prosecuting a specific case.

The Security Council’s power to block the exercise of jurisdiction by the ICC is difficult to understand and somewhat paradoxical. While, on the one hand, it is argued that the ICC is being set up to try crimes of the gravest magnitude for the sake of humanity, on the other, it is argued that the maintenance of international peace and security might require that those alleged to have committed these crimes be permitted to escape justice if the Security Council so decides. For this reason, even if the support of the Security Council is an essential aspect of the Court’s authority, the exercise of this power by the Council would be difficult to justify and to support in the eyes of the international community.

(b)  Operation of the transitional provision

Another limit to the ratione temporis jurisdiction of the Court is the operation of the transitional provision. As seen earlier, the general rule with respect to ratification (p. 555) of the Statute is automatic jurisdiction. Hence, under normal circumstances States who ratify the Statute accept the jurisdiction of the Court with respect to all crimes referred to in Article 5. Nevertheless, a State which becomes Party to the Statute may declare that, for a period of seven years after the entry into force of the 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. It is implicit that such a declaration can only be made once, i.e. on becoming a Party to the Statute, which implies that States which have ratified before the entry into force of the Statute must also make this declaration before the entry into force of the Statute.52 The seven-year period runs from the entry into force of the Statute for the State making the declaration. The provision known as the ‘transitional provision’ allows a State Party not to be bound by the jurisdiction of the Court over war crimes if alleged to have been committed either by its nationals or on its territory. Accordingly, a State might cumulatively exclude war crimes committed by its nationals and war crimes committed on its territory.

By making the declaration prescribed by the transitional provision, also referred to as the opting-out mechanism, a State stipulates that ‘it does not accept the jurisdiction of the Court’. This confirms that when the provision was adopted, an overall exclusion of the exercise of jurisdiction by the International Criminal Court was intended. The declaration bars the exercise of jurisdiction by the Court with regard to war crimes. Its aim is to grant the declaring State an unequivocal opportunity to ensure that its nationals, for the period provided for in Article 124, cannot be prosecuted by the International Criminal Court for having committed war crimes. In particular, it constitutes an important limitation to the jurisdiction of the Court with respect to peacekeepers.53 The provision specifically refers to war crimes which amounts to establishing rules for war crimes which are different from those applicable to other crimes falling within the Court’s jurisdiction. It also leaves the impression that war crimes are not as serious as the other crimes covered by the Statute and offers States a period of impunity wholly within the law. For a convention as symbolic for the international community as it is essential, the mechanism is difficult to accept and is a fine example of the cynicism of some States and the little weight they confer upon ensuring respect for the law governing armed conflicts.54

From a technical point of view, the transitional provision also raises a number of questions. For example, while the declaration can only be made once for a period (p. 556) of seven years, its effective duration may be much longer considering that it could be made up to the day before the seventh year after the entry into force of the Statute, immediately before the first review conference envisaged by Article 123. This implies that a State could be able to partly avoid the jurisdiction of the Court for close to seven years by not becoming a party to the Statute and then not recognize the Court’s jurisdiction for war crimes for an additional seven years by making a declaration pursuant to Article 124 upon ratification of the Statute. Thus, a State could avoid the jurisdiction of the Court for war crimes for a period up to fourteen years. Besides, even if the State Parties wanted to remove the provision at the first review conference, it is far from certain whether they could prevent its application for the State for which it would normally be in force for, for example, another six years. Moreover, in light of the mechanism applicable to the entry into force of amendments,55 it is not unreasonable to believe that a number of years are likely to be necessary for this purpose. In any event, let us hope that State Parties will not be tempted to keep, or even worse to add to, the seven years period at the review conference.

Another interesting issue is whether the ratione temporis jurisdiction of the Court is still limited at the end of the seven-year period. The Statute is silent regarding the possibility that the alleged perpetrators of crimes which took place during the seven-year period could, be brought before the Court thereafter. Given the transitional nature of the provision, it may be that war crimes committed during this period are no longer shielded from the exercise of jurisdiction by the Court. It should also be noted in this respect that the declaration made by a State, in accordance with Article 124, can be withdrawn at any time.

Finally, the possibility for the Security Council to refer to the Prosecutor a situation in which war crimes appear to have been committed by the nationals of a State which has made a declaration under Article 124 needs to be addressed. In other words, the issue is whether the Security Council, acting in accordance with Article 13(b) and pursuant to Chapter VII of the United Nations Charter could override the transitional provision. Considering the difference between Articles 12 and 124, whereby the former allows Article 13(b) to operate independently while the latter does not, it appears that the Security Council cannot override the opting out mechanism. As seen earlier, this would amount to an extension of the jurisdiction of the Court contrary to the intention of the State Parties which would thus be ultra vires.

(p. 557) IV. Conclusion

The ratione temporis jurisdiction of the International Criminal Court is strictly prospective, as was clearly intended by the States which were present at the Rome Diplomatic Conference. Thus, in accordance with the non-retroactivity principle and in the absence of an express clause to the contrary, no crimes committed before the entry into force of the Statute can be brought before the Court, not even following a referral to the Prosecutor by the Security Council as this would amount to an ultra vires extension of the Statute. Bearing in mind the provisions ensuring respect for the nullum crimen sine lege principle, this is somewhat regrettable based on the number of crimes committed recently and being committed in a number of conflicts. Hence, the only possibilities to avoid impunity for the perpetrators of these violations include national trials in accordance with the universal jurisdiction principle or the creation of additional ad hoc tribunals. It appears nevertheless that two State Parties could expressly agree to refer to the Court a situation arising from events which took place before the entry into force of the Statute. Furthermore, in the light of the ICTR case law, it also appears that all evidence gathered before the entry into force of the Statute would be admissible to establish the mens rea of the accused for continuing violations.

While the Statute assumes the position of automatic jurisdiction upon State ratification, the temporal jurisdiction of the Court is subject to a number of preconditions and it can also be limited in a number of ways. Amongst these limits, the possible deferral of investigation or prosecution at the request of the Security Council, as well as the possible use of the opting out mechanism or transitional provision in Article 124 by State Parties, stand out as most likely to have an impact on the jurisdiction of the Court. Concerning the possibility of a deferral, which amounts to providing the Security Council with a veto power over the work of the Court, the strict conditions of application it is subject to as a measure pursuant to Chapter VII of the United Nations Charter will make it very difficult to use. Moreover, the involvement of the Security Council with respect to the temporal jurisdiction of the Court can also be positive by allowing the Court to exercise its jurisdiction when all preconditions have not been met. As for the transitional provision, if as expected, it cannot be bypassed by the involvement of the Security Council, its limiting force is indeed greater. Nevertheless, if this were necessary to obtain the wide consensus necessary for the treaty to be adopted and more importantly to avoid subjecting the exercise of jurisdiction of the Court to the will of the State of nationality of the alleged offender—which could have paralysed the Court for significant periods of time—then it must be seen exactly for what it is, a transitional provision which in the long run will have a limited significance. Nonetheless, serious consideration will have to be given to the deletion of Article 124 at the first Review Conference, seven years after the entry into force of the (p. 558) Statute. In the end, while the ratione temporis jurisdiction of the Court is clearly the result of a compromise between the needs of international criminal law and the principle of State sovereignty, when considered in conjunction with its complementary status to national criminal jurisdictions, it stands out as a carefully drafted text which ensures that the temporal jurisdiction of the Court will not be a loophole allowing alleged offenders to avoid being put on trial.

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  • A. Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’, 10 EJIL (1999) 144;
  • D. J. Scheffer, ‘The United States and the International Criminal Court’, 93 AJIL (1999) 12.

This commentary is made in a personal capacity and does not necessarily reflect either the author’s views in an official capacity or the views of either the ICTY or the United Nations. The author is grateful to Vincent Grelet and Muriel Cauvin for their research, comments, and assistance in the production of this commentary.

Footnotes:

1  Rome Statute of the International Criminal Court, adopted at Rome on 17 July 1998, PCNICC/1999/INF/3.

2  Ibid., Art. 11.

3  Ibid., Art. 126.

4  Ibid., Art. 5.

5  Ibid., Art. 13(a) and (c).

6  Ibid., Art. 12(2) and (3).

7  Ibid., Art. 11.

8  Ibid., Art. 12(2) and 13(b).

9  Ibid., Art. 16.

10  Ibid., Art. 124.

11  Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, London.

12  Charter of the International Military Tribunal, 8 August 1945, London, Art. 6.

13  The London Charter dated from 8 August 1945 as Nuremberg Tribunal’s Statute responsible to try German Major War Criminals; International Military Tribunal, Nuremberg, the Indictments included for all Counts the following wording ‘during a period of years preceding 8th May, 1945’ ‘between 1st September, 1939 and 8th May, 1945’.

14  SC Res. 827 (S/RES/827(1993)), para. 2.

15  e.g. Kosovo, The Prosecutor v. Slobodan Milošević, Milan Milutinović, Nikola Šainovšc, Dragoljub Ojdaniš and Vlajko Stojiljkovic, Decision on review of indictment and application for consequential orders, 24 May 1999, International Criminal Tribunal for the Former Yugoslavia, ICTY-99-37.

16  Statute of the International Criminal Tribunal for Rwanda, SC Res. 955 (S/RES/955(1994)), Art. 1.

17  Rwanda’s organic Law 8/96 dated from 30 August 1996.

18  French intervention during the Security Council’s debate on the Resolution 955, 8 November 1994.

19  Hassan Ngeze and Ferdinand Nahimana v. the Prosecutor, Decision on the Interlocutory Appeals, 5 September 2000, International Criminal Tribunal for Rwanda, ICTR-99-52-A.

20  French intervention during the Security Council’s debate on Res. 955, 8 November 1994.

21  Supra note 1, Art. 16.

22  Statute of the International Criminal Tribunal for the former Yugoslavia, Art. 29, and Statute of the International Criminal Tribunal for Rwanda, Art. 28, dealing with cooperation and judicial assistance.

23  United Nations Charter (1946–1947), 1 RTNU xvi, Art. 25.

24  Supra note 1, Art. 124.

25  Report of the International Law Commission on its Forty-Sixth Session, Draft Statute for an International Criminal Court, 2 May–22 July 1994, UN GAOR, 49th Sess., Supp. No. 10, A/49/10 (1994).

26  Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. I (Proceedings of the Preparatory Committee during March–April and August 1996), UN GA, 51st Sess., Supp. No. 22, UN Doc. A/51/22 (1996).

27  Decisions Taken by the Preparatory Committee at its Session held from 11 to 21 February 1997, UN Doc. A/AC.249/1997/L.5 (1997).

28  Decisions Taken by the Preparatory Committee at its Session held from 4 to 15 August 1997, UN Doc. A/AC.249/1997/L.8/Rev.1(1997).

29  Supra note 1, Art. 126.

30  Ibid., Art. 13. For a contrary view, see Chs. 15 and 17.2 below.

31  Ibid., Art. 12(1), see Ch. 16, below.

32  Vienna Convention on the Law of Treaties, 1155 UNTS 331.

33  Ibid., Art. 28.

34  Sir Robert Jennings QC and Sir Arthur Watts KCMG QC (eds.), Oppenheim’s International Law, Vol. 1. Peace (9th edn., 1996) at 1249.

35  De Becker v. Belgium, 27 March 1962, European Court of Human Rights.

36  The International Court of Justice in the Ambatielos case stated that in general a treaty does not have retroactive effect unless ‘there is any special clause or any special object necessitating retroactive interpretation’, ICJ Rep. (1952), 40.

37  Supra note 1, Art. 22. As a fundamental principle, it is found in a number of international legal instruments such as the Universal Declaration of Human Rights. Art. 11.

38  R. C. Pangalangan, ‘Article 24’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999) 472.

39  Supra note 19.

40  The Prosecutor v. Jean-Paul Akayesu, Judgment, Trial Chamber I, 2 September 1998, International Criminal Tribunal for Rwanda, ICTR-96-4-T.

41  The Prosecutor v. Alfred Musema, Judgment and Sentence, Trial Chamber I, 27 January 2000, ICTR, ICTR-96-13-T, para. 164.

42  Supra note 18, para. 11.

43  Such a declaration could also be made by a State which had previously declared that, for a period of seven years after the entry into force of the Statute for that State, it did not accept the jurisdiction of the Court with respect to the category of crimes referred to in Art. 8 when a crime is alleged to have been committed by its nationals or on its territory.

44  Supra note 1, Part 9, Arts. 86 to 102, deal with International Cooperation and Judicial Assistance.

45  See supra note 1.

46  D. Scheffer, ‘The United States and the International Criminal Court’, 93 AJIL(1999) 12.

47  Ibid.

48  For a contrary view, see Chs. 15 and 17.2, below.

49  See e.g. SC Res. 1315 (2000) concerning the creation of a Special Tribunal for Sierra Leone.

50  Ibid.

51  M. Bergsmo, ‘The Jurisdictional Regime of the International Criminal Court’, 6 European Journal of Crime, Criminal Law and Criminal Justice(April 1998) 345.

52  At the 7 October 1998 signing ceremony, France communicated its intention to make the necessary declaration upon ratification.

53  Scheffer, supra note 46; M. Zwanenburg, ‘The Statute for an International Criminal Court and the United States: Peacekeepers under Fire?’, 10 EJIL (1999) 124.

54  E. David, Principles of Law of Armed Conflicts (1999) 862.

55  Supra note 1, Art. 121.