Is the International Criminal Court destined to pick fights with non-state parties?

There have been reports of a communication to the International Criminal Court alleging that the treatment of Uighurs in Xinjiang by Chinese authorities constitute international crimes within the Court’s jurisdiction. The jurisdictional basis of the claim is that China’s conduct involved forced deportations to Cambodia and Tajikistan, which are parties to the statute even though China is not. This obviously relies on the finding in the situation in Bangladesh/Myanmar (concerning the forced deportation of Rohingya out of Myanmar) that the court may take jurisdiction over certain cross-border offences where one of the states involved is a party to the Statute. While most such communications go nowhere (and I offer no comment on this one), it raises again to my mind the question of whether the ICC was almost designed to become embroiled in such conflicts with non-parties.

That states may delegate jurisdiction over offences committed on their territory to an international court is uncontroversial. The extent to which the conferral of objective territorial jurisdiction on the ICC has set the stage for conflict with non-member states is, however, increasingly apparent. We now have the Court asserting jurisdiction to investigate crimes orchestrated in Myanmar, the actions of CIA agents and other Americans in Afghanistan, of Russians in Georgia and Ukraine, and it may quite possibly soon be investigating the actions of Israeli officials in Palestine.

Whether one regards this as a problem depends to some extent on one’s vision of the Court.

As I have suggested elsewhere, drawing on the work of Tom Dannenbaum and others, is that two broad visions of the Court are available. First, a vision of the Court as de facto a universal institution, hampered somewhat by the fact that not all states have yet joined it, but legitimated principally by the overriding importance of its mission (i.e. ending impunity for the most serious crimes) (“the universalist view”). The alternative is that it is an international organisation founded in member state consent, embodying standards to which they have collectively subscribed (“the positivist view”). If one takes the positivist view of the Court, then its core mission is holding its club of member states to account and everything else – even if entirely within the realm of legality – is peripheral to that mandate. On the other hand, if one takes the universalist view then every effort to extend the Court’s reach is not only desirable but quite possibly required.

Obviously, elements of both visions of the Court were present in its drafting. The Statute itself achieved a delicate balance between pursuit of universal justice and recognition of the fact that any international court would remain founded in the consent of its member states. Among other provisions, this balance was reflected in articles 27 and 98 of the Rome Statute. On a conventional reading, prior to the Appeals Chamber decision in Al Bashir, this waived any claim to official immunity (as among state parties) once a defendant was before the Court but preserved the claims of state immunity available to non-parties in arrest and surrender proceedings.

In any event, a potent tool for expanding the Court’s jurisdictional reach was conferring ordinary territorial jurisdiction upon it. This is obviously carried with it the prospect of the Court having jurisdiction over the conduct of third-party nationals in member state territory. The point can be made by contrast with the aggression amendments. There the parties agreed, in effect, to a “double lock” on jurisdiction: the offence needs to be committed both on the territory of a state party and by the national(s) of a state party. That this was not done as regards the Court’s ordinary jurisdiction under article 12 was no doubt thought a good thing at the time in terms of maximising the Court’s jurisdictional reach. Nonetheless, prior to Bangladesh/Myanmar it was not obvious that article 12 could also capture cross-border crimes.

However, was granting the Court even “ordinary” territorial jurisdiction a mistake? I have predicted that a central challenge for the court’s third Prosecutor will be managing potentially intractable and open ended investigations into the conduct of non-state parties in situations such as Afghanistan, Bangladesh/Myanmar, Russia/Georgia and Russia/Ukraine, and (perhaps) Palestine/Israel. Adding China to this list would scarcely seem desirable. The point is simple enough: other than one guilty plea, the Court has only successfully prosecuted crimes against mid-level rebel warlords in the Democratic Republic of Congo. Cases brought against heads of state in member states such as Kenya or Côte d’Ivoire have collapsed. The prospects of the Court succeeding in prosecutions directed at the senior officials of states which are themselves under no obligation to assist the court seem limited. Further, if this communication goes anywhere we will then be in the interesting position that all three permanent Security Council members which are not parties to the Rome Statute will be under ICC investigation/examination.

Nonetheless, Bangladesh/Myanmar opened a jurisdictional door which may prove very difficult to close. As I have suggested elsewhere, this was not inevitable. A legally plausible – though far from compelling – argument was available that the Court’s territorial jurisdiction should be read down to subjective jurisdiction. Such a requirement that for a crime to be within jurisdiction it must be commenced on the territory of a state party would still have captured situations such as Afghanistan (and Georgia and Ukraine). Nonetheless, it would have limited the impact of the objective territorial jurisdiction principle in expanding the Court’s reach to crimes initiated by non-party nationals acting outside State party territory.

In any event, absent an unlikely change of heart by an Appeals Chamber, we now have an ICC with – sensibly enough to lawyers but confusingly to lay people – a degree of territorial jurisdiction over events occurring outside the territory of its member states. Managing the practical and political fallout of this will be difficult.

In such cases, a Prosecutor might gather evidence and wait for the day when a Tadic-like low- to mid-level perpetrator falls into their hands. Perhaps after one or two such cases a Prosecutor might feel the practical and symbolic victory involved justified closing an open situation. Or perhaps, following a change in regime or governing party, some such conduct might be prosecuted at the national level allowing the Court to find cases inadmissible under the principle of complementarity. Perhaps.

However, the Court has already upped the stakes considerably by finding that no state official – whether they belong to a state party or not – may claim immunity either before it or in arrest and surrender proceedings to it. (Thus gutting the practical operation of article 98.) The point will not be lost on those giving legal advice in or to the US, Myanmar, Russia and Israel. And now, perhaps, China too.