Ukraine, the ICC and Art. 124 Rome Statute
On August 15, 2024, Ukrainian President Volodymyr Zelenskiy submitted to the Ukrainian parliament a bill on the ratification of the Rome Statute of the International Criminal Court and its amendments. Ukraine might thus in the foreseeable future become the 125th contracting party of the Rome Statute. At the same time, the bill however stresses that Ukraine will ratify the Rome Statute with a provision that for a period of seven years after the ratification enters into force for Ukraine it “will not recognise the jurisdiction of the International Criminal Court over its citizens for crimes under Article 8 of the Rome Statute”. Put otherwise, the Ukrainian government has indicated that it will make use of Art. 124 Rome Statute. Said provision, which was highly controversial at the time the Rome Statute was negotiated and adopted, provides:
“Article 124 Transitional Provision
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 A declaration under this article may be withdrawn at any time.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.”
Yet, the exclusionary effect of the envisaged Ukrainian declaration as to the Court’s jurisdiction (unlike the previous declarations made in accordance with Art. 124 Rome Statute by France and Colombia respectively, which was later withdrawn by France and has expired) is limited to nationals of Ukraine, and will not extend to crimes committed by non-Ukrainian nationals on Ukrainian soil, i.e. in the case at hand notably Russian nationals.
What is also relevant is that pending its ratification of the Rome Statute, Ukraine had on two occasions, namely on 17 April 2014, and then again on 8 September 2015, lodged two ad hoc declarations under Art. 12, para. 3 of the Rome Statute, accepting the jurisdiction of the ICC over alleged crimes committed on its territory from 21 November 2013 onwards. Hence, it is on that basis that the ICC may since then, and indeed has already, exercise jurisdiction for crimes coming within the jurisdiction of the ICC committed on the territory of Ukraine since 21 November 2013 including, but not limited to, war crimes, as defined in Art. 8 Rome Statute, and regardless of the nationality of the perpetrator. Put otherwise, as of today the ICC has jurisdiction also as far as possible war crimes committed, or to be committed, by Ukrainian nationals during the current Russian-Ukrainian armed conflict are concerned.
This raises the question what is the interrelationship between the said two Ukrainian ad hoc declarations on the one hand, and its forthcoming accession to the Rome Statute (to be accompanied by the aforementioned limited Art. 124 declaration) on the other. Besides, the development sheds light on the continued relevance of Art. 124 Rome Statute as such.
Genesis of Art. 124 Rome Statute
As analyzed in more details elsewhere by me, the very idea of a transitional provision, currently still contained in Article 124 Rome Statute, only appeared during the very last days of the Rome Diplomatic Conference in order to secure the acceptance of the draft Statute by certain States, but in particular that of France, which not surprisingly later became one of the two (and maybe soon three) States which so far have made use of Article 124 Rome Statute.
In particular France, as well as several other permanent members of the Security Council, had during the negotiation process taken the view that in regard of at least both, war crimes and crimes against humanity, the consent of the State of nationality of the alleged perpetrator should be required in order for the Court to be in a position to exercise jurisdiction, unless, obviously, a situation had been referred to the Court by the Security Council. Shortly before the end of the Rome Diplomatic Conference, and as part of a political compromise, the formula, which so far is still to be found in Article 124 Rome Statute was agreed upon, which, as mentioned, empowers a State to, for a period of seven year from the date of the entry into force of the Rome Statute for that State, prevent the Court from exercising its personal or territorial war crimes-related jurisdiction as far as the State in question is concerned.
What is crucial as far as Ukraine’s purported Art. 124 declaration is concerned is that such declaration, given its wording, may thus at least at first glance be limited in its exclusionary effect to the exercise of the Court’s personal jurisdiction (i.e. in the case at hand over Ukrainian nationals) without at the same time having any effect on the Court’s territorial jurisdiction (i.e. in the case at hand over Russian nationals committing war crimes on Ukrainian soil). It is this question, as well as the effect ratione temporis of the envisaged Ukrainian Art. 124 declaration that will henceforth be considered. One has to however first consider the issue of the pending deletion of Art. 124 Rome Statute.
Pending deletion of Article 124 Rome Statute
From the very outset, and given its controversial character, Article 124 Rome Statute was subject to a mandatory review process. This led, as discussed elsewhere in more detail here and Zimmermann here), to an amendment to the Rome Statute which was adopted at the 11th plenary meeting of the 14th Assembly of States Parties on 26 November 2015 by consensus. In line with Art. 121, para. 4 Rome Statute, this deletion of Art. 124 will however only become effective once it has been ratified by 7/8 of the current 124 (and once Ukraine itself has ratified the Rome Statute 125) State parties of the Rome Statute. Hence, the amendment needs 109 ratifications; so far, however, only 23 State parties have ratified the said amendment. What is more is that none of the three States that have ratified the Rome Statute after the adoption of the amendment providing for the deletion of Art. 124 Rome Statute, namely Armenia, El Salvador and Kiribati, has simultaneously also ratified the said protocol, nor can it be expected that Ukraine will do so.
Accordingly chances that Art. 124 Rome Statute will indeed be deleted in the foreseeable future are, to say the least, slim, if existing at all. Still, given that in the past only France and Colombia had made use of Art. 124 and both of their Art. 124-declarations have lapsed, it had been argued that at least de facto Art. 124 Rome Statute has lost most, if not all, of its relevance (but see Zimmermann here, p.517 for a somewhat more nuanced view). The very fact that it seems by now rather probable that Ukraine will make use of Art. 124 Rome Statute confirms its continued relevance. As a matter of fact, for States considering to accede to the Rome Statute and that are at that time parties to an ongoing (non-international or international) armed conflict, such as Colombia at the time of its accession and now Ukraine, making use of Art. 124 Rome Statute might even constitute a political condicio sine qua non to overcome domestic opposition to acceding to the Rome Statute.
Scope ratione personae of Ukraine’s envisaged Art. 124 declaration
As mentioned, Ukraine’s future Art. 124 declaration will, unlike the previous ones made by France and Colombia, only aim to divest the ICC from exercising its personal jurisdiction over Ukrainian nationals without at the same time hindering the Court from exercising jurisdiction over nationals of other States, i.e. in the case at hand Russian nationals. This raises the question whether such a more limited Art. 124 declaration is permissible and in line with the said provision.
This question is not to be mixed up with the fundamentally different question of the so-called ‘positive’ or ‘negative’ understanding of Art. 124 Rome Statute (but see Heller for such proposition). The issue of the ‘positive’ versus ‘negative’ understanding of Art. 124 issue exclusively relates (just as in the case of the debate of the negative versus positive understanding of Art. 121, para. 5 Rome Statute concerning the amendment procedure as far as the crime of aggression is concerned) to the question whether an Art. 124 declaration notwithstanding the Court might still exercise its jurisdiction on the basis of the acceptance of the Court’s jurisdiction by another State (‘positive understanding’) or rather not (‘negative understanding’). Put otherwise this distinction solely relates to the question as to whether e.g. in the case of France the Court could have exercised jurisdiction in case of French nationals committing war crimes on the territory of a State party while its Art. 124 declaration was in force (‘positive understanding’) or rather not (‘negative understanding’) (for details see Zimmermann, here, Art. 123, marginal note 5). It does not therefore relate to the question here under consideration. What is more, contrary to what was claimed (“Zimmerman(sic!)’s entry on Art. 124 (…) is (…) unclear”), it has already previously been made clear that, while a negative understanding of Art. 124 Rome Statute is the correct interpretation of the said provision (ibid., marginal note 7 in fine), any such Art. 124 declaration does bar the exercise of jurisdiction by the Court only “within the limits of its content’, which obviously implies that it might be limited in its scope.
Such interpretation stands in line, first and foremost, with the very wording of Art. 124 Rome Statute (see for such proposition already also Zimmermann, Art. 124, marginal note 10), which provides for such exclusion concerning crimes ‘committed by its nationals or on its territory”/”sur son territoire ou par ses ressortissants” (emphasis added). Otherwise the text would have provided for an exclusion of the Court’s jurisdiction ‘crimes committed by its nationals and crimes committed on its territory”/”sur son territoire et par ses ressortissants”. Besides, one cannot but assume that the Rome Statute aims at providing for as much jurisdiction to be exercised by the Court as possible. Finally, it is also worth noting, that Art. 124 itself provides for a partial opt out ratione materiae (i.e. concerning war crimes only, but not vis-à-vis genocide and crimes against humanity) which might have the effect to de facto shield perpetrators from one side of a conflict (who might have committed war crimes, but not crimes against humanity or acts of genocide), while perpetrators from the other side might still be prosecuted for having committed those other categories of crimes. There is thus reason to assume that Art. 124 did not want to foreclose another partial opt out ratione personae (as now envisaged by Ukraine) either.
The very little practice by just two contracting parties, i.e. France and Colombia, which had excluded both, the Court’s jurisdiction ratione loci and rationae personae in their respective Art. 124 declaration can neither be considered to be normatively relevant in any way whatsoever (but see Heller: “that may be why France and Colombia each treated the Court’s territorial and nationality jurisdiction as package deal when they issued their Art. 124 declarations”).
Still, at least as a matter of judicial policy, this leaves a somewhat bitter taste as only possible war crimes committed by individuals fighting on one side of the armed conflict in Ukraine will then be subject to the Court’s jurisdiction.
Art. 124 and the Court’s (continued) jurisdiction on the basis of Ukraine’s ad hoc declarations
So far the Court’s jurisdiction vis-à-vis Ukraine is based on its ad hoc declarations made in the past under Art. 12, para. 3 Rome Statute. This raises the question whether they will become obsolete once the Rome Statute will enter into force for Ukraine in line with Art. 126, para. 2 Rome Statute at least as far as the Court’s jurisdiction from that point in time onwards is concerned.
Yet, given that Art. 124 only makes reference to Art. 12, para. 1 and 2 Rome Statute (but not to Art. 12, para. 3), the Court will continue to be able to exercise jurisdiction over Ukrainian nationals as far as any possible war crimes they might have committed prior to the entry onto force of the Rome Statute for Ukraine. Put otherwise, the future Ukrainian declaration to be made under Art. 124 will not have retroactive effect. It is however less clear whether this result is further confirmed (but see Heller for such somewhat undercomplex proposition) by the fact that Art. 124 refers to the State in question not accepting the Court’s jurisdiction “for a period of seven years after the entry into force” of the Statute (emphasis added; for more details on the temporal scope of Art. 124 declarations see Zimmermann, Art. 123, marginal note 9). As a matter of fact, this ‘after the entry into force’ formula might also be interpreted to exclude the Court’s jurisdiction for a seven year waiting period in toto even as far possible war crimes committed ex ante are concerned for which the Court would otherwise have jurisdiction on the basis of a prior Art. 12, para. 3 declaration.
More complicated is the interrelationship between those previous (‘unlimited’) ad hoc declarations and the Ukrainian accession (to be combined with an Art. 124 declaration). As a matter of fact the Court has been be adamant, including by adopting Rule 44 RPE and in its jurisprudence (see for details Heler), about making sure that Art. 12, para. 3 declarations are not misused to limit the Court’s jurisdiction to crimes committed by one side to an (armed) conflict only. This raises the question whether, once such State later becomes a contracting party, it may just reach such goal at least partially as far as war crimes are concerned by making use of Art. 124 Rome Statute.
It is submitted that any Art. 12, para. 3 declaration does not automatically loose its legal relevance ad futurum once a State that has previously made such a declaration accedes to the Rome Statute. As a matter of fact, 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 final question then arises whether such State may however at the very least at the time it accedes to the Rome Statute provide that its Art. 12, para. 3 declaration will become ineffective once the Rome Statute enters into force for said State. As a matter of fact, there is no provision in the Rome Statute that precludes such possibility. What is more is that in accordance with the ILC’s ‘Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations’ unilateral declaration made by a State cannot be revoked only if done arbitrarily. Yet, the very fact of a State acceding to the Rome Statute providing in its Art. 124 expressis verbis for the opting out possibility as to war crimes revoking an all-embracing Art. 12, para. 3 declaration including the Court’s war crimes-related jurisdiction cannot be perceived as being arbitrary in nature. (see in the same vein Heller). It is doubtful, however, whether a one year waiting period (as proposed by Heller) in analogy with Art. 127 Rome Statute is appropriate. Rather, in order to avoid frictions with the Court’s treaty-based jurisdiction it seems that acceding States must be entitled to terminate their Art. 12, para. 3 declarations with effect on the first day of the month after the 60th day following the deposit by such State of its instrument of accession, i.e. at the time the State becomes bound by the treaty by virtue of Art. 126, para. 2 Rome Statute. At the same time, it ought to be assumed that in analogy with Art. 127, para. 2, 2nd sentence Rome Statute a State terminating its Art, 12, para. 3 declaration remains obliged to cooperate with regard to pending proceedings in the basis of such a declaration, the exclusion ad futurum of the Court’s war crimes-related jurisdiction by virtue of an Art. 124 declaration notwithstanding (see also Heller for the same proposition)
Concluding remarks
By 2024, the Rome Statute has now been in force for 22 years. At the same time it seems that it has, by now, exploited almost all of its potential of attracting further ratifications. It is thus even more to be welcome that a State like Ukraine, victim of an armed aggression and party to a major enduring armed conflict threating its very existence, by now considers joining the Rome Statute.
Submitting simultaneously a declaration under Art. 124 Rome Statute might thus be considered a relatively small price to be paid in order for such step to be taken by Ukraine even more so since other States have done so in significantly less precarious situations, France being a particularly relevant example at hand. One might wonder whether Ukraine would have even considered at all acceding to the Rome Statute provided the amendment deleting Art. 124 Rome Statute was already in force.
Only time will tell whether on the long term what effect, if at all, the deletion of Art. 124, if ever it were to take place, might then have on possible future ratifications of the Rome Statute, provided further ratifications of the Rome Statute might be forthcoming in the next years. In any case, it seems that sometimes, as the saying has it, the news of the death of Art. 124 Rome Statute were premature.
‘There’s life in the old dog yet …,’ or: the news of the death of Art. 124 Rome Statute were premature
Written by Andreas ZimmermannUkraine, the ICC and Art. 124 Rome Statute
On August 15, 2024, Ukrainian President Volodymyr Zelenskiy submitted to the Ukrainian parliament a bill on the ratification of the Rome Statute of the International Criminal Court and its amendments. Ukraine might thus in the foreseeable future become the 125th contracting party of the Rome Statute. At the same time, the bill however stresses that Ukraine will ratify the Rome Statute with a provision that for a period of seven years after the ratification enters into force for Ukraine it “will not recognise the jurisdiction of the International Criminal Court over its citizens for crimes under Article 8 of the Rome Statute”. Put otherwise, the Ukrainian government has indicated that it will make use of Art. 124 Rome Statute. Said provision, which was highly controversial at the time the Rome Statute was negotiated and adopted, provides:
Yet, the exclusionary effect of the envisaged Ukrainian declaration as to the Court’s jurisdiction (unlike the previous declarations made in accordance with Art. 124 Rome Statute by France and Colombia respectively, which was later withdrawn by France and has expired) is limited to nationals of Ukraine, and will not extend to crimes committed by non-Ukrainian nationals on Ukrainian soil, i.e. in the case at hand notably Russian nationals.
What is also relevant is that pending its ratification of the Rome Statute, Ukraine had on two occasions, namely on 17 April 2014, and then again on 8 September 2015, lodged two ad hoc declarations under Art. 12, para. 3 of the Rome Statute, accepting the jurisdiction of the ICC over alleged crimes committed on its territory from 21 November 2013 onwards. Hence, it is on that basis that the ICC may since then, and indeed has already, exercise jurisdiction for crimes coming within the jurisdiction of the ICC committed on the territory of Ukraine since 21 November 2013 including, but not limited to, war crimes, as defined in Art. 8 Rome Statute, and regardless of the nationality of the perpetrator. Put otherwise, as of today the ICC has jurisdiction also as far as possible war crimes committed, or to be committed, by Ukrainian nationals during the current Russian-Ukrainian armed conflict are concerned.
This raises the question what is the interrelationship between the said two Ukrainian ad hoc declarations on the one hand, and its forthcoming accession to the Rome Statute (to be accompanied by the aforementioned limited Art. 124 declaration) on the other. Besides, the development sheds light on the continued relevance of Art. 124 Rome Statute as such.
Genesis of Art. 124 Rome Statute
As analyzed in more details elsewhere by me, the very idea of a transitional provision, currently still contained in Article 124 Rome Statute, only appeared during the very last days of the Rome Diplomatic Conference in order to secure the acceptance of the draft Statute by certain States, but in particular that of France, which not surprisingly later became one of the two (and maybe soon three) States which so far have made use of Article 124 Rome Statute.
In particular France, as well as several other permanent members of the Security Council, had during the negotiation process taken the view that in regard of at least both, war crimes and crimes against humanity, the consent of the State of nationality of the alleged perpetrator should be required in order for the Court to be in a position to exercise jurisdiction, unless, obviously, a situation had been referred to the Court by the Security Council. Shortly before the end of the Rome Diplomatic Conference, and as part of a political compromise, the formula, which so far is still to be found in Article 124 Rome Statute was agreed upon, which, as mentioned, empowers a State to, for a period of seven year from the date of the entry into force of the Rome Statute for that State, prevent the Court from exercising its personal or territorial war crimes-related jurisdiction as far as the State in question is concerned.
What is crucial as far as Ukraine’s purported Art. 124 declaration is concerned is that such declaration, given its wording, may thus at least at first glance be limited in its exclusionary effect to the exercise of the Court’s personal jurisdiction (i.e. in the case at hand over Ukrainian nationals) without at the same time having any effect on the Court’s territorial jurisdiction (i.e. in the case at hand over Russian nationals committing war crimes on Ukrainian soil). It is this question, as well as the effect ratione temporis of the envisaged Ukrainian Art. 124 declaration that will henceforth be considered. One has to however first consider the issue of the pending deletion of Art. 124 Rome Statute.
Pending deletion of Article 124 Rome Statute
From the very outset, and given its controversial character, Article 124 Rome Statute was subject to a mandatory review process. This led, as discussed elsewhere in more detail here and Zimmermann here), to an amendment to the Rome Statute which was adopted at the 11th plenary meeting of the 14th Assembly of States Parties on 26 November 2015 by consensus. In line with Art. 121, para. 4 Rome Statute, this deletion of Art. 124 will however only become effective once it has been ratified by 7/8 of the current 124 (and once Ukraine itself has ratified the Rome Statute 125) State parties of the Rome Statute. Hence, the amendment needs 109 ratifications; so far, however, only 23 State parties have ratified the said amendment. What is more is that none of the three States that have ratified the Rome Statute after the adoption of the amendment providing for the deletion of Art. 124 Rome Statute, namely Armenia, El Salvador and Kiribati, has simultaneously also ratified the said protocol, nor can it be expected that Ukraine will do so.
Accordingly chances that Art. 124 Rome Statute will indeed be deleted in the foreseeable future are, to say the least, slim, if existing at all. Still, given that in the past only France and Colombia had made use of Art. 124 and both of their Art. 124-declarations have lapsed, it had been argued that at least de facto Art. 124 Rome Statute has lost most, if not all, of its relevance (but see Zimmermann here, p.517 for a somewhat more nuanced view). The very fact that it seems by now rather probable that Ukraine will make use of Art. 124 Rome Statute confirms its continued relevance. As a matter of fact, for States considering to accede to the Rome Statute and that are at that time parties to an ongoing (non-international or international) armed conflict, such as Colombia at the time of its accession and now Ukraine, making use of Art. 124 Rome Statute might even constitute a political condicio sine qua non to overcome domestic opposition to acceding to the Rome Statute.
Scope ratione personae of Ukraine’s envisaged Art. 124 declaration
As mentioned, Ukraine’s future Art. 124 declaration will, unlike the previous ones made by France and Colombia, only aim to divest the ICC from exercising its personal jurisdiction over Ukrainian nationals without at the same time hindering the Court from exercising jurisdiction over nationals of other States, i.e. in the case at hand Russian nationals. This raises the question whether such a more limited Art. 124 declaration is permissible and in line with the said provision.
This question is not to be mixed up with the fundamentally different question of the so-called ‘positive’ or ‘negative’ understanding of Art. 124 Rome Statute (but see Heller for such proposition). The issue of the ‘positive’ versus ‘negative’ understanding of Art. 124 issue exclusively relates (just as in the case of the debate of the negative versus positive understanding of Art. 121, para. 5 Rome Statute concerning the amendment procedure as far as the crime of aggression is concerned) to the question whether an Art. 124 declaration notwithstanding the Court might still exercise its jurisdiction on the basis of the acceptance of the Court’s jurisdiction by another State (‘positive understanding’) or rather not (‘negative understanding’). Put otherwise this distinction solely relates to the question as to whether e.g. in the case of France the Court could have exercised jurisdiction in case of French nationals committing war crimes on the territory of a State party while its Art. 124 declaration was in force (‘positive understanding’) or rather not (‘negative understanding’) (for details see Zimmermann, here, Art. 123, marginal note 5). It does not therefore relate to the question here under consideration. What is more, contrary to what was claimed (“Zimmerman(sic!)’s entry on Art. 124 (…) is (…) unclear”), it has already previously been made clear that, while a negative understanding of Art. 124 Rome Statute is the correct interpretation of the said provision (ibid., marginal note 7 in fine), any such Art. 124 declaration does bar the exercise of jurisdiction by the Court only “within the limits of its content’, which obviously implies that it might be limited in its scope.
Such interpretation stands in line, first and foremost, with the very wording of Art. 124 Rome Statute (see for such proposition already also Zimmermann, Art. 124, marginal note 10), which provides for such exclusion concerning crimes ‘committed by its nationals or on its territory”/”sur son territoire ou par ses ressortissants” (emphasis added). Otherwise the text would have provided for an exclusion of the Court’s jurisdiction ‘crimes committed by its nationals and crimes committed on its territory”/”sur son territoire et par ses ressortissants”. Besides, one cannot but assume that the Rome Statute aims at providing for as much jurisdiction to be exercised by the Court as possible. Finally, it is also worth noting, that Art. 124 itself provides for a partial opt out ratione materiae (i.e. concerning war crimes only, but not vis-à-vis genocide and crimes against humanity) which might have the effect to de facto shield perpetrators from one side of a conflict (who might have committed war crimes, but not crimes against humanity or acts of genocide), while perpetrators from the other side might still be prosecuted for having committed those other categories of crimes. There is thus reason to assume that Art. 124 did not want to foreclose another partial opt out ratione personae (as now envisaged by Ukraine) either.
The very little practice by just two contracting parties, i.e. France and Colombia, which had excluded both, the Court’s jurisdiction ratione loci and rationae personae in their respective Art. 124 declaration can neither be considered to be normatively relevant in any way whatsoever (but see Heller: “that may be why France and Colombia each treated the Court’s territorial and nationality jurisdiction as package deal when they issued their Art. 124 declarations”).
Still, at least as a matter of judicial policy, this leaves a somewhat bitter taste as only possible war crimes committed by individuals fighting on one side of the armed conflict in Ukraine will then be subject to the Court’s jurisdiction.
Art. 124 and the Court’s (continued) jurisdiction on the basis of Ukraine’s ad hoc declarations
So far the Court’s jurisdiction vis-à-vis Ukraine is based on its ad hoc declarations made in the past under Art. 12, para. 3 Rome Statute. This raises the question whether they will become obsolete once the Rome Statute will enter into force for Ukraine in line with Art. 126, para. 2 Rome Statute at least as far as the Court’s jurisdiction from that point in time onwards is concerned.
Yet, given that Art. 124 only makes reference to Art. 12, para. 1 and 2 Rome Statute (but not to Art. 12, para. 3), the Court will continue to be able to exercise jurisdiction over Ukrainian nationals as far as any possible war crimes they might have committed prior to the entry onto force of the Rome Statute for Ukraine. Put otherwise, the future Ukrainian declaration to be made under Art. 124 will not have retroactive effect. It is however less clear whether this result is further confirmed (but see Heller for such somewhat undercomplex proposition) by the fact that Art. 124 refers to the State in question not accepting the Court’s jurisdiction “for a period of seven years after the entry into force” of the Statute (emphasis added; for more details on the temporal scope of Art. 124 declarations see Zimmermann, Art. 123, marginal note 9). As a matter of fact, this ‘after the entry into force’ formula might also be interpreted to exclude the Court’s jurisdiction for a seven year waiting period in toto even as far possible war crimes committed ex ante are concerned for which the Court would otherwise have jurisdiction on the basis of a prior Art. 12, para. 3 declaration.
More complicated is the interrelationship between those previous (‘unlimited’) ad hoc declarations and the Ukrainian accession (to be combined with an Art. 124 declaration). As a matter of fact the Court has been be adamant, including by adopting Rule 44 RPE and in its jurisprudence (see for details Heler), about making sure that Art. 12, para. 3 declarations are not misused to limit the Court’s jurisdiction to crimes committed by one side to an (armed) conflict only. This raises the question whether, once such State later becomes a contracting party, it may just reach such goal at least partially as far as war crimes are concerned by making use of Art. 124 Rome Statute.
It is submitted that any Art. 12, para. 3 declaration does not automatically loose its legal relevance ad futurum once a State that has previously made such a declaration accedes to the Rome Statute. As a matter of fact, 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 final question then arises whether such State may however at the very least at the time it accedes to the Rome Statute provide that its Art. 12, para. 3 declaration will become ineffective once the Rome Statute enters into force for said State. As a matter of fact, there is no provision in the Rome Statute that precludes such possibility. What is more is that in accordance with the ILC’s ‘Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations’ unilateral declaration made by a State cannot be revoked only if done arbitrarily. Yet, the very fact of a State acceding to the Rome Statute providing in its Art. 124 expressis verbis for the opting out possibility as to war crimes revoking an all-embracing Art. 12, para. 3 declaration including the Court’s war crimes-related jurisdiction cannot be perceived as being arbitrary in nature. (see in the same vein Heller). It is doubtful, however, whether a one year waiting period (as proposed by Heller) in analogy with Art. 127 Rome Statute is appropriate. Rather, in order to avoid frictions with the Court’s treaty-based jurisdiction it seems that acceding States must be entitled to terminate their Art. 12, para. 3 declarations with effect on the first day of the month after the 60th day following the deposit by such State of its instrument of accession, i.e. at the time the State becomes bound by the treaty by virtue of Art. 126, para. 2 Rome Statute. At the same time, it ought to be assumed that in analogy with Art. 127, para. 2, 2nd sentence Rome Statute a State terminating its Art, 12, para. 3 declaration remains obliged to cooperate with regard to pending proceedings in the basis of such a declaration, the exclusion ad futurum of the Court’s war crimes-related jurisdiction by virtue of an Art. 124 declaration notwithstanding (see also Heller for the same proposition)
Concluding remarks
By 2024, the Rome Statute has now been in force for 22 years. At the same time it seems that it has, by now, exploited almost all of its potential of attracting further ratifications. It is thus even more to be welcome that a State like Ukraine, victim of an armed aggression and party to a major enduring armed conflict threating its very existence, by now considers joining the Rome Statute.
Submitting simultaneously a declaration under Art. 124 Rome Statute might thus be considered a relatively small price to be paid in order for such step to be taken by Ukraine even more so since other States have done so in significantly less precarious situations, France being a particularly relevant example at hand. One might wonder whether Ukraine would have even considered at all acceding to the Rome Statute provided the amendment deleting Art. 124 Rome Statute was already in force.
Only time will tell whether on the long term what effect, if at all, the deletion of Art. 124, if ever it were to take place, might then have on possible future ratifications of the Rome Statute, provided further ratifications of the Rome Statute might be forthcoming in the next years. In any case, it seems that sometimes, as the saying has it, the news of the death of Art. 124 Rome Statute were premature.
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