Josh Kern leads seminar on 'Jurisdiction and non-States Parties of the International Criminal Court' at the Irish Centre for Human Rights in Galway

06 November 2019

On 5 November 2019, Josh Kern led a seminar at the Irish Centre for Human Rights at the National University of Ireland in Galway on the topic of the ICC’s jurisdiction with respect to non-States Parties to the Rome Statute.

Josh’s remarks are set out below. Josh and Chambers wish to express their gratitude to the Irish Centre for Human Rights, the students and members of the public who attended, Professor Ray Murphy, Jia Wang, and all at the Centre for their kind invitation and warm hospitality.

The OTP’s pivot

The OTP’s apparent pivot away from Africa has engaged the interests of States not Party to the Rome Statute and appears to carry a cluster of as yet unresolved legal issues relating to the circumstances in which the Court is permitted to exercise jurisdiction, as well as the very nature – the “true nature” as the Appeals Chamber has put it – of the jurisdiction it has.

In cases where there is no issue of State consent, such as in the situations that have come to trial before the Court to date, these issues have not required determination or appeal. States which have - unambiguously - consented to the exercise of jurisdiction are on weaker ground objecting to it, although you may think that this fact has not yet prevented State Party non-cooperation in any event.

A note of caution on that. Led by Steven Kay QC, we at 9 Bedford Row defended the Kenyatta case whose collapse was attributed by the OTP to the absence of Kenyan cooperation. This narrative masks the embarrassment of a series of operational failures which plainly demonstrate the vulnerability of the Court (both Chambers and OTP) to politically-motivated instrumentalisation, and that the safeguards under Article 15 which were drafted to operate as a check on an unruly Prosecutor were not functioning properly in that case.

When an investigation was requested in Georgia (which has seemingly ground to a halt) and when the OTP requested authorisation to investigate the Situation in Afghanistan, this appeared to represent a watershed. It seemed that the OTP and the Pre-Trial Chambers were willing to grasp the judicial nettle of an issue which it had long been foreseeable would require resolution, namely whether the Court is permitted to exercise jurisdiction over nationals of non-States Parties absent an Article 13(b) referral. Unfortunately, those of us wishing for proper consideration of the issue have been disappointed, as paragraphs 44 to 46 of the OTP’s Request to open an investigation in Afghanistan (which essentially accepts Dapo Akande’s 2003 thesis) is the fullest extent of the OTP’s pleading on the issue to date. Paragraphs 49 to 50 of Pre-Trial Chamber II’s 12 April 2019 Decision on the OTP’s request provides the Chambers’ most comprehensive elucidation of judicial reasoning supporting the OTP’s conclusion.

The issue of the validity Head of State immunities before the Court has, on the other hand, generated a significant volume of jurisprudence and publicist comment since 2002. The Appeals Chamber in Bashir turned its mind to the “true nature” of the ICC’s jurisdiction. But much remains unresolved – for example what is the significance of the ICC’s status as an international criminal court? When is the Rome Statute binding on individuals and when is it “merely” jurisdictional? What law governs the Court’s relations with non-States Parties? There are more. I would fully recommend Talita de Souza Diaz’s recent article on the nature of the Rome Statute, and Marco Milanovic’s 2011 contribution on whether the Rome Statute binds individuals, as excellent starting points, but – we should also acknowledge – they only begin to scratch the surface of the issues which foreseeably will require resolution by the Court and at the horizontal level.

The absurdity of the current situation and its inconsistency with the Rome Statute’s Preamble

The current situation involves risk for the Court and arguably breaches the spirit, if not the letter, of the Rome Statute. For in failing properly to resolve the issue of whether the Court is permitted to exercise jurisdiction over nationals of non-States Parties, the Court’s position remains exposed to those who maintain a contrary position which is grounded on the same (horizontal) level of international legal authority when opposed by a non-State Party not bound by the Rome Statute.

This situation should arguably never have arisen. The Rome Statute’s Preamble provides more than sufficient warning that the Rome Conference – or a sufficient constituency within it – was mindful that the Court should be permitted to exercise a more limited jurisdiction than the “like-minded” States and the Coalition for the International Criminal Court desired, so it stands to reason that many of the issues which have arisen and which will discuss today are contemplated by the Preamble’s delicately crafted words. We could have an entire seminar on each Recital.

But for today’s purposes, and I appreciate advancing my argument, we might ask whether the approach which the OTP and Chambers have adopted up to now remains mindful of each Recital. For the determination to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole (Recital 5) is of no greater normative value than the emphasis which is given to the reaffirmation of the principle, derived from the UN Charter, that nothing in the Rome Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State (Recitals 7 and 8).

The Court has been provided with sufficient warning that acts of retorsion (such as we have seen through John Bolton and Mike Pompeo) and even countermeasures might be taken should it fail to adhere to these principles. Yet a situation – in Georgia – has arisen with an investigation authorised over conduct of non-State Party (Russian) nationals without any pleading on the matter. This now appears to have led to an investigation which resembles a black hole.

In November 2017, the OTP requested authorisation to exercise jurisdiction over the Situation in Afghanistan, including over US nationals. The OTP’s Request presupposes that the Court’s jurisdiction is grounded in the “conferral or delegation of jurisdiction by a party to a treaty to an international jurisdiction” (para 45), and notes that the practice is “not novel”.

Yet the distinction between the existence and exercise of jurisdiction is conflated in paragraph 44 (where the Request states that since the alleged crimes have been committed on the territory of a State Party, the Court “has territorial jurisdiction” when Article 12(2)(a) plainly states that territoriality is a precondition to the exercise of jurisdiction over Article 5 crimes). The failure to capture this important distinction between the existence and the exercise of jurisdiction is an unfortunate recurring theme with respect to treatment of these issues (and may reappear in December’s appeal hearings on the interests of justice). This must change, as this distinction’s effect is material to our understanding of the true nature, and therefore limits, of the Court’s jurisdiction and its exercise.

Immunities, objective legal personality, and the interests of justice

Pre-Trial Chamber II’s April 2019 Decision in the Situation in Afghanistan coincided with the Appeals Chamber’s Judgment in May in Bashir. Six months earlier, PTC I had issued its Article 19 Decision on jurisdiction in the Situation in Bangladesh, which too contained analysis which touches on the nature of the ICC and found that the Court possesses an objective legal personality opposable to non-States Parties. The Decision’s ratio, however, does not take us further with respect to whether the exercise of jurisdiction over nationals of non-States Parties is permitted by customary international law.

In PTC II’s Decision in the Situation in Afghanistan, the Chamber’s analysis simply found that because the Rome Statute states that the Court “may exercise its jurisdiction if the conduct has occurred in the territory of a State that is party to the Statute” then the nationality of the offender was not a relevant consideration. But what if the exercise of jurisdiction is opposed by a non-State Party (such as the US), in defence of their national, in surrender proceedings when the US is not bound by the Rome Statute? Here, rules prescribed by the Rome Statute can have no binding force and cannot regulate the dispute (albeit the Statute will be considered closely for its declaratory effect). On the contrary, the authority regulating any dispute between the ICC and a non-State Party is the customary international law of jurisdiction, taken together with the international law of State responsibility and the responsibility of international organisations.

The Appeals Chamber’s Judgment in Bashir and the detail provided in its Joint Concurring Opinion provide further colour with respect to the “true nature” of ICC jurisdiction. Yet the Judgment and Opinion arguably seem to beg more questions than they answer with respect to the issue of jurisdiction (perhaps unsurprisingly given that the primary issue determined considered the procedurally related but substantively distinct issue of the legal effect of Head of State immunities).

Most recently, the OTP has appealed and the LRVs sought leave to appeal the Pre-Trial Chamber’s Decision refusing to authorise and investigation into the Situation in Afghanistan on the basis that there are substantial grounds to believe that to do so would not be in the interests of justice. Amicus curiae organisations and law professors have been granted leave to be heard in the appeal but the issue of whether the Court is permitted to exercise jurisdiction at all over US nationals has not been raised as a ground of appeal by the OTP and victims’ representatives.

It may be argued that this sequencing, where the Court has proceeded to satisfy itself that it is permitted to exercise jurisdiction over nationals of non-States parties without having tested the proposition in an adversarial setting, or inviting submissions on the same, has served to reduce the Court’s legitimacy in the eyes of non-States Parties (such as the US) who have not consented to the exercise of jurisdiction. It is certainly red meat to those who argue that this is a Court which is hungry to expand its jurisdiction irrespective of the geopolitical realties or the spirit of Recitals 7 and 8 of the Preamble to the Rome Statute.

Time to pause

The Appeals Chamber’s hearings of the OTP’s appeal in the Situation in Afghanistan present an opportunity for the Court to correct the problematic nature of the development of its jurisprudence concerning the nature and scope of the Court’s jurisdiction. The issues raised by the Appeals Chamber engage fundamental questions concerning its “true nature” too. Even the nominally procedural first issue, which contemplates whether the appeal is an appeal against “jurisdiction” (for the purposes of Article 82), requires the Appeals Chamber to determine whether the distinction between the existence and exercise of jurisdiction is material the question of whether a decision not to authorise an investigation on the ground that it would not be in the interests of justice is a decision “with respect to jurisdiction” as understood by Article 82. To explain further, it has been argued that because the terminatory effect of the ruling relates to the exercise of jurisdiction the decision is one “with respect to jurisdiction”. This necessarily will entail analysis of the distinction between the existence and exercise of jurisdiction.

As to the merits (and Article 53(1)(c)’s content), and simply to illustrate one of several manifestations of how the issue arises, if the scope of a proposed investigation is a consideration that may properly operate on the mind of the OTP (or even the Chambers) when considering whether to commence or authorise an investigation – as found by Pre-Trial Chamber II – in the context of  consideration of the interests of justice,  there must surely be certainty with respect to whether the Court is permitted to exercise jurisdiction over the full scope of the proposed investigation.  The Cross-Border victims’ appeal is predicated on this idea – but their appeal argues that PTC II unlawfully narrowed the scope of the Court’s permissible exercise of jurisdiction. If, however, the Court is not permitted to exercise jurisdiction over nationals of non-States parties at all, as a matter of customary international law, this would further narrow the situation’s potential scope and arguably alter the interests of justice balancing exercise accordingly.

In a sense, therefore, this appeal of the Pre-Trial Chamber’s decision not to authorise an investigation on “interests of justice” grounds places the cart before the horse. On such an important issue it seems perverse for decisions to be made with respect to the proposed scope of an investigation, and for those decisions to feed into an interests of justice analysis, when a fundamental issue relating to the jurisdictional scope of the investigation has not been properly litigated before any organ of the Court or ever determined by the Appeals Chamber.

Learning from Tadić

The ICTY Appeals Chamber’s decision on jurisdiction in Tadić remains a seminal moment in international criminal law and sets out the legal basis of that tribunal’s jurisdiction and the source of its authority. Each of the ad hoc international criminal tribunals has also exercised its kompetenz-kompetenz in such a way at an early stage in the tribunals’ development. Due to the early history of the ICC, the practice of self-referrals, and the fact that the Court did not open investigations into crimes committed by nationals of non-States Parties during its first decade and beyond, there remains no equivalent Appeals Chamber decision setting out the “true nature” of the Court’s jurisdiction when opposed by non-States Parties. This is a gap which, as submitted above, creates systemic risk for the Court in that it can reasonably be perceived as a result to be an institution seeking to expand its jurisdiction without proper consideration of the legal issues at play. December’s appeal hearings present an opportunity to correct this state of affairs and the Appeals Chamber will be encouraged to pause before proceeding to interfere with rights which the United States assert remain within its sovereign prerogative, and with respect to which it may be supported by non-States Parties and affected communities.

The true nature of ICC jurisdiction

The OTP’s Request framed the nature of the jurisdiction that the Court exercises in a situation which meets the precondition contained in Article 12(2)(a) on the “delegation model”, which derives from the law of international organisations and the consent principle and holds that the source of the court’s authority when it exercises jurisdiction pursuant to the precondition contained in Article 12(2)(a) of the Rome Statute, or pursuant to a non-State Party’s declaration under Article 12(3), is the consent provided by that State Party either through its act of accession under Article 125 or a non-State Party’s Article 12(3) Declaration and the conferral of sovereignty that this entails. Others see the Court’s “true nature” differently. They argue that the Court possesses an inherent ius puniendi that authorises it to enforce the will of the international community as a whole and the act of delegation can be dismissed as a mere formality. Support for this conception of ICC jurisdiction can arguably be found in the Appeals Chamber’s Judgment in Bashir, the Joint Concurring Opinion, as well as in PTC I’s Article 19 Decision on Jurisdiction in the Situation in Bangladesh.

We argue that it is the principles of customary international law which determine the true nature of the ICC’s jurisdiction as an international criminal court, including the proposition that its jurisdiction is customarily and uniquely governed by a written instrument. As third States are not bound by the Rome Statute, it is customary international law alone which governs any such dispute between the Court and a third State concerning the permissible exercise of its jurisdiction.  The ICC is – of course – first and foremost a creature of Statute but, as a judicial organ, PTC I found (albeit obiter) in the Situation in Bangladesh that the Court possesses objective personality as a subject of international law. It must however be remembered that the legal framework which determines its existence as such is general international law.  It has nothing to do with the Rome Statute.

When we consider the “true nature” of the Court’s jurisdiction, our analysis must therefore operate on at least two levels – both the primary level of the Court’s permissible jurisdiction as a subject of international law, as well as the secondary (internal) rules of the Rome Statute. Indeed, it may be the case that – as matter of its internal order – the ICC is permitted to exercise jurisdiction over non-State Party nationals if the jurisdictional pre-conditions in Articles 12(2)(a) and, in the case of conduct occurring in the territory of a non-State Party, Articles 12(3) or 13(b) are met. But this is not to say that these provisions of the Rome Statute reflect the customary international law which regulates the Court’s jurisdiction when opposed by a non-consenting State, as the Rome Statute (as a convention) cannot directly impair customary law on the same subject matter. (Moreover, parties to a convention are obliged to apply customary rules vis-à-vis non-parties for whom the convention remains res inter alios acta.) This means, even if (at the internal level) the Court may ostensibly be permitted to exercise jurisdiction over a national of a non-State Party (applying the Rome Statute), if the exercise of that jurisdiction is opposed by a non-State Party at the horizontal level (during surrender proceedings) then the law which will govern the dispute between the non-State Party and the ICC will properly be primary rules of customary international law which – we argue – give rises to a different result.  One accordingly needs to find the rule of custom which permits the delegation of the exercise of territorial jurisdiction by State to an international criminal court.

The exercise of jurisdiction over nationals of non-States Parties

In our communication, we argue that custom has not developed in such a way so as to permit the delegated exercise of territorial jurisdiction over the national of a non-Consenting State absent the authorisation of the Security Council.  Our Article 15 communication in August considered State practice and opinio juris from Nuremberg, to the ICTY and ICTR, to the SCSL and the STL, to the Rome Conference and beyond and concluded that State practice and opinio juris has not developed to such a point where it would permit the exercise of delegated territorial jurisdiction over a national of a non-consenting state absent an enabling resolution of the Security Council. The issue now requires full and proper consideration by the Court.

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