Article 12(3) of the Rome Statute: An intrinsic misnomer?

* This post was co-authored with Benjamin Agsteribbe, formerly of the University of Amsterdam, and currently a researcher at HaMoked – Center for the defence of the individual in East Jerusalem.

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Some of our, and others’, previous posts have taken to outline the main legal issues that arise of the recent declaration submitted by the Palestinian Ministry of Justice in acceptance of the jurisdiction of the ICC, requesting the Prosecutor to invoke the application of the Rome Statute for the purpose of trying the violations of international law committed by the parties to the recent conflict in the Gaza Strip. The following will consider a less recalled legal question that is relevant, inter alia, to the Palestinian declaration; namely, the scope of the application of Article 12(3) of the Rome Statute.

A literal reading of Article 12(3) of the Rome Statute shows that the acceptance of the jurisdiction of the ICC by a non-party state is on, what can be referred to as, a “case specific” and/or “ad hoc” basis. The text reads, “If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question.” (emphasis added)

Also, the Palestinian declaration itself, which is available on the Court’s website, requests that the jurisdiction be retroactive from 1 July 2002, as well as prospective for the whole (or part) of the period of the military occupation during which the violations of international law would persist. The admission of an extended temporal application also has a considerable number of precedents; even those that allow for the application of the Statute with regard to events that took place before the coming into force of the Statute itself. Whilst the question of retroactive application is less contentious than others, having been discussed in a number of cases, also in the European Court of Human Rights, there are other questions that merit being presented, considering the challenging character of the facts at hand:

What are the practical implications of the “case specific” application of the provision? In other words, does it not require that the extent to which the Statute should be applied to a non-party state is limited in both temporal and material scope? In light of these implications, could the Court invoke jurisdiction retroactively? And if so, to what extent? Finally, if the spirit and intent of Article 12(3) serves to limit, even if only tenuously, the application of the Statute to non-party states, does the aforesaid not disqualify this intention and classify the “case specific” and “ad hoc” terminology used in Article 12(3) and in its commentary as a misnomer?

This commentary on the Statute presents one perspective on the interpretation of this provision, which may as well be, from the perspective of international criminal law, the envisaged interpretation from a teleological stance. Notably, this would not take away from the suggestion that the description used by this provision are perceived to draw a very different picture than what transposes from the commentary.

For instance, the commentary notes, that “the ICC may still exercise jurisdiction provided the territorial State and/or the nationality State (being a non-State Party) on an ad hoc basis accepts the exercise of jurisdiction of the ICC. The declaration by which the approval of jurisdiction of the Court is being affirmed ‘must be express, unequivocal, and precise as to the crime(s) or situation it applies to’ (Stéphane Bourgon, p. 563.)”. (emphasis added). It also notes another interpretation, still retaining the temporal specifity aspect of the application, to the effect that “the ‘article 12(3)-declaration’ made by a non-State Party implies the ‘acceptance of jurisdiction with respect to the crimes referred to in article 5 of relevance to the situation‘…rather than individual crimes or specific incidents (Carsten Stahn et al, pp. 427–28, Hans-Peter Kaul, p. 611)”. (emphasis added).

This is, however, a normative state of affairs that cannot deny that the term “ad hoc” is, to a certain extent, a misnomer , particularly, but not necessairly only if the invocation of the jurisdiction could be for an indeterminate time period, and in relation to all the crimes listed in Article 5 of the Statute, without requiring a deductive application of the Statute to a specific crime, one at a time. It seems from this that the limits of Article 12(3) are considerably vitiating, and the scope  of its application is remarkably elastic.