While much of the ICC-watching world’s attention was focused on the Kenyans’ battle over Rule 68, there was another part of the Rome Statute that was being discussed, and finally, scrapped during the last meeting of the states that belong to the ICC.
— Frida Fostvedt (@fridafos) November 26, 2015
Article 124, part of the Rome Statute since it was first signed in 1996, has gone. The Statute came into force in 1998 when enough countries had up. Is scrapping Article 124 big news? Or nothing to shout about? Well, for the Norwegians, who chaired the working group that was tasked with thinking about this, it was certainly a triumph. And not just because they made it happen.
— May-Elin Stener (@MayElinStener) November 26, 2015
That’s right. The article in question meant that any state that wanted to could say that war crimes – specifically war crimes – would not be tried at the Court. Here’s the relevant extract:
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.
You can imagine the situations this might have been applied in – you finish a war, sign a peace, join the Court but want to make sure the rebels honour the peace. So you tell the Court to back off for seven years.
Seems logical? But, in fact, only two states have ever made use of the article. Very different states. And for rather different reasons.
The first was France, which withdrew its declaration back in 2008. Why France? Well, you have to imagine the very intense and shaky negotiations going on to get the ICC born. Apparently, during those talks, France wanted to have states have the right to give consent or not to having their nationals before the Court. Partly as a way of potentially getting other Security Council members to sign up. Article 124 emerged as the compromise. And in the end Russia, China and the US have never become members.
As for Colombia, its invocation of the article lapsed anyway in 2009. There have been long negotiations with one of the main rebel groups. The ICC has been keeping a close eye on the detail of exactly what justice and punishment for international crimes the final deal involves. Article 124 may have played a part in getting the parties to the table.
But, in any case, as this young lawyer wrote:
Although Article 124 played an important role during the drafting and negotiation of the Rome Statute, it has outlived its usefulness.
Human rights organisations will be pleased.
But why did it go through, apparently so easily? Surely countries that might potentially think about signing up, after their own civil conflict, will now be put off that they have no escape clause.
Well, remember those who are at the ASP have already signed up. They don’t seem – generally – to have nationals they want to protect. And you can’t very well be arguing at the ASP as a state party about how Kenya should just accept how the Court works, and in the meantime be signing up yourself to non-prosecution. That would be hypocrisy, wouldn’t it?
Lead image: World Forum Convention Centre where the 14th ASP was held (Photo: Valerie Kuypers/ANP)