23 May 2010

Article 124: Much Ado About Nothing

The Rome Statute contemplates the convening of periodic Review Conferences, but there is a special place for the first Review Conference, to be held seven years after entry into force of the Statute. The purpose of the first Review Conference is to ‘consider any amendments to the Statute’, including but not limited to ‘the list of crimes contained in article 5’ (art. 123(1). But only one item, article 124, is required to be ‘reviewed’ by the Review Conference.
Article 124, labeled ‘Transitional Provision’, reads as follows:
Notwithstanding article 12 paragraph 1, 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 A declaration under this article may be withdrawn at any time.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.
Article 12(1) declares: ‘A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.’
Article 124 was introduced in the final draft of the Statute at the Rome Conference in what was widely believed to be an attempt to resolve a difficulty of the French delegation, and thereby earn its support for the final package. France’s military was said to be uncomfortable with the war crimes provisions, for reasons that are hard to fathom. France invoked article 124 when it ratified the Statute, but later withdrew its declaration, thereby accepting jurisdiction over war crimes even before the seven year period had expired. Colombia, too, invoked the provisions of article 124 upon ratification. Its declaration expired on 31 October 2009. It was indeed a 'transitional provision', in that it provided these two States with a temporary comfort zone. Both France and Colombia seem now to have accepted a Court with full jurisdiction over war crimes.
At the time the Rome Statute was adopted, article 124 was resoundingly condemned by the human rights NGOs as a grievous flaw that would promote impunity. In its position paper on the Review Conference, Amnesty International recalls how it had described article 124 as a 'licence to kill'. It was a bit of hyperbole, even then, but more than a decade of hindsight shows just how unrealistic and exaggerated such concerns really were. Article 124 was no more than an innocuous compromise that had the effect of soothing a difficulty for an important government, however irrational France's concerns may have been. to date, the provision has facilitated ratification of the Statute by two States.
Opinions on the ‘review’ of article 124 are varied (see the discussion in the report to the November 2009 Assembly of States Parties session). There are three options: remove it from the Statute, leave it alone, and amend it. States favouring its retention argue that it has facilitated the adherence of States Parties, thereby contributing to the universality of the Statute. Removing it would create a discriminatory situation between those States that have already joined the Court, with the option of invoking article 124, and those that may consider ratification in the future. They argue that the low number of States having made declarations does not mean it is not useful, even if it will only be invoked occasionally in the future.
States supporting deletion of article 124 argue that it was always intended to be temporary in nature, that the low number of States to invoke it shows its lack of usefulness, and that the manner in which it limits jurisdiction is analogous to a reservation, which is prohibited by article 120. Finally, they argue that it could encourage impunity in a State where a war crime was perpetrated. There is no evidence of this, however. Perhaps those who want to remove article 124 simply don't like the symbolism, or are unwilling to admit that they overreacted in 1998.
It has been suggested that if article 124 is retained, it might be amended either by deleting the first sentence or by reformulating it as a ‘sunset’ clause by which it would expire at a certain point in time.
Article 124 only covers war crimes. A State cannot ratify the Statute and exclude jurisdiction over genocide and crimes against humanity. Indeed, even if there were no provisions governing war crimes in the Rome Statute, the Court would remain a very effective institution to deal with impunity for ‘the most serious crimes of concern to the international community as a whole’ because it addresses genocide and crimes against humanity. Indeed, of the three categories of crimes in the Court's subject matter jurisdiction, war crimes is surely the least essential. Don't be misled by the fact that it is the longest provision in the Statute!
With rare exceptions, serious war crimes will also meet the terms of crimes against humanity. This can be seen in the case law of the three ad hoc tribunals, for the former Yugoslavia, Rwanda and Sierra Leone. Only at the International Criminal Tribunal for the former Yugoslavia have there been convictions for war crimes alone with accompanying convictions for crimes against humanity. Of these, there are only a handful, and they have generally resulted in low sentences, confirming that where they do not overlap with the definition of crimes against humanity, they are of secondary importance. At the Rwanda and Sierra Leone tribunals, there have been no convictions for war crimes that were not associated with convictions for crimes against humanity and genocide. In other words, it would have made almost no difference to the campaign against impunity in these three recent examples of international prosecution had jurisdiction over war crimes been excluded altogether.
It is true, of course, that the very first prosecution at the International Criminal Court concerns charges that are only addressed by the war crimes provision. Thomas Lubanga is being tried for recruiting child soldiers, and there is no corresponding accusation under the heading of crimes against humanity. But when this recent experience is taken alongside the practice of the ad hoc tribunals, it suggests that such a case will be the exception rather than the rule. With the exception of Lubanga, the arrest warrants already issued by the Court concern crimes against humanity as well as war crimes. The recently authorized investigation into the post-election violence in Kenya concerns crimes against humanity but not war crimes.
In other words, the war crimes provisions in the Rome Statute are somewhat peripheral anyway. Their temporary exclusion in the case of a ratifying State is unlikely to have any genuine impact in terms of addressing impunity. Practice has shown the usefulness of article 124 in encouraging a couple of ratifications, and has confirmed that the provision may help to ease the way for a few States to full acceptance of the Rome Statute. Of course, we will never know whether France and Colombia would have ratified the Statute (or even supported its adoption) in the absence of such a provision. Article 124 has proven to be an essentially harmless provision that has played a minor but certainly not a negligeable role in promoting ratification. On balance, it would be better to simply leave article 124 unchanged, in the hope that it will bring another one or two ratifications. But one way or another, it is hardly worth arguing about for very long.

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