Unforced Error: Article 124 and the Regrettable Caveat to Ukraine’s Proposed Ratification of the ICC Statute

By Tom Dannenbaum, Professor of international law at The Fletcher School

At what ought to be a landmark moment in its already impressive engagement with international law, Ukraine is on the verge of a significant unforced legal and political error. Ukrainian President Volodymyr Zelenskyy recently submitted a bill to the Ukrainian Verkhovna Rada for the ratification of the International Criminal Court (ICC) Statute (see here and here). This is a long-anticipated and meaningful step. But it comes with a catch. The draft appears to provide for a transitional declaration in which Ukraine would decline to accept ICC jurisdiction over war crimes by Ukrainian nationals for seven years. Such a declaration would invoke a moribund ICC rule in the service of undermining the enforcement of international law. It would be unprincipled, it is unnecessary, and it would contradict Ukraine’s national interest.

With a commitment to complying with its international obligations, Ukraine can embrace the ICC Statute without caveat or equivocation. The draft provision should be removed before the damage is done.

Why Ukraine is Ratifying the ICC Statute

Ordinarily, ICC jurisdiction applies in one of three circumstances:

1. The crimes were perpetrated in whole or in part on the territory or registered vessels or aircraft of a State Party (article 12(2)(a), ICC Statute) or a state that has otherwise accepted the jurisdiction of the Court (article 12(3)).
2. The crimes were perpetrated by the nationals of a State Party (article 12(2)(b)) or a state that has otherwise accepted the jurisdiction of the Court (article 12(3)).
3. The situation was referred to the Court by the United Nations Security Council (articles 12(2) and 13(b)).

As things stand, neither Ukraine nor Russia is party to the ICC Statute and a Security Council resolution is out of the question due to Russia’s veto authority. However, Ukraine issued ad hoc declarations accepting ICC jurisdiction in 2014 and 2015, with the latter covering “acts committed in the territory of Ukraine since 20 February 2014” for an “indefinite duration.” The 2015 declaration is the basis of all of the ICC’s activity thus far with respect to the conflict between Russia and Ukraine, including the issuance of arrest warrants for Russian President Vladimir Putin and other high-ranking officials.

Although the existing article 12(3) declarations underpin ICC jurisdiction over any war crimes, crimes against humanity, or genocide committed in Ukraine (in whole or in part) since November 2013 (the jurisdictional start date under the first declaration), Ukraine’s ratification would still be legally significant in relation to the current conflict. Crimes that might be committed by Ukrainian nationals entirely on Russian territory or otherwise outside Ukraine would be implicated by the ratification (article 12(2)(b)), but not by the ad hoc declaration, which is territorially limited to conduct in Ukraine. Notably, in opening the Ukraine investigation, ICC Chief Prosecutor Karim Khan definedthe situation as encompassing crimes “committed on any part of the territory of Ukraine by any person.”

Moreover, unlike the ad hoc declarations, ratification would express Ukraine’s comprehensive and permanent commitment to the system of international criminal accountability, while also empowering Ukraine within the ICC system in certain important respects. For example, as a State Party, Ukraine could spearhead an effort to amend the ICC Statute to harmonize the jurisdictional regime applicable to aggression with those applicable to war crimes, crimes against humanity, and genocide (article 121(1), ICC Statute). It could also refer situations (article 14), nominate judges and have its nationals serve as ICC judges (article 36(4)(a-b)), and participate fully in all activities of the ICC Assembly of States Parties (article 112(2)). Affirming its institutional commitment, it would be assessed regular budgetary contributions (articles 115, 117).

Ukraine has faced pressure to ratify the Statute for some time, including from Ukrainian and international civil society and the European Union, to which it has committed to do so (article 8, Association Agreement). The bill sent to the Verkhovna Rada is the first tangible step toward delivery on that promise.

A Plan to Invoke Article 124 of the ICC Statute

Regrettably, however, it includes a mistake that could overwhelm the value of the ratification itself. As drafted, the proposed bill invokes article 124 of the Statute—a peculiar relic of a shabby compromise struck in the final days of the negotiations at Rome. At the time, a handful of powerful states, led by France, objected to their nationals’ exposure to ICC war crimes jurisdiction, threatening not to sign the Statute without some protection in that regard (see Zimmermann’s entry in the Ambos Rome Statute Commentary (p. 2906)). The solution was to include article 124, which provided each state an option upon ratification to:

“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.”

This was so obviously contrary to the general spirit of the Rome Statute that even as it was incorporated, the provision was uniquely primed for deletion. The article itself specifies, “The provisions of this article shall be reviewed at the [first] Review Conference.”

They were reviewed and, in 2015, the Assembly of States Parties approved an amendment by consensus that would delete article 124. Because this prospect had been codified in the original Statute, some states argued that the deletion would not require the usual 7/8ths of States Parties to ratify the amendment for it to enter into force. However, this effort failed, so the final deletion now depends on the realization of that 7/8ths of States Parties threshold.

This is a slow process at the best of times, but even slower for a change that has not seemed particularly urgent. Only France and Colombia have ever invoked article 124 (in 2000 and 2002), with France withdrawingits declaration in 2008 and Colombia’s terminating in 2009.

In short, the provision has not been an active barrier to ICC war crimes jurisdiction for 15 years and it has not seemed particularly likely to become one. Twenty-three of the current 124 ICC States Parties have ratified the deletion amendment (notably including article 124’s early champion, France). Although final deletion is still a long way off, among the ratifiers are some of Ukraine’s major supporters, both in its war effort and in its efforts to pursue accountability.

The Legal Implications of Invoking Article 124

For Ukraine to invoke article 124 would not only be an anachronistic regression from its otherwise commendable engagement with international law, it would also contradict its own national interest. The move is unlikely to achieve the dubious objective of shielding Ukrainians from ICC war crimes jurisdiction, and any success it might have in that endeavor would likely come at the far greater cost of giving Russian officials a parallel free pass to commit war crimes in Ukraine without ICC scrutiny—a pass that they currently do not have.

Four key legal points stand out here, the first three of which are also analyzed in a largely complementary way in Kevin Jon Heller’s excellent post over at Opinio Juris.

1. No Retroactive Impact

Through its 2014 and 2015 article 12(3) declarations, Ukraine has already accepted ICC jurisdiction over war crimes committed by its nationals in Ukraine since November 2013. A declaration under article 124 may only apply “for a period of seven years after the entry into force of this Statute for the State concerned.” To make such a declaration today would have no impact at all on the prior decade of Ukrainian nationals’ war crimes exposure at the ICC. To the extent this declaration is supposed to shield Ukrainian officials from ICC prosecution for existing or prior conduct, it will not work. At most, it would initiate a period of up to 7 years from the point of ratification during which Ukrainian conduct would have that protection.

2. Dubious Validity or Limited Effect

The fact of this previous decade of exposure is also significant prospectively. Article 124 is an explicitly “transitional” provision. It applies only for the first seven years (at most) of a State Party’s conferral of ICC jurisdiction over war crimes by its nationals or on its territory. Following that transition, the jurisdictional shield terminates.

Ukraine, however, is not in the process of “transitioning” to accepting ICC jurisdiction over its nationals’ war crimes; it has already accepted that jurisdiction on its territory for a decade, without caveat. Recognizing that, the Court could take one of two paths to vitiating, or at least severely limiting, the declaration’s jurisdictional impact:

• First, it could find that Ukraine’s 2015 article 12(3) declaration (through which Ukraine “indefinitely” accepts jurisdiction over war crimes in Ukraine) would apply concurrently with its ratification. Several legal scholars have advanced this position in preliminary reactions to the current bill (see here, here, and here). On this interpretation, the article 124 declaration would still shield war crimes committed entirely outside Ukraine by Ukrainian nationals, but any war crimes committed at least in part in Ukraine would be unshielded, due to the article 12(3) declaration. Heller argues against this approach on the grounds that, given article 12(3)’s purpose—offering a flexible mechanism to exercise jurisdiction based on ad hoc consent—it “seems unlikely” that the intent was for an “open-ended declaration to remain in force forever.” On his view, Ukraine must have a way to terminate its ad hoc acceptance under article 12(3), and Ukraine’s ratification and article 124 declaration could perform something like that function. This strikes me as plausible. However, as things stand, it remains an area of significant legal uncertainty.
• If, in line with Heller, the ICC were to take Ukraine’s ratification to subsume the 12(3) declaration or otherwise entail its temporal conclusion, the Court could nevertheless determine that the fact of the prior article 12(3) declaration precludes an article 124 declaration because the latter would not perform the “transitional” function for which it was created. On this view, the prior article 12(3) declaration would so fundamentally contradict the object and purpose of article 124 as to demand its interpretive exclusion (article 31(1) Vienna Convention on the Law of Treaties).

To be clear, neither of these interpretive paths is guaranteed. The Court might accept the validity of Ukraine’s article 124 declaration, while understanding Ukraine’s ratification to subsume and conclude the jurisdictional implications of its article 12(3) declaration. However, they are both conceivable paths and either would severely limit the legal effect of that declaration. Ukraine risks sacrificing the moral high ground (see below) for little or no benefit.

3. ICC Acceptance of the Declaration may be the Worst-Case Scenario for Ukraine

The Court accepting the validity and jurisdictional impact of the 124 declaration might actually be the worst-case scenario for Ukraine, as it runs the risk of shielding Russian nationals from ICC scrutiny for war crimes on Ukrainian territory.

Article 124 allows for a state to declare that “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.” The question is what precisely this means, and specifically how to interpret the use of the term “or.”

On one interpretation, the provision offers Ukraine the opportunity to declare one of three things:

i. that it does not accept ICC war crimes jurisdiction over its nationals, or

ii. that it does not accept ICC war crimes jurisdiction over its territory, or

iii. that it does not accept ICC war crimes jurisdiction over its nationals or its territory.

On the other interpretation it only offers Ukraine the right to declare that it does not accept ICC war crimes jurisdiction “over its nationals or territory,” taken as a non-severable jurisdictional package.

The latter is the more plausible reading. First, it is symmetrical with the Statute’s general jurisdictional regime. By ratifying the Statute, a state accepts ICC jurisdiction over any crimes committed by its nationals or on its territory (article 12(2)(a-b)); by issuing an article 124 declaration, on this interpretation, a state suspends that acceptance—namely the acceptance of jurisdiction over crimes committed by its nationals or on its territory—as applied to war crimes.

Second, the only article 124 declarations issued thus far have taken precisely that form, with both France and Colombia declaring that they do not accept ICC war crimes jurisdiction “when a crime is alleged to have been committed by [French / Colombian] nationals or on [French / Colombian] territory.”

Third, the rule of law would be undermined by a system that would allow states to ground ICC jurisdiction over the war crimes of others on their territory while shielding their own nationals from precisely the jurisdiction they have underpinned. Frankly, it beggars belief that Ukraine would purport to underpin ICC jurisdiction over Russian conduct in Ukraine, while shielding its own troops from precisely the jurisdiction pursuant to which the ICC would act against those Russian officials.

For these reasons, it would not be surprising if the ICC were to determine that the article 124 declaration is only valid if read to entail the scope articulated in the earlier French and Colombian declarations—in other words, if understood to apply equally to Ukrainian and Russian nationals, as long as the latter’s exposure is predicated on Ukraine’s ratification.

This would entail a spectacular own goal. Contrary to everything it has worked for in the domain of international law for the past decade, it would mean Ukraine giving Russian nationals a 7-year war crimes free pass on Ukrainian territory (for ICC purposes)—a free pass they currently do not have. Of course, Ukraine can revoke the article 124 declaration at any time. But the period of impunity would apply to any conduct occurring during the declaration’s efficacy.

Alternatively, assuming new States Parties are allowed to pick and choose whether to decline to accept ICC war crimes jurisdictional on a territorial or nationality basis, the upshot would be that Ukraine has suspended acceptance for its nationals, but not its territory. On that basis, Ukrainian territorial jurisdiction would continue to apply, including to the nationals of states that have not accepted ICC jurisdiction, such as Russia. But if so, why would Ukraine’s territorial jurisdiction not also apply to Ukrainian nationals for precisely the same reason? As Heller elaborates, the ICC generally approaches situations holistically, rejecting states’ attempts to define the boundaries of its investigative work to focus on a specific belligerent party. Moreover, the text of article 124 refers to a state declining to “accept” ICC jurisdiction of certain kinds, not to a state blocking jurisdiction where its acceptance of that kind of jurisdiction is not needed. Concretely, the fact that Ukraine has not accepted nationality-based jurisdiction would, on this reading, be irrelevant to the conduct of Ukrainian nationals in Ukraine because its acceptance of territorial jurisdiction would be sufficient to ground ICC jurisdiction over that conduct.

Of course, as Zimmermann emphasizes (p. 2907), it seems fairly clear from the drafting history of the ICC Statute that states included article 124 so that they could block ICC jurisdiction over their nationals’ war crimes completely, including when ICC jurisdiction would have applied absent their acceptance. That would indicate that Ukraine’s rejection of jurisdiction over its own nationals would protect them from ICC jurisdiction even when they act on the territory of an ICC State Party, including (it might be argued) the territory of Ukraine itself. However, there are two problems with this approach.

First, one might question the interpretive weight of some states’ original intent when it is contradicted not only by the plain text (compare article 31(1) and article 32 Vienna Convention on the Law of Treaties), but also by States Parties’ current consensus opinion that the provision should be deleted. To be clear, the latter consensus plainly does not entail the provision’s deletion—that can only be achieved through the proper amendment procedure. Moreover, in certain instances, the motivation for pursuing a provision’s deletion could be the danger associated with interpretively open text—text which would be no less open for the fact of mobilization toward deletion. However, arguably, States Parties’ consensus approval of deletion does weigh specifically against invoking drafters’ intent (since openly contradicted by the desire of current parties) as the key basis for reading the provision more expansivelythan the text requires.

Second, the notion that Ukraine’s rejection of jurisdiction over its nationals might protect them against an alternative basis for ICC jurisdiction is particularly weak when that alternative basis is jurisdiction that Ukraine will have specifically accepted and declined to block (namely, territorial jurisdiction). Here, again, it is not plausible that the rule would allow for the basis for Russians’ exposure to ICC war crimes jurisdiction to be the very Ukrainian act pursuant to which Ukrainian nationals that would otherwise fall into precisely the same jurisdictional category are shielded from ICC scrutiny.

In short, even if Ukraine were able to pick and choose which form of jurisdiction to reject, its acceptance of territorial jurisdiction would most plausibly apply equally to Ukrainians acting in Ukraine as to Russians acting in Ukraine. As such, the only effect of its suspension of war crimes jurisdiction over crimes committed by its nationals would be to preclude ICC jurisdiction over Ukrainian nationals acting entirely in Russia (or otherwise outside of Ukraine).

Ultimately, it is not certain how the Court will approach this. It may be that Russians are shielded together with Ukrainians, or it may be that both are exposed to ICC jurisdiction for acts in Ukraine (even as Ukrainian nationals are protected outside Ukraine).

However, in my view, one thing is clear: the reading that is least in keeping with the rule of law, the structure of the ICC’s jurisdictional regime, and the Court’s general approach of treating situations holistically is the reading according to which Ukrainian nationals would be protected from ICC jurisdiction over war crimes on Ukrainian territory, but Russian nationals would not. Based on that analysis, the best case for Ukraine is that the shield is very limited (applicable only to Ukrainian nationals acting outside Ukraine) and the worst case is that it gives Russian nationals a free pass on Ukrainian territory. The former would return little benefit to Ukraine. The latter would be a disaster.

4. War Crimes are War Crimes, With or Without ICC Jurisdiction

Even if the Court were to accept the declaration and its limited scope of application, Ukraine would still have an obligation to investigate and prosecute any war crimes perpetrated by its nationals. That obligation emanates from international humanitarian law and is not contingent on ICC membership (articles 49, 50, 129, 146 of Geneva Conventions I, II, III, IV, respectively; article 85 Additional Protocol I; ICRC Customary IHL Rule 158). Similarly, other states, including Russia, would still have the authority to exercise jurisdiction over any such crimes. In other words, all the declaration would do is block ICC jurisdiction. Given the principle of complementarity, Ukraine can already render cases inadmissible at the ICC by genuinely investigating and, where appropriate, prosecuting those cases domestically (article 17, ICC Statute).

Two possible implications follow. Either Ukraine wants the freedom for its nationals to commit war crimes and for the state to refrain from prosecuting them. Or Ukraine fully intends to prosecute any war crimes by its nationals in this conflict but does not trust the ICC to consider complementarity appropriately or adjudicate war crimes cases fairly in this conflict. Both possibilities communicate entirely the wrong message

Ceding the Moral High Ground

Indeed, these alternative implications of Ukraine’s posture emphasize that the problems with invoking article 124 are not only technical. Quite apart from how the ICC reacts to the declaration, for Ukraine to issue a declaration excluding ICC war crimes jurisdiction over its nationals for seven years would run contrary to all of the genuinely extraordinary work Ukraine has done to leverage international law in this context. In the domain of legitimacy, it would entail a gift to Russian President Vladimir Putin.

Together with a group of friendly states (many of which have ratified the ICC Statute amendment deleting article 124), Ukraine has pursued a remarkable array of accountability efforts in relation to Russia’s aggression and the atrocities that have followed. Among others, these have included joining a Joint Investigation Teamunder Eurojust, working towards the creation of a Special Tribunal for the Crime of Aggression (including through the European Union’s establishment of a precursor International Center for the Prosecution of Aggression against Ukraine), and working towards the creation of a Compensation Commission for the distribution of reparations (again, including through the establishment of a precursor institution—the Register of Damage for Ukraine—created, in this instance, by the Council of Europe). The Ukrainian Prosecutor General has cooperated productively with ICC investigators and Ukraine, while opening multiple lines of inquiry domestically.

Each of these laudable efforts is predicated on the principle that Russia and its officials are bound by international law and that it is appropriate and indeed imperative to pursue accountability under international law for their violations, including through the ICC. Ukraine’s determination to pursue each of these efforts (and others), and to rally the support of other states in that endeavor has not only emphasized the intrinsic importance of accountability and reparation. It has also centered international law as the language of legitimacy in this conflict.

In that very vein, per the submitted bill, Ukraine plans to ratify not only the ICC Statute, but also the Kampala amendments relating to the crime of aggression—an important affirmation that coheres with and bolsters its effort to pursue accountability for that crime through a Special Tribunal, given the impossibility of acting through the ICC under current circumstances. The Kampala ratification would not change the situation legally vis-à-vis accountability for Russia’s aggression. Instead, it would affirm Ukraine’s willingness to subject its officials to the rules that it invokes. As such, it would augment its legitimacy in seeking alternative institutional avenues in the pursuit of accountability for Russia’s aggression.

In each of these respects, the article 124 declaration—expressing, at worst, a desire for impunity  in committing war crimes or, at best, a lack of trust in the ICC to fairly adjudicate them—would be a striking step backwards. Extraordinarily, it would support Vladimir Putin in his effort to discredit the ICC and condemn Ukraine’s and its partners’ efforts as tainted by hypocrisy and double standards. A key reason to ratify the Statute rather than relying on the prior article 12(3) declarations is to express Ukraine’s comprehensive commitment to international law and the system of accountability. An article 124 declaration would do precisely the opposite.

Conclusion

Ultimately, the legal impact of the draft provision laying the foundation for Ukraine to make an article 124 declaration is uncertain, likely marginal, and quite possibly counterproductive. Its expressive impact is profoundly contrary to everything Ukraine has worked for in the domain of international accountability. Ukraine is right to embrace ICC jurisdiction; it has no reason to equivocate in doing so. There is still time to reverse this error. The bill should proceed, but it should proceed without this provision.

(This post is republished from Just Security.)