In 2008, three new entities declared independence: Kosovo, Abkhazia and South Ossetia. The claims of all three to statehood remain disputed, of course. The Kosovo issue is currently before the International Court of Justice, the result of a request for an advisory opinion from the United Nations General Assembly (http://www.icj-cij.org/docket/index.php?p1=3&p2=4&code=kos&case=141&k=21).
Prior to the declarations of independence, all three territories belonged to States that were parties to the Rome Statute. As a result, crimes committed on their territory or by their nationals are subject to the jurisdiction of the International Criminal Court. My question is: what happens if they become independent?
Whether or not they are independent States involves complex questions of both law and fact. Presumably the International Court of Justice will give us some guidance on this in the Kosovo advisory opinion. Given that declarations of independence often correspond to zones of armed conflict or civil disturbance, it seems fairly probable that such developments will be associated with allegations of crimes within the jurisdiction of the Court. And that means that judges of the International Criminal Court may have to decide whether a State is genuinely independent or not in deciding whether the Court actually has jurisdiction (art. 19(1)).
The Rome Statute is silent on the subject of succession to treaties. Presumably, under general rules of international law when a State breaks away from another, a declaration of succession is required. This is what happened when Montenegro separated from Serbia. The list of States Parties to the Rome Statute on the website of the depositary indicates that Montenegro became a State Party through a declaration of succession (see http://www.icc-cpi.int/asp/statesparties/country&id=107.html).
To my knowledge, no such action has been taken by Kosovo, or by the two Georgian breakaway States. Does this mean that if they have indeed successfully declared independence, the International Criminal Court no longer has jurisdiction over their territory or their nationals?
Any insights into this problem from readers of the blog would be welcomed.