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.
3 comments:
Human rights treaties are considered to run with the land, so the fact that certain territory of a State breaks away to form a new State may not destroy the Court's jurisdiction. Of course, you could try to distinguish the Rome Statute from human rights treaties per se, and cite Montenegro as evidence of customary international law, in which case a declaration of succession would be needed. It would be a question of first impressions I would imagine, and it would only arise if the Prosecutor attempted to prosecute someone for crimes committed in the break-away State who has chosen not to accept the Rome Statute. Given the experience of prolonged pre-trial detention at ICTY, which is even worse at the ICC, I would be surprised if Kosovo ratifies the Rome Statute.
Human rights treaties are considered to run with the land, so the Prosecutor could argue that the territory of a break-away State remains under the Court's jurisdiction following secession. Of course, a State resisting the Court's jurisdiction would try to distinguish the Rome Statute from human rights treaties per se, and cite Montenegro and the US ReStatement of Foreign Relations Law as evidence of customary international law (I think the Vienna Convention on Succession to Treaties is not widely followed). It would be a question of first impressions I would imagine. Given the treatment received by a number of prominent Kosovar's at the ICTY, and given that the pre-trial regime at the ICC is much worse than at the ICTY, I predict Kosovo will never ratify the Rome Statute.
Dear Prof. Schabas,
For my ignorant mind your intriguing question can only have one clear and definite answer: a new state is a new entity and thus it cannot be bound by the obligations of its predecessors,i.e., the previous state-parents unless it wishes so.
This legal principle is also colourfully summarized in the Greek (and certainly not only Greek!) proverb that "a newborn cannot be blamed for the sins of its parents".
Moreover, it must be noted that the aforementioned principle is of general application in contract, inheritance and other branches of law in numerous states (e.g. the next of kin has the right to decide whether he/she will continue having the same rights and obligations that the deceased had).
Hence, I strongly believe that in principle it could never be cogently argued that this rule could or should be surmounted under any circumstances.
Yours sincerely,
Victor Tsilonis
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