Wednesday, 6 April 2011

Côte d'Ivoire and the International Criminal Court

The Security Council Resolution on Côte d'Ivoire (S/RES/1975) has an interesting reference in the preamble to the International Criminal Court.
Considering that the attacks currently taking place in Côte d’Ivoire against the civilian population could amount to crimes against humanity and that perpetrators of such crimes must be held accountable under international law and noting that the International Criminal Court may decide on its jurisdiction over the situation in Côte d’Ivoire on the basis of article 12, paragraph 3 of the Rome Statute...
Years ago, Côte d'Ivoire made a declaration accepting the jurisdiction of the Court in accordance with article 12(3). What I don't understand about the paragraph is the idea that the Court 'may decide on its jurisdiction'. I think it already has jurisdiction, as an automatic result of the declaration.
During the Security Council debate on the Resolution, India said the following:
We want to reiterate that India is not a member of the International Criminal Court (ICC). Of the 192 Members of the United Nations, only 114 are members of the ICC. Five of the 15 members of the Security Council, including three permanent members, are not parties to the Rome Statute. It is also important to note that there are clear legal provisions concerning States parties to the Rome Statute. There are also guidelines
 for States that are not parties to the Rome Statute to accept the exercise of jurisdiction by the ICC. These provisions and guidelines should be followed without exception. It merits underlining that there is no mandate in resolution 1975 (2011) for the Security Council to refer the situation in Côte d’Ivoire to the ICC.
It is a fact that the situation in Côte d'Ivoire has not been referred. A declaration under article 12(3) is not the same thing as a referral. So the jurisdiction of the Court must still be triggered. The Council has not done this. A State party can do it, under article 14 of the Statute. And the Prosecutor can act proprio motu, under article 15, without any referral at all. But it will go faster if a State party refers the situation. It's about time that a State part refers a situation against a State other than itself!
The Resolution has several other interesting features, including a  paragraph on hate propaganda. The references to both the International Criminal Court and the Human Rights Council are very striking. It is as if they have become part of a holistic approach to conflict and human rights violations.

1 comment:

Mathias Holvoet said...

Dear Mr. Schabas,

Thank you for this interesting post!
I don't think neither that Ocampo has to "accept" the jurisdiction under article 12 (3) of the Rome Statute. Probably he's a bit a confused because he still has to accept (or not) the jurisdiction of Palestine for the crimes committed during Operation Cast Lead.
For what is concerned state referrals, this article might be interesting:
I agree that state referrals are preferable, since it lowers the chance that only one side of the conflicting parties will be prosecuted.

Best regards,
Mathias Holvoet
PhD-Student European Criminal and International Criminal Law, University of Brussels.