Article 124, War Crimes, and the Development of the Rome Statute
Tabak, Shana, Georgetown Journal of International Law
The Rome Statute is the founding document of the International Criminal Court (ICC), a court created to prosecute, among other crimes, the most serious crimes of war. Article 124 of the Rome Statute, however, permits States Parties to refuse ICC jurisdiction over war crimes committed on their territory or by their own nationals for a period of up to seven years. Article 124, also known as the "transitional provision" or "opt-out provision," (1) reads:
Notwithstanding article 12, paragraphs 1 and 2, 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 A declaration under this article may be withdrawn at any time.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. (2)
David Scheffer, who headed the U.S. delegation to the Rome Conference to establish the ICC, called Article 124 the war crimes "opt-out," (3) a term which has gained traction among human rights advocates and critics of the article. Despite the trepidation expressed by critics of Article 124, to date only two countries have invoked it to opt-out of ICC war crimes jurisdiction: France (4) and Colombia. (5) Notably, on August 13, 2008, France withdrew its invocation of Article 124, and Colombia's seven-year period of curtailed jurisdiction will end on October 31, 2009. (6) Although Article 124 permits States Parties, for a period of seven years, to refuse ICC jurisdiction over war crimes, nationals of countries that opt-out may still be prosecuted for genocide or crimes against humanity under separate statutory provisions. Article 124 is the only article that, under the terms of the Rome Statute, must undergo mandatory review at the 2009 Review session. (7) This Note examines some of the many questions raised by the existence of the war crimes opt-out within the Statute, including: How did a war crimes opt-out come to exist in the Statute? What has been its effect thus far? Why has it only been adopted by two countries? And, should it be struck from the Statute when it is reviewed in 2009?
Section I examines the drafting of Article 124 and its impact on other provisions of the Rome Statute. This section discusses the influence of the States Parties that pressed for Article 124's inclusion in the Statute. It considers how Article 124 intersects with three other articles of the
Statute: Article 120, which addresses States Parties' capacity to make reservations to the Statute; Article 12, which addresses the subject-matter jurisdiction of the ICC; and Article 8, which provides the Statute's definition of war crimes. It explores the temporal and jurisdictional confusion that may result from adoption of Article 124. This section concludes by examining arguments in favor and against Article 124 itself. Section II explores France's decision to invoke (and then to withdraw) Article 124 to opt-out of the ICC's war crimes jurisdiction, and the effect of those decisions in France. Section III addresses the invocation of Article 124 by Colombia, a country that has been torn apart by civil war for nearly half a century, and offers an in-depth examination of how invocation of the Article may affect the potential for ICC prosecution of war criminals there. Section IV considers why other countries may or may not have considered invoking the Article. Finally, Section V considers the question that will be addressed at the 2009 Review session: should Article 124 remain in the Rome Statute?
This Note argues that the war crimes opt-out provision embodied in Article 124 should be deleted from the Statute. Although Article 124 played an important role during the drafting and negotiation of the Rome Statute, it has outlived its usefulness. …