On the basis of this dogmatic structure Article 12 may be divided into two separate yet intertwined stipulations: First, Article 12(1) determines how a State may accept the jurisdiction of the ICC concerning the core crimes, namely by becoming a party to the Rome Statute. 560)-such as Article 11 on the temporal jurisdiction (ratione temporis jurisdiction)- Article 12 is the central legal source when it comes to determining the territorial jurisdiction of the ICC. Given that the Rome Statute does not provide for a separate and exclusive provision dealing in toto with the ratione loci jurisdiction of the Court (Stéphane Bourgon, p. In addition to specifying the general preconditions for the exercise of jurisdiction, Articles12 must furthermore be seen as the main provision governing the territorial jurisdiction (ratione loci jurisdiction) of the ICC. As such, the provision has been called ‘one of the cornerstone provisions of the Statute’ (Bergsmo, p. Preconditions to the exercise of jurisdictionĪrticle 12 sets the preconditions for the exercise of jurisdiction of the Court. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford Univerity Press, Oxford, 2002, pp. Stéphane Bourgon, in Antonio Cassese et al.Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. Williams, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. The second exception, concerning States Not Parties to the Rome Statute, is examined in the comment to Article 12. It is submitted that the declaration must be explicit, which was the case in the situation in Uganda and the situation in the Democratic Republic of Congo, see letter of the Prosecutor of 17 June 2004 attached to the Decision Assigning the Situation in Uganda to Pre-Trial Chamber II, 5 July 2004 (page 4) and Decision Assigning the Situation in the Democratic Republic of Congo to Pre-Trial Chamber I, 5 July 2004 (page 4). When a State becomes a party, the Court's temporal jurisdiction is limited to the crimes committed after the entry into force of the Rome Statute for that State, unless that State in accordance with Article 12(3) accepts jurisdiction for acts committed prior to ratification but after the entry into force of the Statute. The first exception concerns States Parties. In regard to States that accepts the jurisdiction of the Court two exceptions may be noted in relation to the jurisdiction ratione temporis set by the entry into force of the Rome Statute. The requirement on consent on behalf of the State has implications for the temporal jurisdiction of the Court. In addition the Security Council may refer a situation to the Court ( Article 13). If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under Article 12, paragraph 3.Ī precondition to the Court's exercise of jurisdiction is that the State has accepted the jurisdiction of the Court ( Article 12). A State may also upon ratification of the Rome Statute make a declaration in accordance with Article 124 and opt out for a period of seven years from the jurisdiction of the Court in relation to war crimes. The Security Council may according to Article 16 prevent the Court from exercising jurisdiction for a fixed period of time. The jurisdiction ratione temporis may be limited in two ways.
It is submitted that references in future cases to acts pre-dating the entry into force of the Statute may be useful in establishing the historical context but they may not be form the basis of a charge. The Rome Statute is silent in regard to violations which are committed prior to the entry into force of the Statute and continued afterwards. Thus, the Rome Statute is based on the non-retroactivity principle and the temporal jurisdiction of the Court is prospective ( Article 24(1)). The Court has the power to exercise jurisdiction following the 1 July 2002, when the Rome Statute was ratified by 60 States and thus entered into force ( Article 126). The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.
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