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The Ratione Loci Jurisdiction of the

International Criminal Court in Disputed

Territories

Thesis submitted in support of the program LL.M. International Criminal Law

by

Papoutsi Maria-Alexandra

Alexander S. Onassis Foundation Scholar

Supervisors

Prof. Guénaël Mettraux Prof. Lori F. Damrosch

Amsterdam Law School Columbia Law School

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Borders should not be used as a shield against the reach of law and as a protection for those who trample underfoot the most elementary rights of humanity

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS………..2

BIBLIOGRAPHY……….3

ABSTRACT………..11

I.  

INTRODUCTION TO THE PROBLEM………12

II.  

TERRITORIAL JURISDICTION: OVERVIEW………..15

A.   Territory as a Traditional Basis of Jurisdiction………15

B.  The Territorial Jurisdiction of the International Criminal Court……….16

III.  

DEFINING THE SCOPE: WHAT IS A “DISPUTED” TERRITORY?...19

IV.  

THE NOTION OF “TERRITORY” UNDER THE ROME STATUTE……..21

A.   The Need for a Broad Interpretation……….……21

B.   Sovereignty, Jurisdiction or Control Over Territory?...23

i.   The Vienna Convention Mechanism ……….23

ii.   “Territory” Beyond Article 12………..…24

a.   Cooperation Requests………..25

b.   Reservations……….28

iii.   Article 21 and Human Rights Jurisprudence ………32

C.   Some First Conclusions and Limits………..……….36

V.  

STATEHOOD AND THE INTERNATIONAL CRIMINAL COURT ……...40

A.   The Relevant Legal Regime………40

B.   The Impact of the Situation in Palestine………43

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LIST OF ABBREVIATIONS

AJIL American Journal of International Law

CUP Cambridge University Press

ChineseJIL Chinese Journal of International Law

DukeLJ Duke Law Journal

EJIL European Journal of International Law

JICJ Journal of International Criminal Justice JICL Journal of International Criminal Law

MPUNYb Max Planck Yearbook of the United Nations

OUP Oxford University Press

UPittLR University of Pittsburgh Law Review

YbILC Yearbook of the International Law Commission

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BIBLIOGRAPHY

I.   INTERNATIONAL COURTS

International Criminal Court

•   Office of the Prosecutor, OTP Response to Communications Received Concerning Iraq (9 February 2006)

•   Office of the Prosecutor, Report on Preliminary Examination Activities 2012 (November 2012)

•   Office of the Prosecutor, Report on Preliminary Examination Activities 2013 (25 November 2013)

•   Office of the Prosecutor, The Determination of the Office of the Prosecutor on the Communication Received in Relation to Egypt (8 May 2014), ICC-OTP-20140508-PR1003

•   Prosecutor v. Callixte Mbarushimana (Decision on the ‘Defence Challenge to the Jurisdiction of the Court’) ICC-01/04-01/10-451 (26 October 2011)

•   Prosecutor v. Saif Al-Islam Gaddafi (Decision on the Prosecutor’s “Request for an Order Directing the Registrar to Transmit the Request for Arrest and Surrender to Mr. al-‘Ajami AL-‘ATIRI, Commander of the Abu-Bakr Al Siddiq Battalion in Zintan, Libya”) ICC-01/11-01/11-634-Red (21 November 2016)

•   Prosecutor v. Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC-01/04-01/06-803-tEN (29 January 2007)

•   Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo Against the Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Art 19 (2) (a) of the Statute of 3 October 2006), ICC-01/04-01/06-772 (14 December 2006)

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•   Prosecutor v. William Samoei Ruto and Joshua Arap Sang (Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber V (a) of 18 June 2013 Entitled ‘Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial’) ICC-01/09-01/11-1066 (25 October 2013)

•   Situation in the Democratic Republic of the Congo (Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal) ICC-01/04-168 (24 July 2006)

•   Situation in the Republic of Kenya (Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09 (31 March 2010)

European Court of Human Rights

•   Al Skeini et al. v. The United Kingdom (Judgement), Application No 55721/07 (7 July 2011)

•   Ilaşcu et al. v. Moldova and Russia (Judgment), Application No 48787/99 (8 July 2004)

•   Loizidou v. Turkey (Preliminary Objections), Application No 15318/89 (23 March 1995) A/310

International Court of Justice

•   Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), ICJ Rep. [2004]

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Permanent Court of International Justice

•   Mavrommatis Palestine Concessions (Greece v. United Kingdom) (Objection to the Jurisdiction of the Court), PCIJ Series A No 2 [1924]

•   The Case of the S.S. “Lotus” (France v. Turkey), PCIJ Series A No.10 [1927]

II.   DOMESTIC COURTS

United States

•   Rasul et al. v. Bush et al., 542 U.S. 466 (28 June 2004)

•   Sixto Millan Couvertier v. Guillermo Gil Bonar, 173 F.3d 450 (4 May 1999) •   Smith v. United States., 953 F.2d 1116 (24 December 1991)

Australia

•   MacLeod v. Attorney General for New South Wales, AC 455 [1891]

III.   INTERNATIONAL AGREEMENTS

•   American Convention on Human Rights (22 November 1969), 1144 UNTS 123 •   Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or

Punishment (10 December 1984), 1465 UNTS 85

•   Convention on Rights and Duties of States (Inter-American) (26 December 1933), 165 LNTS 19 [Montevideo Convention]

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•   European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950), 213 UNTS 221, ETS 5

•   International Covenant on Civil and Political Rights (16 December 1966), 999 UNTS 171

•   International Covenant on Economic, Social and Cultural Rights (16 December 1966), 993 UNTS 3

•   Rules of Procedure and Evidence of the International Criminal Court (9 September 2002), ICC-ASP/1/3, UN Doc. PCNICC/2000/1/Add.1

•   Rome Statute of the International Criminal Court (17 July 1998), 2187 UNTS 90 •   Vienna Convention on the Law of Treaties (23 May 1969), 1155 UNTS 331

IV.   UNITED NATIONS

General Assembly •   A/RES/43/58 (6 December 1988) •   A/RES/58/21 (3 December 2003) •   A/RES/61/25 (1 December 2006) •   A/RES/63/29 (26 November 2008) Security Council •   S/RES/446 (22 March 1979) •   S/RES/452 (20 July 1979)

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•   S/RES/904 (18 March 1994)

•   Statute of the International Criminal Tribunal for Rwanda (S/RES/955 [1994]) •   Statute of the International Criminal Tribunal for the Former Yugoslavia

(S/RES/827 [1993])

International Law Commission

•   Draft Articles on the Law of Treaties with Commentaries, 2 YbILC 187 [1966] •   Report of the International Law Commission on the Work of its Fiftieth Session, 2

(2) YbILC [1998], UN Doc. A/53/10

•   Summary Records of the 2333rd Meeting, 1 YbILC [1994], Doc. A/CN.4/SR.2333

Other

•   M. Shaw, ‘The International Legal Principles Relating to Territorial Disputes: The Acquisition of Title to Territory’ in United Nations Audiovisual Library of International Law

•   United Nations, Rome Statute of the International Criminal Court: Status of Ratification

V.   TREATISE

•   Bassiouni C. et al. (eds.), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (Martinus Nijhoff 2009)

•   Boot M., Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court: Genocide, Crimes Against Humanity, War Crimes (Intersentia 2002)

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•   Cassese A., ‘The Statute of the International Criminal Court: Some Preliminary Reflections’, 10 EJIL 144 [1999]

•   Crawford J., The Creation of States in International Law (2nd ed., OUP 2006) •   Cryer R. et al., An Introduction to International Criminal Law and Procedure (CUP

2014)

•   Dinstein Y., The International Law of Belligerent Occupation (CUP 2009) •   Fitzmaurice M., ‘Third Parties and the Law of Treaties’, 6 MPUNYb 37

•   Harvard Research in International Law, ‘Codification of International Law: Part II Jurisdiction with Respect to Crime’, 29 AJIL 435 [Sup 1935]

•   Hassan D., ‘The Rise of the Territorial State and The Treaty of Westphalia’, 9 YbNZJuris 62 [2006]

•   Hollis D.B., The Oxford Guide to Treaties (OUP 2012)

•   Kress C., ‘Symposium: The Procedural Law of the International Criminal Court in Outline: Anatomy of a Unique Compromise’, 1 JICL 603 [2003]

•   Lee H., ‘Defining “State” for the Purpose of the International Criminal Court: The Problem Ahead After the Palestine Decision’, 77 UPittLR 345 [2016]

•   Lee R.S. (ed.), The International Criminal Court: The Making of the Statute: Issues, Negotiations, Results (Kluwer Law International 1999)

•   Mann F.A., ‘The Doctrine of Jurisdiction in International Law’, 111 (I) RCADI 1964 •   Pellet A., ‘The Palestinian Declaration and the Jurisdiction of the International

Criminal Court’, 8 JICJ
981 [2010]

•   Ryngaert C., Jurisdiction in International Law (2nd ed., OUP 2015)

•   Schabas W.A., An Introduction to the International Criminal Court (4th ed., CUP 2011)

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•   Schabas W.A., The International Criminal Court: A Commentary on the Rome Statute (2nd ed., OUP 2016)

•   Stahn C. (ed.), The Law and Practice of the International Criminal Court (OUP 2015)

•   Stahn C. / El Zeidy M.M. (eds.), The International Criminal Court and Complementarity: From Theory to Practice Vol. II (CUP 2011)

•   Sumner B.T., ‘Territorial Disputes at the International Court of Justice’, 53 DukeLJ 1779 [2004]

•   Triffterer O. (ed.), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article (2nd ed., C.H. Beck-Hart-Nomos 2008) •   Vagias M., The Territorial Jurisdiction of the International Criminal Court (CUP

2014)

•   Vidmar J., ‘Palestine and the Conceptual Problem of Implicit Statehood’, 12 ChineseJIL 19 [2013]

•   Wolfrum R. (ed.), The Max Planck Encyclopedia of Public International Law (OUP 2011)

VI.   MISCELLANEOUS

•   ‘Territorial Dispute’ in World Heritage Encyclopedia, available at: http://www.worldlibrary.org/articles/eng/Territorial_dispute

•   (United States) Restatement of the Law, Third, Foreign Relations of the United States [1987]

•   Amnesty International, International Criminal Court: Declarations Amounting to Prohibited Reservations to the Rome Statute, available at: https://www.amnesty.org/en/documents/ior40/032/2005/en/

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•   Metrocosm, ‘Mapping Every Disputed Territory in the World’, available at: http://metrocosm.com/mapping-every-disputed-territory-in-the-world/

•   Milanovic M., The Territorial Scope of the Rome Statute, available at: https://www.ejiltalk.org/the-territorial-scope-of-the-rome-statute/

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ABSTRACT

Territoriality has served as a classic jurisdictional basis for many centuries and is still considered the most uncontroversial one under international law. This concept is also incorporated in the Rome Statute under Article 12 (2) (a), which establishes the ratione loci jurisdiction of the International Criminal Court.

Instances of occupation, secession or other territorial regimes can affect the way we perceive the notion of “territory” under the Statute and can, thus, have an impact on the Court’s jurisdiction. Due to the inherent ambiguity of the term, territory must be interpreted in a dynamic, broad fashion, so as to reveal its true meaning in settings of territorial disputes. As contextual elements, the reservations concerning the territorial scope of the Statute and the provisions on cooperation serve as a guidance towards a widely perceived “territory”, that can also include control and not simply sovereignty over it. To the same direction points the jurisprudence on the extraterritorial application of human rights treaties.

On the other hand, an over-expansive interpretation of “territory” could violate the rights of States Non-Parties, so judicial creativity should find its limits in a reasonable exercise of jurisdiction.

Due to the declaration for the acceptance of ad hoc jurisdiction that was lodged by Palestine, the Court had recently the opportunity to take a stand with regard to statehood. The reasoning of this declaration’s rejection is likely to have a significant impact on the Court’s future pronouncements on territorial jurisdiction in disputed territories. However, contrary to this restrictive decision, there is strong suggestion that the Court could adopt its own, functional approach to statehood.

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I.  

INTRODUCTION TO THE PROBLEM

The establishment of the International Criminal Court [‘ICC’ or ‘the Court’] as a permanent court with a mandate to try individuals for the commission of core international crimes, has generated many hopes and expectations alike. Most of the ad hoc tribunals have now ceased operations or are about to do so in the next couple of years, leaving behind a significant jurisprudential legacy. Called to respond to entirely new challenges, the ICC will now predominantly shape the future of international criminal law, as far as its constituent document, the Rome Statute [‘the Statute’], allows for it.

During the Rome Conference negotiations, the issue of the Court’s jurisdiction instigated heated debates. Not only was the matter left unresolved until literally the last moment, but also many of the countries that eventually voted against the Statute, did so because of their disagreement with Article 12. Under the said article, which sets the preconditions to the exercise of the Court’s jurisdiction, only crimes committed on the territory or by a national of a State Party are covered. The same goes for States Non-Parties that have accepted the jurisdiction of the ICC on an ad hoc basis, according to that article’s third paragraph. The first jurisdictional basis, the principle of territoriality, is said to be as old as the Peace Treaties of Westphalia themselves. However, even such an established concept presents some significant challenges in its modern-day application.

The territorial jurisdiction of the ICC, or ratione loci jurisdiction, as laid down in the Rome Statute, leaves open questions about the exact notion of the “territory” in which the conduct in question must have taken place. This Thesis is not going to deal with locus delicti considerations (subjective/objective territoriality, effects doctrine), where the crime is committed on the territory of several States, an issue also left unresolved under the

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Statute. The Thesis paper will rather examine jurisdiction in situations involving some sort of dispute over one specific territory, on which the alleged core crime has been committed. With the number of ongoing territorial disputes around the world being on the rise, it is just a matter of time that the ICC get to respond to critical issues, which it has not (systematically) faced yet: questions of sovereignty, statehood, jus ad bellum and so on. Usually accompanied by cross-border violence that amounts to an armed conflict, disputes over territory are likely to produce a situation where international crimes have been committed, thus falling under the subject-matter jurisdiction of the ICC. Whether such a situation will also fall under the Court’s ratione loci jurisdiction, will need –first of all- an assessment with regard to which State’s is the said “territory”, so as to be able to refer the situation (or lodge an ad hoc acceptance of jurisdiction). Similar considerations will arise regarding which State is to receive requests for co-operation by the ICC or which State has standing to file admissibility and jurisdictional challenges. All these become even more perplexed, when one of the two disputing parties is a State Non-Party to the Rome Statute (and has neither accepted the Court’s jurisdiction ad hoc), or even when one is an entity with an unclear status of statehood.

Georgia, Ukraine, Palestine, Iraq are just some of the situations under the Court’s current consideration that contain elements of territorial disputes and/or a status of occupation. It is apparent that if the territorial issues are not settled in the earlier decisions of the Court in the respective situations, the jurisdiction is going to be contested –at least- by the defense, in all possible stages up to the appeals level. Therefore, the interpretation of Article 12 (2) (a) of the Statute, relating to the ratione loci jurisdiction, will soon be on top of the Court’s agenda. The inexistence of official travaux préparatoires for the Statute will likely compel the judges to seek other interpretative tools, examine various sources for inspiration and be creative.

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This Thesis will examine the possible interpretations of the notion of “territory” in situations that present some kind of territorial dispute. This will be done by drawing inferences from other parts of the Rome Statute, as well as from disciplines beyond international criminal law, in order to eventually assess which is the territorial scope of the Rome Statute in disputed territories. The present research will deal with jurisdiction that is triggered under Article 13 (a) and (c) of the Rome Statute, namely after a State Party’s referral or at the Prosecutor’s own initiative. The latter also includes the case of a proprio motu investigation after an ad hoc acceptance of jurisdiction by a State Non-Party, as described in Article 12 (3). The territorial scope of Security Council referrals will not be examined.

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II.  

TERRITORIAL JURISDICTION: AN OVERVIEW

A.   A Traditional Basis of Jurisdiction

It would be impossible for an analysis on territorial jurisdiction to begin without a special reference to the S. S. “Lotus”. In that case, the predecessor of the International Court of Justice drew some important conclusions on jurisdiction under international law and observed among others, that: “[…] failing the existence of a permissive rule to the contrary- [a State] may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial […]”.1 Ninety years later, some aspects of that decision remain relevant: the power of a state to regulate all affairs taking place on its territory, as the ultimate expression of sovereignty, still forms the most uncontested jurisdictional basis (prescriptive, adjudicative and –mainly- executive jurisdiction).2

However, the Lotus case was not the pioneer in forming this idea of territoriality. The latter is said to have emerged in medieval Europe and been finalized at the Treaty of Westphalia in 1648. This treaty affirmed the sovereignty of each State within its physical boundaries.3 Territoriality as a jurisdictional basis kept being regularly mentioned in court decisions of the 19th century, further elaborating the concept that crimes are in their nature “local” and thus, the criminal jurisdiction belongs to the State where the said crime was

1 Permanent Court of International Justice, The Case of the S.S. “Lotus” (France v. Turkey), PCIJ Series A No.10 [1927], p 18

2 R. Cryer et al., An Introduction to International Criminal Law and Procedure (CUP 2014), pp 49-52

3 D. Hassan, ‘The Rise of the Territorial State and The Treaty of Westphalia’, 9 YbNZJuris 62 [2006], p 64

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committed.4 In the early 20th century, the territorial principle of jurisdiction had already been incorporated in all penal codes existing at the time.5

Significantly curtailed by the proliferation of anti-trust laws of extraterritorial application and other expressions of globalization, today’s notion of jurisdiction still retains a “strong territorial flavor”, both under general international law and human rights law.6

B.   The Territorial Jurisdiction of the International Criminal Court In the Statute of the ICC, territory in the broader sense serves as a jurisdictional basis along with the nationality of the offender. The provision that incorporates this concept in the Statute, can be found mainly under Article 12 (‘Preconditions to the Exercise of Jurisdiction’) and reads as follows:7

2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

(b) The State of which the person accused of the crime is a national.

4 (Australia) MacLeod v. Attorney General for New South Wales, AC 455 [1891], p 458 5 Harvard Research in International Law, ‘Codification of International Law: Part II Jurisdiction with Respect to Crime’, 29 AJIL 435 [Sup 1935], p 481

6 C. Ryngaert, Jurisdiction in International Law (2nd ed., OUP 2015), p 25

7 United Nations, Rome Statute of the International Criminal Court (17 July 1998), 2187 UNTS 90, UN Reg No I-38544, UN Doc A/CONF.183/9 [hereinafter: Rome Statute], Art. 12 (2) (a)

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This formula practically means that the ICC has jurisdiction over crimes committed on a State Party’s territory, regardless of the offender’s nationality.8

The available information behind the adoption of the above article is rather inconclusive. The majority of the Rome Statute negotiations were kept informal for reasons of flexibility, with no summary records issued during the last two crucial weeks.9 Nevertheless, individuals taking part in the Diplomatic Conference of Rome have recounted the prolonged discussions around the jurisdiction of the Court and how it ended up being an area of major disagreement.

All the way from the Draft Statute of the International Law Commission in 1994, to the Ad Hoc Committee in 1995, to the Preparatory Committee in 1996 and finally to the Rome Conference in 1998, the breadth of the Court’s jurisdiction had been linked to acute sovereignty considerations. No matter how diverging the States’ proposals were on the issue, there had always been one common denominator: the consent of the territorial State, for the purposes of exercising jurisdiction, was deemed a sine qua non.10 The argument was that, since a State can freely exercise criminal jurisdiction against anyone committing

8 ‘Article 12: Preconditions to the Exercise of Jurisdiction’ in W.A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd ed., OUP 2016), pp 351-352

9 A. Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’, 10 EJIL 144 [1999], p 145

10 E. Wilmshurst, ‘Jurisdiction of the Court’ in R.S. Lee (ed.), The International Criminal Court: The Making of the Statute: Issues, Negotiations, Results (Kluwer Law International 1999), pp 127-139

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crimes on its territory, then this power could be equally delegated to an international criminal tribunal by the said State.11

11 International Law Commission, ‘Summary Records of the 2333rd Meeting’, 1 YbILC [1994], Doc. A/CN.4/SR.2333, p 36 para 46 (per C. Yamada)

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III.   DEFINING THE SCOPE: WHAT IS A “DISPUTED”

TERRITORY?

After setting the background of territorial jurisdiction and just before delving into the interpretation of the notion of “territory”, it is worth taking a moment to clarify the scope of this paper. In other words, what does this paper mean when it refers to “disputed” territories?

First of all, according to the famous Mavrommatis case, a dispute is “a disagreement on a point of law or fact, a conflict of legal views or of interests between two [persons or States]”.12 Specifically, a territorial dispute is “a disagreement over the possession/control of land between two or more territorial entities”.13 It is claimed that at least 124 countries are currently involved in a territorial dispute of some kind.14 It is no secret that territorial disputes have always been one of the main reasons for the breaking of hostilities, or even wars, among States. It is exactly in those factual settings that mass human rights violations and international crimes occur. These competing territorial claims can take different forms

12 Permanent Court of International Justice, Mavrommatis Palestine Concessions (Greece v. United Kingdom) (Objection to the Jurisdiction of the Court), PCIJ Series A No 2 [1924], pp 11-12

13 ‘Territorial Dispute’ in World Heritage Encyclopedia, available at: http://www.worldlibrary.org/articles/eng/Territorial_dispute (last access May 12th 2017) 14 Metrocosm, ‘Mapping Every Disputed Territory in the World’, available at: http://metrocosm.com/mapping-every-disputed-territory-in-the-world/ (last access May 12th 2017)

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ranging from effective control of the disputed territory, to the historical right to title, uti possidetis or cultural homogeneity.15

Out of these categories, what will be taken into consideration here, are primarily situations that involve occupation, separatism/secession or opposition to the central authority, or just competing claims of sovereignty. Situations where both competing States are Parties to the Statute normally will not be troublesome: the Court’s jurisdiction will be established anyway. What is genuinely going to create acute jurisdictional issues, is when the one party to the dispute is a State Party and the other one is either a State Non-Party, a Non-State actor or an emerging entity claiming statehood.

Besides this category of truly “disputed” territory, other territories which are under special regimes, such as overseas or autonomous, as well as military bases, do present some comparable features, so they, too, will appear in the discussion. The common thread among these different situations is that they all revolve around a territorial element, indispensable for the purposes of establishing sovereignty and statehood, thus creating competitiveness in the international scene.16 Having set the scope of the paper, we shall now go deeper into the notion of “territory” and the implications that can potentially arise in the above described factual scenarios.

15 B. T. Sumner, ‘Territorial Disputes at the International Court of Justice’, 53 DukeLJ 1779 [2004], pp 1779-1780

16 M. Shaw, ‘The International Legal Principles Relating to Territorial Disputes: The Acquisition of Title to Territory’ in United Nations Audiovisual Library of International Law, available at: http://legal.un.org/avl/ls/Shaw_BD_video_2.html (last access May 12th 2017), at 0:48-1:36

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IV.   THE NOTION OF “TERRITORY” UNDER THE ROME

STATUTE

A.   The Need for a Broad Interpretation

Being the fruit of extensive diplomatic compromise, many of the Statute provisions are characterized by “constructive ambiguity” and must, thus, be interpreted by the judiciary, before being applied.17 The formula adopted for the ratione loci jurisdiction of the ICC determines which is the territory where the alleged crimes must have been committed, so that the Court be able to exercise its adjudicative powers: the territory must belong to a State Party under Article 12 (2) (a) or a State that has accepted the Court’s jurisdiction on an ad hoc basis under Article 12 (3). As a bottom line, “territory” will surely extend to the land, territorial sea, the airspace above those two, as well as the vessels and aircrafts registered in that State. However, beyond that rather settled point, Article 12 also brings to the surface complex issues of public international law. With more than fifty percent of international borders being disputed, the Court will inevitably have to pronounce -at some point- on the specific title to a territory or even on statehood, in order to assert its jurisdiction.18 The Rome Statute remains silent on the exact meaning of the notions of “territory” and “State”, so these concepts should be adequately interpreted.19

17 C. Kress, ‘Symposium: The Procedural Law of the International Criminal Court in Outline: Anatomy of a Unique Compromise’, 1 JICL 603 [2003], pp 605-606

18 ‘Jurisdiction’ in W.A. Schabas, An Introduction to the International Criminal Court (4th ed., CUP 2011), pp 82-83

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It has been suggested that, since Article 12 is not covered by the principle of legality (as being a procedural provision and not a substantive one), it can indeed be interpreted broadly. This means that a teleological interpretation is not to be rejected, if we perceive territorial jurisdiction as forming part of the Statute’s core, the “constitution of the Court”. Similarly, being part of the “constitution” of an International Organization, namely the ICC, a dynamic interpretation is also suitable for this provision. 20 In legal concepts that are prone to evolve over time and which are inherently covered by ambiguity, such as jurisdictional clauses, their dynamic interpretation is well established in both domestic and international law.21

Most importantly, there is also a very realistic reason why the Court should be flexible on its interpretative duties: the Rome Statute is an instrument extremely difficult to amend and will probably remain essentially unchanged for many years to come. Therefore, in order to be able to remain relevant and responsive to the rapidly advancing concepts of international law, the judges must be flexible and creative in their case law.

20 M. Boot, Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court: Genocide, Crimes Against Humanity, War Crimes (Intersentia 2002), pp 365, 378-379; M. Vagias, The Territorial Jurisdiction of the International Criminal Court (CUP 2014), pp 39, 70, 74-75

21 C.L. Blakesley, ‘Jurisdiction Ratione Personae or the Personal Reach of the Court’s Jurisdiction’ in C. Bassiouni et al. (eds.), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (Martinus Nijhoff 2009), p 431

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B.   Sovereignty, Jurisdiction or Control over Territory?

i.   The Vienna Convention Mechanism

As with every other international treaty, the interpretation of the Rome Statute is governed by Articles 31 and 32 of the Vienna Convention on the Law of Treaties.22 The applicability of these articles has been ascertained by the Appeals Chamber in the situation of the D.R. Congo, where it was noted among others, that: “The rule governing the interpretation of a section of the law is its wording read in context and in light of its object and purpose”.23 Consequently, three distinctive interpretative tools emerge: the plain wording, the context and the object and purpose of the Rome Statute. This leads us to the following set of questions: is the plain wording of Article 12 (2) (a) clear enough to solve problems of jurisdiction with regard to disputed territories? How does the context of this provision affect the answer to the above question? And lastly, does the object and purpose of the Statute favor a broader interpretation of the notion of “territory”?

The author of the present paper, as well as many commentators, are of the opinion that the language of Article 12 is not clear enough, so as to require no further interpretation, concerning its application in disputed territories.24 Unfortunately, the Charters of the Ad

22 Vienna Convention on the Law of Treaties (23 May 1969), 1155 UNTS 331 [hereinafter:

VCLT]

23 International Criminal Court, Situation in the Democratic Republic of the Congo (Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal) ICC-01/04-168 (24 July 2006), para 33

24 (see among others) R. Rastan, ‘Jurisdiction’ in C. Stahn (ed.), The Law and Practice of the International Criminal Court (OUP 2015), p 167; Schabas supra n.18; Vagias supra n.20, p 75

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Hoc Tribunals do not shed light on the matter either, as their territorial jurisdiction was very specific and narrow.25 The Court’s practice on the issue is also scarce with very few decisions coincidentally touching the issue of ratione loci jurisdiction26 and none dealing directly with the issue of territorial jurisdiction in disputed territories.

This brings us to the quest for contextual elements that can lead to acceptable conclusions: the concept of territory appearing in other parts of the Statute, the unilateral declarations/reservations filed, the potentially great impact of Article 21, can all serve as valuable guidance.

ii.   “Territory” Beyond Article 12

The word “territory” appears some thirty-two times in the Rome Statute, under different parts and contexts. In the following lines, it will be explained why the provisions on cooperation, as well as the reservations filed with regard to the ratione loci jurisdiction of the Court, might tip the scales in favor of a broader notion of territory.

25 United Nations, Statute of the International Criminal Tribunal for the Former Yugoslavia (S/RES/827 [1993]), Art. 2; United Nations, Statute of the International Criminal Tribunal for Rwanda (S/RES/955 [1994]), Art. 1

26 International Criminal Court, Prosecutor v. Callixte Mbarushimana (Decision on the ‘Defence Challenge to the Jurisdiction of the Court’) ICC-01/04-01/10-451 (26 October 2011); International Criminal Court, Prosecutor v. Thomas Lubanga Dyilo (Decision on the Confirmation of Charges) ICC-01/04-01/06-803-tEN (29 January 2007), p 76 para 220; International Criminal Court, Office of the Prosecutor, OTP Response to Communications Received Concerning Iraq (9 February 2006), available at: https://www.icc-

cpi.int/NR/rdonlyres/04D143C8-19FB-466C-AB77-4CDB2FDEBEF7/143682/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf (last access May 12th 2017), p 3

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a.   Cooperation Requests

To begin with, the provisions relating to the cooperation with and assistance to the Court can be found in Part IX of the Statute. It is rather self-evident that in cases of territorial disputes or uncertainty over the status of a specific region, addressing cooperation requests will prove to be troublesome. For example, under Article 89 (‘Surrender of Persons to the Court’):

1.   The Court may transmit a request for the arrest and surrender of a person […] to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person.

2.   […]

3.   (a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State […].

It is not difficult to imagine a scenario where the Court aims to gain custody of a person that is located in area X, which is originally under the sovereignty of State A, but currently under the occupation of State B. To which State will the Court address the request for surrender? According to the above provision, it will be addressed to the State “on the territory of which that person may be found”.

In a first reading, the sovereign/ occupied State of our example is the one “on the territory of which” the suspect is found. However, it is highly doubtful that the Court will be successful in addressing such a request to the sovereign State, or at least only to the sovereign State, since the latter will normally have no more control over its territory. Similarly, a transfer of a suspect under the third paragraph of this article, can potentially happen through an occupied territory. The question now is whether the occupying power needs to authorize such a transfer. In the above scenarios, if we admit that –at least for practical reasons- the occupying power will have to cooperate for the surrender under

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Article 89, then that State can serve –by result- as the “State on the territory of which” the suspect is found.

This gives another color to the notion of territory, where an occupied area could be perceived as “territory” of both the occupied State (exercising sovereignty) and the occupying State (exercising control). Of course, the above discussion could be probably evaded, if the Court bases its request on the general provisions under Article 87, where a State Party or a State Non-Party can be the providers of unlimited forms of cooperation or assistance.

In addition to the above, another scenario of troublesome cooperation might arise: the suspect is now located in area Y, which has purportedly seceded from State C and now claims to be the independent State D. Will the Court address a cooperation request to the authorities of the seceding entity? Will this be an implied recognition to its status, in the detriment of the parent State? Or, even if the purpose of the opposition is not secession, but the overturning of the central government, should the rebel powers receive cooperation requests with regard to the territory they control? All these scenarios certainly alter the traditional notion of “territory” as we perceived it 20 years ago and will definitely require a lot of flexibility on behalf of the Court, in order to accommodate the present-day realities of international affairs.

Lastly, a recent decision of the Pre-Trial Chamber I on the situation in Libya is worth mentioning at this point. Libya, torn from rebel movements, does not have de facto control over some parts of its territory. Saif Al-Islam Gaddafi, against whom there is a pending warrant of arrest, was under the custody of the Zintan militia authorities and the Libyan government could not surrender him to the Court. The Prosecutor, having verified that the governmental authorities had no chance in gaining Gaddafi’s custody, requested for the

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order of surrender to be transmitted directly to the rebel authorities. The Court denied the request, by stating that, since the internationally recognized representative authority of the State (the GNA) had not indicated any other channel for the transmission of requests under Article 87 (1) (a), the order could not be addressed to “any other non-State entity”.27

This decision gives a direct answer to one of the scenarios set above, the one involving rebel authorities/ non-State actors. The Court’s attitude in favor of the de jure government, even if this means losing the possibility of custody over a well sought-after suspect, leaves us with the following takeaways: a. for the purposes of cooperation, only the official State authorities are to be consulted, even if they lack control of the region in question, b. in order for any other actor to be consulted, this must have been specifically authorized by the official authorities.

However, since the case had to do with non-State actors as possible recipients of a request, it is not settled how the Court would have reacted if the powers of an occupying State were to receive a request by the Prosecutor. This issue still remains open, but the Gaddafi decision might have the following transferrable impact for instances of occupation: it could indicate that the sovereign State might have to authorize the occupying State as an official “channel for transmission of requests”, before the latter State can be the legitimate recipient of any.

27 International Criminal Court, Prosecutor v. Saif Al-Islam Gaddafi (Decision on the Prosecutor’s “Request for an Order Directing the Registrar to Transmit the Request for Arrest and Surrender to Mr al-‘Ajami AL-‘ATIRI, Commander of the Abu-Bakr Al Siddiq Battalion in Zintan, Libya”) ICC-01/11-01/11-634-Red (21 November 2016), paras 1, 6-7, 14-15

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b.   Reservations

To continue with, unilateral declarations are an instrument that could be deemed relevant to the context of a treaty, according to Article 31 (2) (b) of the Vienna Convention.28 In view of the current analysis, this means that they, too, could serve as a tool for the interpretation of the Rome Statute, if they have been welcomed by the other States Parties. Even though Article 120 of the Statute stipulates that “[n]o reservations may be made”, some unilateral declarations that restrict the Court’s territorial jurisdiction have been filed at the time of ratification or later. These could indeed be perceived as “true” reservations ratione loci, since such statements purport “to exclude or to modify” the legal effect which the treaty would normally have.29

Specifically, New Zealand has expressed its will to exclude the island territory of Tokelau from the Court’s ambit. Denmark, which has by now withdrawn its declaration, had stated its intent that the Statute not apply to Greenland and the Faroe Islands. Conversely, some other declarations concerned the opposite scenario: States Parties declared the extension of the Rome Statute’s application to areas over which they exercise some sort of jurisdiction. The Netherlands declared extension over the Netherlands Antilles and Aruba, and the United Kingdom over a long list of “territories for whose international relations [it] is responsible”. This includes: Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, the Falkland Islands, Montserrat, the Pitcairn, Henderson, Ducie and Oeno Islands, St. Helena, Ascension and Tristan da Cunha, the Sovereign Base Areas of

28 VCLT, supra n.22

29 International Law Commission, ‘Report of the International Law Commission on the Work of its Fiftieth Session’, 2 (2) YbILC [1998], UN Doc. A/53/10, para 498

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Akrotiri and Dhekelia, the Turks and Caicos Islands and in two later additions the Isle of Man and Gibraltar.30

The practical issues arising from these de facto reservations are many and important in our discussion about the territorial scope of the Rome Statute. First of all, besides being per se prohibited under Article 120 of the Statute, these are also inconsistent with the presumption set forth by Article 29 of the Vienna Convention.31 The latter declares that “[u]nless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory”. The Rome Statute does not provide for any extension to territories for which a State has the “responsibility of international relations”, but just refers to the “territory” of States Parties, without distinction. Moreover, according to the International Law Commission, exactly this version of “territories for which parties are internationally responsible” was conscientiously rejected as a scope for the application of treaties.32

As a commentator has noted, these declarations probably evince the perception of the respective States that, before those, the Rome Statute applied only to their metropolitan territory, echoing the rationale of typical “colonial clauses” found in other multilateral

30 ‘Article 120: Reservations’ in Schabas, supra n.8, pp 1495-1496; United Nations, Rome Statute of the International Criminal Court: Status, available at: https://treaties.un.org/Pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mt dsg_no=XVIII-10&chapter=18&lang=en#3 (last access May 12th 2017), footnotes 3, 7, 8, 11

31 VCLT, supra n.22

32 International Law Commission, ‘Draft Articles on the Law of Treaties with Commentaries’, 2 YbILC 187 [1966], p 213 para 3

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treaties.33 Accepting this suggestion, namely that the Rome Statute does not apply automatically with its ratification to overseas territories, autonomous regions and so on, creates the following problem: since the Rome Statute could not apply to those in the first place, just because they did not constitute “territory” of a given State, it is difficult to digest how that same State can later declare the expansion of the Statute to regions that are not part of its “territory”.

As a bottom line, the present author is of the opinion that, if an entity is capable of becoming a State Party to the Rome Statute on its own name, then no other State should be able to expand the Statute’s application over them. For example, if the autonomous region of Catalonia fulfilled the prerequisites of duly signing and ratifying the Rome Statute, then Spain would not be able to expand the application of the treaty over this region with a declaration. Conversely, if a region, be it autonomous or overseas, cannot enter the Rome Statute on its own name, then it should be automatically considered as “territory” of the State that exercises the ultimate jurisdiction. For example, since Bermuda cannot join the Rome Statute, as it is not a “State” –at least according to the United Nations [UN] membership criterion-,34 then Bermuda should be considered part of the UK’s “territory”, because the latter exercises extensive powers over it. For sure, this logic will not be applicable to areas that are “necessarily beyond the reach of the Court”, such as the high seas, Antarctica or the outer space.35

33 M. Milanovic, The Territorial Scope of the Rome Statute, available at: https://www.ejiltalk.org/the-territorial-scope-of-the-rome-statute/ (last access May 12th 2017)

34 The topic of statehood before the International Criminal Court will be examined under Chapter V

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Coming now to the practical problem that arose with regard to the Falkland/ Malvinas Islands, Argentina was quick to react to the declaration filed by the United Kingdom by “object[ing] and reject[ing]” it.36 Argentina’s opposition, which claims sovereignty over the islands, is a way to infer that there was lack of agreement in respect to the UK’s practice and, thus, cannot be deemed “accepted by the other parties” for the purposes of contextual interpretation.37 In fact, Amnesty International has further argued in one of its reports that “since reservations are not permitted under the Rome Statute, […] there is no need for objections to unilateral statements amounting to reservations”. Therefore, the limited number or even absence of such objections, “should not be seen as an implicit consent”.38

To wrap up, what we should keep from the analysis on reservations is that: a. they cannot serve as a backdoor to shrinking the jurisdiction of the Court, even with regard to disputed territories and that b. the notion of “territory” of a State Party most likely includes overseas or autonomous regions, despite the opposite suggestion of some already filed declarations. In any case, if these regions were not included in the “territory” of the State that exercises the ultimate jurisdiction, they could never fall under the protection of the Rome Statute, since they would not be able to join as independent States either.

36 United Nations, supra n.30, ‘Declarations and Reservations’ 37 VCLT, supra n.22, Art. 31 (2) (b)

38 Amnesty International, International Criminal Court: Declarations Amounting to Prohibited Reservations to the Rome Statute, available at: https://www.amnesty.org/en/documents/ior40/032/2005/en/ (last access May 12th 2017), p 12

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At the end of the day, it is within the Court’s wide-ranging kompetenz kompetenz39 to decide on the validity of such reservations, should a relevant situation is brought before it, a practice already followed by the European Court of Human Rights.40

iii.   Article 21 and Human Rights Jurisprudence

A way of introducing such practices and principles from other branches of international law, is Article 21 of the Rome Statute (‘Applicable Law’), which reads as follows:

1. The Court shall apply:

a)   In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

b)   In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;

[…]

3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights,

This article sets forth the different legal sources that the judges may draw upon, as a guidance, when the primary instruments (Statute, Elements and Rules) fail to provide an answer. As the Appeals Chamber has clarified, resort to international law is only allowed when there is a gap in the Statute (or the other primary sources under paragraph 1 (a)).41

39 Rome Statute, supra n.7, Art. 119 (1)

40 S.A. Williams/ W.A. Schabas, ‘Article 12’ in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article (2nd ed., C.H. Beck-Hart-Nomos 2008), p 557

41 International Criminal Court, Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo Against the Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Art 19 (2) (a) of the Statute of 3 October 2006), ICC-01/04-01/06-772 (14 December 2006), para 34

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Admittedly, international law principles and rules (e.g. the prohibition of intervention and use of force, the laws of occupation, the sovereign equality of States) could have a substantial impact on the way the Court will eventually apply the notion of “territory” for the purposes of establishing jurisdiction. This opens a whole new discussion on a wide range of jus ad bellum and jus in bello considerations, which would be more suitable for a PhD research. Thus, it was deemed preferable for the purposes of the present paper to rather focus on paragraph three of the article and the practical issue stemming therefrom: the extraterritorial application of human rights treaties and its possible impact on future ICC jurisprudence.

In the Lubanga decision that was mentioned above, the Appeals Chamber also referred to Article 21 (3) and went on to powerfully state that: “Human rights underpin the Statute; every aspect of it, including the exercise of jurisdiction. Its provisions must be interpreted and more importantly applied in accordance with internationally recognized human rights […]”.42 Drawing from this pronouncement, it has been supported that the application of the Rome Statute should always produce a result compatible with internationally recognized human rights. Most interestingly, this compatibility should be favored, even if the interpretation of the provision in question -under Articles 31 and 32 of the Vienna Convention- would lead to an opposite result. Such a conclusion practically means that human rights can serve as an additional source of law for the Rome Statute.43 This is exactly what happened in the said Lubanga decision, with the Chamber inventing a

42 Ibid, para 37

43 G. Bitti, ‘Article 21 and the Hierarchy of Sources Before the ICC’ in Stahn, supra n.24, p 437

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new procedural remedy, the “staying of proceedings”, based directly on Article 21 (3) as a source.

Establishing the highly influential nature of human rights practices for jurisdictional questions before the Court, allows us to infer that another major concept of human rights treaties could also be applicable. These treaties usually oblige a State Party to guarantee the respective rights to all persons “within its territory and subject to its jurisdiction”44 or just “within [its] jurisdiction”.45 This can lead to “extraterritorial” application of human rights treaties, as States are required to afford protection to all persons under their jurisdiction, which can surpass their strictly national borders. 46

In that respect, the jurisprudence of the European Court of Human Rights [ECtHR] is both rich and enlightening. Under one of the most-cited cases, Loizidou v. Turkey, relating to the occupation of Northern Cyprus, the ECtHR held the following: “[…] the responsibility of a Contracting Party could also arise when as a consequence of military action, it exercises effective control –whether lawful or unlawful- of an area outside its national territory”.47 A similar finding was made in the Al-Skeini judgment, which concerned the UK’s occupation in Iraq. There, too, the ECtHR reaffirmed the effective control standard and held that the UK was indeed responsible for the human rights

44 United Nations General Assembly, International Covenant on Civil and Political Rights (16 December 1966), 999 UNTS 171 [hereinafter: ICCPR], Art. 2 (1)

45 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950), 213 UNTS 221, ETS 5 [hereinafter: ECHR], Art. 1

46 Ryngaert, supra n.6, p 22

47 European Court of Human Rights, Loizidou v. Turkey (Preliminary Objections), Application No 15318/89 (23 March 1995) A/310, para 62

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violations, even if they were not committed within its stricto sensu territorial borders.48 Part of the same discussion is also the Wall advisory opinion of the International Court of Justice, relating to the occupation of Palestine. Israel was deemed responsible for extraterritorial violations of the two International Covenants49 in the Occupied Palestinian Territory.50 Lastly, in the case of Rasul v. Bush, the Supreme Court of the United States recognized the extension of habeas corpus rights to detainees held in Guantanamo, namely a military base outside the United States, but under the latter’s effective control.51

The pronouncements in the first three cases suggest that individuals in situations of occupation, where effective control over territory is exercised, could fall within the occupier’s jurisdiction. Equally, the same kind of jurisdiction can be generated out of other forms of effective control over a territory, such as in military bases that enjoy an elaborate territorial status. Comparing this finding to our quest for the notion of “territory” under Article 12 (2) (a) of the Rome Statute, these decisions could serve as an argument in favor of perceiving the provision as effective control over territory and not just sovereignty over territory.

In the Ilaşcu v. Moldova and Russia decision, relating to the separatist situation in Transdniestria, the ECtHR took the Loizidou principle one step further: it held that an individual can be simultaneously under two different jurisdictions. More precisely, the

48 European Court of Human Rights, Al Skeini et al. v. The United Kingdom (Judgement), Application No 55721/07 (7 July 2011), para 149

49 ICCPR, supra n.44; United Nations General Assembly, International Covenant on Economic, Social and Cultural Rights (16 December 1966), 993 UNTS 3

50 International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), ICJ Rep. [2004] [hereinafter: Wall Advisory Opinion], paras 109-113

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ECtHR concluded that both Moldova and Russia were responsible for upholding human rights in Transdniestria. The first one because it is the sovereign State, even if it does not “exercise authority” over that region and the second one because Transdniestria is under its “effective authority” or at least its “decisive influence”.52 This pronouncement on “decisive influence” relaxes even further the connection required to the region where violations occurred and is probably inadequate even under a broad interpretation of “territory” in Article 12 (2) (a) of the Rome Statute.

Be that as it may, the ICC and the ECtHR share common goals and ideals. They both intend to tackle impunity for the perpetration of mass human rights violations, which from a criminal law perspective, amount to international crimes.53 Therefore, under the explicit human rights clause of Article 21 (3) of the Statute, the jurisprudence of the ECtHR could guide the judges to an interpretation of “territory” that is closer to well-established human rights standards. It could be read so as to include, not only territories under a State’s sovereignty, but also territories under a State’s control.54

C.   First Conclusions and Limits

It derives from the analysis of the present chapter that the Court has a significant variety of options to consider for the purposes of determining the territorial scope of the Rome Statute. Different sources and different modes of interpretation will lead to

52 European Court of Human Rights, Ilaşcu et al. v. Moldova and Russia (Judgment), Application no. 48787/99 (8 July 2004), paras 330-331, 392-394

53 H. van der Wilt, ‘States’ Obligations to Investigate and Prosecute Perpetrators of International Crimes: The Perspective of the European Court of Human Rights’ in C. Stahn/ M.M. El Zeidy (eds.), The International Criminal Court and Complementarity: From Theory to Practice Vol. II (CUP 2011), p 699

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completely different outcomes, resulting to the inclusion or exclusion of some borderline cases. Within its statutory margins of appreciation, it will be upon the Court’s inherent powers to decide whether its mission is best fulfilled through a broader or narrower interpretation of “territory”, in a specific situation involving a territorial dispute. It is worth noting that the interpretative freedom/ margin of creativity of judges is so wide, that the Court has even interpreted once a provision contra legem. This happened when the Appeals Chamber allowed for the accused to be absent during his trial, whereas Article 63 of the Statute clearly says that he or she “shall be present during the trial”.55

At this point, we should not oversee that the object and purpose of a treaty are an equally important means of interpretation.56 One of the major objects that permeate the Rome Statute and which is particularly evident from its Preamble, is to end impunity by offering the maximum protection possible against international crimes. This could also tip the scales in favor of a broad interpretation.

On the other hand, the ideal functioning of the ICC cannot take place in a vacuum, where the interests of other States are not taken into account. By affording a very broad meaning to “territory” under Article 12 (2) (a), States Non-Parties could see their territory being under investigation by the Prosecutor of the ICC, just because a State Party has some sort of link to it and thus territorial jurisdiction is established. The sovereign choice of some States not to ratify the Rome Statute should not be circumvented through an over-expansion of the Court’s jurisdictional ambit. This would run counter to the fundamental rule pacta

55 International Criminal Court, Prosecutor v. William Samoei Ruto and Joshua Arap Sang (Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber V (a) of 18 June 2013 Entitled ‘Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial’) ICC-01/09-01/11-1066 (25 October 2013), para 55-56

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tertiis nec nocent nec prosunt.57 This rule means that for States Non-Parties, a treaty such as the Rome Statute should be considered res inter alios acta and thus create no rights or obligations without their consent.58 Furthermore, applying a treaty to part of another State’s territory also constitutes a violation of the sovereignty and territorial integrity of the said State.59

Another reason that could restrict the possibility of an over-expansive interpretation of territory, can be deduced from the fact that the Rome Conference negotiators chose the wording “territory” over other available alternatives. For example, the European and the American Convention on Human Rights, as well as the ICCPR refer to “jurisdiction”60 and the Torture Convention refers to “any territory under its jurisdiction”.61 There are no official records on whether such a choice was conscientiously made in order to restrict the scope of the Statute, however, when the negotiators did intend to use the broader notion of “jurisdiction”, they did so. Article 18 (1) of the Rome Statute, relating to the initiation of an investigation, specifically stipulates that: “[…] the prosecutor shall notify all States Parties and those States which […] would normally exercise jurisdiction over the crimes concerned”.

57 Ibid, Article 34

58 M. Fitzmaurice, ‘Third Parties and the Law of Treaties’ in J.A. Frowein/ R. Wolfrum (eds.) 6 MPUNYb 37, pp 38, 43

59 S. Karagiannis, ‘The Territorial Application of Treaties’ in D.B. Hollis, The Oxford Guide to Treaties (OUP 2012), p 319

60 ECHR, supra n.45; ICCPR, supra n.44; Organization of American States, American Convention on Human Rights (22 November 1969), 1144 UNTS 123, Art. 1

61 United Nations General Assembly, Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984), 1465 UNTS 85, Art. 2 (1)

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Lastly, the litmus test for the settlement of competing jurisdictional claims, is thought to be “reasonableness”. This doctrine suggests that a State should establish a “sufficiently close” connection with the facts, in order to legitimately assert jurisdiction. This reasonable relation between the State and the facts reassures the “absence of abuse of rights or arbitrariness”.62 Under our analysis, it means that the judges could resort to this test as a way of self-control, in order to assess whether the result of the interpretative scope chosen, is reasonable or not. According to the present author’s view, the doctrine of reasonableness could be practically inserted into the ICC system through the notion of gravity.63 An idea would be that the judges pronounce on the inadmissibility of a case due to lack of gravity, when there is indeed a territorial link, although its affirmation creates an unreasonable result.

62 F.A. Mann, ‘The Doctrine of Jurisdiction in International Law’, 111 (I) RCADI 1964, p 46-47; (United States) Restatement of the Law, Third, Foreign Relations of the United States [1987], paras 402-403

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V.  

STATEHOOD AND THE INTERNATIONAL CRIMINAL

COURT

Our analysis has focused so far on the interpretation of Article 12 (2) (a) of the Rome Statute, which sets forth the preconditions with regard to States Parties and on the respective implications with States Non-Parties. What happens, however, when State-like entities that claim sovereignty over an area, want to enter under the jurisdiction of the Court by lodging a declaration under Article 12 (3)? In other words, is the ICC free to decide on its own terms whether an entity is a “State” or not? The answer to these will have a certain impact on our discussion, as the expansion of the territorial jurisdiction of the Court is at stake. The problem becomes evident when this entity has emerged from secession or another form of struggle for independence and its territory is claimed by a State Non-Party. Pronouncing on the entity’s statehood will be, thus, decisive on the Court’s exercise of jurisdiction.

A.   The Relevant Legal Regime

Article 12 (3) of the Rome Statute reads as follows:

If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

Moreover, Rule 44 (2) makes clear that for the purposes of the Rome Statute, a State lodging a declaration for an ad hoc acceptance of jurisdiction, is practically assimilated to a State Party:64

64 Assembly of States Parties to the Rome Statute of the International Criminal Court, Rules of Procedure and Evidence (9 September 2002), ICC-ASP/1/3, UN Doc. PCNICC/2000/1/Add.1

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[…] the declaration under article 12, paragraph 3, has as a consequence the acceptance of jurisdiction with respect to the crimes referred to in article 5 of relevance to the situation and the provisions of Part 9, and any rules thereunder concerning States Parties, shall apply.

This means that the Court would likely not accept a declaration from an entity that would not have the legal capacity to otherwise join the Rome Statute as a party, as equality in rules would also require equality in standards.65 Since Article 125 (3) stipulates that the Statute “shall be open to accession by all States”, reassuring the statehood of an entity that intends to fall under the Statute’s ambit through a declaration, would be necessary for the Court’s assertion of jurisdiction.

Although the concept of statehood is mostly grounded on factual effectiveness, there are some legal principles, including jus cogens norms such as the prohibition of force, that also play a role in the creation of States.66 The primacy of effectiveness was famously asserted by the Montevideo Convention, which enumerated the following basic criteria of statehood: a permanent population, a defined territory, government and capacity to enter into relations with other States.67 Out of those, the criterion relating to territory seems to be the most fundamental: a State must possess some territory over which it exercises “full governmental powers”.68

65 International Criminal Court, Office of the Prosecutor, The Determination of the Office of the Prosecutor on the Communication Received in Relation to Egypt (8 May 2014), ICC-OTP-20140508-PR1003, para 3

66 J. Crawford, The Creation of States in International Law (2nd ed., OUP 2006), pp 97, 107 67 International Conference of American States, Convention on Rights and Duties of States (Inter-American) (26 December 1933), 165 LNTS 19, Art. 1

68 J. Crawford, ‘State’ in R Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law (OUP 2011), paras 14-15

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