The Rome Statute for the Establishment of an International Criminal Court.

Did it permit reservations excluding nuclear weapons ?

  1. It is one of history’s little ironies that at the very time, in the mid-summer of 1998, as our Sovereign monarch was giving the Royal nod to the nuclear weapons exclusion provisions, as dealt with above, her diplomatic emissaries and plenipotentiaries were assembled in conference in Rome, together with diplomatic missions from around the World, to contribute to the UN international diplomatic conference upon the establishment of a new International Criminal Court. Reaching an international diplomatic consensus on both the definition of, and most importantly the jurisdictional scope for, the crimes that would be heard and dealt with by the new Court was naturally at the very core of the issues for debate. Including, foremost amongst these the definition of “war crimes”.
  1. Equally, by now the reader will not be the surprised to learn that among the veritable herd of elephants in the conference room, the by now long in the tusk one by the name “what to do about the use of nuclear weapons” was not merely present but trumpeting its presence loudly throughout the first week. By now the non-nuclear world , foremost the UN grouping of states called the Non-Aligned Movement (NAM) was fully alert to the tricks of the P5[1], and came insisting that the jurisdictional scope for the new Court must include and encompass specific and named reference also to war crimes as or when committed by or with the use of nuclear weapons. Whilst the P5 themselves came insisting contrariwise that they must be allowed, upon ratification of any new treaty, to once again enter such reservations as they deemed appropriate to their circumstances and national interests. In the end the diplomatic compromise reached was in effect, on the one hand, the new treaty Statute would not expressly mention or deal with nuclear weapons as such or by name; whilst on the other hand, those State Parties willing to accede to and ratify the new statute, would have to do so without making any reservations thereto whatever[2].
  1. Naturally even within the narrow confines of that part of the conference which dealt only with the topic of the definition and scope for the jurisdiction of the new Court over “war crimes” stricto sensu, there was in reality much fine detail and compromise to be reached over all aspects from its placement through to the various applications of general principles et cetera. However, in the end that part of the Statute which precisely reflects the ‘principle of proportionality‘ as the gravamen of a specific war crime, both as that had been previously expressed with regard to civilians and civilian objects in Art. 51 (5)(b) and with regard to the natural environment in Art. 53(1) of the Additional Protocol I, was now to be found at Art 8 (2) (b) (iv) as follows:

“Intentionally launching an attack in the knowledge that such attack will cause

incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearlyexcessive in relation to the concrete and direct overall military advantage anticipated”.

  1. And so at last we come to the denouement in this sad tale which perchance has been rather overlong in the telling. The Crown signed the new treaty, termed the Rome Statute for the Establishment of an International Criminal Court, on 30 November 1998 within six months of the close of the conference on 17 July. It did so without making any statement or declaration accompanying said signature. In keeping with the convention, however, before ratifying it would have to prepare the necessary implementing legislation.
  1. In strict terms the Rome statute does not require State Parties thereto to implement domestic legislation so as to give full internal effect in their own criminal courts to the definitions and jurisdiction now afforded to the ICC. However, in consequence of the so-called “principle of complementarity”, if a State Party fails to so act it leaves itself open to the inevitable risk that, if the ICC Prosecutor considers one of its nationals worthy of prosecution, then that State has no ground to oppose the admissibility of the case for exercise of jurisdiction by and before the ICC, rather than before its own courts, instead. Accordingly, the Crown realised that, if it were to ratify the new Statute in order to fulfil its ambition of being seen to be foremost of the ‘Great Powers’ members of the new ICC family, it would be necessary for UK implementing legislation to reflect, so far as necessary to avoid this risk, each and all of the new criminal definitions, including as to war crimes, that had now been agreed on for the ICC itself. But how to get around the awkward problem that it could no longer ratify the new Statute, subject to a reservation specifically excluding its application to nuclear weapons, as had been its previous practice given that no reservations whatever were now to beallowed ?
  1. The new ICC Act received the Royal assent on 11 May 2001. The new definition of a “war crime” was precisely as set out in Art.8 (2) (b) of the Rome Statute, and that was given effect by s. 50 (1) of the Act as that in turn reiterated the Rome Statute definition in Schedule 8 thereof. However, provision was then made in the following subs. 50 (4), as follows:

“(4) The articles referred to in subsection (1) shall for the purposes of this Part be construed subject to and in accordance with any relevant reservation or declaration made by the United Kingdom when ratifying any treaty or agreement relevant to the interpretation of those articles. Her Majesty may by Order in Council–

(a) certify that such a reservation or declaration has been made and the terms in which it was made;

(b) if any such reservation or declaration is withdrawn (in whole or part), certify that fact and revoke or amend any Order in Council containing the terms of that reservation or declaration.”

(emphases added)

Sounds familiar?

  1. The Crown lodged our instrument of ratification with the Office of the Secretary-General to the United Nations on 4 December 2001 and it was indeed accompanied by a Declaration, the text of the opening paragraph of which is, for convenience, set out at para.34 below.
  1. Just to complete the final two-step shuffle in this particular international version of the shell game, earlier on 18 July Mr A. K. Galloway, Clerk of the Privy Council, once again trooped up in front of the Person of our Sovereign Lady and got the Royal nod to the International Criminal Court Act 2001 (Reservations and Declarations) Order 2001 (No. 2559)[3].
  1. Most interestingly, however, despite its name this time the Royal Order did not reiterate the United Kingdom declaration made upon ratification of the Rome Statute for the ICC itself, but rather they chose to reiterate, in appended schedules, a list of a further five other sets of reservations and declarations, the very first of which was naturally, a further iteration of the nuclear weapons exclusion reservations made to the Geneva Conventions Additional Protocol I of 1977 as made in 1998. So what to make of this farrago of diplomatic attempts at legislative declarations of the non-reservation of nuclear weapons exclusions?

[1]P5 refers to the permanent five members of the UN Security Council, the US, Russia, China, the UK and France, and who are of course all nuclear weapons powers in their own right.

[2]as to which see now article 120 of the Rome Statute & §35 below.

[3]