OMG, WTF, ICC Part II: Kevin Heller Responds

At the end of our post on the ICC’s apparent investigation of non-Darfur atrocities in Sudan, we asked our friend Obi-Wan Heller for help.  Happily, he answered the call almost immediately:

“My best guess is — as they suggest — that the OTP has received assurances from the new South Sudanese government that it will either (1) ratify the Rome Statute and accept the Court’s jurisdiction retroactively, or (2) file a declaration under Article 12(3) of the Rome Statute accepting jurisdiction on an hoc basis over the crimes the OTP is investigating. Either way, the issue would be how far back in time South Sudan could accept the Court’s jurisdiction. Kate and Amanda suggest that the relevant date would be 9 July 2011, South Sudan’s chosen independence day. That makes sense, but the issue is murky — as it always is when it comes to state formation and recognition. So I can imagine two arguments for more expansive retroactive jurisdiction. To begin with, South Sudan could argue that, for purposes of acceptance of jurisdiction, the relevant date is 7 February 2011, when the results of the independence referendum were formally published by the referendum commission. That would be enough to justify the OTP’s investigation, because the Time article notes that the investigation is focusing on crimes committed in late May 2011.

A second argument, however, is much more interesting. South Sudan could invoke the Eichmann “precedent” and argue that a state should have the right to give the Court retroactive jurisdiction over any and all crimes committed against its citizens, even if the state did not formally exist at the time of their commission. Both the District Court of Jerusalem and the Israeli Supreme Court accepted a similar argument (involving domestic jurisdiction) with regard to Eichmann’s crimes against the Jews during World War II, which obviously predated Israel’s formal existence as a state. Would the Court buy an argument based on Eichmann? I have no idea — but I don’t think it’s frivolous.”

The Eichmann precedent is an interesting idea. I agree that it’s not frivolous – I’m not sure I’d call it a mainstream legal theory, but that’s partly because the formation of new states is a relatively rare occurrence, so it hasn’t had a chance to come up. And Kevin is right that it is a good fit in some ways for the situation at issue here – new country, pre-independence atrocities against its citizens, etc.

On the other hand, the jurisdictional issues of Eichmann were different from those at issue here, in some pretty important ways. As Kevin says, Eichmann can be read broadly to stand for the rule that a state doesn’t violate international law by exercising jurisdiction retroactively over crimes committed against its citizens before the state formally existed. However, that is passive personality jurisdiction (a fancy lawyer term for “jurisdiction over crimes in which your citizens were victims”), which the ICC pretty clearly doesn’t have.

Rather, the Court borrows its member states’ active personality jurisdiction (fancy lawyer for “jurisdiction over crimes committed by your nationals”), and territorial jurisdiction (just what it sounds like – jurisdiction over crimes committed within the state’s territory.)  It seems to me that it’s particularly a stretch to make territorial jurisdiction retroactive, because, unlike other bases for jurisdiction, territory belongs to one state at a time. Until independence, South Sudan’s territory was part of Sudan, and under its territorial jurisdiction. If territorial jurisdiction were made retroactive here for the ICC’s purposes, would that also retroactively deprive Sudan of jurisdiction over that territory? Would Sudan and South Sudan be considered to have concurrently held jurisdiction over the territory during the pre-independence period?  Either way, that is a much, much bigger can of worms than Eichmann was.

Moreover, in Eichmann, Israeli law expressly granted Israeli courts retroactive, extraterritorial jurisdiction over the Nazis’ crimes. The international law issues were about absence of law: the Israeli high court found that international law did not explicitly bar retroactive criminal statutes, or the criminalization of conduct taking place outside a state’s borders but affecting its citizens. This new Sudanese investigation strikes me as almost exactly the opposite situation. There is no explicitly retroactive law for the ICC to rely on here. And rather than just having to prove an absence of an international law prohibition, the Court would have to find that the case fits within the narrow category of the Court’s jurisdiction under the Rome Statute, which, for the reasons in the preceding paragraph, I’m doubtful it can do.

And, as Kate points out in her comment to Kevin’s post, even if the Court were to Eichmann this all the way home, that would still only cover crimes that took place on the territory of what is now South Sudan. Which means that the investigations into what happened in Kordofan, Blue Nile, and the Nuba Mountains would still require a Security Council resolution to go anywhere. Which brings us back to our original question

Amanda Taub


  1. Very interesting. I'm not completely sold on the idea that territorial jurisdiction is out. The statute seems silent on this, unless I am missing something. And I think resolving this question depends on a general theory of the rationale for territorial jurisdiction. At least part of that general theory involves the temporal aspect of the prosecution, not the temporal aspect of the crime. In other words, there are strong philosophical reasons to support the idea that territorial jurisdiction is really about the country that has control, over the territory where the crime was committed, at the moment of prosecution (not the moment of commission).

  2. As someone living in Sudan during the events between May and July 9th I fail to understand what actions the Sudanese government took in what was then "Southern Sudan" that would constitute crimes of sufficient gravity to merit an ICC investigation. Rhetoric and confusing media/advocacy pieces aside, after the referendum, the Sudanese government granted the South independence almost without bloodshed. There is an abundance of evidence indicating such crimes took place in Abyei, South Kordofan, and Blue Nile- but, some wishing and hoping aside, none of those areas are legally in South Sudan.

    Interesting also that the ICC wouldn't be looking into massacres committed by the SPLA or the violence in Jonglei state this year that's killed thousands in South Sudan.

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