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The International Criminal Court's ad hoc jurisdiction revisited

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Olasolo Alonso, Héctor
Stahn, Carsten
Mohamed M. El Zeidy



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American Society of International Law

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Article 12(3) of the Rome Statute of the International Criminal Court (ICC), which allows a state that is not a party to the Statute to 'accept the exercise of jurisdiction by the Court' by way of a declaration lodged with the registrar, is one of the Statute's most inconspicuous provisions. It has attracted only brief notice either in the general literature on the jurisdiction of the ICC' or in the particular context of the debate over U.S. objections to the Court's third-party jurisdiction.2 Few writers have looked closely at the provision's construction and procedural regime, and the first declaration made by a state under this provision-by the Ivory Coast in February 2005-has gone almost unnoticed in international theory and practice.3 Within abroader context, legal scholars have expressed doubts about the effectiveness ofthe Court's jurisdiction under Article 12 of the Statute ('Preconditions to the Exercise ofJurisdiction'). Critics of the jurisdictional regime agreed upon in Rome voiced the concern that the Court would be largely unable to deal with some of the most egregious crimes committed in conflict zones-owing to a presumed reluctance of territorial states either to become partiesto the Statute or to trigger the Court's jurisdiction. It was feared, in particular, that the Statute 'gives undue shelter to the very civil war conflicts that were the moral impetus for the negotiation of a Rome Treaty'; not only would a 'genocidaire leader' refuse to 'agree to ad hocjurisdiction for crimes committed against his own people,' but there would 'not be consent from the state where the offence occurred, or the state of nationality of the offender.'4 These fears have not been borne out by experience. The ICC Statute has received a growing number of ratifications from conflict or postconflict societies over the last few years.5 The Court's firsthree situations (Uganda, Democratic Republic of Congo, and Central African Republic, in that order) were submitted to it by self-referral under Articles 13(a) and 14.6 Moreover, the first declaration under Article 12(3) was lodged by a state that is not party to the Statute but suffers from civil strife and internal conflict.
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The International Criminal Court’s Ad Hoc Jurisdiction Revisited , Rome Statute of the International Criminal Court , Exercise of jurisdiction by the Court
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