An Introduction To The International Criminal Court - Institute for ...

70 introduction to the international criminal court
because it is possible for a State to make an ad hoc declaration recognising
the Court’s jurisdiction over specific crimes, even if the State is not a party
to the Statute. 12 But, even in such a case, the Court would obviously be
without jurisdiction to prosecute a crime committed prior to the entry into
force of the Statute. Similarly, the Security Council could not refer a case
to the Court, pursuant to Article 13(b), with respect to crimes committed
prior to 1 July 2002.
The Statute has been criticised for its inability to reach into the past and
prosecute atrocities committed prior to its coming into force. The answer
to this objection is entirely pragmatic. Few States – even those who were the
Court’s most fervent advocates – would have been prepared to recognise a
court with such an ambit. The idea was unmarketable and was never seriously
entertained during the drafting. But the failure to prosecute retroactively
does not wipe the slate clean and grant a form of impunity to previous
offenders. Those responsible for atrocities committed prior to entry
into force of the Rome Statute may and should be punished by national
courts. Where the State of nationality or the territorial State refuse to act, an
increasing number of States now provide for universal jurisdiction over such
offences. 13 Other options include the establishment by treaty of an international
court, like the Special Court for Sierra Leone, whose legal basis
is an agreement between the Government of Sierra Leone and the United
Nations, 14 the latter acting pursuant to a Security Council resolution. 15
The issue of jurisdiction ratione temporis should not be confused with the
question of retroactive crimes. International human rights law considers the
prohibition of retroactive crimes and punishments to be one of its most fundamental
principles. Known by the Latin expression nullum crimen nulla
poena sine lege, this norm forbids prosecution of crimes that were not recognised
as such at the time they were committed. There are, of course, varying
12 Rome Statute, Art. 12(3).
13 On this subject generally, see Naomi Roht-Arriaza, ed., Impunity and Human Rights in International
Law and Practice, New York and London: Oxford University Press, 1995; Steven R. Ratner
and Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the
Nuremberg Legacy, Oxford: Clarendon Press, 1997.
14 Agreement between the United Nations and the Government of Sierra Leone on the Establishment
of a Special Court for Sierra Leone, Freetown, 16 January 2002. See Micaela Frulli, ‘The
Special Court for Sierra Leone: Some Preliminary Comments’, (2000) 11 European Journal of
International Law 857; Robert Cryer, ‘A “Special Court” for Sierra Leone?’, (2001) 50 International
and Comparative Law Quarterly 435; Avril McDonald, ‘Sierra Leone’s Shoestring Special Court’,
(2002) 84 International Review of the Red Cross 121; and S. Beresford and A. S. Muller, ‘The Special
Court for Sierra Leone: An Initial Comment’, (2001) 14 Leiden Journal of International Law 635.
15 UN Doc. S/RES/2000/1315.