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

188 introduction to the international criminal court
it is not always easy to distinguish between a reservation and an interpretative
declaration. 50 France formulated an interpretative declaration with
respect to Article 8 at the time of its ratification of the Statute.
At least one declaration would seem to be analogous to a genuine reservation.
Denmark, upon ratification of the Statute, declared that it did not
extend to the Faroe Islands and Greenland. A reservation is defined by the
Vienna Convention on the Law of Treaties as ‘a unilateral statement, however
phrased or named, made by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to exclude or to modify
the legal effect of certain provisions of the treaty in their application to
that State’. The consequence is to limit Denmark’s obligations under the
Statute.
The Statute makes its own exception to the rule by allowing States to
formulate a kind of reservation to Article 8. For a seven-year period, States
may ratify the Statute but escape jurisdiction over war crimes. 51 The text
is all that remains of an early scheme by which States parties would be
able to pick and choose the crimes over which the Statute would apply to
them. The existing provision was inserted in the final draft of the Statute
as a compromise aimed at garnering the support of France and perhaps
a few other States. 52 It was resoundingly criticised by human rights nongovernmental
organisations at the close of the Rome Conference, although
these concerns were probably exaggerated. 53 Since then, only two States,
FranceandColombia,haveactuallyinvokedArticle124,althoughothersthat
are considering ratification, such as Burundi, are also said to be studying the
possibility of making such a declaration. Serious war crimes likely to attract
the attention of the Prosecutor and meet the Court’s threshold for serious
crimes will by and large also meet the definition of crimes against humanity.
It would seem unlikely that the Court will be deprived of jurisdiction over
very many specific offenders merely because of Article 124. 54
It is not entirely clear what the effect of a declaration under Article 124
will be. If a State declares that it does not accept the Court’s jurisdiction
50 Belilos v. Switzerland, Series A, No. 132, 29 April 1988. 51 Rome Statute, Art. 124.
52 France was the twelfth State to ratify the Statute, in June 2000. Its ratification was the first to be
accompanied by a declaration pursuant to Art. 124. See Slade and Clark, ‘Preamble and Final
Clauses’, p. 443.
53 See, for example, the comments of the International Committee of the Red Cross: UN Doc.
A/C.6/53/SR.12.
54 See also Kelly Dawn Askin, ‘Crimes Within the Jurisdiction of the International Criminal Court’,
(1999) 10 Criminal Law Forum 33 at 50, who notes that Art. 124 may in fact provide an incentive
to States to ratify the Statute.