The Rome Statute allows for states to withdraw from the ICC. Withdrawal takes effect one year after notification of the depositary, and has no effect on prosecution that has already started. As of November 2013 no state had withdrawn from the statute.
In June 2009, several African states, including Comoros, Djibouti, and Senegal, called on African states parties to withdraw en masse from the statute in protest against allegations that the Court targets Africa, and specifically in response to the indictment of Sudanese President Omar al-Bashir. In September 2013, Kenya's National Assembly passed a motion to withdraw from the ICC in protest against the ICC investigation in Kenya, although no law effecting withdrawal has been proposed. A mass withdrawal from the ICC by African member states in response to the trial of Kenyan authorities was discussed at a special summit of the African Union in October. The summit concluded that serving heads of state should not be put on trial, and that the Kenyan cases should be deferred. However, the summit did not endorse the proposal for a mass withdrawal due to lack of support for the idea. In November the ICC's Assembly of State Parties responded by agreeing to consider proposed amendments to the Rome Statute to address the AU's concerns.
The Rome Statute obliges states parties to cooperate with the Court in the investigation and prosecution of crimes, including the arrest and surrender of suspects. Part 9 of the Statute requires all states parties to “ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part”.
Under the Rome Statute's complementarity principle, the Court only has jurisdiction over cases where the relevant state is unwilling or unable to investigate and, if appropriate, prosecute the case itself. Therefore many states parties have implemented national legislation to provide for the investigation and prosecution of crimes that fall under the jurisdiction of the Court.
As of April 2006, the following states had enacted or drafted implementing legislation:
Australia, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, Denmark, Estonia, Finland, Georgia, Germany, Iceland, Liechtenstein, Lithuania, Malta, Netherlands, New Zealand, Slovakia, South Africa, Spain, Trinidad and Tobago, United Kingdom
Colombia, Congo, Serbia, Montenegro
Burundi, Costa Rica, Mali, Niger, Portugal
France, Norway, Peru, Poland, Slovenia, Sweden, Switzerland
Afghanistan, Albania, Andorra, Antigua and Barbuda, Barbados, Belize, Burkina Faso, Cambodia, Cyprus, Djibouti, Fiji, Gambia, Guinea, Guyana, Liberia, Malawi, Marshall Islands, Mauritius, Mongolia, Namibia, Nauru, Paraguay, Saint Vincent and the Grenadines, San Marino, Sierra Leone, The Republic of Macedonia, Tajikistan, Timor-Leste, United Republic of Tanzania
Summary of signatures and ratifications/accessions
The number of states parties from the several United Nations regional groups has an influence on the minimum number of judges each group is allocated. Paragraph 20(b) of the Procedure for the nomination and election of judges of the Court states that any of the five regional groups shall have at least two judges on the court. If, however, a group has more than 16 states parties, there is a third judge allocated to that group.
The following table lists how many states parties there are from each regional group. After the accession of the Maldives on 1 December 2011, the Asian Group has become the last regional group to have three judges allocated. This already had consequences for the ICC judges election, 2011.
Pursuant to article 12(3) of the Rome Statute of the International Criminal Court, a state that is not a party to the Statute may, "by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question." The state that does so is not a State Party to the Statute, but the Statute is in force for the state as if it had ratified the Statute, only on an ad hoc basis. However, a state that lodges an article 12(3) declaration cannot refer a situation to the Court. This means that the Prosecutor can only open an official investigation after a State Party or the United Nations Security Council refer the situation to the Court. Alternatively, the Prosecutor can open an investigation after a Pre-Trial Chamber gives its consent to do so, but only after it is presented with preliminary evidence.
To date, the Court has made public five article 12(3) declarations.
= States which have declared that they no longer intend to ratify the treaty
According to the Vienna Convention on the Law of Treaties, a state that has signed but not ratified a treaty is obliged to refrain from "acts which would defeat the object and purpose" of the treaty. However, these obligations do not continue if the state makes clear that it does not intend to become a party to the treaty. Three signatory states (Israel, Sudan, and the United States of America) have informed the UN Secretary General that they no longer intend to become parties to the Rome Statute, and as such have no legal obligations arising from their signature.
Israel voted against the adoption of the Rome Statute but later signed it for a short period. In 2002, the United States and Israel "unsigned" the Rome Statute, indicating that they no longer intend to become states parties and, as such, they have no legal obligations arising from their signature of the statute.
Israel states that it has "deep sympathy" with the goals of the Court. However, it has concerns that political pressure on the Court would lead it to reinterpret international law or to "invent new crimes". It cites the inclusion of "the transfer of parts of the civilian population of an occupying power into occupied territory" as a war crime as an example of this, whilst at the same time disagrees with the exclusion of terrorism and drug trafficking. Israel sees the powers given to the prosecutor as excessive and the geographical appointment of judges as disadvantaging Israel which was prevented from joining any of the UN Regional Groups.
Former Senator Kraisak Choonhavan called in November 2006 for Thailand to ratify the Rome Statute and to accept retrospective jurisdiction, so that former premier Thaksin Shinawatra could be investigated for crimes against humanity connected to 2,500 alleged extrajudicial killings carried out in 2003 against suspected drug dealers.
A 2001 ruling of the Constitutional Court of Ukraine held that the Rome Statute is inconsistent with the Constitution of Ukraine. Notwithstanding, in October 2006, the Ambassador to the United Nations stated that the Ukrainian government would submit a bill to the parliament to ratify the Statute. Ukraine ratified APIC without having ratified the Rome Statute on 2007-01-29. On 4 April 2012, the Foreign Minister of Ukraine told the President of the International Criminal Court that "Ukraine intends to join the Rome Statute once the necessary legal preconditions have been created in the context of the upcoming review of the country’s constitution." A bill to make the necessary constitutional amendments was tabled in Parliament in May 2014.
There is presently bipartisan consensus that the United States does not intend to ratify the Rome Statute. Some US Senators have suggested that the treaty could not be ratified without a constitutional amendment. Therefore, US opponents of the ICC argue that the US Constitution in its present form does not allow a cession of judicial authority to any body other than the Supreme Court. In the view of proponents of the ICC there is no inconsistency with the US Constitution, arguing that the role of the US Supreme Court as final arbiter of US law would not be disturbed. Before the Rome Statute, opposition to the ICC was largely headed by Republican Senator Jesse Helms. Other objections to ratification have included that it violates international law, is a political court without appeal, denies fundamental American human rights, denies the authority of the United Nations, and would violate US national sovereignty.
Although the US originally voted against the adoption of the Rome Statute, President Bill Clinton unexpectedly reversed his position on 31 December 2000 and signed the treaty, but indicated that he would not recommend that his successor, George W. Bush, submit it to the Senate for ratification. On 6 May 2002, the Bush administration informed the UN Secretary General that the US no longer intend to become states parties and, as such, have no legal obligations arising from their former representatives' signature of the Statute. The country's main objections are interference with their national sovereignty and a fear of politically motivated prosecutions.
In 2002, the U.S. Congress passed the American Servicemembers' Protection Act (ASPA), which contained a number of provisions, including prohibitions on the U.S. providing military aid to countries which had ratified the treaty establishing the Court (exceptions granted), and permitting the President to authorize military force to free any U.S. military personnel held by the Court, leading opponents to dub it the "Hague Invasion Act." The act was later modified to permit U.S. cooperation with the ICC when dealing with U.S. enemies.
The U.S. has also made a number of Bilateral Immunity Agreements (BIAs, also known as "Article 98 Agreements") with a number of countries, prohibiting the surrender to the ICC of a broad scope of persons including current or former government officials, military personnel, and U.S. employees (including non-national contractors) and nationals. None of these agreements preclude the prosecution of Americans by any nation where they are believed to have committed any crime. As of 2 August 2006, the US Department of State reported that it had signed 101 of these agreements. The United States has cut aid to many countries which have refused to sign BIAs.
In 2002, the United States threatened to veto the renewal of all United Nations peacekeeping missions unless its troops were granted immunity from prosecution by the Court. In a compromise move, the Security Council passed Resolution 1422 on 12 July 2002, granting immunity to personnel from ICC non-states parties involved in United Nations established or authorized missions for a renewable twelve-month period. This was renewed for twelve months in 2003 but the Security Council refused to renew the exemption again in 2004, after pictures emerged of US troops abusing Iraqi prisoners in Abu Ghraib, and the US withdrew its demand.
On 24 March 2007, the Yemeni parliament voted to ratify the Rome Statute. However, some MPs claim that this vote breached parliamentary rules, and demanded another vote. In that further vote, the ratification was retracted.
The People's Republic of China has opposed the Court, on the basis that it goes against the sovereignty of nation states, that the principle of complementarity gives the Court the ability to judge a nation's court system, that war crimes jurisdiction covers internal as well as international conflicts, that the Court's jurisdiction covers peacetime crimes against humanity, that the inclusion of the crime of aggression weakens the role of the UN Security Council, and that the Prosecutor's right to initiate prosecutions may open the Court to political influence.
The government of India has consistently opposed the Court. It abstained in the vote adopting of the statute in 1998, saying it objected to the broad definition adopted of crimes against humanity; the rights given to the UN Security Council to refer and delay investigations and bind non-states parties; and the use of nuclear weapons and other weapons of mass destruction not being explicitly criminalized. Other anxieties about the Court concern how the principle of complementarity would be applied to the Indian criminal justice system, the inclusion of war crimes for non-international conflicts, and the power of the Prosecutor to initiate prosecutions.
Indonesia has stated that it supports the adoption of the Rome Statute, and that “universal participation should be the cornerstone of the International Criminal Court”. In 2004, the President of Indonesia adopted a National Plan of Action on Human Rights, which states that Indonesia intends to ratify the Rome Statute in 2008. This was confirmed in 2007 by Foreign Minister Hassan Wirajuda and the head of the Indonesian People's Representative Council's Committee on Security and International Affairs, Theo L. Sambuaga. In May 2013, Defense Minister Purnomo Yusgiantoro stated that the government needed "more time to carefully and thoroughly review the pros and cons of the ratification".
In March 2009, Lebanese Justice Minister said the government had decided not to join for now. The Coalition for the International Criminal Court claimed this was due in part to "intense pressure" from the United States, who feared it could result in the prosecution of Israelis in a future conflict.
In 2011, Mohamed Nazri Abdul Aziz, the Malaysian minister in charge of Law & Parliamentary Affairs, stated that the government had agreed to ratify the Rome Statute. It reported that, in Malaysia, the cabinet is the authority which can ratify international treaties. The CICC expected Malaysia to soon deposit its instrument of ratification with the UN Secretary-General.
Pakistan has supported the aims of the International Court and voted for the Rome Statute in 1998. However, Pakistan has not signed the agreement on the basis of several objections, including the fact that the Statute does not provide for reservations upon ratification or accession, the inclusion of provisional arrest, and the lack of immunity for heads of state. In addition, Pakistan (which is one of the world's largest supplier of peacekeepers) has, like the United States, expressed reservations about the potential use of politically motivated charges against peacekeepers.
Turkey is currently a candidate country to join the European Union, which has required progress on human rights issues in order to continue with accession talks. Part of this has included pressure, but not a requirement, on Turkey to join the Court which is supported under the EU's Common Foreign and Security Policy. Prime Minister Recep Tayyip Erdoğan stated in October 2004 that Turkey would "soon" ratify the Rome Statute, and the Turkish constitution was amended in 2004 to explicitly allow nationals to be surrendered to the Court. However, in January 2008, the Erdoğan government reversed its position, deciding to shelve accession because of concerns it could undermine efforts against the Kurdistan Workers Party.
^Colombia made use of article 124 of the Rome Statute to exempt war crimes committed by its nationals or on its territory from the jurisdiction of the Court for a period of seven years. The relevant declaration came into force with the coming into force of the Rome Statute, for Colombia, on 1 November 2002 and expired on 31 October 2009.
^ abOn 1 October 2003 the Ivorian government submitted a declaration, dated 18 April 2003, accepting the Court's jurisdiction for "acts committed on Ivorian territory since the events of 19 September 2002." Côte d'Ivoire subsequently acceded to the Rome Statute, on 15 February 2013, and therefore is now a state party.
^France made use of article 124 of the Rome Statute to exempt war crimes committed by its nationals or on its territory from the jurisdiction of the Court for a period of seven years. The relevant declaration came into force with the coming into force of the Rome Statute, for France, on 1 July 2002. France withdrew its declaration on 13 August 2008 with effect from 15 June 2008.
^Montenegro succeeded to the Rome Statute on 3 June 2006, the date of its independence from Serbia and Montenegro, per a declaration it sent to the Secretary-General of the United Nations, which was received on 23 October 2006.
^ abcThe Palestinian National Authority submitted a declaration on 22 January 2009, dated the previous day, accepting the Court's jurisdiction for "acts committed on the territory of Palestine since 1 July 2002." However, on 3 April 2012 the Prosecutor of the ICC deemed the declaration invalid because the Rome Statute only permits sovereign states to make such a declaration and Palestine was designated an "observer entity" within the United Nations (the body that is the depositary for the Rome Statute) at the time. On 29 November 2012, the United Nations General Assemblyvoted in favour of recognising Palestine as a non-member observer state. However, in November 2013 the Office of the Prosecutor concluded that this decision did "not cure the legal invalidity of the 2009 declaration." A second declaration accepting the court's jurisdiction was reportedly submitted in July 2014 by Palestine's Justice Minister Saleem al-Saqqa and General Prosecutor Ismaeil Jabr, but the Prosecutor responded that only the Head of State, Head of Government or Minister of Foreign Affairs had the authority to make such a declaration. After failing to receive confirmation from Minister of Foreign Affairs Riyad al-Maliki during an August meeting that the declaration had been made on behalf of the Palestinian government, the Prosecutor concluded that the declaration was invalid because it did not come from an authority with the power to make it. On 2 September 2014, the Prosecutor clarified that if Palestine filed a new declaration, or acceded to the Rome Statute, it would be deemed valid. In December 2014, the assembly of state parties of the ICC recognized Palestine as a "state" without prejudice to any legal or other decisions taken by the court or any other organization. A new declaration was submitted 1 January 2015 by Palestine, dated 31 December 2014, accepting the court's jurisdiction effective 13 June 2014. Palestine acceded to the Rome Statute on 2 January 2015, and the prosecutor accepted Palestine as state party. However, the court has not made a ruling on the legal validity of this decision.
^Canada filed a declaration stating that it does not recognize Palestine as a state and as such it does not consider the Rome Statute to be in force between it and Palestine.
^ abcUkraine submitted a declaration accepting the jurisdiction of the Court for a limited time period on 17 April 2014. Another declaration accepting jurisdiction indefinitely was submitted on 8 September 2015.
^On 28 August 2002, Israel declared that it no longer intended to ratify the treaty and therefore no longer bears any legal obligations arising from its signature.
^On 26 August 2008, Sudan declared that it no longer intended to ratify the treaty and therefore no longer bears any legal obligations arising from its signature.
^On 6 May 2002, the United States declared that it no longer intended to ratify the treaty and therefore no longer bears any legal obligations arising from its signature.
^Asian Parliamentarians’ Consultation on the Universality of the International Criminal Court, “An action plan for the Working Group of the Consultative Assembly of Parliamentarians for the ICC and the rule of law on the universality of the Rome Statute in Asia”. PDF, HTML 16 August 2006. Accessed 2007-01-23.