Coalition for the International Criminal Court
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Article 124
Article 124 of the Statute is an optional protocol, a transitional provision, which allows States to choose not to have their nationals subject to the Court’s jurisdiction over war crimes for a seven year period after ratification. The article itself provides that it must be reviewed at the upcoming Review Conference.

It will be determined at the Review Conference whether the provision should be maintained—thus allowing for application to future States Parties—or whether it should be removed from the Statute. It was further noted that if the Review Conference decided to retain Article 124, no amendment to the Statute would be necessary.

Some delegations debated that the retention of Article 124 would facilitate the adherence of other States to the Rome Statute and thus contribute to it universality. Other delegations supported the deletion of Article 124 based on its categorization as a “transitional provision” with a historical temporary nature and its lack of usefulness evidenced by the low number of States Parties that had made declarations under article 124.

Only two states, France and Colombia, have made use of this Article. In 2008 France withdrew its declaration leaving Colombia as the only state party with a declaration under Article 124. In several occasions Colombian authorities publicly stated their intentions to withdraw Colombia’s declaration under Article 124; and although no effective withdrawal was undertaken, the effects of such declaration in Colombia expired on 1 November 2009.

At different stages of the discussion, the CICC Team recalled that at the Rome Conference, the CICC membership was strongly opposed to the inclusion of Article 124 into the Rome Statute for it weakened the jurisdictional regime of the ICC and was seen as incompatible with the object and purpose of the Rome Statute: “to put an end to impunity for the perpetrators of [the most serious] crimes [of concern to the international community as a whole] and thus to contribute to the prevention of such crimes”. Since its inclusion in the Rome Statute as a transitional provision, the CICC has continually advocated that States not make use of Article 124.

Article 124: Transitional Provision
Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.

For more information on this issue, please contact Toby Hanson at the CICC Secretariat.
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