Temporal Jurisdiction of the ICC
- 1st July 2002 at the earliest
The jurisdiction of the ICC is non-retroactive. The ICC Statute entered into force on 1st July 2002. Therefore the earliest date from which the ICC can have jurisdiction over crimes under the Statute is 1st July 2002 (See Article 11).
- Or from the date of the Statute coming into force for any particular State Party, if later (under the 60 day rule)
Where the ICC Statute comes into force for a particular State Party after 1st July 2002, then the ICC has jurisdiction for crimes committed after the entry into force of the Statute for that State. Therefore for a State which accedes or ratifies after 1st May 2002, the entry into force of the Statute shall be the first day of the month after the 60th day following the deposit by the State of its instrument of ratification, acceptance, approval or accession (“The 60 day rule” – See Article 126(2)).
- Or from the date of declaration under Article 12(3)
States which are not State Parties can make a declaration under Article 12(3) of the Statute, accepting the Jurisdiction of the ICC for particular crimes. The Jurisdiction of the ICC would then be from the date of declaration (See Article 11(2)).
Temporal Jurisdiction of the national courts
Under international law the date on which the ICC Statute becomes binding on a State Party is:
- 1st July 2002, or
- The 60 day rule.
If the ratification or accession is after 1st May 2002, then the first day of the month after the 60th day following the deposit by the State of its instrument of ratification, acceptance, approval or accession (See Article 126(2)).
However, whether national courts are able to prosecute the ICC crimes depends on how the domestic legal order views the interaction of international and national law.
- in States with a monist tradition, national prosecutions are possible from the date the ICC Statute was ratified or acceded to under the 60 day rule,
- in States from the dualist tradition implementing legislation is necessary before prosecutions could take place. Therefore, prosecutions will generally be possible after the date when the implementing legislation comes into force.
The details of this distinction are outlined in Dualist and Monist Systems. However, two important clarifications should be noted at the outset:
- Most of the crimes under the ICC Statute are also prohibited under other international treaties such as the Genocide Convention and the Geneva Conventions. Many of the ICC crimes have thus already been criminalised in various States prior to 1st July 2002. In such instances, national prosecutions for those crimes under such pre-existing provisions can and ought to take place.
- Although under monist systems national implementing legislation for self-executing treaties is not necessary, the experience of State Parties has been that some form of domestic implementing legislation has been necessary. The reasons for this are the extremely detailed cooperation provisions under the ICC Statute and the complementarity regime.