The Rome Statute, ICC and Armenia

If you are in a hurry, read the brief overview of the article Recently, the International Criminal Court issued an arrest warrant against Russian President Vladimir Putin in the context of Russia’s war in Ukraine. A few days later, the Constitutional Court of the Republic of Armenia recognized the Rome Statute (which laid the foundation for the establishment of the court) as complying with the Constitution. The Fact Investigation Platform studied some details about the Statute and the ICC, the list of countries that have joined it, why Armenia has recognized it as constitutional nearly 25 years after signing it.

The authorities of Armenia applied to the Constitutional Court to determine the constitutionality of the Statute in December last year. The Court took the application into proceedings in early January of this year, setting February 14 as the trial day.

On March 24, the Constitutional Court of Armenia announced that the Rome Statute, which laid the foundation for the establishment of the International Criminal Court, complies with the Constitution of the country and the Armenian government can continue the process of ratifying the agreement.After the decision of the Constitutional Court, the Armenian government has three months to send the issue of ratification of the Statute to the Parliament.

The Armenian authorities have not yet announced when they are going to send the matter to the parliament or whether they are going to do it or not. With the ratification of the Statute, Armenia will have access to the International Criminal Court (ICC), and in particular, matters related to Azerbaijan’s aggression against Armenia in recent years can be examined in the court.

Days before the Armenian Constitutional Court would issue its decision, the International Criminal Court issued an arrest warrant against the Russian President Vladimir Putin. It is noteworthy that the Armenian government applied to the Constitutional Court on the matter of the constitutionality of the Statute in December last year, while the court took the application into proceedings on January 10 of this year.

Taking into account that these two events are actively discussed in the Armenian media and social networks, the Fact Investigation Platform decided to study the Rome Statute, the list of countries that have ratified it, and the history of signing and ratifying the agreement by Armenia.

The International Criminal Court

The International Criminal Court was founded on the basis of the Rome Statute adopted in 1998 and began its operation in 2002. The jurisdiction of the court includes the prosecution of persons responsible for genocide, war crimes, crimes against humanity, as well as military aggression.

The main method of investigation of criminal cases by the ICC is the Office of the Prosecutor, which begins to investigate possible crimes that fall within the jurisdiction of the ICC and have sufficient evidence. Either the member countries of the court or the UN Security Council can inform the Office of the Prosecutor about crimes. However, the ICC is not a part of the UN structure, unlike the International Court of Justice of the United Nations (The Hague Court), which is investigating the cases of Armenia vs. Azerbaijan and Azerbaijan vs. Armenia.

The jurisdiction of the ICC covers crimes committed by a member state, on the territory of a member state, or in a country that has accepted the jurisdiction of the court.To date, 139 states have signed the Rome Statute, and 123 have ratified it.

Among Armenia’s neighbors, Georgia signed and ratified the agreement nearly two decades ago, Iran has signed but not ratified it, and Azerbaijan and Turkey neither have signed nor ratified it.

Armenia and the Court

Armenia signed the Rome Statute back in 1999, but did not ratify it, because in 2004, two years after the establishment of the court, the Constitutional Court of Armenia declared the agreement partially unconstitutional. Later, Armenia initiated constitutional amendments. However, the articles with which the Constitution was in conflict were not subjected to substantial amendments.

In 2004, the Constitutional Court stated in its conclusion that the article, according to which the International Criminal Court is complementary to domestic courts, is not in conformity with the country’s Constitution.

“Administration of justice is the exclusive jurisdiction of the courts. Regarding the domestic judicial system, according to Article 91 of the Constitution of the Republic of Armenia, justice shall be administered solely by the courts in accordance with the Constitution and the laws. According to Article 92 of the Constitution, the courts of general jurisdiction, including criminal jurisdiction, in the Republic of Armenia shall be the courts of first instance, the appeal courts and the court of cassation.”

The Constitutional Court also recognized Article 105 of the Statute of the International Criminal Court as inconsistent with the country’s Constitution, which “excludes the exercise of the right to amnesty and the possibility of amnesty for convicted persons through the domestic procedure.” According to the decision of the Constitutional Court, this clause contradicts the requirements of Article 40, Clause 17 of Article 55, Clause 1 of Article 81 of the Constitution.

Which countries have not ratified the Statute

The failure to ratify the Rome Statute by several countries is becoming a topic of debate.

The agreement was not ratified by three of the five permanent members of the UN Security Council: Russia, China and the United States of America. France and Great Britain have ratified the agreement.

Russia signed the Rome Statute, but did not ratify it. In 2016, the country decided to withdraw its signature after the International Criminal Court described Russia’s actions in Crimea as an “occupation”. In the same year, the court allowed to investigate cases of alleged aggression and war crimes during the 2008 Russian-Georgian war.

Following the actions of the court “against Russia”, the country accused the court of bias.

On March 17, the ICC made another decision against Russia and its President Vladimir Putin, ordering Putin’s arrest on the grounds of the forced deportation of Ukrainian children.The United States of America played a major role in the establishment of the International Criminal Court and the adoption of the Rome Statute, signing it but announcing that it will not ratify the agreement. The USA has observer status in the Assembly of States Parties.

However, relations between the US and the ICC have not always been smooth. US President George Bush made active attempts to convince states not to hand over US citizens to the International Criminal Court.

Despite a number of disagreements, a number of crimes under the Rome Statute have become part of US domestic law and are tried in military or civilian courts. The Rome Statute also does not comply with the country’s Constitution, according to which crimes committed by citizens of the United States on the territory of the United States can be investigated only by the courts of the country.

On the other hand, the USA is sensitive about war crimes committed by the American military servicemen in Afghanistan and has repeatedly criticized the ICC in the context of possible investigation of these crimes. In 2020, the Donald Trump administration even imposed sanctions restricting the issuance of visas to the ICC officials who were involved in “efforts” to investigate the case against US troops.

Ani Avetisyan