LETTING TIME SERVE YOU:  BOOT CAMPS AND ALTERNATIVE SENTENCING FOR FEMALE OFFENDERS


IMPUNITY RISES FROM THE ASHES?: THE EXTENT 
OF THE ROME STATUTE’S JURISDICTION IN THE 

EVENT OF STATE SUCCESSION 

Paul T. Babcock 

I. INTRODUCTION

The International Criminal Court’s (ICC) deterrence effect in 
situations of armed conflict extends only to the reach of its jurisdiction.1 
State succession, which often involves massive human rights violations,2 
casts doubt on the jurisdiction of the Court and the protection it offers 
because of questions regarding the continuity of treaty obligations, 
including those under the Rome Statute, formerly binding upon the 
predecessor State. This Note argues that customary international law 
supports the continued application of the Rome Statute in instances of State 
succession because the treaty articulates the necessary human rights and 
humanitarian law principles to fall under the customary international law 
rule for the continuation of human rights and humanitarian law treaties.  

Two basic types of international law exist: treaties and customary 
international law.3 Treaties arise out of express negotiations between State 
parties, resulting in certain rights and obligations to which the parties 
agree.4 Human rights and humanitarian treaties obligate State parties to 
protect individuals living under those treaties.5 Customary international 
law, on the other hand, arises not from express negotiations between 
sovereign States,6 but rather from the practice of nations followed out of a 
sense of legal obligation.7 However, customary international law—as with 
the law of treaties—imposes human rights and humanitarian obligations 

1 See generally G.A. Res. 36/106, U.N. Doc. A/RES/36/106 (Dec. 10, 1981), available at 
http://perma.cc/SF9N-ABHS (stating the importance of an international criminal court as it 
relates to international peace and security); see also Rome Statute of the International 
Criminal Court art. 12, July 17, 1998, 2187 U.N.T.S. 3 [hereinafter Rome Statute], available 
at http://perma.cc/MC7P-KFPN. 
2 Menno T. Kamminga, State Succession in Respect of Human Rights Treaties, 7 EUR. J. 
INT’L L. 469, 470 (1996). 
3 Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, 120 YALE L.J. 
202, 204 (2010).  
4 Id. 
5 See generally MALCOLM N. SHAW, INTERNATIONAL LAW 265-344 (6th ed. 2008) (outlining 
the evolution of human rights protection in international law).  
6 Bradley & Gulati, supra note 3. 
7 See, e.g., Charter of the United Nations and Statute of the International Court of Justice, 
June 26, 1945, 59 Stat. 1031; Statute of the Int’l Ct. of Justice, art. 38, ¶ 1 [hereinafter ICJ 
Statute]. The ICJ Statute is widely considered the definitive statement on the sources of 
international law; SHAW, supra note 5, at 70. 

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462 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
upon States.8 

The beginning of the twentieth century ushered in human rights and 
humanitarian treaties and the recognition of such customary international 
law norms.9 State succession started in waves in the nineteenth century, and 
crescendoed with the breakup of the Soviet Union and the former 
Yugoslavia in the late-twentieth century.10 The international law of human 
rights and humanitarian treaties in relation to State succession became 
paramount in establishing accountability and responsibility for crimes 
committed during the breakup of the former Yugoslavia.11 The Rome 
Statute formed against this backdrop,12 its object and purpose to prevent 
impunity and prosecute individuals for international crimes.13 

Armed conflict and crimes against humanity continue to plague the 
international community, well after the Rome Statute entered into force.14 
State succession lingers in the background of these challenges and the 
questions they pose for the ICC and international law. New States born 
from the rubble of armed conflict, like the seven nascent States of the 
Former Yugoslavia, straddle the edge of impunity for crimes committed 
during the conflict because their status as State parties to the Rome Statue is 
questionable.15 Charges filed by the ICC’s Office of the Prosecutor against 

 
                                                                                                                 
8 See Reservations to Convention on Prevention and Punishment of Crime of Genocide, 
Advisory Opinion, 1951 I.C.J. 15, 23 (May 28) (establishing that the protections of the 
Geneva Conventions rise to the level of customary international law and bind all States).  
9 STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES 
IN INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY 5 (3rd ed. 2009). 
10 See Detlev F. Vagts, State Succession: The Codifiers’ View, 33 VA. J. INT’L L. 275, 277-80 
(1992-93) (listing the different occurrences of State succession throughout the nineteenth 
and twentieth centuries). 
11 See generally Kamminga, supra note 2. 
12 WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT 62 
(4th ed. 2011). 
13See Rome Statute, supra note 1, at pmbl. 
14 See, e.g., Ian Traynor & Shaun Walker, Ukraine Violence: Dozens Killed as Protestors 
Clash with Armed Police, THE GUARDIAN (Feb. 20, 2014, 11:00 AM), http://perma.cc/M8FG 
-P584; and NORWEGIAN HELSINKI COMM., WAITING FOR RUSSIAN JUSTICE: THE INEFFECTIVE 
RUSSIAN INVESTIGATION OF CRIMES COMMITTED DURING THE AUGUST 2008 ARMED CONFLICT 
BETWEEN RUSSIA AND GEORGIA (Mar. 2012), available at http://perma.cc/P4YY-3BWN. 
15 See Rome Statute, supra note 1, at art. 12, which outlines preconditions for the exercise of 
the Court’s jurisdiction: 
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court 
with respect to the crimes referred to in article 5. 
2. In the case of Article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one 
or more of the following States are Parties to this Statute or have accepted the jurisdiction of 
the Court in accordance with paragraph 3: 
(a) The State on the territory of which the conduct in question occurred or, if the crime was 
committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; 
(b) The State of which the person accused of the crime is a national. 



2015] IMPUNITY RISES 463 
 
the leaders of a new State, its citizens, or military, likely face an immediate 
motion to dismiss based on a lack of jurisdiction.16 The Appeals Chamber 
will ultimately determine the questions presented by such a jurisdictional 
challenge.17 A U.N. Security Council referral to the ICC of certain crimes 
associated with State succession would help solve this jurisdictional 
question,18 but it would also throw into question the legitimacy and 
independence of the ICC.19 The potential liability of a successor State party 
to the Rome Statute under international criminal law warrants a thorough 
analysis of the issue in light of the object and purpose of the treaty. 

This Note is divided into five parts. Part II reviews the bases of 
jurisdiction upon which the Rome Statute rests. It describes the different 
types of jurisdiction vested in the Court and presents potential scenarios of 
State succession over which the Court may exercise its jurisdiction. Part III 
appraises the international law surrounding the continuity of human rights 
and humanitarian treaties in the event of State succession. This section 
reviews the method by which the Court applies and determines the law. To 
support the contention that a rule of customary international law exists for 
the continuity of human rights and humanitarian treaties, this section 
updates the literature of State succession with recent judicial decisions and 
pronouncements. Part IV, in turn, considers the intersection of international 
human rights, humanitarian, and criminal law. The purpose here is to 
illustrate the Rome Statute’s fundamental characteristics of human rights 
and humanitarian treaties, which continue to apply to a successor State. 
Finally, Part V utilizes the situation between Russia, the Republic of 
Georgia, and South Ossetia to show the practical aspects of the international 
legal issues surrounding State succession and the Rome Statue. In 
reviewing the conflict between the parties, this section presents a scenario 
in which the Court might face the question of jurisdiction in the event of 
                                                                                                                 
3. If the acceptance of the State which is not a Party to this Statute is required under 
paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of 
jurisdiction by the Court with respect to the crime in question. The accepting State shall 
cooperate with the Court without any delay or exception in accordance with Part 9. 
Article 12 indicates the Court only possesses jurisdiction over crimes committed on the 
territory of a State party, or by a national of a State party. A gap exists for new States to 
argue that the territorial, or personal, jurisdiction of the Court ceases by virtue of the State’s 
embryonic existence. 
16See generally Rome Statute, supra note 1, at art. 19(2) (indicating that an accused or a 
State with jurisdiction over a case may challenge the jurisdiction of the Court). 
17 See Rome Statute, supra note 1, at art. 82(1)(a); see also Rules of Procedure and Evidence 
Rule 154 (2d ed. 2013) (granting automatic right of appeal for questions of jurisdiction), 
available at http://perma.cc/SVT9-DFHQ. 
18 Rome Statute, supra note 1, at art. 13(b); see, e.g., S.C. Res. 1593, ¶. 1, U.N. Doc. 
S/RES/1593 (Mar. 31, 2005) (referring the situation in Darfur to the ICC). 
19 See generally U.N. SCOR, 67th Sess., 6849th mtg. at 24-25, U.N. Doc. S/PV.6849 (Oct. 
17, 2012), in which the President of the ICC, in addressing the U.N. Security Council, 
repeatedly asserts that the ICC acts as an independent judiciary and discusses the issue of 
referrals and cooperation with the Court. 



464 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
State succession and argues for the Court to assume the continuity of the 
Rome Statute in such an event. 

II. JURISDICTION AND JURISDICTIONAL CHALLENGES AT THE ICC 

The Rome Statute requires the Court to “satisfy itself that it has 
jurisdiction in any case brought before it.”20 The Rome Statute’s 
jurisdictional prerequisites include: crimes within the Court’s jurisdiction; 
temporal jurisdiction; territorial and personal jurisdiction; and 
admissibility.21 Article 12 of the Rome Statute enumerates specific 
preconditions for the Court to exercise its jurisdiction; these include a 
State’s acceptance of jurisdiction with respect to subject matter; the scope 
of the Court’s jurisdiction based upon which States must accept the Court’s 
jurisdiction before the Court can act; and how a State can accept the Court’s 
jurisdiction on an ad hoc basis.22  

Domestic and international courts generally permit decisions 
involving jurisdictional questions to be reviewed immediately on appeal, 
because without jurisdiction, a court possesses no authority to conduct a 
trial.23 The Rome Statute permits the prosecution and defense to appeal as 
of right decisions concerning jurisdiction.24 Interlocutory appeals provide 
the added benefit of offering authoritative rulings on unsettled issues of law 
and assist in maintaining a consistent application of the law across cases 
before the same court.25 An interlocutory appeal presents the most likely 
vehicle by which the Rome Statute’s jurisdiction will be reviewed in the 
event of State succession because of its immediacy and grant as of right.26 
This necessitates a review of the history and basis of the ICC’s jurisdiction, 
the interlocutory appeals process, and the potential scenarios for a challenge 
to the Court’s jurisdiction. 

 
                                                                                                                 
20 Rome Statute, supra note 1, at art. 19. 
21 See generally SCHABAS, supra note 12, at 62 (referencing Articles 5, 11, 12, 17, 18 & 19 
of the Rome Statute and explaining each Article’s impact on the ICC’s jurisdiction to hear 
cases).  
22 Rome Statute, supra note 1, at art. 12; see also Hans-Peter Kaul, Preconditions to the 
Exercise of Jurisdiction, in 1 THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: 
A COMMENTARY 583-84 (Antonio Cassese et al. eds., 2002). 
23 WAR CRIMES RESEARCH OFFICE, INTERLOCUTORY APPELLATE REVIEW OF EARLY DECISIONS 
BY THE INTERNATIONAL CRIMINAL COURT 3 (2008), available at http://perma.cc/LQA4-98T9. 
24 Id. at 1; see also Rome Statute, supra note 1, at art. 82(1)(a). 
25 WAR CRIMES RESEARCH OFFICE, supra note 23, at 3. 
26 The Rome Statute allows both the Prosecutor and the Defendant to utilize an interlocutory 
appeal to determine the grounds of jurisdiction. Rome Statute, supra note 1, at art. 82(1)(a). 
It is reasonable to assume that one party, or the other, will appeal the decision of the Pre-
Trial Chamber on jurisdiction in the event of State succession to either prevent the case from 
going to trial, or to ensure that the case goes to trial. 



2015] IMPUNITY RISES 465 
 
A. Automatic Jurisdiction in the Rome Statute 

States utilize five bases of jurisdiction in criminal law: territory, 
personal, passive personality, protective, and universal.27 International law 
tends to favor territory-based jurisdiction.28 International tribunals 
constituted over the last half of the twentieth century based their jurisdiction 
in territorial, personal, and temporal.29 The ICC’s jurisdiction rests on the 
consent of those who agreed to be bound by the Rome Statute.30 State 
parties agree to allow the Court to prosecute crimes committed on their 
territory or by their nationals.31 This differs from previous international 
criminal tribunals, which possessed jurisdiction from U.N. Security Council 
Resolutions or as a result of victory in war.32 

The Rome Statute’s adheres to the principle of State sovereignty, 
which contrasts with the initial draft presented by the International Law 
Commission (ILC) and others at the Rome Conference.33 The ILC draft 
favored an “opt-in” system designed to ensure the Court hears cases 
brought before it. By “opting-in,” according to the ILC’s rationale, the State 
signaled ipso facto acceptance of jurisdiction over particular cases.34 France 
proposed a “state consent regime,” which required State approval in every 
proceeding against every individual suspect for the Court to possess 
jurisdiction.35 Germany supported the system of “automatic jurisdiction,” 
which vested the Court’s jurisdiction upon ratification by a State.36 

The ILC draft’s conservative approach, modeled after the 
International Court of Justice’s (ICJ) submission requirements, provided 
States considerable freedom to pick and choose which cases went before the 

 
                                                                                                                 
27 SCHABAS, supra note 12. 
28 Id. at 62-63 (listing examples of territory-based jurisdiction and statements in support of 
territory as the main basis for jurisdiction). 
29 Id. at 63 (reviewing the bases of jurisdiction for the Nuremberg Tribunal, the International 
Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for 
Rwanda). 
30 Id. 
31 Id. at 63-64 (calling territoriality and nationality the fundamentals of the Court’s 
jurisdiction). 
32 See id. at 62-64 (explaining the bases of previous international criminal tribunals’ 
jurisdiction and how the ICC differs from them). 
33 Compare Rep. of the Int’l L. Comm’n, 46th Sess., May 2-July 22, 1994, 42-43, U.N. Doc. 
A/49/10; GAOR, 49th Sess., Supp. No. 10 (1994) (explaining mechanisms for acceptance of 
jurisdiction similar to the ICJ Statute), with Rome Statute, supra note 1, at art. 12 
(constructing territory and nationality of State party as bases of jurisdiction). See generally 
Hans-Peter Kaul, Special Note: The Struggle for the International Criminal Court’s 
Jurisdiction, 6 EUR. J. CRIME CRIM. L. & CRIM. JUST. 364, 366 (1998). 
34 Rep. of the Int’l L. Comm’n, supra note 33, at 43. 
35 Kaul, supra note 33. 
36 Id. 

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466 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
Court.37 The ILC commentary on the draft indicated a fear that an “opting-
out” system would incentivize States to deny jurisdiction to the Court for 
cases brought before it.38 Twenty-seven States supported the ILC’s “opt-in” 
system.39 France’s proposal required consent from the State on whose 
territory the acts were committed, whose nationals were the victims of the 
acts, and whose nationals were the suspected perpetrators.40 Jurisdiction 
under the French proposal rested entirely with States.41 The ILC and French 
proposals crafted a weak Court prone to paralysis and chaos due in part to 
the jurisdictional restrictions placed upon it.42  

Germany’s proposal for automatic jurisdiction provided the 
foundation for a stronger Court.43 Support for automatic jurisdiction 
increased in the course of the Preparatory Committee’s deliberations.44 
Article 12(1) of the Rome Statue adopted the wording of the German 
proposal almost identically.45 The consensus for automatic jurisdiction 
acted as a building block to determining the nuanced and procedural aspects 
of the exercise of jurisdiction.46 Proposals to operationalize the jurisdiction 
varied from universal jurisdiction for specific crimes to strictly territorial 
for all crimes.47 South Korea presented a hybrid proposal, which gave the 
Court competence over crimes that occurred on the territory of a State 
party; if a crime was committed by a national of a State party; or, if a State 
party detained an individual accused of crimes within the Court’s 
jurisdiction.48 This compromise prevailed with the removal of the custodial 
State provision.49 

Article 12 incorporates automatic jurisdiction over all core crimes 
into the Rome Statute.50 Article 12(1) contains the central rule that State 
parties accept the jurisdiction of the ICC by becoming a party to the Rome 
Statute.51 Article 12(2) focuses on the general jurisdiction of the Court.52 
 
                                                                                                                 
37 Id. at 367; see also ICJ Statute, supra note 7, at art. 36(2)-(5) (allowing for the submission 
of cases to the Court by States). 
38 Rep. of the Int’l Law Comm’n, supra note 33, at 43. 
39 Kaul, supra note 33, at 367. 
40 Preparatory Comm. on the Establishment of an Int’l Crim. Ct., Aug. 12-30, 1996, U.N. 
Doc. A/AC.249/L.3, 35 (Aug. 6, 1996). 
41 Kaul, supra note 33, at 367. 
42 Id. at 366, 367. 
43 See id. at 368. 
44 Id. 
45 Id. 
46 See Kaul, supra note 33, at 368-69. 
47 See id. at 366-67. 
48 Id. at 369. 
49 See id. at 373; see also SCHABAS, supra note 12, at 69. 
50 Kaul, supra note 22, at 606. 
51 Id. at 605. Article 124 contains a limited exception to Article 12(1). It allows States to opt-
out of the Court’s jurisdiction for war crimes committed by a State’s national or on that 
State’s territory for seven years after the entry into force of the treaty for that State. Rome 



2015] IMPUNITY RISES 467 
 
Article 12(2) concerns cases referred to the Prosecutor by a State party, or 
where the Prosecutor initiated an investigation propro motu.53 It combines 
two elements to determine the scope of the Court’s jurisdiction:54 (1) State 
acceptance of the Court’s jurisdiction55 and (2) State acceptance of 
jurisdiction of the territorial State on which the crime in question occurred, 
or State acceptance by the State of the accused national.56 The territoriality 
and nationality requirements of Article 12(2)(a) anchor the ICC in line with 
international law and the domestic law of most States.57        

Article 12(3), acceptance of jurisdiction by a non-State party, forms 
part of the overall scheme of the Statute for the preconditions to the 
exercise of jurisdiction.58 This subsection expands the jurisdiction of the 
Court by providing for non-State parties to grant jurisdiction to the Court on 
an ad hoc basis.59 It represents the “opt-in” provision of the ILC Draft60 and 
received long-standing support by the delegations negotiating the Rome 
Statute.61 The Statute contains no details concerning the commencement of 
an Article 12(3) declaration beyond lodging the declaration with the 
Registrar.62 The State making an Article 12(3) declaration does not have all 
the rights and obligations of a State party.63 States opting into the Court’s 
jurisdiction must act within the system of the Statute and Rules of 
Procedure and Evidence.64 The Statute also requires the State to cooperate 
with the subsequent investigations and proceedings.65  

                                                                                                                 
Statute, supra note 1, at art. 124; see also Prosecutor v. Laurent Koudou Gbagbo, Case No. 
ICC-02/11-01/11, Judgment on the Appeal of Mr. Laurent Koudou Gbagbo Against the 
Decision of Pre-Trial Chamber I on Jurisdiction and Stay of the Proceedings, ¶ 72 (Dec. 12, 
2012) (“By becoming a Party to the Rome Statute (subject to any declaration pursuant to 
article 124 of the Statute), a State accepts the jurisdiction of the Court within the parameters 
set, in particular, by articles 11 and 12(1) and (2) of the Statute.”). 
52 Kaul, supra note 22, at 606.  
53 See Rome Statute, supra note 1, at art. 12(2) (referencing art. 13(a) & 13(c)). 
54 Id. 
55 Id. 
56 Id. at art. 12(2)(a) & 12(2)(b). 
57 Kaul, supra note 22, at 607-10. 
58 Rome Statute, supra note 1, at art. 12(3); Kaul, supra note 22, at 610. 
59 See Giuseppe Palisano, The ICC and Third States, in 1 ESSAYS ON THE ROME STATUTE OF 
THE INTERNATIONAL CRIMINAL COURT, 391, 393 (Flavia Lattanzi & William A. Schabas eds., 
1999). 
60 See Rep. of the Int’l Law Comm’n, supra note 33, at 43 (providing for countries to choose 
to submit to the Court’s jurisdiction for select crimes). 
61 Kaul, supra note 22, at 610. 
62 See Rome Statute, supra note 1, at art. 12(3). 
63 Prosecutor v. Laurent Koudou Gbagbo, Case No. ICC-02/11-01/11, Judgment on the 
Appeal of Mr. Laurent Koudou Gbagbo Against the Decision of Pre-Trial Chamber I on 
Jurisdiction and Stay of Proceedings, ¶ 74 (Dec. 12, 2012). 
64 Carsten Stahn et al., The International Criminal Court’s Ad Hoc Jurisdiction Revisited, 99 
AM. J. INT’L L. 421, 422 (2005). 
65 See Rome Staute, supra note 1, at art. 12(3) (“The accepting State shall cooperate with the 
Court without any delay or exception in accordance with Part 9.”); see also id. at art. 86-102 

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468 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 

Referral of a situation by the U.N. Security Council to the Prosecutor 
is another way for the Court to gain jurisdiction.66 This procedure appeared 
in the ILC draft.67 Countries expressed concern for politically-motivated 
referrals by the Security Council.68 The ILC, however, believed such 
referrals would enable the Security Council to utilize the Court instead of 
resorting to the creation of ad hoc tribunals.69 To alleviate concerns over 
political motivation, the Nordic countries offered a compromise: referrals 
would focus on specific situations rather than named individuals.70 The ILC 
draft reflected this compromise by allowing for Security Council referral of 
“matters,” which eventually became “situations” in the final statute.71 
Security Council referral resembles a form of universal jurisdiction because 
of the wide scope such a referral can take.72   

B. Jurisdictional Challenges at the ICC 

The drafting history of the Rome Statute indicates a deliberate 
negotiation between the States to achieve agreement on the jurisdiction of 
the Court.73 This represented a critical step towards protecting people and 
preventing impunity because State parties submitted to the Court’s 
jurisdiction upon ratification.74 Articles 19 and 82 grant appeals of 
jurisdiction as of right, reflecting the importance of jurisdiction to the 
Court.75  

Article 19(2) specifies the parties capable of appealing the jurisdiction 
of the Court.76 These parties include an accused, a person for whom the 
                                                                                                                 
(requiring international cooperation and judicial assistance by State parties, and, per art. 
12(3), accepting States). 
66Id. at art. 13(b). 
67 Int’l L. Comm’n, Draft Statute of the International Criminal Court with Commentaries, 
[1994] 2 Y.B. Int’l L. Comm’n 28, 43.  
68 Observations of Governments on the Report of the Working Group on a Draft Statute for 
an International Criminal Court, [1994] 2 Y.B. Int’l L. Comm’n 1, U.N. Doc. A/CN.4/458 
& Add. 1-8, 45, 83 (expressing concerns of the Hungarian and United States delegations 
about politically-motivated referrals by the Security Council). 
69 Int’l L. Comm’n, supra note 67, at 44. 
70 Observations of Governments on the Report of the Working Group on a Draft Statute for 
an International Criminal Court, supra note 68, at 63. 
71 See WAR CRIMES RESEARCH OFFICE, THE RELEVANCE OF “A SITUATION” TO THE 
ADMISSIBILITY AND SELECTION OF CASES BEFORE THE INTERNATIONAL CRIMINAL COURT 12-
14 (2009), available at http://perma.cc/U4XJ-5YHS. 
72 Kaul, supra note 22, at 612. 
73 See supra text accompanying notes 27–72; see generally Rep. of the Int’l L. Comm’n, 
supra note 33 (encompassing the entire drafting history of the treaty, including the evolving 
positions of States in each meeting of the different committees). 
74 See Rome Statute, supra note 1, at art. 12(1). 
75 See Preparatory Comm. on the Establishment of an Int’l Crim. Ct., Text of the Draft 
Statute for the International Criminal Court, U.N. Doc. A/AC.249/1998/CRP.14, 3 (Apr. 1, 
1998); see also Rome Statute, supra note 1, at arts.19, 82. 
76 See Rome Statute, supra note 1, at art. 19(2). 



2015] IMPUNITY RISES 469 
 
Court issued a warrant of arrest or summons to appear, a State which is 
conducting or has completed an investigation or prosecution of the case, 
and a State from which Article 12 requires acceptance of jurisdiction.77 
Only parties mentioned in Article 19(2) may challenge jurisdiction.78 The 
Statute limits each party to one jurisdictional challenge.79 Challenges 
brought prior to the confirmation of charges shall be referred to the Pre-
Trial Chamber, while challenges brought after confirmation shall be 
referred to the Trial Chamber.80 A challenge by a State whose acceptance of 
jurisdiction is required, or a State claiming jurisdiction based on a 
concurrent investigation, suspends the Prosecutor’s investigation until the 
issue is resolved.81 Decisions can be appealed to the Appeals Chamber 
under Article 82.82 

In the event of State succession, the two potential challengers to 
jurisdiction presented by Article 19 include an accused before the Tribunal 
and a State which submitted to the Court’s jurisdiction under Article 
12(3).83 The most likely challenger will be an accused before the Court, 
arguing that the Court lacks jurisdiction in the event of State Succession 
because the new State is not a State party to the Rome Statute.  

III. THE INTERNATIONAL LAW OF STATE SUCCESSION 

State succession refers to “the replacement of one State by another in 
the responsibility for the international relations of territory.”84 Historically, 
successor States benefited from the “clean slate” principle, which removed 
treaty obligations to which they did not expressly agree.85 This changed in 
the 1990s with the breakup of the Soviet Union and Yugoslavia.86 
Approximately twenty-three successor States came into existence at that 
time, creating an urgent need to determine the international obligations 
incumbent on these newly-formed sovereigns, especially in the commission 
 
                                                                                                                 
77 See id. 
78 See id. at art. 19(4). 
79 See id. The Statute indicates that in exceptional circumstances more than one challenge 
can be undertaken. “Exceptional circumstances” is left undefined. State succession in the 
course of a trial might rise to the level of an “exceptional circumstance” to allow a second 
challenge to the Court’s jurisdiction. 
80 See id. at art. 19(6). 
81 See id. at art. 19(7). 
82 See Rome Statute, supra note 1, at art. 19(6). 
83 See id. at art. 19(4). 
84 Vienna Convention on Succession of States in Respect of Treaties, art. 2(1)(b), Aug. 23, 
1978, 1946 U.N.T.S. 3 [hereinafter Convention on Succession]. 
85 Application of the Convention on the Prevention and Punishment of the Crime of 
Genocide (Bosn. & Herz. v. Serb. & Montenegro), 1996 I.C.J. 595, 643 (July 11) 
[hereinafter Application of the Genocide Convention] (separate opinion of Judge 
Weeramantry). 
86 See Kamminga, supra note 2, at 469-70. 



470 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
of international humanitarian and human rights treaties.87 This created an 
abundance of State practice, which provides a starting point to determine 
the customary international law of State succession applicable to the Rome 
Statute. 

The Rome Statute requires judges interpreting and applying the law to 
examine the Statute first, and then to applicable treaties and the principles 
and rules of international law, including the law of armed conflict. When 
these sources fail to provide the necessary guidance, judges turn to the 
general principles of law derived from the national laws of the world’s legal 
systems.88 The Court can only resort to the principles and rules of 
international law and the general principles of law when 

(i) there is a lacuna in the written law contained in the 
Statute, the Elements of Crimes and the Rules; and (ii) such 
lacuna cannot be filled by the application of the criteria of 
interpretation provided in articles 31 and 32 of the Vienna 
Convention on the Law of the Treaties and article 21(3) of 
the Statute.89 

The Court may also apply principles and rules derived from its previous 
decisions.90 Additionally, the Court’s application and interpretation of the 
law “must be consistent with internationally recognized human rights.”91 

A lacuna exists in the written law contained in the Rome Statute; it 
lacks any specific provision concerning State succession.92 The criteria of 
Articles 31 and 32 of the Vienna Convention on the Law of Treaties fails to 
fill the vacuum because the Rome Statute relies heavily upon the intuitions 
of State parties for the Court’s functioning.93 This Note assumes the Court’s 
 
                                                                                                                 
87 Id.; see generally The Breakup of Yugoslavia, 1990-1992, U.S. DEP’T OF STATE, OFFICE OF 
THE HISTORIAN, https://perma.cc/X46W-YPSU (last modified Oct. 31, 2013) (describing the 
breakup of the former Yugoslavia); see also Valerie J. Bunce, The Violent Dissolution of 
Yugoslavia: A Comparative Perspective, WILSON CTR. (Oct. 9, 1997), http://perma.cc/KGX8 
-EN8C (offering a comparative explanation for the different outcomes between the violence 
which erupted in Yugoslavia and the lack of violence in the Soviet Union). 
88 Rome Statute, supra note 1, at art. 21(1).   
89 Prosecutor v. Omar Al Bashir, Case No. ICC-02/05-01/09, Decision on the Prosecution’s 
Application for a Warrant of Arrest Against Omar Hassan Ahmed Al Bashir, ¶ 44 (Mar. 4, 
2009); see also Situation in the Democratic Republic of the Congo, Case No. ICC-01-04-
168, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial 
Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, ¶¶ 22-39 (Mar. 4, 2006). 
90 Rome Statute, supra note 1, at art.21(2). 
91 Id. at art. 21(3) (including a prohibition against discrimination as the grounds upon which 
a judgment is to be made).   
92 See id. 
93 See Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, art. 31 
& 32; see also Rome Statute, supra note 1 (making no mention of State succession and 
utilizing State parties’ enforcement mechanisms to implement its decisions). 



2015] IMPUNITY RISES 471 
 
two-prong lacuna test led to employing the customary international law of 
State succession to human rights and humanitarian treaties to determine 
whether the Court possesses jurisdiction. 

A. The Formation of Customary International Law 

Customary international law constitutes one of the main sources of 
international law.94 It exists independently, even where identical rules occur 
in a treaty.95 The formulation of customary international law takes a two-
element approach.96 It develops “from a general and consistent practice of 
States followed by them out of a sense of legal obligation, or opinio 
juris.”97 The North Sea Continental Shelf case provides a classic case on the 
processes of formation and evidence of rules of customary international 
law.98 The ICJ described customary international law as: 

State practice, including that of States whose interests are 
specially affected, should have been both extensive and 
virtually uniform in the sense of the provision invoked;—
and should moreover have occurred in such a way as to 
show a general recognition that a rule of law or legal 
obligation is involved.99 

State practice constitutes the “actual practice” of States.100 Opinio juris is 
 
                                                                                                                 
94 Special Rapporteur on the Formation and Evidence of Customary Int’l L., First Rep. on 
Formation and Evidence of Customary Int’l L., Int’l L. Comm’n, U.N. Doc. A/CN.4/663, ¶ 
28 (May 17, 2013) (by Michael Wood) [hereinafter Wood]. The Statute of the International 
Court of Justice is widely regarded as an authoritative statement on the sources of 
international law. See generally SHAW, supra note 5 (listing customary international law as a 
source of law to which the ICJ looks in deciding disputes before it); see, e.g., ICJ Statute, 
supra note 7, at art. 38(1) (listing international conventions, customary international law, and 
general principles as the sources of international law the ICJ shall apply). 
95 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 
14, ¶¶ 177-78 (Jun. 27) [hereinafter Nicaragua]. 
96 See Wood, supra note 94, ¶¶ 50-52 (stating that a two-element approach is generally taken 
by States in forming customary international law, and listing statements from governments 
in support of this contention). 
97 John B. Bellinger, III & William J. Haynes, II, A US Government Response to the 
International Committee of the Red Cross Study Customary International Humanitarian 
Law, 89 INT’L REV. RED CROSS 443, 444 (2007). 
98 Wood, supra note 94, ¶ 57. 
99 North Sea Continental Self Cases (Ger./Den.; Ger./Neth.), 1969 I.C.J. 3, ¶ 74 (Feb. 20) 
[hereinafter North Sea Continental Shelf Cases] (adding that a short passage of time is not a 
bar on the formation of a new rule of customary international law). The court reaffirmed this 
standard in Military and Paramilitary Activities in and Against Nicaragua, indicating that it 
“has to direct its attention to the practice and opinio juris of States,” as observed in the North 
Sea Continental Shelf Cases. See Nicaragua, supra note 95, ¶¶ 183-207. 
100 Continental Shelf (Tunis./Libyan Arab Jamahiriya), 1982 I.C.J. 18, ¶ 43 (Feb. 24). 

http://dx.doi.org/10.1017/s1816383107001087


472 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
the “belief that this practice is rendered obligatory . . . [and] States 
concerned must therefore feel that they are conforming to what amounts to 
a legal obligation.”101  

The “actual practice” of States includes the decisions of tribunals;102 
verbal statements;103 legislative acts;104 and, in certain circumstances, a 
State’s inaction.105 The practice must be “in accordance with a constant and 
uniform usage practiced by the States in question,”106 but not “in [an] 
absolutely rigorous conformity” with the supposed rule.107 

The opinio juris turns the usage, or practice, into a custom, rendering 
it part of the rules of international law.108 The State taking the action “must 
have behaved so that their conduct is evidence of a belief that this practice 
is rendered obligatory by the existence of a rule of law requiring it.”109 
Identifying opinio juris in the actions of States presents many challenges 
because of its subjective qualities.110 At times, the ICJ utilizes U.N. General 
Assembly resolutions to confirm the existence of opinio juris, focusing on 
the content of the resolution, the circumstances surrounding its adoption, 

 
                                                                                                                 
101 North Sea Continental Self Cases, supra note 99, ¶ 77. 
102 See, e.g., Nottebohm Case (2nd Phase) (Liech. v. Guat.), 1955 I.C.J. 4, 22 (Apr. 6) 
[hereinafter Nottebohm] (referencing the decisions of States’ courts to determine State 
practice); see also S.S. “Lotus” (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, 28-29 (Sept. 7) 
[hereinafter Lotus] (utilizing the rulings of State courts to determine the State practice 
element of customary international law). 
103 See Lotus, supra note 102, at 26-30; Nottebohm, supra note 102, at 21-23; Nicaragua, 
supra note 95. 
104 Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 
I.C.J. 3, ¶ 58 (Feb. 14) (referencing legislation of States); Nottebohm, supra note 102, at 22 
(using national legislation in support of its State practice determination). 
105 Lotus, supra note 102, at 28 (“[O]nly if such abstention were based on their [the State] 
being conscious of having a duty to abstain would it be possible to speak of an international 
custom.”). 
106 Asylum Case (Colom./Peru), 1950 I.C.J. 266, 276 (Nov. 20); see also Fisheries Case 
(U.K. v. Nor.), 1951 I.C.J. 116, 131 (Dec. 18) (indicating a lack of consistent practice 
because some States adhere to the proposed measurements, while others utilize a different 
formula).  
107 Nicaragua, supra note 95, ¶ 186 (“In order to deduce the existence of customary rules, the 
Court deems it sufficient that the conduct of States should, in general, be consistent with 
such rules, and that instances of State conduct inconsistent with a given rule should generally 
have been treated as breaches of that rule, not as indications of the recognition of a new rule. 
If a State acts in a way prima facie incompatible with a recognized rule, but defends its 
conduct by appealing to exceptions or justifications contained within the rule itself, then 
whether or not the State’s conduct is in fact justifiable on that basis, the significance of that 
attitude is to confirm rather than to weaken the rule.”). 
108 SHAW, supra note 5, at 84. 
109 Nicaragua, supra note 95, ¶ 207 (quoting North Sea Cases). 
110 See SHAW, supra note 5, at 87-89 (explaining the conundrum opinio juris presents when 
determining the legality of a principle of international law). 



2015] IMPUNITY RISES 473 
 
and the attitude of the States concerned.111 The ICJ also relies on the work 
of the International Law Commission and codification of major conventions 
to determine the opinio juris of States.112 The interplay between treaty and 
customary law is also relevant because of the general recognition that 
treaties “may be reflective of pre-existing rules of customary international 
law; generate new rules and serve as evidence of their existence; or, through 
their negotiation processes, have a crystalizing effect for emerging rules of 
customary international law.”113 

B. Human Rights and Humanitarian Treaties in State Succession 

History contains numerous instances of State succession.114 The 
Soviet Union, the Former Yugoslavia, and Czechoslovakia represent the 
most recent and relevant instances of State succession because their actions 
constituted the actions of “States whose interests are specially affected.”115 
Recent judicial decisions shed considerable light on the interpretation of 
State successions of the late 1990s, providing a subsidiary means to 
defining the law.116 A number of qualified publicists provide subsidiary 
means to interpret State succession and the continuity of human rights and 
humanitarian treaties,117 offering further support for the theory as 
customary international law. 

i. Vienna Convention on Succession of States in Respect of 
Treaties 

In 1978, the United Nations Conference on Succession of States in 
Respect of Treaties adopted the Vienna Convention on Succession of States 

 
                                                                                                                 
111 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶ 
70 (July 8); see also Nicaragua, supra note 95, at ¶ 188-195 (undertaking the analysis of 
General Assembly resolutions, and reviewing the attitude of the State parties to the 
resolutions and the dispute). 
112 See North Sea Cases, supra note 99, at ¶ 36-37 (referencing the 1958 Geneva Continental 
Shelf Convention); see also Case Concerning the Gabcikovo-Nagymaros Project 
(Hung./Slovk.), 1997 I.C.J. 7, ¶ 53-54 (Sept. 25) (relying upon the International Law 
Commission’s commentary to determine the requisite opinio juris). Relevant resolutions 
adopted the Security Council may contain rules of customary international law, as well. See 
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 
Advisory Opinion, 2004 I.C.J. 136, ¶ 86 (Jul. 9) [hereinafter Construction of a Wall]. 
113 Wood, supra note 94, at ¶ 34. 
114 See Detlev F. Vagst, State Succession: The Codifiers View, 33 VA. J. INT’L L. 275, 277-
80 (1992-93) (listing the different occurrences of state succession throughout the nineteenth 
and twentieth centuries). 
115 See North Sea Case, supra note 99. 
116 See ICJ Statute, supra note 7. 
117 Id. 



474 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
in Respect of Treaties.118 The treaty focuses on successor States and former 
colonies.119 The State practice during the treaty’s drafting concerned 
colonialism, giving large prominence to the “clean-slate” principle.120 
Article 34 deals with State succession in the case of separation of parts of a 
State.121 It states: 

1. When a part or parts of the territory of a State separate to 
form one or more States, whether or not the predecessor 
State continues to exist: 
(a) any treaty in force at the date of the succession of States 
in respect of the entire territory of the predecessor State 
continues in force in respect of each successor State so 
formed . . . .122 

The Convention entered into force only in 1996.123 The Convention binds 
twenty-two States.124 The State parties to the Convention represent the 
newly-formed States following the break-up of the Soviet Union, 
Yugoslavia, and Czechoslovakia.125 Commentators do not consider the 
Convention to be representative of customary international law.126 

ii. The Breakup of the Soviet Union, the Former Yugoslavia, and 
Czechoslovakia 

Czechoslovakia 
 
Czechoslovakia joined the European Convention on Human Rights in 

1992.127 Article 66 of the Convention stipulates that only members of the 
Council of Europe can be State parties.128 Czechoslovakia broke into two 
 
                                                                                                                 
118 Anthony Aust, Vienna Convention on Succession of States in Respect of Treaties, U.N. 
AUDIOVISUAL LIBRARY OF INT’L L. 1 (2009), http://perma.cc/W4B6-YX9C.  
119 Id. at 1-2. 
120 Id. 
121 Convention on Succession, supra note 85, at art. 34. 
122 Id. 
123 Id. 
124Vienna Convention on Succession of States in Respect of Treaties, U.N. TREATY 
COLLECTION, https://perma.cc/UYK3-6VLX (last updated Mar. 10, 2014) (listing the State 
parties to the Convention). 
125 Aust, supra note 118, at 1-2; see also Vienna Convention on Succession of States in 
Respect of Treaties, U.N. TREATY COLLECTION, https://perma.cc/UYK3-6VLX (last updated 
Mar. 10, 2014) (listing the State parties to the Convention). 
126 Aust, supra note 118, at 2. 
127 Menno T. Kamminga, Impact on State Succession in Respect of Treaties, in THE IMPACT 
OF HUMAN RIGHTS LAW ON GENERAL INTERNATIONAL LAW 99, 102 (Menno T. Kamminga & 
Martin Scheinin eds., 2009). 
128 Id. 



2015] IMPUNITY RISES 475 
 
independent states: the Czech Republic and the Slovak Republic.129 The 
Council of Europe’s Committee of Ministers admitted the Czech Republic 
and the Slovak Republic, as independent states in 1993.130 The Council 
decided that the two states would be regarded as succeeding to the 
European Convention on Human Rights retroactively from their date of 
independence.131 This action occurred at the behest of the Council of 
Europe and, most importantly, the Czech Republic and Slovak Republic.132 
A review of ratification records indicates there is no notification to any 
depository by either the Czech Republic or the Slovak Republic, indicating 
that this occurred ipso jure, without action on the part of the two successor 
states.133 

The European Court of Human Rights considers admissible individual 
petitions against the Czech Republic and the Slovak Republic for violations 
that occurred prior to their formal entry in 1993.134 As Kamminga relates, 
the Court notes in these decisions that “[t]he period to be taken into 
consideration began on 18 March 1992, when the recognition by the former 
Czech and Slovak Federal Republic, to which Slovakia [the Czech 
Republic] is one of the successor states, of the right of individual petition 
took effect.”135 Neither Slovakia nor the Czech Republic object to this 
approach to State succession.136 

 
Soviet Union 
 
The Soviet Union dissolved into four categories of States.137 The 

Russian Federation constitutes the first category, a continuing State, as it 
claims to be the extension of its sovereign predecessor.138 The world 
community generally accepted this fact.139 The main reason for this was 
that the former constituent States of the Soviet Union all agreed to the 
proposition.140 The Russian Federation informed the United Nations that it 
would honor all previous treaty commitments, which included human rights 
treaties.141 

 
                                                                                                                 
129 Id. 
130 Id. 
131 Id. at 102 -03. 
132Id. at 103. 
133Id. Kamminga, supra note127. 
134See Matter v. Slovakia, App. No. 31534/96, Judgment, (Jul. 5, 1992); Nemec and Others 
v. Slovakia, App. No. 48672/99, Judgment (Nov. 15, 2001). 
135 Kamminga, supra note 127, at 103 (alteration in original). 
136 Id. 
137 Kamminga, supra note 2, at 479. 
138 Id. 
139 Id. 
140 Id. 
141 Id. 



476 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 

Ukraine and Belarus constitute the second category of States.142 They 
existed prior to the Soviet Union collapse.143 They were also parties to the 
treaties per the rules of the U.S.S.R. Constitution.144 The dissolution did not 
impact their treaty obligations.145  

Estonia, Latvia, and Lithuania comprise the third category of 
States.146 They claimed the breakup of the Soviet Union restored the 
independence they lost with Russian occupation in 1940.147 They regard 
themselves not as new states, but as States re-exercising the sovereignty of 
which they were deprived.148 They acceded to a number of treaties, 
including human rights treaties.149 

The fourth and largest category of States includes Azerbaijan, 
Armenia, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, 
Turkmenistan, and Uzbekistan.150 This category represents the least 
coherent example regarding treaty succession.151 Kazakhstan, Kyrgyzstan, 
Tajikistan, and Turkmenistan succeeded to the Geneva Convention and its 
Protocols.152 These countries insisted that they acceded to the different 
human rights treaties.153 The Human Rights Committee decided, 
reluctantly, that a successor state may opt to accede rather than succeed to 
the Covenant,154 but for the purposes of the Covenant they are considered 
having been State parties since independence in 1991.155 The Committee 
continues to utilize the language of succession in dealing with this group of 
countries.156 

 
The Former Yugoslavia  
 
The breakup of the Former Yugoslavia represented a straightforward 

exercise in State succession.157 Bosnia-Herzegovina, Croatia, Macedonia, 
 
                                                                                                                 
142 Id. 
143 Id.  
144 Id. 
145 Id. 
146 Id. 
147 Id. 
148 Id. 
149 Id. 
150 Id.at 480. 
151 Id.  
152 Id. at 479. 
153 Id. 
154 Human Rights Committee Annual Report to the U.N. General Assembly, U.N. Doc. 
A/49/40, ¶ 49 (1994).   
155 Kamminga, supra note 127, at 105. 
156 Id. (highlighting the committees habit of numbering reports based on years since 1991 
and the Committee expressing its appreciation to Kazakhstan for covering the periods from 
independence to date of accession). 
157 Kamminga, supra note 2, at 476. 



2015] IMPUNITY RISES 477 
 
and Slovenia informed the United Nations that they considered themselves 
bound by the treaties to which the former Yugoslavia was a party.158 This 
was also confirmed with regards to all human rights treaties.159 Slovenia 
indicated that victims of human rights violations could seek remedies 
against Slovenia for actions committed by the former Yugoslavia.160 Serbia 
argued that it represented the continuation of the former Yugoslavia and 
was not required to succeed to any treaties.161 The Arbitration Commission 
of the Conference for Peace in Yugoslavia, or Badinter Commission, issued 
an opinion stating that Serbia constituted a new state.162 The United States 
held the same position.163 The other States of the former Yugoslavia also 
considered Serbia to be a new State.164 

iii. Judicial Decisions of the International Court of Justice 

Reservations to the Convention on the Prevention and Punishment of 
the Crime of Genocide 

 
The United Nations requested the International Court of Justice to 

offer an Advisory Opinion on three specific, interwoven questions 
concerning reservations to the Genocide Convention.165 The Court framed 
the first question in the following terms: 

Can the reserving State be regarded as being a party to the 
[Genocide] Convention while still maintaining its 
reservations if the reservation is objected to by one of more 
of the parties to the Convention but not by others?166 

The Court observed that a State cannot be bound to a treaty without its 
consent and, as a result of this rule of treaty law, no reservation can be 
effective against a State without its agreement.167 This concept derives from 
notion of contract bargaining.168 The Court concluded the Genocide 
Convention falls under different principles because the Convention’s 

 
                                                                                                                 
158 Id. 
159 Id. 
160 Id. 
161 Id. 
162 Id. 
163 Id. at 479.  
164 Id. at 477. 
165 See Reservations to the Convention on the Prevention and Punishment of the Crime of 
Genocide, Advisory Opinion, 1951 I.C.J. 15, 16 (May 28) [hereinafter Genocide Advisory 
Opinion]. 
166 Id. at 21. 
167 Id. 
168 Id. 



478 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
intention is to “condemn and punish genocide as a crime under international 
law involving a denial of the right of existence of entire human groups . . . 
.”169 In such a convention 

the contracting States do not have any interests of their 
own; they merely have, one and all, a common interest, 
namely, the accomplishment of those high purposes which 
are the raison d’etre of the convention. Consequently, in a 
convention of this type one cannot speak of individual 
advantages or disadvantages to States, or of the 
maintenance of a perfect contractual balance between rights 
and duties.170 

The Court concluded that the principles underlying the Convention take on 
a universal character and bind States without any of the conventional 
obligations of treaties.171 

 
Case Concerning Application of the Convention on the Prevention 

and Punishment of the Crime of Genocide 
 
On March 20, 1993, Bosnia and Herzegovina instituted proceedings 

against the Federal Republic of Yugoslavia for alleged violations of the 
Genocide Convention.172 Yugoslavia objected to the Court’s jurisdiction 
because the Convention did not bind Bosnia and Herzegovina at the time of 
its submission to the Court, raising the issue of automatic succession to 
treaties.173 The majority avoided the State succession issue and determined 
the Court possessed jurisdiction because the United Nations recognized 
Bosnia and Herzegovina’s representative as head of state before 
international bodies and international agreements.174 The majority opinion 
stated in dicta that “Bosnia and Herzegovina could become party to the 
Convention through the mechanism of State succession.”175 The Court also 
reaffirmed the special characteristics of the Genocide Convention, and 
found the rights and obligations enshrined in the Convention to be rights 
and obligations erga omnes.176 

Judge Shahabudden in a separate opinion argued that the object and 
purpose of the Genocide Convention “required parties to observe it in such 

 
                                                                                                                 
169 Id. at 21-23. 
170 Id. at 23. 
171 Id.  
172 Application of the Genocide Convention, supra note 85, at ¶ 1. 
173 Id. at ¶ 16. 
174 Id. at ¶ 44. 
175 Id. at ¶ 20. 
176 Id. at  ¶¶ 22, 31. 



2015] IMPUNITY RISES 479 
 
a way as to avoid the creation of such a break in the protection which it 
afforded.”177 The Judge added that the Genocide Convention and human 
rights treaties are not different because they both concern the rights of 
human beings.178 

Judge Weeramantry in a separate opinion wrote extensively on the 
issue of automatic State succession to human rights treaties.179 The Judge 
indicated that human rights and humanitarian treaties involve no loss of 
sovereignty or autonomy of a successor State.180 Successor States’ 
continued obligations under human rights and humanitarian treaties placed 
those States in line with the general principles enshrined in the U.N. 
Charter.181 Judge Weeramantry added that States do not confer human 
rights to their people because human rights constitute inalienable rights 
possessed independently of the State.182 After reviewing the statements 
from delegates at the Conference of States in Respect of Treaties and the 
comments of U.N. human rights bodies, Judge Weeramantry stated: 

All of the foregoing reasons combine to create . . . a 
principle of contemporary international law that there is 
automatic State succession to so vital a human rights 
convention . . . .Without automatic succession to such a 
Convention, we would have a situation where the 
worldwide system of human rights protections continually 
generates gaps in the most vital part of its framework . . . 
depending on the break-up of the old political authorities 
and the emergence of the new. The international legal 
system cannot condone a principle by which the subjects of 
these States live in a state of continuing uncertainty 
regarding the most fundamental of their human rights 
protections.183 

iv. The International Criminal Tribunal for the Former Yugoslavia 

The Appeals Chamber of the International Criminal Tribunal for the 
former Yugoslavia affirmed the continuity of human rights and 
humanitarian law treaties.184 Delalic argued that the trial court lacked 

 
                                                                                                                 
177 Id. at 635 (separate opinion of Judge Shahabuddeen). 
178 Id. at 637. 
179 See id. at 640-655 (separate opinion of Judge Weeramantry). 
180 Id. at 645. 
181 Id. 
182 Id. at 647. 
183 Id. at 654-655. 
184 See Prosecutor v. Delalic, Case No. IT-96-21-A; In Appeals Chamber, ¶ 111-13, (Feb. 
20, 2001). 



480 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
jurisdiction because Bosnia and Herzegovina did not accede to the Geneva 
Conventions until December 1992, which followed the events reported in 
the Indictment; and therefore his acts committed prior to that date cannot be 
prosecuted under the treaty regime.185 The Appeals Chamber concluded that 
because the norms entailed in the Geneva Conventions were customary 
international law, Bosnia and Herzegovina would have automatically 
succeeded to them with, or without, a formal notice.186 The Appeals 
Chamber stated that in “international law that there is automatic State 
succession to multilateral humanitarian treaties in the broad sense, i.e., 
treaties of universal character which express fundamental human rights.”187 

v. U.N. Human Rights Committee 

The U.N. Human Rights Council (Council) released a General 
Comment on the legal aspects of the continuation of the International 
Covenant on Civil and Political Rights (ICCPR) in the event of state 
succession.188 The comment considered the fact that the ICCPR does not 
contain a provision for denunciation, or termination, requiring the Council 
to consider these treaty functions in the light of applicable rules of 
customary international law.189 The Council declared that the ICCPR is not 
subject to “denunciation or withdrawal unless it is established that the 
parties intended to admit the possibility of denunciation or withdrawal or a 
right to do is implied from the nature of the treaty.”190 The Council 
determined that the lack of denunciation powers was not an oversight of the 
drafters because of the deliberate inclusion of Article 41(2) of the ICCPR, 
which allows a State party to withdraw its acceptance of the competence of 
the Council to exam communications by filing an appropriate notice.191 The 
Optional Protocol to the ICCPR—which was negotiated with the ICCPR—
contains a denunciation clause, while the International Convention on the 
Elimination of All Forms of Racial Discrimination—adopted a year prior to 
the ICCPR—expressly permits denunciation.192 “It can therefore be 
concluded that the drafters of the Covenant deliberately intended to exclude 
the possibility of denunciation.”193 

The Council also echoed the ICJ’s Reservations to the Convention on 

 
                                                                                                                 
185 Id. at ¶ 107. 
186 Id. at ¶¶ 111-13. 
187 Id. at ¶ 111. 
188 See General Comment No. 26: Continuity of Obligations, U.N. Doc. 
CCPR/C/21/Rev.1/Add.8/Rev.1 (Dec. 8, 1997). 
189 Id. at ¶ 1. 
190 Id. at ¶ 2. 
191 Id. 
192 Id. 
193 Id.  



2015] IMPUNITY RISES 481 
 
the Prevention and Punishment of the Crime of Genocide by stating that the 
ICCP “is not the type of treaty which, by its nature, implies a right of 
denunciation.”194 The ICCPR does not possess a temporary character 
typical of treaties.195 The rights enshrined in the ICCPR 

belong to the people living in the territory of the State party 
. . . once the people are accorded the protection of the rights 
under the Covenant, such protection devolves with territory 
and continues to belong to them, notwithstanding change in 
government of the State party, including dismemberment in 
more than one State or State succession or any subsequent 
action of the State party designed to divest them of the 
rights guaranteed by the Covenant.196 

In a report to the Committee Body on the Succession of States to the 
ICCPR, the U.N. Secretary General echoed the comments of the General 
Comment: 

[S]uccessor States were automatically bound by obligations 
under international human rights instruments from the 
respective date of independent and that observance of the 
obligations should not depend on a declaration of 
confirmation made by the Government of the successor 
State.197 

 
A clear consensus in support of continuity in State succession emerged 
from the members of the Committee.198 The interventions and statements of 
the members indicate a sense of legal obligation for continuity in the event 
of State succession.199 

vi. The European Court of Human Rights 

The European Convention on the Protection of Human Rights and 

 
                                                                                                                 
194 Id. at ¶ 3. 
195 Id. 
196 Id. at ¶ 4. 
197 U.N. Secretary-General, Succession of States in Respect of International Human Rights 
Treaties, ¶ 10 , U.N. Doc. E/CN.4/1995/80 (Nov. 28, 1995). 
198 FAUSTO POCAR, Some Remarks on the Continuity of Human Rights and International 
Humanitarian Law Treaties, in THE LAW OF TREATIES BEYOND THE VIENNA CONVENTION 
279, 283 (Enzo Cannizzaro ed., 2011). 
199 See generally id. (citing to a number of statements by committee members indicating a 
legal obligation). 



482 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
Fundamental Freedoms ensure the human rights of citizens of State 
parties.200 In 2009, the European Court of Human Rights (ECtHR) 
considered Bijelic v. Montenegro, a case concerning the succession of one 
of the former states of the Socialist Federal Republic of Yugoslavia.201 The 
applicants lodged complaints against Montenegro on March 24, 2005, and 
January 31, 2006,202 arguing that Montenegro’s failed enforcement of a 
final decision issued by the Court of First Instance on January 26, 1994, 
violated the European Convention on Human Rights and Fundamental 
Freedoms, and that their resulting inability to find adequate housing 
violated Article 1 of Protocol No. 1.203 The applicants alleged violations 
occurred after Serbia and Montenegro joined the European Convention on 
Human Rights, but before Montenegro became an independent State.204 The 
ECtHR held Montenegro responsible for the inaction and ordered it to pay 
restitution to the applicants.205  

The case constitutes an important development of the law of State 
succession with respect to treaties.206 The separation of Montenegro from 
Serbia forced the ECtHR to consider the issue of state succession with 
respect to the Convention on Human Rights and Fundamental Freedoms.207 
The ECtHR found Montenegro bound by the European Convention on 
Human Rights retroactively because of the continuing nature of human 
rights treaties, the implied acceptance of Montenegro, and the fact that the 
predecessor State acceded to the treaty.208 The willingness of the Court to 
incorporate an international standard of automatic succession to human 
rights treaties209 into its decision distinguishes this case from previous 
ECtHR cases concerning state succession. It is distinguishable because the 
Court confirmed the automatic ipso jure nature of succession to the 
Convention on the foundation of its status as a human rights treaty and 
special status under international law.210 

C. Automatic State Succession to Human Rights Treaties Rises to the 

 
                                                                                                                 
200 European Convention on the Protection of Human Rights and Fundamental Freedoms art. 
1, 213 U.N.T.S. 221, E.T.S. 5. 
201 Craig Baker, European Court of Human Rights Bijeliv v. Montenegro and Serbia 
(Application NO 19890/05) Judgment of 11 June 2009, 59 INT’L & COMP. L.Q. 845 (2010). 
202 Id. at 847. 
203 Bijelic v. Montenegro and Serbia, App. No. 19890/05, Eur. Ct. H.R. ¶¶ 1-60 (2009), 
available at http://perma.cc/394Q-7QAF. 
204 Id. at ¶ 62. 
205 Id. at ¶ 85. 
206 Baker, supra note 201, at 851.  
207 Id.  
208 Bijelic v. Montenegro and Serbia, supra note 203, at ¶ 68. 
209 See id. at ¶ 58 (quoting directly General Comment No. 26: Continuity of Obligations, 
U.N. Doc. CCPR/C/21/Rev.1/Add.8/Rev.1 (Dec. 8, 1997)). 
210 See Baker, supra note 201, at 853-54. 

http://dx.doi.org/10.1017/s0020589310000333


2015] IMPUNITY RISES 483 
 
Level of Customary International Law 

The actual practice of States and the opinio juris for establishing a 
rule of customary international law that human rights treaties and their 
obligations continue in the event of State succession exists. The State 
practice referenced above indicates that the actual practice of States is for 
continuity of human rights treaties. This State practice satisfies the “actual 
practice” element of customary international law because it involved the 
acts of interested States and “occurred in such a way as to show a general 
recognition that a rule of law or legal obligation is involved.”211 The actions 
of the Council of Europe and the European Court of Human Rights also 
provide significant support for the State practice component because they 
represent a number of third States directly affected by the succession of 
States, and as implementers and interpreters of the ICCPR and the ECtHR 
human rights treaty regimes.  

The European Court of Human Rights incorporated the U.N. Human 
Rights Committee’s General Comment, and its continued admission of 
cases from the period in which the former Czech countries were not State 
parties, per se, provides considerable support for the State practice element. 
The succeeding States indicated they considered themselves bound by the 
treaties due to succession.212 This establishes the strongest basis for the 
opinio juris element because it derives from the States involved. The 
opinions of third States also supports the opinio juris element. The 
perspective from Western countries that the succeeding States were bound 
by succession adds to the opinio juris because these States were 
peripherally involved because they represented the neighbors of these 
States, and members of the community of nations concerned with the 
protection of human rights in the law of nations.  

Finally, the actions and comments of judicial bodies provide support 
for the continuation of human rights treaties in the event of State 
succession. The Reservations to the Genocide Convention adds significant 
weight to the legal obligation of continuity for human rights treaties. While 
the majority in the Application of the Genocide Convention avoided the 
direct issue of continuity, the two separate Opinions focused directly on that 
issue. These two opinions provide weight to the fact that there is a strong 
sense of legal obligation for the continuity of human rights treaties. These 
rulings predate the incorporation by the European Court of Human Rights 
of the General Comment, which illustrates the evolution of international 
law in this area. The required “actual practice” of states and the opinio juris 
for those actions support the conclusion that a rule of customary 
international law exists that in the event of State succession human rights 

 
                                                                                                                 
211 See North Sea Continental Shelf Cases, supra note 99. 
212 See supra text accompanying notes 127-64. 



484 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
treaties continue with the succeeding State.  

IV. INTERSECTION OF INTERNATIONAL HUMAN RIGHTS, HUMANITARIAN, 
AND CRIMINAL LAW 

International human rights, humanitarian, and criminal law share a 
common genesis.213 Broadly, they stand for the protection of the interests of 
individuals.214 A precise definition of human rights treaties beyond this 
general understanding presents a key challenge: too broad a definition 
encompasses too many treaties to carve an exception in State succession for 
human rights treaties.215 This section first reviews the origins and legal 
theories behind human rights, humanitarian, and criminal law. It then dives 
into the specific characteristics of human rights treaties to offer a template 
for human rights treaties. It concludes by applying this theory to the Rome 
Statute to argue that it is a human rights treaty, requiring continuity in State 
succession.  

A. The Origins of International Human Rights, Humanitarian, and 
Criminal Law 

The norms behind international human rights, humanitarian, and 
international criminal law trace their origins to the writings of Sun Tzu, 
who advocated for the humane treatment of the sick, the wounded, 
prisoners, and civilians.216 These ideas independently developed in other 
civilizations across the globe, influencing the creation of human rights and 
humanitarian law.217 Humanitarian law was codified into a specific 

 
                                                                                                                 
213 Compare Michelo Hansungule, The Historical Development of International Human 
Rights, in AN INTRODUCTION TO INTERNATIONAL HUMAN RIGHTS LAW 1, 1 (Azizur Rahman 
Chowdhury & Md. Jahid Hossain Bhuiyan eds., 2010) (stating that international human 
rights law formed in the aftermath of World War II), with BRUCE BROOMHALL, 
INTERNATIONAL JUSTICE AND THE INTERNATIONAL CRIMINAL COURT: BETWEEN SOVEREIGNTY 
AND THE RULE OF LAW 19 (2003) (indicating that international criminal law formed from the 
Nuremberg Principles after World War II), SCHABAS, supra note 12, at (Cambridge Univ. 
Press 4th ed. 2011) (referencing the use of the “laws of war” to form the basis for 
Nuremberg Trials). 
214 Matthew Craven, Legal Differentiation and the Concept of the Human Rights Treaty in 
International Law, 11 EURO. J. INT’L L. 489, 497 (2000). 
215 See generally id. at 497-98 (2000) (explaining the importance to determining a specific 
subset of international law for international human rights law of the necessity of a narrow 
view of human rights treaties). 
216 M. Cherif Bassiouni, The Discipline of International Criminal Law, in 1 INTERNATIONAL 
CRIMINAL LAW 3, 19 (M. Cherif Bassiouni ed., 3rd ed. 2008). 
217 Id. at 20.; See generally M. Cherif Bassiouni, Introduction to International Humanitarian 
Law, in 1 INTERNATIONAL CRIMINAL LAW, supra note 216, at 269 (reviewing the detailed 
historical origins of humanitarian norms). 

Legal Differentiation and the Concept of the Human Rights Treaty in International Law


2015] IMPUNITY RISES 485 
 
international norm with the first Geneva Convention.218 Human rights law 
developed into specific norms with the establishment of the Charter of the 
United Nations.219 The two disciplines merged over time from their 
mutually exclusive application to a complementary regime,220 valuing the 
protection of the individual in times of armed conflict.221  

The Nuremberg Principles established the core of international 
criminal law.222 The principles forged a new relationship between the 
individual, the State, and the international community.223 The central 
position assumed by the individual in this relationship ushered into the 
global legal order the expansion of international systems safeguarding 
human rights and their respective enforcement mechanisms.224 International 
criminal law’s value-oriented goals include “the prevention and suppression 
of international criminality, enhancement of accountability and reduction of 
impunity, and the establishment of international criminal justice.”225 These 
goals derive from public international law, national criminal law, 
comparative criminal law, and international human rights law.226 The 
system of ICL originates from the functional relationship between the 
different components of these legal regimes.227  

 
                                                                                                                 
218 Bassiouni, supra note 216, at 21; see also Robert Kolb, The Protection of the Individual 
in Times of War and Peace, in THE OXFORD HANDBOOK OF THE HISTORY OF INTERNATIONAL 
LAW 317, 321-29 (Bardo Fassbender & Anne Peters eds., 2012). 
219 Kolb, supra note 218, at 329-336 (tracing the origins of the norms constituting the 
principles of human rights law to the advent of the United Nations). 
220 See Orna Ben-Naftali, Introduction: International Humanitarian Law and International 
Human Rights Law – Pas de Deux, in INTERNATIONAL HUMANITARIAN AND INTERNATIONAL 
HUMAN RIGHTS LAW 3, 3-4 (Orna Ben-Naftali ed., 2011); see also Bassiouni, Introduction to 
International Humanitarian Law, supra note, 217, at 290-91; see e.g., Prosecutor v. 
Furundzija, Case No. IT-95-17/1-T, Judgment, ¶ 183 (Dec. 10, 1998) (“The essence of the 
whole corpus of international humanitarian law as well as human rights law lies in the 
protection of the human dignity of every person, whatever his or her gender. The general 
principle of respect for human dignity is the basic underpinning and indeed the very raison 
d’être of international humanitarian law and human rights law; indeed in modern times it has 
become of such paramount importance as to permeate the whole body of international 
law.”). 
221 See Bassiouni, Introduction to International Humanitarian Law, supra note, 217, at 284. 
222 BROOMHALL, supra note, 213, at 19. 
223 Id. 
224 Giuliana Ziccardi Capaldo & Michele Nino, Globalization of Law Enforcement 
Mechanisms: Issues of Legality and Legitimacy, in 2 INTERNATIONAL CRIMINAL LAW 47 (M. 
Cherif Bassiouni ed., 3rd ed. 2008). 
225 Bassiouni, supra note 216, at 3.  
226 Id. 
227 Id. 



486 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
B. The Rome Statute Possess Characteristics of Human and 
Humanitarian Rights Treaties 

Human rights bodies consider the lack of reciprocity the essential 
characteristic of human rights treaties.228 The Inter-American Court of 
Human Rights expressed this sentiment in the Effects of Reservations Case: 

[M]odern human rights treaties in general, and the 
American Convention in particular, are not multilateral 
treaties of the traditional type concluded to accomplish the 
reciprocal exchange of rights for mutual benefit of the 
contracting State. Their object and purpose is the protection 
of the basic rights of individual human beings irrespective 
of their nationality, both against the State of their 
nationality and all other contracting States. In concluding 
these human rights, the States can be deemed to submit 
themselves to a legal order within which they, for the 
common good, assume various obligations, not in relation 
to other States, but towards all individuals within their 
jurisdiction.229 

In human rights treaties, it is the rights of individuals that are involved, “not 
those of other states, and the framework within which they are protected 
was one of a ‘regime’ or ‘legal order,’ and not simply a relation in the 
nature of a bilateral agreement.”230 This reiterates the position taken by the 
ICJ in the Genocide Cases.231 The Rome Statute must involve the 
protection of the rights of the individual without an element of reciprocity 
for States parties to be considered a human rights treaty and fall within the 
doctrine of automatic State succession. 

The Preamble of the Rome Statute states that the ICC’s purpose is to 
prevent impunity and punish those responsible for the grave crimes that 
threaten peace and the well being of the world.232 Article 1 reaffirms the 
purpose of the Court, as stated by the preamble.233 The serious crimes over 
which the Court possess jurisdiction include: genocide, crimes against 
 
                                                                                                                 
228 Office of the High Commissioner for Human Rights, General Comment No. 24: Issues 
Relating to Reservations Made upon Ratification or Accession to the Covenant or the 
Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, 
52nd Sess., U.N. Doc. CCPR/C/21 Rev.1/Add.6, ¶ 17 (Nov. 4, 1994). 
229 The Effect of Reservations on the Entry into Force of the American Convention on 
Human Rights (Arts. 74 and 75 American Convention on Human Rights), Advisory Opinion 
OC-2/82, Inter-Am. Ct. H.R. (ser. A) No. 2, ¶ 30 (Sept. 24, 1982). 
230 Craven, supra note 214, at 508. 
231 See supra text accompanying notes 165-83. 
232 Rome Statute, supra note 1, pmbl. 
233 Id. at art. 1. 



2015] IMPUNITY RISES 487 
 
humanity, war crimes, and the crime of aggression.234 The Rome Statute 
defines crimes against humanity to include murder, extermination, 
enslavement, torture, rape and sexual slavery, and persecution.235 Genocide, 
war crimes, and crimes against humanity constitute grave breaches of the 
Geneva Conventions.236 The ICJ and the Human Rights Committee referred 
to similar protections in the Genocide Convention and ICCPR to be of a 
special nature.237 The Rome Statute follows the path of the Genocide 
Convention and ICCPR because it protects rights of the individual and 
international norms of a special character. The Rome Statute enshrines the 
rights found in the ICCPR into its trial structure.238 Article 21 requires 
“[t]he application and interpretation of law pursuant to this article must be 
consistent with internationally recognized human rights.”239 This article 
makes the application and interpretation of the law applicable under the 
Rome Statute subject to international human rights.240 “Human Rights 
under the Statute; every aspect of [the Statute]. . . . Its provisions must be 
interpreted and more importantly applied in accordance with internationally 
recognized human rights . . . .”241 The Rome Statute protects the rights of 
individuals in purpose and in operation, meeting the first aspect of a human 
rights treaty. 

The Rome Statute lacks reciprocity for States parties, meeting the 
second aspect of a human rights treaty. The Rome Statute requires State 
parties submit to the jurisdiction of the Court. 242 The treaty gives the Court 
power to declare the investigation and prosecution of an accused before a 
State’s tribunals ineffective.243 The Rome Statute also places obligations 
upon the States parties to prosecute individuals accused of the international 
crimes listed in the Rome Statute and to assist the Court in enforcement of 
warrants and sentences.244 These aspects dilute the sovereignty of State 
parties, which falls outside the normal exchange of rights for mutual 
benefit. The Rome Statute represents a human rights treaty because it 
protects individuals and lacks reciprocity of mutual benefit for State parties 
found in relationships between States. Automatic succession applies to the 
Rome Statue in the event of State succession because it is a human rights 
 
                                                                                                                 
234 Id. at art. 5. 
235 Id. at art. 7. 
236 Yves Sandoz, Penal Aspects of International Humanitarian Law, in 1 INTERNATIONAL 
CRIMINAL LAW, supra note 216, at 293, 306. 
237 See supra text accompanying notes 165-99. 
238 See Rome Statute, supra note 1, Part VI (stating the rights of a fair trial and that human 
rights provisions apply to the rules of evidence). 
239 Id. at art. 21(3). 
240 Prosecutor v. Laurent Koudou Gbagbo, supra note 51, at ¶ 36. 
241 Id. at ¶ 37.  
242 Rome Statute, supra note 1, at art. 12. 
243 Id. 
244 Id. at arts. 96, 106. 



488 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
treaty and, as a rule of customary international law, human rights treaties 
continue in the event of State succession. 

V. CONTINUITY OF THE ROME STATUTE IN STATE SUCCESSION DETERS 
IMPUNITY 

A number of the current conflicts could bring the issue of State 
succession to the Rome Statute before the Court. For example, the Republic 
of Georgia, which ratified the Rome Statute in 2003,245 faces the issue of 
State succession in the provinces of Abkhazia and South Ossetia.246 In 
2008, an armed conflict erupted in each of those areas, pitting Georgian 
troops, Russian troops, Abkhazians, and South Ossetians against each 
other.247 International observers reported a numerous instances of war 
crimes and crimes against humanity.248 The Office of the Prosecutor of the 
ICC opened an examination into these alleged crimes shortly after the 
violence ended.249 The investigation continues with some difficulty due to 
the succession situation in South Ossetia and Abkhazia.250 

Abkhazia and South Ossetia consider themselves to be independent 
nations.251 When Georgia ratified the Rome Statute, Abkhazia and South 
Ossetia existed as semi-autonomous regions of Georgia but still within its 
territorial control and government.252 Individuals in those regions who 
participated in the armed conflict in 2008 and committed war crimes or 
crimes against humanity face trial before the ICC, if warrants are issued. 
The Court’s jurisdiction would be based on territory and personality 
because the territory of Georgia includes Abkhazia and South Ossetia. 
Defense council in such a case would challenge the jurisdiction of the court 
based on both principles, arguing that Abkhazia and South Ossetia 
constitute independent successor States. They would argue that the court 
 
                                                                                                                 
245 Rome Statute, U.N. TREATY COLLECTION, https://perma.cc/3P9A-T5JR (last updated Mar. 
13, 2014). 
246 See generally JIM NICHOL, CONG. RESEARCH SERV., RL34618, RUSSIA-GEORGIA 
CONFLICT IN SOUTH OSSETIA: CONTEXT AND IMPLICATIONS FOR U.S. INTERESTS (2008), 
available at https://perma.cc/W9RS-224W. 
247 Id. 
248 See GEORGIAN YOUNG LAWYERS ASSOCIATION ET AL., AUGUST RUINS: REPORT OF THE 
GEORGIAN NON-GOVERNMENTAL ORGANIZATIONS ON VIOLATION OF FUNDAMENTAL HUMAN 
RIGHTS & INTERNATIONAL HUMANITARIAN LAW AUGUST WAR 2008, at 39-179 (2009) (listing 
the individual alleged illegal killings in the armed conflict between Russia-Georgia and the 
people of South Ossetia). 
249 See OFFICE OF THE PROSECUTOR, REPORT ON PRELIMINARY EXAMINATION ACTIVITIES 
2013, at 38-41 (2013), available at http://perma.cc/R3CJ-NSV4. 
250 Id. at 40 (stating the lack of access to the South Ossetia territory). 
251 Tamas Hoffmann, The International Legal Aspects of the Georgia-Russia Conflict, 6 
FOREIGN POL’Y REV. 80, 82 (2008). 
252 Rome Statute, supra note 245; see Hoffmann, supra note 251 (stating that the current de 
facto independence of South Ossetia and Abkhazia didn’t occur until 2008). 



2015] IMPUNITY RISES 489 
 
lacks territorial jurisdiction and personal jurisdiction, forcing the Court to 
determine first whether the Abkhazia and Ossetia were independent States 
under international law and if it possess jurisdiction.253  
 If the Court lacks jurisdiction, then the perpetrators escape with 
impunity. The Court can base its jurisdiction on either personality or 
territoriality.254 The use of the territoriality principle could potentially 
splinter in two ways: the Court invokes territoriality that extends to crimes 
committed when it had explicit jurisdiction while either territory’s status 
was not in question. The second could be that the Court finds it continues to 
possess jurisdiction because of the continuity of human rights treaties in the 
event of State succession. This would follow international law, give 
credence to the emerging rule of customary international law, fulfill the 
objective of the Court to protect international human rights, and allow the 
Court to sidestep the issue of statehood. 

A decision by the Court that it continues to possess jurisdiction 
because of the continuity of human rights treaties could lead the Court to a 
situation similar to its current predicament regarding Omar Al-Bashir, the 
President of Sudan, who has an international arrest warrant issued for him 
by the Court but continues to travel freely about the world.255 Countries 
ignore the arrest warrant and their duty to cooperate with the Court by 
allowing Bashir to enter, and leave their territory.256 This questions the 
legitimacy of the Court because it rejects the Court’s international standing 
for politics. It implies that the Court acts only at the whims of nations rather 
than to enforce an overarching rule of law or protect human rights. 

The Court could decide that the Rome Statute continues in the event 
of State succession, but indicate that a succeeding State can immediately 
utilize its withdrawal powers under Article 126.257 This would be legally 
sound in international law because it relies on the rule of treaty continuation 
in State succession, fulfills the object and purpose of the Court by 
prosecuting people for laws of war and crimes against humanity, and 
maintains legitimacy by duly adhering to the Statute by allowing a 
succession party to withdraw. The withdrawal by the new State ceases the 
 
                                                                                                                 
253 See Rome Statute, supra note 1, art. 19 (requiring the Court to first satisfy that it possess 
jurisdiction). The Court undoubtedly wants to avoid questions of statehood due the 
geopolitical issues involved and the international precedence that it could set. See e.g., 
Office of the Prosecutor, Situation in Palestine (Apr. 3, 2012), http://perma.cc/SP23-2228. 
254 See Rome Statute, supra note 1, art. 12. 
255 See e.g., Prosecutor v. Omar Al Bashir, Case No. ICC-02/05-01/09, Decision Pursuant to 
Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with 
the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of 
Omar Hassan Ahmad Al Bashir (Dec. 12, 2011) (stating Malawi, a State party to the Rome 
Statute, failed to meet its international obligations under the Rome Statute to arrest Al 
Bashir). 
256 Id. See also Rome Statute, supra note 1, art. 87(7). 
257 Rome Statute, supra note 1, art. 126. 



490 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
Court’s jurisdiction over future crimes, but allows it to continue to try those 
crimes for which it was seized before withdrawal.258 

The Court could also accept a Declaration of Jurisdiction under 
Article 12(3) from the new State. The Court ruled in the Prosecutor v. 
Gbagbo that such declarations allow the Court to extend the reach of its 
ratione temporis to the entry into force of the treaty in 2002.259 This would 
allow the Court to address crimes committed during a conflict in the time 
period between succession and before official recognition of the new State. 
This would be similar to the European Council’s declaration regarding the 
Czech and Slovak Republics and the jurisdiction of the European Court of 
Human Rights.260 This means of jurisdiction still requires the new State to 
consent to the Court’s jurisdiction, which potentially hinders the 
development of the continuity of human rights treaties in State succession. 

A less likely and optimal means for the Court to exercise jurisdiction 
in the event of State succession would be a referral by the U.N. Security 
Council under Article 13.261 The U.N. Security Council referred two 
situations to the Court: Sudan and Libya.262 This led to a number of issues 
and continues to be a grey area for the Court as the legal and political issues 
surrounding referrals are flushed out.263 A referral confers, in theory, total 
jurisdiction over a situation to the Court.264 The issue with this is that the 
referral represents a political compromise amongst the members of the 
Security Council, especially the permanent members.265 The Court 
adjudicates within those parameters, which opens the possibility that certain 
actors and crimes go unpunished. It also questions the legitimacy of the 
Court as an independent tribunal.  

The likelihood of a Security Council referral, especially in the case of 
the situation in Georgia because of Russia’s veto power, is rare. It will be 
up to the Court to determine its own jurisdiction, or find a judicial 
compromise, in the event of State succession. A political reality that is in 
the Court’s favor is the fact that new States desperately need recognition 

 
                                                                                                                 
258 Id. 
259 Prosecutor v. Laurent Koudou Gbagbo, supra note 51, at ¶ 58. 
260 See supra text accompanying notes 127-64. 
261 Rome Statute, supra note 1, art. 13(b). 
262 See S.C. Res. 1970, para. 4, U.N. Doc. S/RES/1970 (Feb. 26, 2011) (referring the 
situation in Lydia to the ICC); see also S.C. Res. 1593, para. 1, U.N. Doc. S/RES/1593 (Mar. 
31, 2005) (referring the situation in Darfur to the ICC). 
263 Supra note 19. The document contains the positions of the members of the Security 
Council and the President of the ICC on Security Council referrals. The meeting topic 
focused solely on Security Council referrals, and the ICC.   
264 Prosecutor v. Laurent Koudou Gbagbo, supra note 5.   
265 Referrals require either a unanimous vote without veto by the permanent members, or an 
abstention by permanent members. Each represents a compromise by the parties involved. 



2015] IMPUNITY RISES 491 
 
from other States on the international level to solidify their existence.266 
Following the example of the former Soviet States and the Former States of 
Yugoslavia,267 a State could enter a proclamation of succession prior to any 
ruling to foster support for recognition and legitimacy on the international 
level. This would be an interesting development because the Court is 
required to determine its jurisdiction at the outset, sui generis. A declaration 
of succession to the Court during a trial might force the Court to determine 
whether, or not, the State exists, which would convey a large amount of 
legitimacy on the State.  

A similar situation occurred when Palestine lodged a declaration with 
the Registrar of the ICC in an attempt to force the Court to review crimes 
committed by Israelis on Palestinian territory.268 The Prosecutor determined 
it lacked the power to begin an investigation under Article 12 because 
Palestine was not a State under the Rome Statute.269 The Prosecutor 
avoided the issue of statehood by ruling that the power to determine the 
meaning of “State” within Article 12 rests with the United Nations or the 
Assembly of State Parties of the Rome Statute.270 The Prosecutor’s 
determination is distinguishable from the Court’s ruling because the 
Prosecutor exercised its proprio motu powers under Article 15.271 The 
Court’s ruling would be a judicial pronouncement, while the Prosecutor’s 
determination concerning Palestine resembled an administrative function. 

The situation in Georgia warrants close attention because it will be 
the first test of the Court as a protector of human rights and an independent 
arbitrator of international law. International tribunals face numerous critics 
for their rulings and their existence, but they serve a critical role in the 
international legal order. The ICC represents one of the most advanced and 
important international criminal courts to date. How it handles the tests it 
will face as international law and society develop will determine its impact 
on advancing human rights in the future. State succession to human rights 
treaties represents one of the many potential challenges. Its roots in 
customary international law provide the Court the tools to interpret and 
apply it. 

A lacuna exists in the Rome Statute concerning the State succession 
to the treaty. The State practice and opinio juris necessary to establish a rule 
of State succession for human rights treaties exists. The “actual practice” of 
the former Soviet States, former Yugoslavia, and the former Czecholosvia 

 
                                                                                                                 
266 See generally James Crawford, The Criteria for Statehood in International Law, 48 BRIT. 
Y.B. INT’L L. 94 (1977) (explaining the importance that recognition plays in statehood).  
267 See supra text accompanying notes 127-83. 
268 See generally John Quigley, The Palestinian Declaration to the International Criminal 
Court: The Statehood Issue, 35 RUTGERS L. REC. 1 (2009). 
269 Office of the Prosecutor, supra note 253, at ¶ 5. 
270 Id. 
271 See Rome Statute, supra note 1, at art. 15. 



492 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
show that the practice of States whose interests are directly affected veer 
towards continuity. The opinio juris gained from the statements of the 
States concerned show that there is the required feeling of legal obligation. 
Customary international law exists to support the Court in continuing to 
adjudicate over the crimes committed by individuals in events of State 
succession. State succession presents considerable opportunity for 
impunity. Perpetrators of heinous crimes cloaked in a new State and 
immune from the Court’s reach weaken the Court and the protection of 
human rights. International law supports the extension of the ICC’s 
jurisdiction in the event of State succession involving a State party over 
such perpetrators because the Rome Statute’s object and purpose is the 
protection of human rights.