The Retroactive Application of the Rome Statute in Cases of Security Council Referrals and Ad hoc Declarations: An Appraisal of the Existing Solutions to an Under-discussed Problem

Journal of International Criminal Justice, 16 (2018), 65-89

25 Pages Posted: 14 Aug 2020

See all articles by Talita Dias

Talita Dias

Chatham House; University of Oxford - Blavatnik School of Government

Date Written: February 10, 2018

Abstract

The principle of legality occupies a central place in the Rome Statute of the International Criminal Court (ICC). Its core element is the principle of non-retroactivity, which requires that criminal acts be previously prohibited and punishable by law. Nevertheless, there are two main instances where the application of the Statute risks being substantively retroactive: when the UN Security Council (SC) refers a situation to the ICC, or a state makes an ad hoc declaration accepting the Court’s jurisdiction for a situation, and the relevant conduct was not criminal under any previously binding source of law. Despite the significance of this issue, it has only been briefly discussed in the literature. It has also been overlooked by the drafters of the Statute and by the ICC itself. Against this backdrop, the purpose of this article is to critically appraise the few solutions that have been proposed so far and to identify the key elements of a better avenue for reconciling the Rome Statute with the principle of legality.

Keywords: Legality, Non-retroactivity, International Criminal Court, Rome Statute, Internationally Recognized Human Rights

Suggested Citation

Dias, Talita, The Retroactive Application of the Rome Statute in Cases of Security Council Referrals and Ad hoc Declarations: An Appraisal of the Existing Solutions to an Under-discussed Problem (February 10, 2018). Journal of International Criminal Justice, 16 (2018), 65-89, Available at SSRN: https://ssrn.com/abstract=3628135 or http://dx.doi.org/10.2139/ssrn.3628135

Talita Dias (Contact Author)

Chatham House ( email )

10 St James's Square
London, SW1Y 4LE
United Kingdom

University of Oxford - Blavatnik School of Government ( email )

120 Walton Street
Oxford, Oxfordshire OX2 6GG
United Kingdom

HOME PAGE: http://https://www.bsg.ox.ac.uk/

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