From an Unconstitutional Rome Statute to Its Constitutionality: Why It Took Over 20 Years for Armenia to Join the ICC?

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On November 14, 2023, the Republic of Armenia officially deposited the instrument of ratification of the Rome Statute of the International Criminal Court (ICC).  While the Statute will come into force for Armenia on February 1, 2024, officially making it the 124th State Party to join, the process leading to Armenia’s ICC membership commenced significantly earlier on October 1, 1999, when Armenia, among the first countries globally, signed the Rome Statute.

This blog post aims to delve into the intricacies of the considerable time lapse between the initiation of Armenia’s journey toward ICC membership and the eventual ratification. It will primarily focus on the analysis of the decision of the Constitutional Court of Armenia on August 13, 2004, finding the text of the Rome Statute unconstitutional, and the recent landmark decision of the Constitutional Court on March 24, 2023, revising the Court’s position regarding the constitutionality of the Statute, underscoring Armenia’s commitment to international criminal justice. What were the significant changes and implications that triggered this legal shift?

The First Attempt of Joining the ICC (1999-2004)

 After the Armenian Government signed the Rome Statute on October 1, 1999, following its ratification procedure outlined in the Armenian Constitution (1995 edition), the Constitutional Court reviewed its constitutionality on August 13, 2004, and found the Rome Statute unconstitutional.

The court’s decision was primarily based on two reasons. Firstly, the court determined that the exercise of criminal jurisdiction by the ICC contradicts the Constitution, designating the function of administering justice as an exceptional jurisdiction of domestic courts. Secondly, the court noted an inability to exercise constitutional functions such as granting pardons and amnesty to convicted individuals, particularly in relation to Article 105 of the Rome Statute.

While this decision prompted scholarly discourse within the Armenian and international legal community, the analysis of the Constitutional Court faced criticism for not comprehensively considering the ICC’s core principle of complementarity outlined in Article 1 of the Rome Statute. It overlooked that, as a court of “last resort,” the ICC intervenes when a national judicial system is unwilling or unable to perform its tasks, without having primacy over it. Regarding the second issue, the Court did not consider that the prosecution of international crimes is an erga omnes obligation, thus, it is not permissible to grant pardons or amnesty for such crimes (e.g., Abdülsamet Yaman v. Turkey, § 55).

Supposedly, the Armenian Constitutional Court’s decision was influenced by a nearly identical prevailing approach of other constitutional bodies, including the French Constitutional Council, Ukrainian Constitutional Court, Chilean Constitutional Court, Côte d’Ivoire’s Constitutional Council, sharing the perspective that the execution of the ICC’s complementary jurisdiction infringed on national sovereignty and the ratification of the Rome Statute requires constitutional amendments.

Following Constitutional and Political Changes (2004-2020)

As most of the aforementioned countries initiated constitutional amendments, primarily incorporating a specific reference to the possibility of accepting the ICC’s jurisdiction and ratifying the Rome Statute, Armenia also pursued constitutional amendments three times – in 2005, 2015 and 2020. However, none of them included such a reference.

In 2005, the constitutional amendments not only did not include any reference to the ICC, but also did not essentially modify regulations related to the domestic judicial system. There is no public source about the travaux préparatoires of the amendments; thus, officially, it is not known whether the inclusion of the ICC clause was even discussed by the drafting committee.

Meanwhile, prior to the 2015 constitutional amendments, the newly established drafting committee, headed by the president of the Constitutional Court, introduced a concept note in 2014, for the first time officially suggesting that: “Constitutional amendments should formulate the basis for ICC Rome Statute ratification, considering that some obligations resulting from the Statute were declared as unconstitutional by the Constitutional Court’s August 13, 2004 decision.” Although this suggestion restated the public discourse on the necessity of joining the ICC after over ten years of the Rome Statute signature, and the European Commission for Democracy Through Law (Venice Commission) provided a recommendation to ensure amendments’ cohesion with the Statute, the final text of the constitutional amendments introduced in 2015 refrained from including any reference to the ICC and essentially amending regulations related to the judicial system. This outcome was not foreseen, as it was presumed that Armenia had committed to joining the ICC. This unexpected development raised questions about the underlying considerations in the drafting of these amendments. However, considering that the drafting committee was formally attached to the President, who also led the governing political party, the deviation from the concept note of constitutional amendments was supposed to be a political decision rather than a legal one.

After the world-known Velvet Revolution in Armenia in 2018, a series of anti-government protests led to the overturn of the governing political power. Initially, the newly elected power did not discuss the necessity of constitutional amendments. However, in 2020, it proposed constitutional amendments solely aimed at terminating the functions of Constitutional Court judges who had been in office for over 12 years, resulting in the change of one-third of the Constitutional Court members.

Moreover, in the same year, the Prime Minister established a new drafting committee to prepare a concept note for possible constitutional amendments. The committee was reconstituted in 2022. However, as of now, the drafting committee has not presented any concepts of constitutional amendments and continues to operate.

The Second Decisive Attempt of Joining the ICC (2020-2024)

Following the Second Nagorno-Karabakh war in 2020, which involved Armenia and Azerbaijan and concluded with ongoing numerous violations of international law in the territory of Armenia, the Armenian Government has turned to international judicial mechanisms, submitting cases against Azerbaijan at the International Court of Justice and the European Court of Human Rights. Within this context, on December 29, 2022, the Government announced that, in response to the large-scale military aggression by the armed forces of Azerbaijan against the sovereign territory of Armenia, it is initiating the Rome Statute ratification process, with a retroactive recognition of the ICC jurisdiction commencing from 00:00 on May 10, 2021, covering the period of military escalation in Armenia started from that date.

At this time, on March 24, 2023, the Constitutional Court of Armenia, with three dissenting opinions, resolved that there was no longer any constitutional contradiction regarding the Rome Statute. In light of the Court’s previous decision, it reconsidered the constitutionality of the principle of complementarity and Article 105 of the Rome Statute.

 Regarding the issue of complementarity, the Court, referring to the purposes of the adoption of the Rome Statute and the values protected thereof, stated that the protection and preservation of those values are fully consistent with the affirmation of the civilizational commitment of the Armenian People to “universal values,” as prescribed by the Preamble of the Constitution. The Court emphasized that their protection could not only be considered as a constitutional imperative but also an obligation for any State governed by jus cogens norms. In this context, by analyzing the principle of complementarity, the Court highlighted that the failure of the criminal jurisdiction of the Republic of Armenia for any reason (unwillingness or inability) to ensure the protection of the peace and well-being of the world through the effective investigation and prosecution of those who commit the gravest international crimes cannot be assessed as an unconstitutional interference with the Armenia’s sovereign criminal jurisdiction.

Regarding Article 105 of the Rome Statute, the Court decided that the obligation of a State to enforce the sentence of a person sentenced to imprisonment by the ICC does not arise directly upon ratification of the Statute. Instead, it is an obligation voluntarily undertaken by a State Party through an international treaty. This treaty should be concluded in accordance with the procedure prescribed by the Statute and is not subject to the current constitutional review.

Although this decision gave a “green light” for Armenia to join the ICC, it raises numerous reasonable questions. First, it questions whether the Constitutional Court was allowed to review its previous decision from the perspective of res judicata, especially considering that the exceptional jurisdiction of domestic courts have not been constitutionally amended since 2004. Additionally, it prompts an examination of the legitimacy of the domestic and international discourse surrounding the necessity of establishing a constitutional basis for accepting ICC jurisdiction. This is particularly pertinent given that the legal shift from the unconstitutional Rome Statute to its constitutionality was primarily based on the interpretation of “universal values” shared by the Rome Statute and the unamendable Preamble of the Constitution. After all, obligations arising from jus cogens norms and linked to the protection of “universal values” were inherent not only in the Armenian Constitution but also in the Constitutions of numerous other democratic states specifically amended to join the ICC.

 Conclusion

 Despite the issues raised regarding the legal shift from the unconstitutional Rome Statute to its constitutionality, Armenia’s decision to join the ICC is a critical step, demonstrating its commitment to international criminal justice, even in the face of Russia’s officially expressed “dissatisfaction” over the decision. This move underscores Armenia’s dedication to ensuring the accountability of perpetrators committing the gravest international crimes. As an ICC family member, the next crucial step should involve the active deployment of existing mechanisms to address the circumstances that triggered the initiation of such a contentious procedure for Rome Statute ratification.

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Rukirabashaija Kakwenza says

February 8, 2024

This is well-written. Thank you, professor--the international law panjandrum.