Why some Doors may be Closed Already: Second Thoughts on a 'Case-by-Case' Treatment of Article 12 (3) Declarations

Why some Doors may be Closed Already: Second Thoughts on a 'Case-by-Case' Treatment of Article 12... Why some Doors may be Closed Already: Second Thoughts on a ‘Case-by-Case’ Treatment of Article 12 (3) Declarations CARSTEN STAHN* 1. Introduction In his article “How Open Should the Door Be? – Declarations by non-States Parties under Article 12(3) of the Rome Statute of the International Criminal Court”, 1 Steven Freeland suggests a flexible approach towards the treatment of Article 12(3) declarations. Freeland argues that the qualification of a dec- laration under Article 12(3) of the Rome Statute should be determined “on a case-by-case basis” taking into account the “circumstances” leading to the lodging of a particular declaration. The author submits, in particular, that a declaration by a non-State Party under Article 12(3) should in some cases be treated analogous to a referral. He justifies this case for procedural diversity by alleging a need for further judicial scrutiny in cases where a declaration has been lodged for what he terms “genuine reasons”. In such cases, Freeland proposes a treatment analogous to a referral on two grounds: the alleged need to ensure that the matter receives due attention by the Court, and a perceived necessity to provide “a layer of protection against a decision by the Prosecutor not to http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Nordic Journal of International Law Brill

Why some Doors may be Closed Already: Second Thoughts on a 'Case-by-Case' Treatment of Article 12 (3) Declarations

Nordic Journal of International Law, Volume 75 (2): 243 – Jan 1, 2006

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Publisher
Brill
Copyright
© 2006 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
0902-7351
eISSN
1571-8107
D.O.I.
10.1163/157181006778666623
Publisher site
See Article on Publisher Site

Abstract

Why some Doors may be Closed Already: Second Thoughts on a ‘Case-by-Case’ Treatment of Article 12 (3) Declarations CARSTEN STAHN* 1. Introduction In his article “How Open Should the Door Be? – Declarations by non-States Parties under Article 12(3) of the Rome Statute of the International Criminal Court”, 1 Steven Freeland suggests a flexible approach towards the treatment of Article 12(3) declarations. Freeland argues that the qualification of a dec- laration under Article 12(3) of the Rome Statute should be determined “on a case-by-case basis” taking into account the “circumstances” leading to the lodging of a particular declaration. The author submits, in particular, that a declaration by a non-State Party under Article 12(3) should in some cases be treated analogous to a referral. He justifies this case for procedural diversity by alleging a need for further judicial scrutiny in cases where a declaration has been lodged for what he terms “genuine reasons”. In such cases, Freeland proposes a treatment analogous to a referral on two grounds: the alleged need to ensure that the matter receives due attention by the Court, and a perceived necessity to provide “a layer of protection against a decision by the Prosecutor not to

Journal

Nordic Journal of International LawBrill

Published: Jan 1, 2006

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