Does the Int’l Criminal Court Have Jurisdiction over Alleged War Crimes by Saudi-Led Coalition in Yemen?
Does the International Criminal Court have jurisdiction over potential war crimes allegedly committed by the Saudi-led coalition in its battle against the Houthi rebels in Yemen? The short answer is yes. Let me count the ways.
It is an uncontroversial statement of law that the International Criminal Court has jurisdiction over the nationals of States that have ratified the ICC treaty (Article 12(2)(b)). It is also explicitly written into the ICC treaty that the Prosecutor may seek, on her own accord, authorization from a pre-trial chamber to investigate allegations of war crimes within the jurisdiction of the Court (Article 15).
This opens up two potential avenues for the Prosecutor to pursue alleged war crimes in the Yemen conflict.
First, one of the members of the Saudi-led coalition—Jordan—is a State party to the ICC treaty. The Court thus has jurisdiction over actions committed by Jordanian officials in the conduct of hostilities in Yemen.
Second, three States that are not part of the Saudi-led coalition but directly and publicly support the coalition—France, Germany, and the United Kingdom—are all State parties to the ICC treaty. So how might they be tied into the Court’s jurisdiction for actions committed by the Saudi-led coalition inside Yemen? Here’s one possible answer: check out my earlier post on the general legal framework that applies to aiding and abetting alleged war crimes through the provision of arms sales and other support.
Lastly, it is important to note that seven of the other States in the coalition—including Yemen—have signed but not ratified the ICC treaty. The Court could not exercise jurisdiction on the basis of the nationality of citizens of those States. Those States, however, may be under particular legal obligations to cooperate with the Court’s investigations and prosecutions, or at least not to take actions that are incompatible with the object and purpose of the Court in carrying out its work. Indeed, one of the pragmatic reasons for the United States to take efforts to “un-sign” the Rome Statute over a decade ago might have been to avoid claims that it has such obligations arising from its status as a signatory to the treaty.