## Facts

- France’s President referred the Rome Statute of the International Criminal Court (ICC) to the French Constitutional Council for prior constitutional review under Article 54 of the Constitution.
- The referral sought a determination whether France could authorize ratification under the existing Constitution or whether a constitutional revision was required first.
- The Rome Statute creates an international criminal court with jurisdiction over individuals for specified international crimes and requires state cooperation, including surrender of suspects and execution of ICC decisions in defined circumstances.
- The Council reviewed the Statute directly as an international agreement, not any domestic implementing legislation.
- The Council evaluated compatibility with constitutional requirements concerning sovereignty, official responsibility and immunities, legality and non-retroactivity in criminal law, defense rights and fair trial guarantees, and constitutional powers relating to amnesty and pardon.

## Issues

1. Whether the Rome Statute transferred or limited constitutionally protected aspects of national sovereignty and criminal jurisdiction such that ratification required constitutional revision under Article 54.
2. Whether the Statute’s treatment of official capacity and immunities conflicted with the Constitution’s allocation of responsibility and jurisdiction for senior state officials.
3. Whether the Statute raised constitutional concerns regarding the legality principle and non-retroactivity in criminal matters.
4. Whether the Statute’s procedural framework and consequences (including surrender and binding ICC determinations) were compatible with constitutional defense rights and fair trial guarantees.
5. Whether ICC authority to proceed despite domestic amnesties or pardons conflicted with constitutionally defined French clemency powers.

## Decision

- The Constitutional Council found that the Rome Statute contained provisions incompatible with the French Constitution.
- The Council held that authorization to ratify could be given only after a constitutional amendment, as required by Article 54 when a treaty conflicts with the Constitution.
- The Council concluded that the Statute entailed a transfer of criminal adjudicatory authority and constraints on national decision-making in criminal matters beyond what the Constitution then permitted.
- The Council determined that the Statute’s rules negating immunity based on official capacity conflicted with constitutional arrangements governing responsibility and jurisdiction for certain high officials.
- The Council treated limitations on the effect of domestic amnesties and pardons, through the ICC’s ability to assess the genuineness of national proceedings, as conflicting with constitutionally regulated clemency prerogatives.

## Legal Principles

- Under Article 54, if an international agreement includes clauses contrary to the Constitution, France may authorize ratification only after constitutional revision.
- A treaty that enables an international court to exercise criminal jurisdiction over individuals and to review the genuineness of national prosecutorial choices can constitute a constitutionally significant transfer or limitation of sovereign powers.
- Treaty provisions that remove immunity based on official capacity may be unconstitutional where they alter constitutional rules governing responsibility, jurisdiction, or protections applicable to senior state officials.
- Constitutional legality and non-retroactivity constraints in criminal matters require scrutiny where international criminal jurisdiction could operate independently of, or prior to, corresponding domestic criminal legislation.
- Constitutional guarantees of defense rights and fair trial are assessed against the treaty’s procedural regime and the legal effects of cooperation obligations, including surrender and the binding force of international criminal judgments.
- Constitutional powers relating to amnesty and pardon may require explicit constitutional authorization where treaty obligations permit an international criminal process to proceed despite domestic clemency measures.

## Conclusion

The Constitutional Council held that key features of ICC membership were incompatible with the Constitution as then written and therefore required a prior constitutional amendment before France could authorize ratification of the Rome Statute.


Re Establishment of the International Criminal Court, Decision No. 98-408 DC, 125 I.L.R. 475 (Fr. Const. Council 1999)