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It’s the ratification, stupid

How has this confused situation about the statute come about? To understand, let’s first examine how international treaties actually function.

Once a treaty is drafted, there is the signatory phase. Interested countries sign the treaty which, at that point, is not yet binding on them. For example, Ukraine is a signatory to the ICC, but not yet party to it, and both Russia and the US first signed the treaty but later withdrew their signatures.

The treaty becomes binding with ratification, which is confirmation of the binding force of the treaty by the signatory. Thus, the country becomes party to the treaty. For the process of ratification, each country has its own domestic rules. This very often happens through promulgation by law, but not exclusively.

Under the Fundamental Law of Hungary, or the constitution, international treaties must be promulgated by law or decree. But back in 2001, when Hungary ratified the ICC statute, the old constitution only required that consistency must be ensured between international legal obligations and domestic law. Thus, the ICC statute was ratified simply by the decision of the parliament to pass it with an overwhelming majority under the first Orban government of 1998-2002. With its ratification, Hungary contributed to the entering into force of the ICC statute, which happened in July 2002 after it reached the required 60 ratifications.

The ratifying decision of parliament does not contain the full text of the statute, only a brief confirmation. Therefore, to comply with the constitutional requirement of ensuring consistency between international and domestic law, the full text of the treaty should have been promulgated. But the failure to do so does not make the international obligation void. Hungary is party to the ICC, which is best illustrated by the fact that Hungary has a delegated judge at the court.

Interestingly, this judge, Peter Kovacs, actually published a passionate study in 2019 about how the failure of promulgation can cause legal uncertainty, while also highlighting that several provisions of Hungarian criminal law refer to the ICC statute and to international obligations.

It is also worth mentioning that the crimes prosecuted by the ICC statute are not new elements either in international or Hungarian criminal law. The prohibition of genocide, war crimes and crimes against humanity belong to the jus cogens (a norm accepted and recognised by the international community, from which no derogation is permitted) principles of international law and, as such, were codified in earlier international treaties. These treaties have been ratified and promulgated by Hungary as well. What was new in the ICC statute is that it established a permanent court and a detailed procedure for trials there.