The ICC Assembly of States Parties Prepares to Activate the ICC’s Jurisdiction over the Crime of Aggression: But Who Will be Covered by that Jurisdiction?

The states parties to the Statute of the International Criminal Court have been meeting in New York recently to begin discussions that it is hoped will lead to a decision at this December’s Assembly of States Parties to activate the Court’s jurisdiction over the crime of aggression. These discussions are taking place seven years after the ICC states parties, meeting in Kampala, Uganda, adopted a series of amendments to the ICC Statute dealing with the crime of aggression. Those amendments remedied the failure to agree in 1998 in Rome on the definition of the crime of aggression and the conditions under which the Court can exercise jurisdiction over aggression. However in Kampala, states parties decided that the Court’s exercise of jurisdiction over aggression would require 30 ratifications or acceptances [(Arts. 15 bis (2); Arts. 15ter (2), ICC Statute], and could not happen prior to the taking of a decision by the states parties to activate that jurisdiction, with such decision not to be taken before 1 January 2017 [(Arts. 15bis (3); Arts. 15ter (3), ICC Statute]. In Kampala states parties “Resolved to activate the Court’s jurisdiction over the crime of aggression as early as possible” [Resolution RC/Res. 6]. States parties now face the moment of decision.

It was a privilege to be invited to a meeting of states parties held on June 2, at the UN Headquarters in NY, to present my views on what has turned out to be the most contentious question in the current discussions about aggression: who will be subject to the ICC’s jurisdiction with respect to the crime of aggression? It should be recalled that states parties to the Rome Statute may choose to opt out of the ICC’s jurisdiction over aggression under Art. 15bis (4) of the amended ICC Statute by simply lodging a declaration with the Registrar of the Court. However, some states that have not yet ratified the amendments are of the view they should not be required to opt out in order for their nationals to be exempt from ICC jurisdiction over aggression. Thus, the most important question on which there are different views among state parties is this:

Are nationals of states that do not ratify or accept the Kampala amendments, and which also do not opt out of ICC jurisdiction as provided for in those amendments, subject to ICC jurisdiction over aggression in cases where the situation is referred to the Court by a state, or the prosecutor takes up the matter propio motu?

In summary, my view on that question, which I will set out below, is that the Court will not have jurisdiction in such a situation. Kevin Jon Heller, who presented to the states parties in a prior meeting to the one I presented at also expressed this view (see Kevin’s post at Opinio Juris). However, there a number of states and scholars who take the opposite view, a view that was expressed at the two meetings by Roger Clark and Noah Weisbord (both of whom had been involved in negotiations regarding aggression).

If one starts with the Kampala amendments, Article 15bis (4) might seem to suggest that the ICC will have jurisdiction over aggression committed by nationals of states parties whether those parties have ratified aggression amendments or not.

In my view, and this was my main message to the states parties, the answer to the question of ICC jurisdiction over nationals of states parties to the Rome Statute that do not ratify or accept the Kampala amendments is to be found in Rome rather than in Kampala. What was done in Kampala could not have the effect of changing the treaty rights of Rome Statute parties that do not go on to ratify the Kampala amendments. Thus, a crucial step in sorting out the jurisdictional issues relating to the crime of aggression is to be found in resolving the issue of how the Kampala amendments enter into force under the Rome Statute.

Resolving Jurisdictional Questions in the Aggression Amendments

As with any treaty text, agreement on the text does not resolve all questions as to what the text means. Questions about the meaning of the jurisdictional provisions of the Kampala aggression amendments have been raised from nearly the moment on which the ink dried on the text. Seven years ago, and just about 10 days after the Kampala Review Conference concluded I wrote a post on this blog asking “What Exactly Was Agreed in Kampala on the Crime of Aggression?” and setting out some of the jurisdictional questions that are currently being discussed. A few days later, I attended, and spoke at, a Chatham House event at which some of those same questions were raised by participannts (see Chatham House paper here). It is therefore no surprise to me that these questions have persisted and that there is a difference of view among states parties.

In addition to the central question I set out above other questions that are not settled, include: What is the position with respect to states which ratify/accept the Rome Statute after the Kampala amendments were adopted? Are they to be regarded as having ratified the amended ICC Statute of 2010 or only the original Rome Statute of 1998? [on this, see this post by Andreas Zimmermann] Also, can non-parties to the ICC Statute make declarations under Art. 12(3) accepting the jurisdiction of the Court over aggression, as they can and have done with respect to the other crimes within the Court’s jurisdiction?

However, the fact that ambiguities remain should not in itself be regarded as a matter of concern. That texts need to be interpreted is the stuff of law. Also, it should not be expected that all of these questions can and will be resolved before a decision is taken on activation of the Court’s jurisdiction. Ultimately, these are matters that will be for the Court to decide upon. There are some states that have not ratified the Kampala amendments that want greater clarity as part of the process of deciding upon activation. I can certainly think of ways in which such clarity can be provided while deciding to activate jurisdiction and without trying to reopen negotiations on an agreed text. I am sure others can too and I hope the states parties will find a way to provide that clarity.

To What Extent is Jurisdiction over Aggression Subject to Normal ICC Jurisdictional Rules? The Effect of the Entry Into Force Provisions.

On the central question about whether the ICC will have jurisdiction with respect to nationals of states parties to the ICC Statute that do not ratify or accept the Kampala amendments, but also do not opt out of the regime, the main issue is whether the normal jurisdictional regime of the ICC (set out in Art. 12 of the Statute) largely applies to the Kampala aggression amendments. It is clear that Article 15bis, dealing with State referrals and proprio motu investigations with respect aggression, makes one change to the normal jurisdictional rules of the ICC in that it excludes the jurisdiction of the Court with respect to aggression committed by a national of a non-party state or committed on its territory [Arts. 15bis (5)]. Some have argued that, other than this change with regard to non-parties, the normal jurisdictional regime under Art. 12 applies unless a state party to the Statute opts out of ICC jurisdiction over aggression as the Kampala amendments allow [(Arts. 15bis (4)]. On their view, nationals of a state that have not ratified the Kampala aggression amendments who commit aggression on the territory of a state that has ratified the aggression amendments are subject to ICC jurisdiction on the basis of territoriality.

Whether the normal jurisdictional rules of the ICC Statute also applies to the aggression amendments depends ultimately on how those amendments entered into force. Basically there were 3 possibilities regarding entry into force of the Kampala aggression amendments.

The first possibility is that the amendments would enter into force and become effective simply on adoption at the Kampala Review conference, without any need for ratification or acceptance by states. The argument that this was possible was based on Art. 5(2) of the Rome Statute which provided that – “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 . . .” (emphasis added). The second possibility was that the amendments would come into force only when 7/8ths of the states parties had ratified or accepted them, and then for ALL states parties. This is what was provided for in Article 121(4) of the Statute. The third possibility was that the amendments would come into force under Art. 121(5) for each state party that accepted or ratified it one year after such ratification/acceptance. The second sentence of that provision then goes to state that “In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.” It should be noted that questions have arisen as to how that sentence should be interpreted (with a dispute between a so called “negative understanding” of that provision, or of a “positive understanding”). I deal with this below.

A fourth possibility is that a special and previously unprovided for amendment procedure was designed in Kampala for the aggression amendments. However, though some of the negotiators of the Kampala amendments seemed to think that this was an option open to them and that this was what they actually did, such a possibility is not in accord with international law. The Rome Statute provisions are legally binding on the parties, unless they are amended through the amendment procedures provided for in the Statute, or through some other legally binding instrument. More importantly, the Rome Statute, including the amendment procedure is binding on the Court, which, in considering whether a particular provision is or not in force and binding under the Statute, has no authority to look beyond the Rome Statute and otherwise applicable rules of international law.

The best position under international law is that the aggression amendments come into force under Art. 121(5). There are a number of reasons for this conclusion, but for now I will set out the two most important ones. First, this provision deals with amendments to substantive crimes within the jurisdiction of the Court. The text of Art. 121(5) is expressly stated to apply to amendments to Arts. 5, 6, 7 & 8 of the Statute. It is true that the aggression amendments go beyond amendments to those provisions. However, a good case can be made that the amendments are all a package intended to bring into effect the ‘new’ crime and that the intention behind Art. 121(5) is that it applies to amendments dealing with the creation of new crimes. The negotiators in Kampala could have included all the conditions for the exercise of jurisdiction over aggression within Art. 8bis and it ought to make no difference that they chose to put some of the package in a differently numbered paragraph. Second, it was agreed by the states parties in Kampala that the amendments “shall enter into force in accordance with article 121, paragraph 5” of the Rome Statute.

The conclusion that the amendment enters into force under Article 121(5) is of great significance. It means that the effects provided for in the second sentence of that article are to follow for any amendments. This is a provision that is binding for all states parties and the law of treaties provides (and indeed logic suggests) that what is set out in this binding provision cannot be changed by an amendment except for those states that ratify or accept the amendment.

Reasons why the ICC has no Jurisdiction with Respect to Aggression Committed by a State party that has not accepted the Kampala Amendments and not opted out

1. Under the Vienna Convention on the Law of Treaties (VCLT), and unless otherwise provided in a treaty, an amendment to that treaty does not bind a non-accepting state and cannot remove the rights of parties to the original treaty that have not accepted the amendment [Article 40(4), VCLT]. Art. 121(4) of the Rome Statute is an example of a provision that does provide otherwise than the normal rule. However, Art. 121(5) is not such a provision, and in fact confirms the default rule in Art. 40(4) VCLT.
2. The ordinary meaning of the text of Article 121(5) of the Rome Statute prevents the Court from exercising jurisdiction over crimes covered by amendments when committed by the national of a state party that has not accepted the amendment or when committed on its territory. Another indication that the second sentence of Article 121(5) means that the Court will not have jurisdiction over crimes committed by nationals of non-accepting state is to be seen in the resolution adopting the war crimes amendments in Kampala. The 2^nd preambular paragraph of the resolution indicates the understanding that Art. 121(5) prevents the Court from exercising jurisdiction over crimes committed by the nationals of non-ratifying state as well as on the territory of that state.
3.  One key reason for interpreting the words of Art. 121(5) as excluding jurisdiction over crimes committed by nationals of a non-party state, as well as over crimes committed on its territory is that the exact same language has been used in other provisions of the Rome Statute and also of the Kampala amendments to mean precisely this. Article 124 which allowed states to opt out temporarily from jurisdiction for war crimes states that the court will not jurisdiction “when a crime is alleged to have been committed by its nationals or on its territory”. Even in the Kampala amendments Art. 15 bis (5) provides that with respect to non-parties, the Court “shall not exercise its jurisdiction over the crime of aggression when committed by that States’s nationals or on its territory”. In these other instances, it seems agreed that the court will not have jurisdiction both where the crime is alleged to have been committed by a national and also in cases were the crime was committed on the of the territory of the state concerned.
4. The second sentence of Article 121(5) is an exception to the normal jurisdictional rules provided for in Article 12. One of the rules of treaty interpretation is that a treaty should not be interpreted so as not to render a provision redundant. If the second sentence of Article 121(5) does not mean that it is creating an exception to the normal rules of jurisdiction it is unclear what it means.
5. It has been argued that even if the second sentence of Article 121(5) ordinarily excludes the Court from applying amended crimes to nationals of non-accepting state parties, this interpretation does not apply to the aggression amendments because states parties have already agreed to jurisdiction over aggressions in Article 5 of the Rome Statute. However, there is nothing in Article 121(5) that includes such an exception. Indeed, state parties have also accepted jurisdiction of the ICC over war crimes, but in adopting the war crimes amendment in Kampala states parties agreed that the second sentence of Article 121(5) applied to those amended crimes [2^nd preambular para. of RC/Res. 5].
6. The Kampala Amendments do not establish the agreement of the parties to interpret second sentence of Art. 121(5) in a manner that confers jurisdiction over nationals of non-ratifying parties. It is possible for the subsequent practice, which establishes the agreement of states parties to the ICC Statute to establish an interpretation of Art. 121(5) which departs from the interpretation of that provision that would otherwise be reached [See generally Art. 31(3)b VCLT]. A good case can be made that there is agreement of the parties that Art. 121(5) second sentence should not be interpreted to mean what it appears to say with regard to Security Council referrals (see particularly Understanding 2 accompanying the Kampala Amendments), but the same cannot be said in relation to the general meaning of that sentence.
7. It is argued that if states parties need to opt in before the court has jurisdiction over aggression committed by those states, why would there be an opt-out. Why would we have states opting-in only to opt-out? However, the text of Res RC 6 itself suggests that the opt out may occur prior to the state ratifying the agreement and seems to contemplate that a state both ratifies the amendment but opts out ICC jurisdiction. Second, the opt out provision in Article 15bis (4) still makes sense even if the ICC has no jurisdiction over aggression committed by states parties do not ratify the Kampala amendments.

• A state that wished to activate the provisions of the Kampala amendments dealing with Security Council referrals may wish to ratify the aggression amendments to help get those amendments to the necessary 30 parties, while opting out of the state referrals and propio motu provisions.
• An opt out only excludes the jurisdiction of the Court over aggression committed by the state party opting out. The opt out does not exclude the Court’s jurisdiction over aggression committed against the state party. So a state party that wishes to have ICC jurisdiction over aggression committed against that state may ratify the amendments but then opt out from ICC jurisdiction over aggression committed by that state.

1. It is argued that to interpret Article 121(5) as excluding ICC jurisdiction over crimes committed by non-accepting state parties is to privilege those non-accepting state parties over non-party states and create inequalities. However, the way the Kampala Amendment has been structured to exclude jurisdiction over aggression committed by or against non-party states avoids any such inequality. Furthermore, Article 121(5) does create a more privileged position for states parties but that is part of the incentive of states to ratify the Rome Statute. They get to decide on whether amended crimes apply to their nationals. The Rome Statute already contains other provisions which favour states parties over non-parties. Article 124 of the original Rome Statute allowed states parties to exclude the application of the war crimes provisions to their nationals or crimes committed on their territories whereas non-parties did not get the opportunity to exclude the jurisdiction of the court over war crimes committed by their nationals.
2. More broadly and outside the confines of the specific provisions of the Rome Statute, general principles of international law also point to a requirement that a state consent to the court determining whether that state has committed aggression. Aggression is a special crime where consent plays a special role. Unlike other international crimes within the jurisdiction of the ICC, the crime of aggression requires the Court to determine a question of state responsibility – , ie that a state has committed an act of aggression. The fact that the court is required to determine the responsibility of a state implicates the principle that an international tribunal cannot determine the rights or responsibilities of states without the consent of that state. This principle is one that has been applied by a range of international tribunals. Even in cases where the decision of the tribunal will not be binding on the state tribunals have still held that they cannot exercise jurisdiction where they are essentially called upon to determine the responsibility of a state that has not consented. The ICJ refers to this as the Monetary Gold principle (1954) ICJ Rep 19. This general principle of international law and the special position of the crime of aggression suggests that one should seek to interpret the Rome Statute and the Kampala Amendments to require consent. [see generally, Dapo Akande, Prosecuting Aggression: The Consent Problem and the Role of the Security Council 12 (Oxford Legal Research Paper Series No. 10/2011, 2011)].