The International Criminal Court Gets Jurisdiction Over the Crime of Aggression

The Assembly of States Parties to the Statute of the International Criminal Court has, overnight (New York time), adopted a resolution which activates the jurisdiction of the Court over the crime of aggression. This was the culmination of intense negotiations at the ICC’s 16th ASP which has been meeting in New York over the past 2 weeks. Indeed, activation of the crime of aggression today brings to a close negotiations which have taken place over decades regarding the jurisdiction of the Court over that crime. States Parties agreed in Rome in 1998 to include the crime of aggression in the ICC Statute but suspended ICC jurisdiction over the crime until they could agree on a definition and conditions for the exercise of jurisdiction. This they did at the Kampala Review Conference in 2010 but again agreed to suspend jurisdiction over the crime until at least 30 States had ratified or accepted the amendments, and until a decision of the ASP to activate jurisdiction with that decision not to take place before 1 January 2017. So, activation of jurisdiction was the final step in a long journey and it was this momentous step taken by the ASP overnight.  The text of the resolution adopted, by consensus, is available here. By paragraph 1, the ASP

“Decides to activate the Court’s jurisdiction over the crime of aggression as of 17 July 2018.”

This means the Court will be able to exercise jurisdiction over aggression 20 years, to the day, after the adoption of the ICC Statute in Rome in 1998.

The key issue that divided the parties leading up to the ASP and was whether the Court would be able to exercise jurisdiction with respect to the crime of aggression over the nationals of states parties to the Statute who have not ratified the aggression amendments and who also do not opt out. Many states, led by Liechtenstein, had taken the view that nationals of such states would be subject to the Court’s jurisdiction if they committed the crime of aggression on the territory of a state party that had ratified or accepted the Kampala Amendments (the wide view). However, another group of states, led by the UK, France, Japan, Canada, Norway, Colombia had taken a narrow view. They argued that in the case of state referrals or proprio motu investigations the Court would not have jurisdiction over aggression committed by nationals of non-ratifying states or on their territory. The competing arguments on this question were set out in previous posts by me (arguing for the narrow view) and by Stefan Bariga (arguing for the wide view). Ultimately, after very fraught negotiations on this issue, which extended well into the night and beyond the original time scheduled for completion of the ASP, the ASP adopted a resolution confirming the narrow view. In paragraph 2 of the resolution, the ASP

“2. Confirms that, in accordance with the Rome Statute, the amendments to the Statute regarding the crime of aggression adopted at the Kampala Review Conference enter into force for those States Parties which have accepted the amendments one year after the deposit of their instruments of ratification or acceptance and that in the case of a State referral or propio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments;”

There will be scope for further analysis of this paragraph later but it seems to me that this paragraph at least amounts to a subsequent agreement of the parties to the Rome Statute (under Art. 31(3)a of the Vienna Convention on the Law of Treaties) regarding the interpretation of the relevant provision of the Rome Statute (Art. 121(5)) and how it should be applied. Thus, it would seem that the Court is bound to take it into account in interpreting the Rome Statute and consequently the Kampala Amendments. However, a further paragraph was added to the resolution by which the ASP

“3. Reaffirms paragraph 1 of article 40 and paragraph 1 of article 119″

Those paragraphs relate to the independence of the Court and its ability of the Court to settle disputes concerning the judicial functions of the Court. It seems to me that the intent  of those who pushed for the addition of paragraph 3 to the ASP resolution was to try to leave some scope for the Court for the decide on the key contentious questions in a way that might be contrary to the ASP decision. Ultimately, of course, the decision on the question is for the Court and nothing could have changed that. However, the Court is bound to decide on the basis of interpretation of the relevant treaty texts and in so doing must follow the applicable principles of treaty interpretation under the Vienna Convention and under customary international law. Those applicable principles do mean in interpreting what states parties to a treaty have agreed to in the treaty, the agreement of those states parties as to what they have agreed should be decisive. In the case of this particular agreement in paragraph 2 of the resolution, the process of agreement was contentious and the parties fought to the bitter end as to what should be the correct position. There can be no doubt that the agreement was reluctant on the part of many states, but ultimately agreement there has been as to what the relevant provisions of the Rome Statute mean for the jurisdiction of the Court over the crime of aggression.