This confusion stems from the provisions in the ICC Statute governing amendments to the treaty (Article 121). This provision envisions two scenarios:
- Amendments to Articles 5 (listing crimes within the jurisdiction of the court), 6 (defining genocide), 7 (defining crimes against humanity), or 8 (defining war crimes), which are governed by Article 121(5); and
- Other amendments, which are governed by Article 121(4).
The question thus presented:
is the inclusion of a definition of aggression (which will be inserted at Article 8bis) and a dedicated jurisdictional regime (which will be inserted at Article 15bis) an “amendment” to Articles 5 - 8 governed by sub-section (5), or are these changes more general amendments governed by sub-section (4)?
Sorting this out is significant, because amendments under the two regimes enter into force differently. This debate may also have implications for the United States' negotiating position at Kampala, which is under construction at the moment.
Amendments to the enumerated articles enter into force only as to those state parties that accept the amendment via an instrument of ratification or amendment. If a state party does not accept the amendment, the Court cannot exercise jurisdiction in accordance with the amendment over crimes committed in that state’s territory or by that state’s nationals. Under this approach, if applicable to the aggression provisions, state parties would be able to essentially opt out of the Court's jurisdiction over aggression, whereas non-state parties will be subject to them to the extent that their nationals might commit the crime of aggression on the territory of a state party. Paradoxically, if this amendment framework is the operative one, the U.S. and other states are in a stronger position to avoid the aggression provisions if they are state parties than if they remain non-state parties. Indeed, the aggression provisions could become a dead letter if the majority of states simply reject them once they are adopted by 2/3 of the Assembly. The U.S. and other states opposed to the crime of aggression could limit the impact of any new aggression provision by encouraging states hosting foreign troops to decline to adopt the amendments, thus immunizing those territories from the ICC's jurisdiction over the crime of aggression.
By contrast, a more general amendment governed by Article 121(4) will automatically enter into force with respect to all state parties once 7/8 of the state parties have accepted the amendment via instruments of ratification or acceptance. Thus, all state parties will be equally bound by the aggression provisions once 7/8 of the parties (approximately 96 states at the moment) accept them, and no opt out is available. The only way for a state to partially avoid the new provisions (for crimes of aggression committed on its territory) is to withdraw from the Statute altogether in accordance with Article 127. Under this amendment framework, withdrawing states—like other non-state parties—will remain subject to the new aggression provisions to the extent that their nationals commit aggression on the territory of state parties. If this amendment framework is operative, an opportunity exists to block the aggression provisions by preventing the necessary 7/8 support for the new provisions, whatever they are.
Given that the inclusion of aggression will require a new Article 8bis (which is not an amendment to Article 8 governing war crimes but a new provision that cannot be sequentially numbered) and a new Article 15bis, a strong argument exists that the aggression amendments should be governed by Article 121(4). Indeed, Article 121(5) seems to account for the scenario whereby the Statute's penal definitions are amended after states have joined, thus unsettling their expectations about the reach of the Court. If the U.S. wants to preserve the chance to one day avail itself of the opt out option, it might be worth considering whether the U.S. should push for these amendments to be considered an amendment to Article 5, which already grants the Court jurisdiction over the crime of aggression, as yet undefined.
That said, there are arguments out there that the inclusion of aggression definition is not amending the statute per se, it is just finishing a job that was left unfinished at Rome. For example, Article 5(2), which contemplates the inclusion of a definition of aggression, speaks of a “provision” being “adopted” rather than an "amendment" being adopted.
These issues have been debated at prior sessions of the Special Working Group on the Crime of Aggression, and the materials to be considered in Uganda remain ambiguous in this regard. Indeed, there is consensus on exactly how this conundrum is to be resolved. This may be something for the Chair of the Review Conference to adopt as an executive matter or it may be subject to a preliminary vote at Kampala. Technically, Article 119 allows the Assembly of States Parties to refer to the International Court of Justice disputes over the interpretation or application of the Statute that cannot be resolved by negotiation. This could further slow the progress toward a provision on aggression.
How proposed provisions on aggression are to be adopted may impact whether states ultimately support the draft provisions that will be under consideration at Kampala. Let' s hope the Assembly of States Parties makes some progress on this preliminary issue when it meets next week in New York to resume its 8th session...
(credit for photo of November 2009 Assembly session at The Hague)