Meagan Wong, PhD Candidate, Leiden University. She is currently a Visiting Scholar at the Lauterpacht Centre for International Law, University of Cambridge. She was accredited as an advisor to the Liechtenstein delegation at the most recent Assembly of States Parties to the Rome Statute of the International Criminal Court (Nov 2012).
Last month Dapo posted on this blog about where States Parties to the Statute of the International Criminal Court stand in the process of ratifying the Kampala Amendments on the Crime of Aggression. This is a follow-up to his post noting some recent developments with regard to the Kampala Amendments. Last week – on the 3 June 2013 – Germany’s Foreign Minister Guido Westerwelle deposited Germany’s instrument of ratification of the Kampala Amendments with the United Nations, thus making Germany the sixth ICC State Party to ratify the Amendments on the Crime of Aggression and the Amendments on War Crimes adopted in Kampala in 2010. One day later, Botswana ratified the Kampala Amendments see here. The significance of the ratification by these two States Parties is that Germany not only represents the first NATO member to ratify but was the first State whose leaders were convicted of crimes against peace. Botswana is the first African state to ratify. On 8 May 2013, Liechtenstein became the first country for which the amendments have entered into force, as Liechtenstein ratified the amendments a year previously (8 May 2012). Other countries that have ratified are: Samoa (25th September 2012) here; Trinidad & Tobago (13th November 2012) here; Luxembourg 15th January 2013 here ; and Estonia (27th March 2013) here.
As Article 15 bis (3) of the Kampala Amendments stipulates that at least 30 ratifications are needed by 2017 to activate the ICC’s jurisdiction over the crime of aggression, 23 more ratifications are needed. The Global Campaign for the Ratification and Implementation of the Kampala Amendments (“the Global Campaign”), initiated by the Permanent Mission to the UN in New York, in conjunction with the Global Institute for the Prevention of the Crime of Aggression, is leading efforts to ensure that the jurisdiction of the ICC over aggression is brought into effect as soon as possible.
One of the many marvels of the Kampala Amendments is that it demonstrates how small states can play an influential and significant role in shaping international law. It is widely acknowledged that the crime of aggression amendments would not have been adopted without the leadership of Liechtenstein. The ambassador of Liechtenstein to the United Nations (NY), H.E. Christian Wenaweser, was the President of the 2010 Review Conference and had steered the negotiation process ever since 2003, assisted by his legal advisor and Deputy Stefan Barriga. Post-Kampala, Team Liechtenstein is taking the next steps, by continuing to play an influential role in reaching out to States Parties to promote the activation of the Court’s jurisdiction over the crime of aggression. Smaller states can indeed make a significant difference.
In the course of informal engagement with delegates from States Parties at the most recent Assembly of States Parties meeting, many have expressed a clear political will and intention to ratify the Kampala Amendments. Some States Parties are still to formulate an official position with respect to the crime of aggression and are unable to comment, but nevertheless, the spirit of cooperation and willingness to engage by the vast majority of States Parties towards the endeavour of activating the Court’s jurisdiction has been phenomenal.
According to the Status Report compiled by the Permanent Mission of Liechtenstein to the UN, the following countries are “actively working” on ratification:
Argentina, Australia, Austria, Belgium, Brazil, Chile, Costa Rica, Croatia, Cyprus, Czech Republic, Dominican Republic, Ecuador, Georgia, Greece, Italy, Lesotho, Malta, Panama, Peru, Portugal, Romania, Senegal, Slovenia, Spain, Switzerland and Uruguay.
In addition, the following States are in the “early stages” of the process:
Finland, Ghana, Guatemala, Japan, Latvia, Macedonia and Venezuela
Should and when these States Parties ratify the Kampala Amendments, there will be 30 ratifications. Therefore, the Status Report demonstrates that the activation of the Court’s jurisdiction is within reach! Ideally, State Parties intending to ratify should do so by the end of 2015.
With respect to the interpretation controversy regarding the scope of application of Article 15 bis that received some attention after Kampala (see the previous EJIL:Talk! posts by Dapo Akande here and here, and an article by Stefan Barriga trying to shed light on the issue here), it is of interest to note that the German Government, in its explanatory memorandum submitted to Parliament, did not raise the question how exactly the amendments apply to non-ratifying States Parties. A German Foreign Office official informally explained that this question was not important for States Parties that do in fact ratify.
The next issue to look at is the implementation of the Kampala Amendments, which was also raised by Dapo in his post here, where he said:
“A second unresolved question is whether States should implement aggression into their domestic law, and if so, with what jurisdictional regime.”
The question as to whether implementation of the Kampala Amendments is necessary is predicated upon the constitutional and administrative process of each State Party with respect to their individual practices on ratifying international treaties, e.g. for some States, it is a necessary pre-requisite to implement the substantive elements of the Treaty into their domestic legislation, or to amend current legislation to reflect the substantive elements of the Treaty prior to ratification. For others, it is not. Likewise, the question of whether it is a necessary to revise existing national legislation pertaining to the crime of aggression in the light of the Kampala Amendments is also a matter of internal state practice.
Regarding implementation, there does not appear to be a clear trend among the first ratifying States Parties. However, the following observations can be made: Liechtenstein, Samoa, Trinidad & Tobago and Botswana do not have domestic legislation criminalizing aggression, nor have they implemented the Kampala Amendments, which demonstrates that it is possible to ratify the Kampala Amendments without implementation or prescriptive jurisdiction over the crime of aggression. Luxembourg had ratified subsequent to adding the Kampala definition to its criminal code here. Estonia and Germany, in turn, already had domestic legislation criminalizing aggression prior to Kampala and did not amend them upon ratification.
It is also worth observing that some States Parties have implemented the Kampala Amendments in their domestic legislation without having ratified the Amendments (Slovenia, May 14th 2012 here; Croatia, Jan 1st 2013 here). As mentioned above, Luxembourg had also implemented the Kampala Amendments prior to ratification.
States Parties in which parliaments are currently considering revisions to criminal codes that include the Kampala Amendments include Czech Republic, the Dominican Republic, Ecuador, Peru and Venezuela. States Parties that are also expected to implement the Kampala definition include Belgium, Greece, Guatemala, the Netherlands and Uruguay. (Information obtained from the Permanent Mission of Liechtenstein to the UN, see Status Report here)
With respect to the manner in which States Parties implement the Kampala Amendments on the Crime of Aggression into national legislation, it is at the discretion of the State as to whether to adopt the Kampala definition verbatim or whether to rely on the norms of customary international law. The inherent nature of the Rome Statute does not necessarily serve as a substantive legal document that imposes obligations on its State Parties to implement and codify the crimes under Article 5 into their domestic legislation. Rather, it is in the interests of the State Parties to do so with respect to the underlying principle of complementarity, as complementarity will not serve as a procedural bar to proceedings at the International Criminal Court if there is judicial inactivity on the domestic level.
The question of which jurisdictional regime should be implemented is the question of which jurisdictional bases should be codified by the State Party in its domestic criminal codes/legislation. Dapo’s argument is that the bases of jurisdiction should be limited to the nationality and territoriality principle. He appears to be apprehensive with respect to universal jurisdiction over the crime of aggression, see here and here.
My view is that ultimately it is the discretion of the State wishing to codify the crime of aggression to decide the jurisdictional scope that it wishes to prescribe over this crime. Indeed, some States Parties which already have the crime of aggression within their criminal legislation have also included what appears to be a broader jurisdictional scope beyond the nationality and territoriality principle.
For example, the Criminal Code of Lithuania here includes the crime of aggression (Article 110) and establishes ‘a possibility to prosecute a person despite his/her citizenship, place of residence, place of commission of the crime, or the punishability of the committed act under the laws of the place where the crime was committed, on the grounds of an international treaty’ (Art.7)
Lithuania does not appear to make any specific reference to customary international law and appears to refer only to treaty law. There also does not appear to be any specific reference to the crime of aggression, and as such, the scope of intended universal jurisdiction appears to be applicable to all crimes within the Criminal Code. Whilst on the other hand, the Criminal Code of Moldova here, which includes the crime of aggression (Article 139) appears to make a reference to the customary international law status of crimes against peace in the context of universal jurisdiction. Article 11(3) states:
If not convicted in a foreign state, foreign citizens and stateless persons without permanent domiciles in the territory of the Republic of Moldova who commit crimes outside the territory of the Republic of Moldova shall be criminally liable under this Code and shall be subject to criminal liability in the territory of the Republic of Moldova provided that the crimes committed are adverse to the interests of the Republic of Moldova or to the peace and security of humanity, or constitute war crimes including crimes set forth in the international treaties to which the Republic of Moldova is a party.
These two examples can be used to demonstrate how States have the discretion to codify within their national criminal codes the scope of jurisdiction to be applicable to the crime of aggression. However, this discretion must be consistent with international law. This means that a State that wishes to include the universality principle as a jurisdictional base must be satisfied that customary international law or treaty law provides for such rule of extraterritorial jurisdiction for the crime of aggression. However, in the absence of a treaty pertaining to the crime of aggression, whether an extraterritorial rule of jurisdiction over the crime of aggression exists can only be found in customary international law.
In conclusion, where we currently stand is that 23 more ratifications are needed by 2015 for the activation of the jurisdiction of the ICC over the crime of aggression to become a reality. In the light of the number of States Parties that have expressed the political will to ratify, it can be envisaged that the threshold of 30 ratifications will indeed be fulfilled.