In response to my recent post on whether the ICC can prosecute for use of chemical weapons in Syria, my friend Kevin Jon Heller raises an important issue of treaty interpretation over at Opinio Juris. His comments to my previous post set out the issue quite clearly: should the ordinary meaning of a treaty text trump the intention of the parties with regard to that treaty? Also Dov Jacobs, in a typically excellent post at Spreading the Jam, raises the point about whether the VCLT applies to the ICC Statute at all.
My answer to Kevin’s question is yes! Ordinary meaning of a treaty text should trump the supposed intention of the parties to the treaty. This is what the VCLT says but I answer that question in affirmative because I also think the VCLT was right to say so. I agree with Dov’s point but only to a point. I do not think the VCLT rules on treaty interpretation should apply in their entirety to the ICC Statute but that does not mean they do not apply at all. I discussed these points as comments to my earlier post but thought it would be useful to make my responses a separate post.
The Usefulness/Uselessness of Drafting History and Intention of the Parties
The reason to prefer ordinary meaning to the supposed intention of the parties, particularly in a multilateral treaty, is because the intention of the parties can be and is often difficult to glean apart from the actual words used. In other words, one should only very rarely conclude that ordinary meaning and clear words do not reflect the intention of the parties One might say, “but we can glean the intention from drafting history and if that differs from the words we should use that”. The problem is that the drafting history is often fragmentary and incomplete, in the case of multilateral treaties. Some (usually very few) states will say something on the record about a particular text and the majority will not. Then the temptation is to draw inferences from the way in which the negotiations proceeded (what was changed, what was left out, when the changes were made, in what order etc). But all of that will usually be assumptions about what all the parties intended. They may be logical assumptions but are still assumptions.
Different States may have different reasons for making particular changes, inserting particular words etc. Indeed members of the delegations of the same State may have different thoughts with regard to particular texts. Apart from the point made above, a number of personal experiences regarding the usefulness of drafting history also lead me to the conclusion that it is often unreliable. In writing a piece some years ago about the ICC, I sent the piece to two people who were members of a particular State’s delegation at Rome in 1998. This is a State that was intimately involved in the negotiations and that takes these things seriously. The two members of the same State’s delegations gave me different responses about what was intended with respect to particular provisions of the Rome Statute! This is the same State! When one then broadens that out to nearly 200 States the problem is, of course, magnified. A couple of weeks after the Kampala Review Conference, I attended a meeting in which a number of state representatives who were in Kampala were also present. I asked them about what was intended with respect to whether the consent of the alleged aggressor State would be necessary for the ICC prosecutions with respect to aggression and received different answers.
The particular issue of chemical weapons and the ICC Statute discussed in my earlier post and in Kevin’s post illustrates this problem of how we glean intention, apart from the words used. Kevin makes the assumption that by deleting the specific reference to “chemical weapons” at the same time as the reference to “nuclear weapons” was deleted, States were intending not to criminalise the use of chemical weapons directly. In my view, as likely is that many States simply could not stomach a text that would specifically mention chemical weapons while not specifically mentioning nuclear weapons. This might have been regarded as just politically unacceptable. This does not mean that they did not realise that the Statute actually does criminalise the use of chemical weapons. I do not think that the lawyers were so bad that they did not realise that in all probability chemical weapons were still caught by the wording of the Statute left in. Just like lawyers for the P5 are not so bad that they failed to realise that just because the words “nuclear weapons” were removed does not mean that it is possible to include the use of nuclear weapons in the provisions dealing with “employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices”. Quite likely that the game being played was simply the political one of let’s not specifically mention these weapons, and, most certainly, lets not mention one without mentioning the other.
However, whether one agrees with the speculations in the previous paragraph or not, drafting history does not answer the question about what all the parties to the treaty intended. Moreover the whole point of drafting history is to agree a text. It is that end point – the text – that is agreed by all. Whatever went before is not agreed by all.
The Application of VCLT Treaty Interpretation Rules to the ICC Statute
With regard to Dov’s post at Spreading the Jam, I would not say that the VCLT does not apply at all to the ICC Statute but I do think that despite the fact that the Rome Statute is a treaty, the VCLT rules on treaty interpretation do not and should not apply in their entirety to the ICC Statute. This is because the ICC Statute is an instrument of criminal law. The rule that one starts from the text should still apply however, when it comes to clarifying ambiguity I have argued elsewhere that we should not automatically refer to drafting history in the case of a criminal law instrument. There are other rules that also apply. I make this point in my essay on “The Sources of International Criminal Law” in The Oxford Companion to International Criminal Justice. Let me quote what I said there:
“the principle in dubio pro reo (or favour rei) requires that in the interpretation of criminal law instruments any doubt should benefit the accused. This principle has been referred to in ICTY and ICTR cases, and is explicitly provided for in Article 22(2) of the ICC Statute, which provides that: “The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.” In strict terms, the application of the principle in dubio pro reo should modify the application of the Vienna Convention methods of interpretation. This is because one of the limited reasons justifying reference to the preparatory work of a treaty is where the interpretation reached under Article 31 “leaves the meaning ambiguous or obscure.” Once a decision is made that there is ambiguity, Article 22(2) of the ICC Statute requires that the meaning most favourable to the accused ought to be adopted. The test of ambiguity required by the ad hoc tribunal has been a rather low one in that the principle of favouring the accused is said to apply “where there is a plausible difference of interpretation or application.” Thus, where there is such a plausible difference of meaning, the Court ought not to proceed to attempt to use the preparatory work to resolve that ambiguity in a manner unfavourable to the accused. However, this does not mean that all reference to the preparatory work is excluded when interpreting the Statute. Such reference may be used to confirm a meaning already reached. Also, the presence of ambiguity may be revealed only by reference to the preparatory work since “the clearness or ambiguity of a provision [is] a relative matter; sometimes one [has] to refer [to] the preparatory work or look at the circumstances surrounding the conclusion of the treaty in order to determine whether the text was really clear and whether the seeming clarity was not simply a deceptive appearance.” In such circumstances, the accused ought not to be precluded from relying on the preparatory work.” [pp. 44-45]