29 + 1 = 30 – The Kampala Amendment on the Crime of Aggression and the Recent Accession by Palestine

Some time ago, I wrote a contribution entitled ‘Does 19 + 11 Equal 30?: the Nitty Gritty of the Law of Treaties and the Kampala Amendment to the Rome Statute on the Crime of Aggression’ on the question as to whether those States that ratified the Rome Statute after the Kampala amendment on the crime of aggression was adopted ought to be counted towards the 30 acceptances required for the activation of Kampala amendments.

On 22 June 2016 Iceland became the 29^th State to ratify the amendment, and, most recently, on June 26, 2016 Palestine ratified the said amendment (see also here for the text of the relevant depositary notification), rendering the issue just mentioned possibly moot. The 30^th ratification of the Kampala amendment on the crime of aggression by Palestine now seems to open the possibility for the Assembly of States Parties, to adopt after January 1^st 2017 the decision to activate the Court’s treaty-based aggression-related jurisdiction provided for in Art. 15^bis para. 3 Rome Statute with all its possible repercussions for both the Court, but also for the international legal system at large.

Provided there will be no more ratifications forthcoming between now and early 2017 (which however might still be the case given the fact that the process of ratifying the Kampala amendment is ongoing in some States), any such possible ‘activation’ of the Court’s jurisdiction would however depend on the question whether the recent submission by ‘Palestine’ of its instrument of accession of the Kampala amendment ought to indeed be counted towards the necessary quorum of 30 ratifications.

Without entering into a full-fledged debate as to the status of Palestine vis-à-vis the Rome Statute as such (see here, here and here) and even less into the issue of Palestinian statehood generally (see e.g. here), such debate being by far beyond this short piece, it ought to be noted that, as is well-known, the Office of the Prosecutor has so far followed the position of the United Nations on the matter stating that “[f]or the Office [of the Prosecutor], the focus of the inquiry into Palestine’s ability to accede to the Rome Statute [and hence accordingly now also to accede to the Kampala amendment on the crime of aggression, AZ] has consistently been the question of Palestine’s status at the UN.” (see OTP, Report on Preliminary Examination Activities (2015), para. 53). More specifically, the OTP has followed the precedent set by the General Assembly having accepted Palestine as an observer State when adopting GA resolution 67/ 19 (see OTP, Report on Preliminary Examination Activities (2015), para. 53: “UNGA Resolution 67/19 is therefore determinative of Palestine’s ability to accede to the Statute pursuant to article 125, and equally, its ability to lodge an article 12(3) declaration.”)

What is more is that, as far as the Assembly of States Parties of the Rome Statute (and its members) is concerned, it had as early as 2014 in accordance with Rule 94 of the Rules of Procedure of the ASP inter alia invited “the State of Palestine (…) to be present during the work of the Assembly”. Rule 94 in turn provides that “[a]t the beginning of each session of the Assembly, the President [of the ASP] may, subject to the approval of the Assembly, invite a given State which is not a party (…) to designate a representative to be present during the work of the Assembly.”(emphasis added) It is worth noting, however, that this invitation by the ASP was extended after the President of the ASP had “recalled that the Assembly takes such decisions in accordance with the Rules of Procedure of the Assembly, independently of and without prejudice to decisions taken for any other purpose, including decisions of any other organization or organs of the Court regarding any legal issues that may come before them.” (text of the decision of the ASP to be found here, at paras. 5- 6).

Besides, the ratification by Palestine of the Rome Statute as such has been met by an objection of only one single contracting party, namely Canada (in addition to objections by Israel and the United States, which are not contracting parties of the Rome Statute). Accordingly, it is to be anticipated that the practice of both, the other contracting parties of the Kampala amendment on the crime of aggression, as well as that of the overall membership of the Rome Statute, will, mutatis mutandis, be identical as far as possible objections (or lack thereof) to the ratification by Palestine of the Kampala amendment on the crime of aggression are concerned.

On the whole, it is thus to be expected, should the necessity arise for the Assembly of State Parties to (implicitly) decide whether Palestine ought to be counted towards the necessary quorum of 30 ratifying States (if indeed States having ratified the Rome Statute post-Kampala may not be counted when it comes to the said quorum, as previously discussed) when adopting its decision contemplated in Art. 15^bis para. 3 Rome Statute, the ASP and its members will follow both, its own previous practice, the practice of the United Nations at large, as well as that of the Court’s Office of the Prosecutor, which practice will then be mutually backing each other. Accordingly, it is to be expected that Palestine will be counted among those “thirty States Parties” necessary to have ratified or accepted the amendments on the crime of aggression in order for the Court to move closer to the exercise of its aggression-related jurisdiction.