Amending the Amendment: In Search of an Adequate Procedure for a Revision of the Jurisdictional Regime for the Crime of Aggression in the Rome Statute

In the wake of Russia’s aggression against Ukraine, the so far often neglected crime of aggression is receiving increased attention. While this attention is currently centred primarily on the establishment of a Special Tribunal for the Crime of Aggression against Ukraine, there is also growing support for an amendment of the jurisdictional regime for the crime of aggression in the Rome Statute (hereinafter: RS). So far, Art. 8 bis RS has remained a dead letter, as States Parties agreed in Kampala on a very restrictive jurisdictional regime deviating from Art. 12 RS. These restrictions become painfully clear in view of the Russian war of aggression. Irrespective of further developments towards the establishment of a special tribunal, it would be desirable if the proposals to enliven Art. 8 bis RS were to materialise. But what procedure would apply to such a revision? Although various substantive proposals for a revision of the jurisdictional regime have already been made, the question of the adequate procedure for such an amendment has hardly been discussed so far. The legal basis of the amendment procedure chosen in Kampala is controversial to this day. A solid legal basis should therefore be sought for further amending this amendment. The following considerations are intended to stimulate a debate on this question.

Two Conceivable Proposals for an Amendment of Art. 15 bis RS

Among other proposals suggesting a revision of the jurisdictional regime for the crime of aggression, two different proposals to amend Art. 15 bis RS are conceivable. These proposals are both characterised by the particularity that they constitute an amendment of the amendment adopted in Kampala. Due to the implications of this particularity for the applicable amendment procedure, our considerations are confined to these proposals.

The first proposal under consideration envisages the deletion of Art. 15 bis (5) RS in its entirety as well as its corresponding part in Art. 15 bis (4) RS (“arising from an act of aggression committed by a State Party”). In consequence, the International Criminal Court could exercise its jurisdiction over the crime of aggression towards Non-States Parties in accordance with the general rule in Art. 12 (2) RS. Furthermore, (future) declarations by Non-States Parties accepting the Court’s jurisdiction under Art. 12 (3) RS could also extend to the crime of aggression.

The second proposal does not envisage the general applicability of Art. 12 RS vis-à-vis Non-States Parties, but seeks to maintain the restriction contained in Art. 15 bis (5) RS while providing instead for an authorising function of the General Assembly (hereinafter: GA). This could be realised by introducing to Art. 15 bis (5) RS the possibility that the GA, acting under the “Uniting for Peace” mechanism, exceptionally authorises the application of Art. 12 RS to Non-States Parties.

Without conducting a substantive assessment of these proposals, the question of the adequate amendment procedure will be addressed in the following.

The Most Adequate Amendment Procedure: Indirect and Modified Application of Art. 121 RS

At first glance, one might assume that the question of the adequate amendment procedure could be answered without further ado by recourse to the explicit regulation of the general amendment procedure in Art. 121 RS. As the first step of this two-stage procedure, Art. 121 (3) RS requires the adoption of an amendment by at least 2/3 of the States Parties. The entry into force of an amendment, as the second step, is regulated in Art. 121 (4) RS and the first sentence of Art. 121 (5) RS (the following considerations are solely concerned with the entry into force of an amendment under the first sentence of Art. 121 (5) RS, but not with the question of the applicability of the jurisdictional restraints contained in the second sentence, hence all further references to Art. 121 (5) RS relate to its first sentence only). Art. 121 (4) and (5) RS are mutually exclusive: The general rule in Art. 121 (4) RS requires ratification by 7/8 of the States Parties for the amendment to enter into force for all, while the exception in Art. 121 (5) RS provides for an individual entry into force for each ratifying State Party in the case of an amendment of Art. 5, 6, 7 and 8 RS.

Art. 121 RS deals with an amendment of the RS itself. The proposals at hand, however, relate to the amendment adopted in Kampala (hereinafter: Kampala), hence they constitute an amendment of an amendment. Since, in application of Art. 121 (5) RS, Kampala has entered into force individually for those States Parties that have ratified Kampala (hereinafter: Kampala States), this amendment has created an inter se regime. The search for an adequate amendment procedure must therefore not only take into account that the proposals under consideration are an amendment of an amendment, but, more specifically, that they are an amendment of what is for the time being an inter se regime.

Mind the Gap: Missing Regulation on the Amendment of an Inter Se Regime

Is Art. 121 RS equally applicable to an amendment of an inter se regime? This is doubtful given that it would grant a decisive role to those States Parties that have not ratified Kampala (hereinafter: Non-Kampala States): First, as a corollary to the application of Art. 121 (3) RS, at least 2/3 of all States Parties would have to vote in favour of the adoption of the amendment of Kampala. Second, if the general rule of Art. 121 (4) RS were to be applied, the entry into force of the amendment of Kampala would be postponed for those States Parties that have ratified Kampala until 7/8 of all States Parties, including Non-Kampala States, have ratified the amendment of Kampala. It does not seem adequate to give to Non-Kampala States so much influence on the further development of the inter se regime to which they have not acceded. Thus, the fact that the application of Art. 121 RS would not ensure a proper balance of interests between the Kampala States and the Non-Kampala States militates against the assumption that the States Parties intended to apply Art. 121 RS for an amendment of an inter se regime. As a result, neither the RS nor Kampala explicitly regulate the procedure for further amending Kampala which means that we are left with a lacuna in this respect.

Bridging the Gap: Identifying the Hypothetical Intention of the Kampala States

In order to bridge the gap, recourse to Art. 39 et seq. Vienna Convention on the Law of Treaties (hereinafter: VCLT) as lex generalis would be conceivable. However, a preferable method to determine the adequate amendment procedure would be to identify the hypothetical intention of the Kampala States, as they are the “owners” of the amendment. First, it would correspond to the hypothetical intention of those States to follow a procedure that increases the likelihood that as many States Parties as possible (including Non-Kampala States) will accept the amendment of Kampala. Second, the Kampala States would probably be keen to prevent an additional fragmentation of the RS by creating a sub-regime to Kampala. Third, they would seek to avoid setting the hurdles for the entry into force of the amendment of Kampala too high.

The application of Art. 121 (3) RS would be in line with the first of those hypothetical intentions. For, an adoption of the amendment of Kampala by at least 2/3 of all States Parties to the RS would not only signal wide endorsement of the amendment of Kampala in line with the international spirit of the RS, but would also make the subsequent ratification by those States Parties involved in the adoption more likely. The second hypothetical aim of preventing further fragmentation of the RS could be ensured by not permitting the amendment of Kampala to enter into force with each ratification individually. Finally, the third hypothetical objective could be achieved, on the one hand, by ensuring that the entry into force for the Kampala States is not dependent on the ratification by the Non-Kampala States and, on the other hand, that the uniform entry into force for all Kampala States does not require the ratification of all Kampala States. The second and third hypothetical intention could thus both be achieved by a modified application of Art. 121 (4) RS: if this provision is applied solely to the group of the Kampala States, the amendment of Kampala enters into force uniformly for all of them as of the date of ratification by 7/8 of that group.

In sum, a procedure whose first step corresponds to Art. 121 (3) RS and which, as a second step, provides for an indirect and modified application of Art. 121 (4) RS would seem best to reflect the hypothetical intention of the Kampala States. Furthermore, the modified application of Art. 121 (4) RS would be accompanied by a modified application of Art. 121 (6) RS, which would grant Kampala States alone a right of withdrawal, confined to Kampala itself.

In the Alternative: Direct (and Modified) Application of Art. 121 (5) RS

If, contrary to our position outlined above, Art. 121 RS were to be applied directly, the question would arise whether the general rule in Art. 121 (4) RS or the exception in Art. 121 (5) RS contains the adequate procedure for the entry into force of the amendment of Kampala.

Amendment of Art. 5, 6, 7 and 8 RS?

Art. 121 (5) RS only applies to “any amendment to articles 5, 6, 7 and 8” RS. Both amendment proposals under consideration do not constitute an amendment of Art. 5, 6, 7 and 8 RS – neither in a technical sense, as no formal changes are made to these provisions, nor in a substantive sense, as it is not a question of introducing a new crime. A literal reading of Art. 121 (5) RS therefore militates against its application.

Interpretation of Art. 121 (5) RS in Light of Kampala

However, when interpreting Art. 121 (5) RS, it might have to be taken into account that the proposals under consideration concern the amendment of the amendment adopted in Kampala, whose entry into force was assigned to Art. 121 (5) RS. For two reasons, this provision could also be applicable to the amendment of Kampala.

First, Proposal 1, deleting Art. 15 bis (5) RS and a part of Art. 15 bis (4) RS, might be characterised as an actus contrarius to the introduction of Art. 15 bis RS that was part of Kampala. This actus contrarius, it could be said, should follow the same procedure as the actus primus.

Second, the amendment procedure applied in Kampala could constitute a subsequent practice within the meaning of Art. 31 (3) (b) VCLT, establishing the parties’ agreement to apply Art. 121 (5) RS, beyond its plain wording, equally to amendments of the definition of the crime of aggression and amendments of the jurisdictional regime for the crime of aggression. By invoking Art. 121 (5) RS as the applicable amendment procedure for the introduction of Art. 8 bis RS and Art. 15 bis and ter RS, the States Parties chose a holistic approach. The telos of this holistic approach was the assumption of an inseparable link: It is apparent from the drafting materials that the States Parties, by rejecting a split of the amendment procedure, intended to avoid a staggered entry into force. If the definition of the crime of aggression had entered into force pursuant to Art. 121 (5) RS, whereas the jurisdictional regime had entered into force under Art. 121 (4) RS, there would have been a systematic inconsistency: States Parties would have been bound by Art. 8 bis RS immediately after individual ratification, while the entry into force of Art. 15 bis and ter RS would have been postponed until ratification by 7/8 of the States Parties.

It is questionable, however, whether this agreement is applicable to the proposals under consideration. Strictly speaking, the danger of a staggered entry into force only concerned the first-time introduction of the crime of aggression and its specific jurisdictional regime. Thus, at first glance, with regard to all further modifications of this jurisdictional regime (once it has entered into force), the inseparable link described above does not seem to exist. Yet, on closer inspection, the assumption of a similar inseparable link is warranted with regard to the proposals under consideration. The application of Art. 121 (4) RS could have the effect that for those States Parties that have not yet ratified Kampala, only the amendment of Kampala enters into force. First, it would be illogical to delete or modify the jurisdictional rules in Art. 15 bis (4) and (5) RS with effect for all States Parties to the RS, although these provisions have only entered into force for the Kampala States in the first place. Second, and arguably more importantly, the systematic inconsistency that States Parties had feared in Kampala could resurface, but in a reverse form: (parts of) a jurisdictional regime could enter into force for States Parties before they have acceded to the provision containing the definition of the relevant crime. Overall, the telos of the holistic approach chosen by the States Parties in Kampala can thus be transferred to the revision of the jurisdictional regime of the crime of aggression and therefore argues for an application of Art. 121 (5) RS.

Art. 121 (4) RS’s Purpose: Prevention of Fragmentation

Nevertheless, it should not be disregarded that the drafters’ intention expressed in Art. 121 (4) RS to avoid a fragmentation of the RS principally opposes the application of Art. 121 (5) RS. The possibility of an individual entry into force of an amendment under Art. 121 (5) RS should remain the exception. While the fragmentation that has already occurred with Kampala can no longer be revised, a renewed application of Art. 121 (5) RS would result in an even further fragmentation of the already fragmented system (sub-sub-regime).

Overall Appraisal

In light of the foregoing considerations, a strong case can be made for an application of Art. 121 (5) RS. The concern regarding the creation of a sub-sub regime could be addressed by suspending the individual entry into force for the Kampala States until all of them have ratified the further amendment. The legal authority for this modified application of Art. 121 (5) RS can be derived from the principle of majore ad minus that allows States Parties to impose higher conditions for the entry into force than necessary or from reliance on Art. 58 (1) (b) VCLT which allows for the suspension of a treaty provision under certain conditions.

Conclusion

Both amendment procedures proposed here would entail that all States Parties would be called upon to participate in the process with a view to the adoption of the relevant Kampala amendment, whereas the latter’s entry into force would be dependent only on the ratification by the Kampala States. The essential difference between the two procedures is that according to the amendment procedure that we deem preferable, the relevant Kampala amendment would enter into force for all Kampala States upon ratification of 7/8 of them, while according to the alternative amendment procedure, it would not enter into force until the ratification of all Kampala States.

The amendment procedure applied in Kampala for the introduction of the jurisdictional regime for the crime of aggression raises complex legal questions. The considerations outlined above are an attempt to elucidate the legal complexity surrounding the amendment procedure for the envisaged revision of this jurisdictional regime and to hereby contribute to a common understanding. Regardless of further developments concerning a potential Special Tribunal for the Crime of Aggression against Ukraine, it is desirable that States Parties embrace the goal of actually enlivening Art. 8 bis RS. It is a call to all States Parties to contribute their share, but under the two alternative amendment procedures put forward in this post, the ultimate decision will be in the hands of the Kampala States.