More Thoughts on “What Exactly was Agreed in Kampala on the Crime of Aggression”

Astrid Reisinger Coracini is a Lecturer at the Institute of International Law and International Relations, University of Graz and Executive Director of the Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law. She was in Kampala as part of the delegation of Austria. Her publications include: ‘Amended Most Serious Crimes”: A New Category of Core Crimes Within the Jurisdiction but out of the Reach of the International Criminal Court?’, 21 Leiden Journal of International Law 2008, 699-718; ‘Defining the Crime of Aggression for the Rome Statute of the International Criminal Court’, in: Stahn & van den Herik (eds.), Future Perspectives on International Criminal Justice (2010) 425-49.

 In an earlier post Dapo Akande asked: “What Exactly was Agreed in Kampala on the Crime of Aggression?”, a question that indeed mandates some reflection. The Resolution on the Crime of Aggression is a sophisticated conglomerate of four documents of divergent legal value: an enabling Resolution, amendments to the ICC Statute that are subject to ratification or acceptance, amendments to the Elements of Crimes and “Understandings”. Let aside the complexity of these texts, legal interpretation is challenged by the fact that there was no plenary debate on the last three versions of the President’s non-paper and the Draft Resolution. The preparatory works are therefore of limited help with regard to the interpretation of some parts of the Resolution.

Inspired by the vivid online discussion on the crime of aggression, I would like to contribute some preliminary thoughts (which represent my personal views and do not necessarily reflect the views of the Austrian delegation) with a particular focus on aspects of the conditions under which the ICC may exercise its jurisdiction over the crime of aggression and the amendment procedure.

 1. Further delay for the Court’s exercise of jurisdiction over the crime of aggression

In 1998, when the crime of aggression was listed as one of the most serious crimes of concern to the international community as a whole for which the ICC has jurisdiction (Art. 5 (1) ICC Statute), the Court’s exercise of jurisdiction was delayed until a time when the Assembly of States Parties would adopt a provision defining the crime and setting out the conditions for the Court’s exercise of jurisdiction (Art. 5 (2) ICC Statute). The provision adopted in 2010 further postpones the ICC’s exercise of jurisdiction. “The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendment by thirty states parties” (common para. (2) of Art. 15bis and Art. 15ter). In addition, the jurisdictional regime requires activation by a decision to be taken after 1 January 2017 (common para. (3) of Art. 15bis and Art. 15ter). This further delay is unfortunate, but limited by an acceptable time-span. Any solution to adopt the definition and defer deliberations of the conditions (or parts of them) would have entailed the potential threat of infinite negotiations. In its final form, the package adopted in Kampala comprises all relevant substantive and procedural issues. The activating decision should be a merely formal act, if states parties stand behind the consensus adoption and, especially, if a significant number of states parties will have ratified the amendments by then.

 2. Who is bound and who is covered by the ICC’s exercise of jurisdiction over the crime of aggression?

Entry into force according to Art. 121 (5)

According to Resolution para. 1, Annex I enters into force in accordance with Art. 121 (5), therefore only states parties that ratify the amendments are bound by them, one year after the deposit of their instrument of ratification.

Security Council referral

With regard to Security Council referrals, Understanding 2 clarifies that the Court may exercise its jurisdiction “irrespective of whether the State concerned has accepted the Court’s jurisdiction in this regard” and thereby covers states parties as well as non-states parties. This interpretation does not seem directly derived from Art. 121 (5) ICC Statute, however, it is in line with the general understanding of the role of the Security Council under the ICC Statute. Art. 13 (b) ICC Statute, which also does not explicitly stress its implications for non-states parties apart from not being covered by Art. 12 (2) ICC Statute, is a mere acknowledgement of the Chapter VII powers of the Security Council to establish ad hoc tribunals for the prosecution of crimes under international customary law and opens the option to seize the permanent ICC with situations involving crimes that equally fall under its jurisdiction.

Different from earlier drafts, Art. 15ter does not require a prior determination of an act of aggression by the Security Council. Certainly the Security Council may make such a determination, in which case Art. 15ter (4) would apply, but it is not a prerequisite for the Court’s exercise of jurisdiction over the crime of aggression. The Security Council continues to be able to refer situations to the Court, within which the Prosecutor remains free to determine the direction of the investigation with a view to the crimes and persons involved.

State party referral or proprio motu investigation

When it comes to a state party referral or proprio motu investigation, ratification (equally acceptance or the lodging of a declaration in accordance with Art. 12(3) ICC Statute) is a precondition. But the amendments’ binding effect needs to be distinguished from the effect of the Court’s exercise of jurisdiction. Since the amendments are only binding to those states parties that have ratified them, the Court may “exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party” (Art 15bis (4)) only if either the “State on the territory of which the conduct in question occurred” or the “State of which the person accused of the crime is a national” has ratified the amendments (Art. 12 (2) ICC Statute). The reference to Art. 12 ICC Statute in Art. 15bis (4) allows jurisdiction based upon each of the two alternative links, and may therefore have an effect upon acts committed by nationals or on the territory of a state that is not bound by the amendments (states parties that have not ratified the amendments as well as non-states parties). Therefore, Art. 15bis (4) overrides Art. 121 (5) ICC Statute last sentence, if a “negative understanding” (see below) of that provision is adopted. This may be regarded as an acknowledgment that the limiting effect of the Court’s exercise of jurisdiction (in Art. 121(5)) is not applicable to the crime of aggression due to its previous inclusion in Art. 5 ICC Statute or not applicable under the lex posterior/lex specialis rule.

It is with regard to this jurisdictional reach, that Art. 15bis formulates far-reaching exceptions. Exercise of jurisdiction over crimes of aggression committed by nationals or on the territory of non-states parties are categorically exempt from the Court’s jurisdiction (Art. 15bis para. 5). Furthermore, the Court may not exercise its jurisdiction over a crime of aggression arising from an act of aggression by a state party that has previously declared not to accept such jurisdiction (Art 15bis para. 4). This is because, the amendments contemplate the possibility of opting-out of Art. 12 ICC Statute with regard to the crime of aggression.

I agree with the jurisdictional chart provided for by Kevin Heller, but I would introduce additional categories of states based on ratification. Upon a preliminary assessment, the ICC would be able to exercise its jurisdiction over the crime of aggression arising from

a)     an act of aggression by a state party that has accepted the amendments against a state party that has accepted the amendments

b)     an act of aggression by a state party that has accepted the amendments against a state party that has declared not to accept the ICC’s jurisdiction

c)      an act of aggression by a state party that has accepted the amendments against a state party that has not ratified the amendments

d)     an act of aggression by a state party that has not ratified the amendments against a state party that has accepted the amendments

e)     an act of aggression by a state party that has not ratified the amendments against a state party that has declared not to accept the ICC’s jurisdiction

Lodging a declaration of non acceptance

Art 15bis (4) provides that the Court may not exercise its jurisdiction over a crime of aggression arising from an act of aggression if the state concerned “has previously declared that it does not accept such jurisdiction”. It opens an opportunity for states parties to opt-out of the Court’s exercise of jurisdiction over the crime of aggression in accordance with Art. 12 ICC Statute, e.g. where the Court could base its jurisdiction on a territorial link provided by the attacked state. Since the declaration only affects potential acts of aggression by the state party that has lodged a declaration of non-acceptance, the ICC’s exercise of jurisdiction if such a state becomes the victim of an act of aggression remains unaltered. An interesting side effect of this constellation is that whenever a crime of aggression allegedly occurred between one state party that has lodged a declaration and a state party that has accepted the amendments, the Court, in order to establish whether a conduct falls under its jurisdiction, needs to evaluate whether an act of aggression has taken place and by which state.

I tend to see the compromise of Kampala as acknowledging the particular position of the crime of aggression within the jurisdiction of the Court, which states parties have accepted by ratifying the Statute and for which the statutory framework is in principle applicable, as long as the conditions under which the Court may exercise its jurisdiction over the crime of aggression do not provide otherwise. Against this background, it is my understanding that only states parties that ratify the amendments may lodge a declaration of non-acceptance. The legal basis for the opt-out declaration is set forth in the amendments, which only enter into force for those states that have ratified them. A declaration of non-acceptance by a state party that does not ratify the amendments and remains party to the unamended treaty would be difficult to justify in light of the prohibition of reservations according to Art. 120 ICC Statute.

Art 15bis (4) refers to a previous declaration. The formulation appears to intend excluding the lodging of an ad hoc declaration upon the commission of an act of aggression. This does not only include declarations lodged in the immediate context of an act of aggression. Given that the definition of a crime of aggression covers the planning and preparation of an act of aggression (Art. 8bis (1)), one may assume that a previous declaration lodged to the end of averting the exercise of the Court’s jurisdiction in itself may constitute part of the planning and preparation of the crime of aggression and might therefore be considered invalid. A more detailed reference is contained in the enabling Resolution, para. 1: the declaration may be lodged “prior to ratification or acceptance”. If, as elaborated above, prior to ratification, a state party cannot lodge a declaration, a sensitive reading of the provisions would in my opinion suggest that a state should lodge its declaration of non-acceptance in the context of ratification, to take effect with the entry into force of the amendments according to Art. 121 (5) ICC Statute

3. Has article 121(5) ICC Statute been amended?

An analysis of whether states parties are permitted to amend the amendment procedure of a treaty by consensus would go beyond the framework of this contribution. However, a preliminary question in that regard would be, whether Art. 121 (5) ICC Statute has at all been altered. The first sentence of Art. 121 (5) ICC Statute regulates the entry into force of amendments to articles 5, 6, 7 and 8 ICC Statute. Para. 1 of the Resolution particularly refers to this entry into force mechanism without modifications. The amendments contained in Annex I enter into force for those states parties that ratify it one year after the deposit of their instrument of ratification. The Court’s delayed exercise of jurisdiction specified by a minimum number of ratification and an activation decision can be considered as a condition for the exercise of jurisdiction in accordance with Art. 5 (2) ICC Statute, not as a condition for the entry into force in accordance with Art. 121 (5) ICC Statute.

The second sentence of Art. 121 (5) ICC Statute relates to the Court’s exercise of jurisdiction with regard to states parties. It can either be understood as a confirmation of the first sentence, in that states parties that do not ratify the amendments are not bound by it (“positive understanding”) or as annihilating Art. 12 with regard to crimes covered by an amendment (“negative understanding”). If one adopts a positive understanding of Art. 121 (5) ICC Statute, the amendments have not, in principle, changed that provision. The possibility of states parties to lodge a declaration of non-acceptance would constitute an additional condition for the exercise of jurisdiction limiting the application of Art. 12 ICC Statute. Under a negative understanding of Art. 121(5), the provisions limiting effect on the Court’s jurisdictional reach would have been altered, since Art. 15bis reconfirms in principle the application of Art. 12 ICC Statute (even under a negative understanding this could arguably be justified by the fact that the crime of aggression was already listed as a crime in Art. 5 ICC Statute). The declaration of non-acceptance does not fully re-establish the limiting effects of the last sentence of Art. 121 (5) ICC Statute. Most significantly, a crime of aggression arising from an act of aggression committed by a state party against a state party that has lodged a declaration of non-acceptance is covered by the Court’s exercise of jurisdiction, while it would be exempt by virtue of Art. 121 (5) ICC Statute. Art. 15bis therefore provides a benefit for state parties that accept the amendments not foreseen in Art. 121 (5) ICC Statute. Furthermore (though rather unlikely), a national of a state party that has lodged a declaration of non-acceptance involved in an act of aggression committed by another state party, would equally be subject to the Court’s jurisdiction, as a declaring state party’s nationals are not generally exempt from the exercise of jurisdiction under Art. 15bis.

Art. 121 (5) ICC Statute does not establish a specific jurisdictional regime with regard to non-states parties, but leaves Art. 12 ICC Statute untouched (under any understanding). Strictly speaking, therefore, the general exception from the Court’s jurisdiction of crimes of aggression committed by nationals or on the territory of a non-state party according to Art. 15bis does not amend this provision. Only if Art. 121 (5) ICC Statute was to be understood as substituting the Statute’s jurisdictional regime set forth in Part 2 ICC Statute for crimes covered by an amendment, a change of the jurisdictional reach would amount to an implicit amendment to Art. 121 (5) ICC Statute.

The discussion whether the provision adopted in Kampala contains an inherent amendment of Art. 121 (5) ICC Statute, and if so, on which legal basis, has to be seen in the context of the question, which amendment procedure is applicable for the crime of aggression. States were not only divided regarding the application of either Art. 121 (4) or Art. 121 (5) ICC Statute, the last sentence of Art. 121 (5) ICC Statute was further subject to deviating interpretations. Next to legal concerns, the discussion was influenced by political considerations as to the implications of the different amendment mechanisms in relation to the time frame of an entry into force, the jurisdictional reach and opt-in/opt-out constellations. Given the strong arguments not only for but also against every option, an impression might even have been conveyed that the Statute does not provide any applicable procedure for activating the Court’s jurisdiction over the crime of aggression. But given the particular position of the crime of aggression in the ICC Statute and the interplay of Art. 5 and 121 ICC Statute, the options cannot be seen as mutually exclusive. The choice of one legally well-reasoned option does not become unlawful, because equally good arguments can be found for another.

Conclusions

The establishment of a special procedure for the exercise of jurisdiction over the crime of aggression was not mandated by legal but rather by political considerations. Its legal basis is the reference to conditions for the exercise of jurisdiction in Art. 5 (2) ICC Statute, which provided the drafters with considerable flexibility. Nevertheless, the opening of substantial exceptions to the Court’s reach over perpetrators of the crime of aggression is highly regrettable. It was ultimately the price to operationalize this crime within an independent judicial framework. The Resolution upholds several significant principles of the ICC Statute and in this regard clearly exceeds the expectations of many as to what could be achieved in Kampala. All trigger mechanisms foreseen in the Statute apply to the crime of aggression. The independence of the Court and its organs is safeguarded, not only regarding the establishment of individual criminal responsibility but also with a view to the determination of an act of aggression by a state. The responsibility to counter shortcomings in the context of state party referrals and proprio motu investigations now rests with the states parties. The Court’s jurisdictional reach grows with each unconditional ratification of the amendments. Once the regime is well accepted, a review of Art. 15bis in light of a uniform jurisdictional regime for all core crimes is not excluded.