A little noticed but still significant event during last year’s Assembly of State Parties of the International Criminal Court (ICC) was the decision to delete article 124 of the Rome Statute. Article 124, titled “Transitional Provision”, reads as follows:
Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.
The gist of article 124 was to allow State Parties, upon becoming Party to the Rome Statute, to preclude the Court from exercising jurisdiction over war crimes (article 8) for a period of seven years. Only France and Colombia ever made use of article 124, and each country did so for very particular reasons, which I will not elaborate further here. Suffice it to note that France withdrew its declaration under article 124 in 2008 and that the Columbian declaration made in 2002 expired in 2009. Still, for a court that prides itself on permitting no reservations, no statute of limitations, and no immunities from prosecution, even for heads of state, many have considered article 124 as an inappropriate exemption from the Court’s quintessential principle that there shall be no impunity for any of the crimes under its jurisdiction.
The deletion of article 124 is important not only in its own right, but also because of how it occurred. State Parties deliberated extensively about whether to adhere to the standard amendment procedure outlined in article 121 or if a simple decision by the Assembly would suffice. The result of this debate can be indicative of how States will approach procedural questions of a similar nature in the future, not least when the Assembly in 2017 moves to activating the crime of aggression (on which see this post).
The History of Article 124
Few States and civil society organizations had ever anticipated a provision in the Rome Statute inhibiting the Court temporarily from exercising jurisdiction over war crimes. Article 124 was not in the draft Statute presented by the International Law Commission (ILC) in 1994, nor was it included in the Draft Statute of the Preparatory Commission submitted to the Rome Conference in 1998. Only when approaching the final phase of the five-week Rome Conference did governments start expressing concerns about how their personnel involved in UN peacekeeping missions could be subject to politically motivated or frivolous prosecutions. Some of the permanent members of the Security Council voiced particularly strong apprehensions and demanded clear safeguards.
With the end of the Conference looming, France proposed that the Court’s jurisdiction over war crimes should be conditioned on State Party consent. The UK went further and proposed that jurisdiction over crimes against humanity should also be subject to consent with a renewable ten-year opt-out period. This proposal had the support of all members of the Security Council. Germany then presented a counter-proposal, which allowed for opting out of war crimes only for a period of three years. Finally, and at the very last moment, the Conference Bureau was able to coalesce around what later turned into article 124 [For the drafting history of the provision, see Schabas, The International Criminal Court: A Commentary on the Rome Statute, pp. 1191-3 (OUP)].
The majority view especially amongst the NGO-community was that article 124 ran counter to the spirit and objective of the Rome Statute (see the position of the Coalition for the ICC here). To mitigate some of this criticism the Conference decided that article 124 would be reviewed at the first Review Conference in Kampala in 2010 (the only mandated review contained in the Rome Statute).
During the Kampala Conference, State Parties could not reach agreement on how to deal with article 124 and the provision was temporarily retained, but, again, a mandated review would occur, this time during the 2015 Assembly of States Parties. In order to ensure proper discussions the Assembly tasked the so-called Working Group on Amendments (WGA), a working group responsible for considering amendments to the Rome Statute and its procedural rules, with brokering an agreement on article 124 which could be submitted to the 2015 Assembly for adoption.
Discussions within the Working Group on Amendments
The WGA (see paras. 31-43 of this report) identified three potential outcomes of its discussions (see paras. 31-43 of this report). Article 124 could be deleted, revised or another review could be mandated. It quickly became clear that a large majority of States Parties sought the provision’s deletion. Delegations in favor of deletion pointed out that whatever initial concerns States had, these had been alleviated by the Court’s apolitical behavior, largely common to other international criminal tribunals. Many also highlighted that there had been no declarations under article 124 since 2002, and nothing suggested a departure from this trend.
A few States favored retaining article 124. These alluded to the possibility (if not probability) of prospective State Parties utilizing article 124, and that if this never materialized then retaining article 124 would be of no practical consequence. However, in contrast to previous review processes, every State belonging to this camp indicated flexibility; no one insinuated any willingness to block what very clearly was a growing consensus in favor of deletion. The Working Group also explored various modalities for deletion of article 124. Again, there were two options with delegations splitting into two camps. The first option, which drew support from the vast majority of States, considered deleting article 124 as an ordinary amendment, thus triggering the regular amendment procedure in article 121. Article 121 sets out a two-step process for an amendment to enter into force. First, the amendment must be adopted by a two-thirds majority of State Parties (article 121 (3)), and secondly, the adopted amendment must be ratified or accepted by seven-eighths of all State Parties (article 121 (4)).
Other delegations argued that deleting article 124 would not constitute an ordinary amendment. Instead, it would merely implement the decision to delete article 124 which had been presupposed since the provision was adopted. According to this view, baptized by the WGA as the “lex specialis approach”, a decision of the Assembly to delete article 124 would enter into force directly. No one adhering to this view seemed to argue that article 121 (4) was strictly inapplicable; the “lex specialis approach” was instead put forward more as one of several available options.
The WGA debated both options extensively. A few favored the lex specialis model as it sidestepped the cumbersome requirement that seven-eighths of all State Parties had to ratify the amendment deleting article 124 for it to enter into force. Still, most States Parties were reluctant to depart from the standard amendment procedure. It was thus agreed to adhere to the ordinary amendment procedure in article 121.
After agreeing on the procedure, the other pieces fell into place. The Working Group agreed to submit a recommendation to the Assembly to adopt the amendment to delete article 124. Finally, the Assembly proceeded unanimously to adopt a resolution (in effect, an amendment) by which article 124 was deleted while also recalling that the decision would enter into force in accordance with article 121 (4).
At least two lessons can be drawn from the arduous process that eventually led to the deletion of article 124. First, the concerns of some States about the Court’s ability to adjudicate cases in a fair and foreseeable manner seem to have been largely mitigated. Since States may only make declarations under article 124 at the time when they become party to the ICC Statute, the provision is only available to those States who are not presently party to the Statute, none of which participated in the negotiations. Still, it is worth noting that no State in favor of retaining article 124 in order to achieve future ratifications maintained this on the ground of unpredictable or politically based prosecutions from which acceding States should be able to protect themselves. This should be seen as a victory for the Court and for the entire Rome Statute project.
Second, States seem reluctant to deviate from what they assess to be the legally established process for amending the Rome Statute, even if it adversely affects the probability of reaching a desired outcome. Many States argued passionately and persuasively in favor of deleting article 124 but the vast majority of these were equally adamant against utilizing the lex specialis approach, even if this meant that attaining entry into force was more cumbersome. One should obviously be careful in drawing too many inferences from this as every amendment process is unique and has its own dynamics. Nonetheless, it is not unreasonable that this cautionary approach displays how States will approach similar processes in the future.
The most important and potentially difficult process ahead is the activation of the crime of aggression. States have been split over whether the Court would be able to exercise jurisdiction over an act of aggression involving a State Party that has not ratified the amendments on the crime of aggression. It is not unlikely that State Parties will try to resolve this issue as a part of the decision to activate the crime of aggression. Judging by the debate on article 124, whatever option States consider most in harmony with a straightforward reading of the applicable rules is likely to attract most support, no matter what material outcome they consider desirable.
The views and opinions expressed in this post are the author’s own and should not be attributed to the Norwegian Ministry of Foreign Affairs.