The ICC review conference held in Kampala earlier this month decided, by consensus, to amend the ICC Statute so that the ICC can exercise jurisdiction over the crime of aggression once the amendments come into force. The final text of the amendments to the ICC Statute on the Crime of aggression are now available on the ICC website (see here). However, there seems to be some (significant) confusion as to what exactly was agreed on the crime of aggression in Kampala. There is also room for argument as to whether some of the decisions made in Kampala will be legally effective, in other words it is possible that they will not have the legal effect the drafters sought to achieve. This post will examine briefly set out what was agreed and highlight those areas where there is significant ambiguity surrounding the agreement. In particular I want to discuss issues surrounding the definition of aggression, when the aggression amendments will become operational and most importantly who will be bound by the amendments.
Definition of Aggression
First of all, the definition of aggression to be included in the Statute is that recommended by the Special Working Group on the Crime of Aggression prior to Kampala. In other words no changes were made to the text. The definition, which will be Art. 8bis of the Statute, states that:
“For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”
The contentious part of this definition was the qualifier, i.e, the requirement that the act of aggression be a ‘manifest’ violation of the Charter. What does that mean? Does it mean an obviously illegal violation, a violation with serious consequences or a violation which is both obviously illegal and serious. This question was not resolved in the text of the amendments but addressed in the Understandings attached to the text. Two of those understandings read as follows:
6. It is understood that aggression is the most serious and dangerous form of the illegal use of force; and that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations.
7. It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself.
I read this to mean that a breach of the prohibition of the use of force will only amount to aggression where it is a grave violation with serious consequences. There can be debate about whether two of the three criteria of character, gravity and scale would suffice or whether all three are required. The first sentence of Understanding 7 suggests that all 3 criteria must be at work while the second sentence appears to suggest that 2 will do. However, either way, either or both of gravity and scale must justify the conclusion that the use of force is a manifest violation of the Charter. So the seriousness of the consequences of the use of force must be considered.
When will the aggression amendments become operational?
Throughout the negotiations on the crime of aggression there had been a debate as to whether the amendments should come into force under Art. 121(4) or Art. 12(5) of the Statute. The former requires ratification or acceptance by 7/8ths of the State parties with the amendments then binding on all States parties. On the other hand, the latter states that:
Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.
Argentina, Brazil and Switzerland submitted a paper in Kampala which attempted to bridge the divide. However, in the end, the review conference, in the resolution that adopted the aggression amendments, decided that the amendments shall enter into force in accordance with Art. 121(5). Apparently, Japan strongly opposed this decision though not strongly enough to block consensus.
The parties in Rome Kampala seemed to think that it was for them to decide on how the amendments were to come into force. But it is not clear that the “decision” taken in Kampala that the amendments shall come into force in accordance with Art. 121(5) is in any way binding. Can a State that opposes this decision or an accused person argue that the amendments can only come into force in accordance with Art. 121(4)? It could be argued that an opposing State or defendant can challenged the “decision”, if Art. 121(4) actually applies on its face. Arguably, all that was done in Kampala was to adopt a text (to use the language of Art. 9 of the Vienna Convention on the Law of Treaties) and the adoption of a text does not usually create legal obligations for States or indeed for the Court and will not allow bypassing of the binding text of Art. 121 as it exists. The alternative view would be that even if Art. 121(5) did not apply on its face, somehow the parties in Kampala have amended that article such that it now applies. Such a conclusion would raise a number of issues of fact and (treaty) law which will require further examination.
In any case, whether the Kampala “decision” to bring the amendments into force by Art. 121(5) is in itself binding or not, the view that Art. 121(5) is the applicable provision is a reasonable one. However, it is by no means an open and shut case and this matter will also require further examination. Art. 121(5) only applies to amendments to Arts. 5,6,7 & 8. The aggression amendments go beyond amendments to those provisions. However, I think a good case can be made that the amendments are all a package intended to bring into effect the ‘new’ crime and that the intention behind Art. 121(5) is that it applies to amendments dealing with the creation of new crimes.
Having decided that the amendments will come into effect under Art. 121(5) the parties decided to impose additional conditions before the Court can prosecute for aggression. The Court may only exercise jurisdiction over aggression committed one year after 30 states have ratified the amendments. Furthermore, the Court’s jurisdiction over aggression will only commence once a decision is made to that effect, after 1 January 2017 by the States parties. The decision is to be made by at least 2/3rds majority. So we will have to wait nearly seven years before the aggression amendments become operational (assuming we have 30 ratifications by then). These conditions apply to prosecutions commenced as a result of state party referral and proprio motu prosecutions (Art. 15bis) as well as to prosecutions resulting from a Security Council referral (Art. 15 ter).
Trigger Mechanisms for Prosecutions for Aggression
The aggression amendments make a distinction between the three trigger mechanisms that exist for ICC jurisdiction. Art. 15bis deals with referrals by State parties and proprio motu prosecutions by the Prosecutor and Art. 15 ter deals with Security Council referrals. Starting with the latter, all that is required is a referral of a situation by the Council and the Council need not have determined that an act of aggression has taken place.
Art. 15bis was the more controversial provision. It is significant to note that it was agreed that referrals by State parties and proprio motu prosecutors can take place without a Security Council filter. In other words the Security Council need not have determined that an act of aggression has taken place. Moreover though the Security Council can defer an investigation or prosecution under Art. 16 it is not given any additional powers to stop aggression prosecutions.
The other significant features of Art. 15bis is that State parties may opt out of ICC jurisdiction over aggression under this provision and the Court may not exercise jurisdiction over the crime of aggression when committed by a national of a non-State party or on its territory.
Who will be bound by Art. 15bis of Aggression Amendments?
The opt out provision is the most confusing aspect of the aggression amendments. Who exactly is required to opt out? Once the requisite number of ratifications are reached and a decision is made in or after 2017 to activate the aggression provisions, are all States parties to be regarded as bound such that the ICC has jurisdiction over aggression committed by the nationals of all States parties unless they opt out? Or does the ICC only have jurisdiction over nationals of States parties who have accepted/ratified the amendment unless that State party opts out? Bill Schabas and Kevin Jon Heller appear to believe that the all States parties are bound unless they opt out. So, absent an opt out any national of any State party can be prosecuted for aggression once the amendments come into force. However, I have recently spoken to members of two State delegations at Kampala who take the view that only those States parties that ratify the amendments are bound and that only aggression committed by a State that has ratified the amendment can be prosecuted by the Court, unless they opt out. This latter view would seem to accord with Art. 121(5) that the amendments only enter into force for those States that have ratified or accepted them. Further that provision states, the Court may not prosecute with respect to the crimes committed by nationals of, or on the territory of those who State parties who do not accept.
I doubt if this was thought through in Kampala and I doubt that if asked the specific question I pose in this paragraph, all delegations would have given a uniform answer. It worthwhile noting that the only part of the resolution that adopts the aggression amendments is not conclusive with regard to who needs to opt out. It states that: “any State Party may lodge a declaration referred to in article 15 bis prior to ratification or acceptance.” By referring to opt outs prior to ratification or acceptance it must be referring to those who have not yet ratified or accepted and opens up the possibility that such States need to opt out. However, this clause may also be read as referring simply to the time within which a ratifying or accepting State must opt out, if it wishes to do so. In other words, if a State party ratifies or accepts the amendment and wishes to opt out, it needs to have done so before it ratifies or accept. On this view, the opt outs could still be confined to those State parties who ratify or accept.
But it may be argued that if only those States parties who ratify are bound, why have an opt out provision. Why would a State ratify the amendment only to opt out of jurisdiction? On this view, the opt out provision must be included mainly in relation to those State parties who do not ratify. Otherwise it would be redundant. But this is not necessarily so. The opt out is not redundant even if only those who ratify are bound. For one thing, ratification by 30 States is necessary for the Security Council referral mechanism to come into effect. So a State may wish to ratify to bring that part of the amendment into effect but to opt out of the state referral and proprio motu prosecutions mechanisms. Secondly, a State may wish to bring the amendments into effect generally while excusing itself from ratification prosecution [corrrection].
There is perhaps another view that would argue that it is consistent with Art. 121(5) for all States parties who do not opt out to be bound. On this view, one would have to argue that a State party is presumed to accept the amendment unless it opt outs. So only those who opt out are to be regarded as not accepting the amendment and in that way the principle of consent is maintained though consent is presumed.
It will be interesting to see how all of this plays out. In particular, it would be interesting to see what States parties do. It may well be that even those who don’t ratify play it safe, adopt a belt and braces approach, and choose to opt out anyway. But to the extent that many States do this, then this may be considered as practice indicating the view of the parties that those States who don’t opt out are bound. So States parties are in a catch 22 situation: opt out and they may be taken as supporting the view that presumed consent is a valid way of binding States and don’t opt out and a court may find that it has jurisdiction over aggression committed by that State.