Are the Aggression “Understandings” Valid?

Readers who have been following the Review Conference are most likely aware that the delegates adopted by consensus seven “understandings” concerning aggression in addition to a definition of the crime, the conditions of jurisdiction of the crime, and the elements of the crime.  I believe that those understandings have no actual force and should be ignored by the judges when they begin to apply the new aggression provisions.  In this post I will explain why.

The understandings themselves are very different.  Here I want to focus primarily on the seventh understanding, which was proposed by the United States:

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.

If valid, this understanding directs the Court to adopt a particular interpretation of the “manifest violation” requirement in new Article 8bis(1).  That is not the only possible interpretation of the requirement; nothing in Article 8bis(1) itself prevents the Court from balancing the three factors — for example, finding a particularly grave use of force to be a manifest violation despite its small scale. Understanding seven thus directly affects the substantive definition of the crime of aggression.  Indeed, Harold Koh took precisely that position today, telling the press that “[t]he United States considered the definition of aggression flawed, but a number of important safeguards were adopted. Understandings were adopted to make the definition more precise, to ensure that the crime will be applied only to the most egregious circumstances.”

Can an understanding do that?  I’m skeptical.  First, we should note that nothing in the Rome Statute contemplates “understandings,” much less provides that an understanding can modify the substantive definition of a crime within the Court’s jurisdiction.

Second, if understandings are — to quote my friend Marko Milanovic — “[f]or all practical purposes… as binding as the text of the Statute itself,” they directly contradict the text of the Rome Statute.  To begin with, understandings would then be a source of law on which the Court would have to rely when interpreting the Rome Statute.  But nothing in Article 21 of the Statute, “Applicable Law,” permits reference to understandings:

1. The Court shall apply:

(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;

(c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

2. The Court may apply principles and rules of law as interpreted in its previous decisions.

The understandings are not Articles of the Rome Statute.  They are not Elements of Crimes.  They are not Rules of Procedure and Evidence.  One could perhaps argue that understandings concerning aggression are no different than elements of aggression and thus have the same legal force. But Article 9 of the Rome Statute specifically permits the Assembly of States Parties (ASP) to adopt elements of crimes; it says nothing about the ASP adopting understandings. So the elements analogy doesn’t work.

Binding understandings are also almost certainly inconsistent with Article 121 of the Rome Statute, which governs amendments:

4. Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them.

5. 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.

If understanding seven is binding on the Court, we have to assume that the Review Conference not only adopted the understandings but also sub silentio amended either Article 21 (to permit the Court to rely on understandings to interpret new Article 8bis) or Article 9 (to make the understandings equivalent to elements and thus applicable via Article 21).  Either way, however, the amendment would be subject to Article 121(4), not Article 121(5) — in which case the understandings would not be effective until they were specifically adopted by 7/8 of the States Parties.

Unless the understandings are subject to Article 121(4)’s 7/8 requirement, in short, nothing in the text of the Rome Statute justifies viewing them as binding. The only possible defense of understanding seven, therefore, has to be the one that Marko offered in the comments to Julian’s post about the Schaefer editorial:

It’s true that the Statute itself doesn’t mention recourse to any understandings, but the Statute is a treaty, and it is a general rule of treaty interpretation that recourse MUST be had to any agreement between the parties as to the treaty’s interpretation, either as part of the treaty’s ‘context’, or subsequent to its conclusion – see Art. 31(2) and (3) VCLT.

As far as I can see, the Court could theoretically depart from the understandings that were adopted by all states parties, but only if they directly contradicted the text of the Statute or perhaps its object and purpose. There is very little chance of that happening. For all practical purposes, the understandings adopted at Kampala are as binding as the text of the Statute itself.

I rarely disagree with Marko, but I disagree with him here.  If any agreement entered into by the Assemby of States Parties (ASP) is binding on the Court regardless of whether the ASP complied with Article 121’s amendment provisions, Article 121 is simply irrelevant. Consider, for example, the Review Conference being scheduled for 2010.  That date was chosen because of Article 121(1), which prohibited proposals to amend the Rome Statute “for seven years from the entry into force of this Statute.”  Did the ASP have to wait?  Couldn’t it simply have entered into a subsequent agreement to hold the Review Conference much earlier?  Wouldn’t that agreement have been binding under the Vienna Convention despite Article 121(1)?

Marko will no doubt respond to this reasoning by noting the second part of his argument — that agreements that directly contradict the text of the Rome Statute or its object and purpose are not binding on the Court. That may be a compelling response to the Review Conference hypothetical I just mentioned, because ignoring the seven-year requirement directly contradicts Article 121(1).  But I don’t see how it would save understanding seven, which no less directly contradicts Article 21 and (if the 7/8 requirement is not enforced) Article 121(4).

At a minimum, therefore, we have to insist that any subsequent agreement by the ASP to amend the Rome Statute must be consistent with Article 121.  If not, Article 121 is irrelevant and the ASP has virtually unlimited power to amend the Rome Statute. The ASP could, for example, adopt an immediately binding subsequent agreement that “otherwise provided” negligence as the mens rea of any war crime or crime against humanity that did not specifically require intent.  Such an amendment would neither directly contradict the text of the Rome Statute nor frustrate its object and purpose of preventing impunity.  (Indeed, it would promote the latter.)

I assume Marko would agree with this analysis.  But again, in that case I cannot see how the understandings can be valid unless they are part of an implicit amendment to Article 21 or to Article 9 and thus subject to the 7/8 requirement in Article 121(4).  And the Review Conference has given no indication that the requirement applies to the understandings.

Finally, I want to flag another issue — the curious relationship between the understandings and the infamous “opt-out” provision in new Article 15bis:

4. The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years.

If a State Party opts-out of the crime of aggression, does it thereby opt-out of the understandings, as well?  Although understanding seven would be irrelevant for an opting-out State Party, the same cannot be said of understandings four and five:

4. It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.

5. It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.

Those understandings seem designed to prevent the new definition of aggression from being accepted as custom and to inhibit domestic prosecutions of the crime.  Presumably, then, a State Party that opts out of aggression pursuant to new Article 15bis(4) is not in any way bound by understandings four and five.  (Which is not simply an academic question.  A State Party that does not believe aggression should be prosecuted by an international tribunal — such as those who agree with Dapo Akande’s consent argument — may still favor a robust regime of domestic prosecution, perhaps even including universal jurisdiction over aggression.)  What other interpretation is possible? I see no rationale for the idea that opting-out States Parties are bound by the understandings but not bound by the crime of aggression itself.

Readers — your thoughts?