Are the Aggression “Understandings” Valid?

by Kevin Jon Heller

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?

7 Responses

  1. Kevin,

    Thanks so much for your post. Not only is this issue fascinating in its own right, there are also several fundamental, more conceptual questions here that sort of poke their head through. Let me try to respond:

    (1) First, the word ‘binding’ that I used in my previous comment was inappropriate, or at the very least misleading. I didn’t mean to say that the understandings were themselves binding as a source of applicable law. Rather, they are relevant considerations for the interpretation of the amendments, which are binding. In other words, an understanding of this type is not itself ‘law’, but it is something that helps us see what the law means. They are ‘binding’ on the Court itself to the extent that the process of interpretation makes them such, not because they constitute applicable law. And because they are not ‘law’, they are neither valid nor invalid, but just constitute the agreement of states on how a particular text, which they adopted, is to be interpreted.

    This brings me to two fundamental points: how does one conceptualize the Statute vis-a-vis general international law; and how does one conceptualize the process of interpreting the Statute.

    (2) In your response to my comment in the previous thread, you said that the Rome Statute is a ‘self-enclosed system,’ and that it could not be amended by understandings. I do agree on the amendment point – but note the philosophical or ideological position that you take with regard to the Statute, that it is ‘self-enclosed.’ I myself do not consider it such. Rather, my own ideological position is that it forms a part of a reasonably coherent system of international law, and that the rules of that system apply to it as well, both within and without. This is also, I think, how states see it.

    But however you look at it, the basic ‘rule’ about interpreting the Statute (or indeed any legal instrument, domestic or international) must be external to it, because one would first need to interpret the Statute to see what that rule was, which would logically be a circular operation. Similarly, it is entirely circular for a treaty such as the Vienna Convention on the Law of Treaties to contain a ‘rule’ on how treaties are to be interpreted, when the VCLT itself has to be interpreted for us to find out what the rule of interpretation is.

    Thus, the Statute could never be entirely self-contained, as the basic ‘rule’ about interpreting it would necessarily have to be prior to it. (Similarly, to distinguish between law and non-law we necessarily need to look for a criterion outside the law). But again, to my mind, the Statute is not self-contained. The methodology of hermeneutics aside, I doubt that the Court itself will disagree that Arts 31-32 VCLT sets out the appropriate framework for interpreting the Statute. (And isn’t this framework a part of the ‘rules and principles of international law’ per Art. 21(b) of the Statute? But again you see the circularity problem.)

    (3) If we are within that framework, then the understandings become a part of the ‘context’ that the Court has to take into account when interpreting the amendments. Again, that does not mean that they are themselves formally binding – apologies again for using that word – but that they must be taken into account in the process of interpretation (unlike, for example, the travaux, to which the Court might or might not have recourse).

    Thus, to use your example, if we interpret the words ‘manifest violation of the Charter’, that process can lead us to several possible results. The understandings come in by favouring one of those results, by stipulating that all three components of character, gravity and scale have to be taken into account. (But are, say, two of them enough, as the final clause would imply when saying that one is not enough?).

    Again, for practical purposes, it is very unlikely that the Court will depart from the understandings, unless they directly contradict the text of the Statute or its object and purpose. At least prima facie, I don’t think they do.

    (4) Finally, on you amendment point – again, the word ‘binding’ was misleading on my part. And again, the understandings are unlike the amendments not law themselves. They are an agreement between states as to how that law is to be interpreted. And if the states parties adopted subsequent understandings say with respect to Arts. 7 or 8 of the Statute, the Court would have to take them into account in its process of interpretation, but they would not themselves be amendments, nor could they override the clear text of the treaty.

    On your broader point – could the states parties have amended the Statute even before the deadline set out in Art. 121, had they agreed to do so – I would simply say yes! But they would all have had to agree on that. They could have even terminated the Rome Statute altogether if they wanted to. Art. 121 would not have been irrelevant, but within the consensualist paradigm of treaty-making it is axiomatic that a prior agreement cannot bind them from reaching a new one, if all of the parties are the same. Just as, for example, in the Westminster system Parliament can’t pass a law preventing a future Parliament from amending it, or requiring a qualified majority, or what have you. Rather, it could, but it would simply be ineffective. You would have to change the paradigm itself, the extra-legal criterion which tells you what is law, and what isn’t, in order to do that.

  2. Response… I entirely agree with Mr. Kevin Jon Hellar’s analysis. Understanding seven goes to the root of the crime of aggression. “The three components of character, gravity and scale must be sufficient to justify a manifest determination” is incapable of being determined objectively.

  3. Kevin, I agree with the first comment above regarding the role these understandings should play in interpretation.  I write to address your other point about “opting out” of jurisdiction over the crime, and hence the understandings related to the broader legal effect of the amendments.

    It seems to me that understandings four and five have obvious purposes that you recognize.  They seek to prevent the definition adopted for purposes of the statute to be conclusive evidence of the existence or scope of a crime or act of aggression in customary international law.  They also seek to prevent the definition or existence of the crime in the statute from being argued as conclusive evidence of its status as a crime enforceable through universal jurisdiction.  I don’t think a state opting out of jurisdiction for the crime opts out of these understandings.

    The most important element of these understandings clarifies that the amendments should

    “not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.”

    In other words, the understandings do not (and to my mind probably could not) prevent the use of the amendments as evidence of current or evolving customary international law regarding an act or crime of aggression.

    What the states have done in adopting the amendments and understandings is one of the clearest forms of state practice and, dare I say it, opinio juris.  These understandings necessarily clarify the purpose of this event.  They thereby qualify the states’ opinio juris surrounding the event in a way that must be observed by anyone evaluating this event as evidence of customary law.   A state cannot opt out of other states’ expressions of opinio juris.

    This should be a most welcome development.  States are rarely this clear regarding whether or the extent to which treaty provisions either reflect and codify or modify by agreement their view of customary international law.  In this case, they have told us clearly that these amendments should only be taken to reflect the agreement of the parties as to the subject matter jurisdiction of this particular court and no more.  Of course, this is necessarily some evidence of their view of an international crime or act of aggression.

    Because these understandings do not purport to limit the content or development of the other customary international law, I see little consequence to the ultimate conclusion of whether a state should be understood to opt in or out of them.  Whether a state remains subject to the jurisdiction of the court does not at all affect its ability to otherwise participate in the development or argue the existence of other customary international law in this area.

  4. Dear Kevin,

    There were over 100 lawyers on the conference room floor, many with copies of the VCLT on their laptops, and the negotiation of understandings became an express part of the conference work programme, led by the very able Professor Claus Kress of Germany. The use of understandings was also suggested from the beginning of the RevCon with their inclusion in the Conference Room Paper distributed to delegates by HRH Prince Zeid of Jordan, the Chair of the conference Working Group on the Crime of Aggression. Given this context, and the deliberate will of the parties, plus the consensus basis for the final outcome on understandings, I can’t see the RevCon negotiations producing understandings that judges can simply ignore. They must have some value or utility, with operative paragraph 3 (OP3) of the aggression resolution expressly indicating that the RevCon “decides to adopt” the understandings for interpretation purposes. A decision was made by the parties, and as with Marko, I agree that the key to understanding the understandings is Article 31 of the VCLT. I mentioned this in my post of 8 June for EJIL Talk. For me, the interesting issue is the role of non-states-parties in producing these agreements between the parties, but on that aspect, I’ll be doing further research.

    Best wishes,

  5. Joanna,

    As Bill Schabas discussed in his blog, there were less than 80 of the 111 States Parties present when the amendments were adopted by “consensus” — a procedure that relied on the poor drafting of Article 121(3), which read literally, as the Review Conference seems to have done, would permit five States Parties to bind the other 106 if they were the only ones present at a meeting of the ASP or a Review Conference.  But at least Article 121(3) does exist — with regard to amendments.  It’s silent concerning understandings.  So by what authority do less than 80 of the 111 States Parties have the authority to enter into a new agreement, one not based on any provision of the Rome Statute, that binds the other States Parties?

  6. But isn’t that the very nature of a consensus adoption? Consensus means there was no vote called, not that all states agreed, and thus by definition there is no official record of how many states were in or out of the room. Consensus also means that no one felt so strongly opposed to the extent that a vote had to be called. They could live with it. The provisions, albeit poorly drafted, require presence for voting. States are aware of this, but some chose not to be present. One cannot argue afterwards that they did not know or that there was lack of notice of the meeting etc. Thus we have to take the resolutions as having being adopted, and adopted by consensus as per the will of the conference. The understandings are part and parcel of the resolution containing the aggression amendments, as indicated by an express decision taken by the conference that is reflected in OP3, so the authority comes from the will of the room (since consensus does not break it down into numbers).


  7. Joanna,

    Consensus adoption means consensus adoption by the States Parties who are present when consensus is requested; that consensus cannot bind States Parties who were not present and who may well have demanded a vote be taken if they were.

    Do you disagree with that? If you do, where in the VCLT does it say that a State Party to a treaty waives the requirement that it accept a subsequent agreement by not being present at a meeting where subsequent agreements might be discussed? 

    Moreover, were the non-attending States Parties informed before the Review Conference that the delegates might rely on a procedure not contemplated by the Rome Statute to adopt binding “understandings”? If not, how can they be said to have waived the requirement that it accept subsequent agreements adopted by consensus during the conference?

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