Opt-Ins and Opt-Outs

Dapo Akande has an important post today at EJIL: Talk! that asks, as he puts it, “what exactly was agreed in Kampala on the crime of aggression?”  I think this paragraph is particularly important:

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 actually do not take the position that Dapo ascribes to me, and I regret not registering my disagreement with it in my original post.  As I argued with regard to the understandings, I believe that, in the absence of agreement by all 111 States Parties, the Rome Statute can only be amended pursuant to the procedures established in Article 121.  Nearly 30% of the States Parties were not present at the Review Conference, which means that any amendment adopted by the delegates must comply with Article 121.  And Article 121(5) makes clear that no State Party is bound by an amendment unless it ratifies it:

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.

I believe, then, that a State Party must “opt-in” to the aggression amendments before those amendments are binding on it.  Until such time, the Court will not have jurisdiction over aggression “committed by that State Party’s nationals or on its territory” — and that is true even if the aggression amendments have received the requisite 30 ratifications (and 2/3 of the States Parties have approved the amendments in 2017).  Once a State Party has opted-in, however, it then has the right under new Article 15bis(4) to opt-out.

That may seem like an odd procedure — why require an opt-in before permitting a State Party to opt-out?  But it actually makes sense, as the chart in my original post indicates.  There is, in fact, a fundamental difference between a State Party who opts-in and then opts-out and a State Party who never opts in: the first State Party is protected against acts of aggression committed against it, but the second State Party is not.  Don’t forget, opting-out pursuant to new Article 15bis(4) will only divest the Court of jurisdiction to prosecute  “a crime of aggression arising from an act of aggression committed by a State Party”; opting-out will not divest the Court of jurisdiction to prosecute a crime of aggression committed on the territory of that State Party.

Differently put: a State Party that never opts in will be in the same position as a non-party State, while a State Party that opts-in and then opts-out will be in a unique position — it will be better protected against aggression than a non-party State, but its nationals will be no less immune from prosecution than nationals of a non-party State

As I said before, I have a problem with that asymmetry.  I think States Parties should either accept the crime of aggression in toto or not accept it at all.  But the asymmetry clearly exists — and it explains why it is not nonsensical to require States Parties to ratify the aggression amendments before opting-out of them.