Implications of the 30th Ratification of the International Criminal Court’s Crime of Aggression Amendment by Palestine

by Jennifer Trahan

[Jennifer Trahan is Associate Clinical Professor, at The Center for Global Affairs, NYU-SPS, and Chair of the American Branch of the International Law Association’s International Criminal Court Committee. The views expressed are those of the author.]

A significant event happened quietly at the UN on June 27: Palestine deposited the thirtieth instrument of ratification of the International Criminal Court’s crime of aggression amendment, with 30 ratifications being the required number for activation. However, one more vote to activate the amendment, to occur after January 1, 2017, is required by the ICC’s Assembly of States Parties for the ICC to be able to exercise jurisdiction. Thus, Palestine’s deposit did not cause the amendment to become operational, although it brought it a step closer to the activation vote planned for December 2017.

There may be some confusion on the meaning of Palestinian ratification among those not steeped in the jurisdictional nuances of the crime of aggression amendment negotiated in 2010 in Kampala, Uganda. Although one might think that this is all about the Palestinians trying to create jurisdiction over Israel vis-à-vis the crime of aggression, that is not how it will work.

The crime of aggression amendment has a different jurisdictional regime than what currently exists under the ICC’s Rome Statute concerning the crimes of genocide, war crimes and crimes against humanity. If a national of a non-State Party (e.g., Israel) commits any of those crimes in the territory of a State Party, there would be ICC jurisdiction.

The crime of aggression amendment — whether for good or ill (depending on one’s perspective) —per 15bis(5) keeps crimes committed on the territory of, or by the nationals of, non-States Parties entirely out of its jurisdiction for purposes of State Party and proprio motu referrals (article 15bis). This means that Israeli nationals or crimes committed on Israeli territory will be outside the ICC’s crime of aggression jurisdiction. This then has a bizarre consequence here – that Palestine can ratify the crime of aggression amendment, not “opt out” of jurisdiction (something a State Party can also do per 15bis(4)), and, even after the crime activates, the ICC still could not prosecute Palestinian nationals who commit aggression against Israel, since Israel is a non-State Party. A Handbook compiled by some of the Kampala drafters clearly states: “Non-States Parties are thus excluded both as potential aggressor and victim States.” The crime of aggression amendment thus has significant jurisdictional loop-holes, and will create quite a narrow jurisdictional regime, even once activated. Stated more positively, it creates a consensual regime.

While activation also will activate ICC jurisdiction if the U.N. Security Council makes referrals (under article 15ter), it is considered unlikely that the US would permit alleged Israeli aggression to be referred.

So, the 30th ratification brings the world one step closer to having crime of aggression jurisdiction activated before the ICC, but it does not have direct ramifications for Israel – whether that was the Palestinian goal or not.

At this point, the reader may well wonder – is this Kampala amendment worthwhile with all these jurisdictional loopholes? I will argue it is: activation of the crime will undoubtedly cause states to take pause and ponder more seriously the potential consequences of starting an illegal war, and this is a good thing – even if ICC jurisdiction will not cover the specific case in question; also, states may implement the amendment into their domestic laws, and that may create jurisdiction – giving further pause to states inclined to commence an illegal war. The goal of course is not to generate ICC cases, but to influence state behavior positively.

The crime of aggression, of course, is hardly a novel concept. It criminalizes what is already illegal under article 2(4) of the U.N. Charter, and is similar in concept to the prosecutions of the International Military Tribunal at Nuremberg, which prosecuted war of aggression. In fact, states were working already over 100 years ago on this concept, when in 1913 they founded the “Peace Palace” in The Hague, Netherlands — in an attempt to have states litigate and arbitrate over issues of war, rather than go to war.

A few states have concerns about activation — the US for example, although it too as a non-State Party is exempt from jurisdiction vis-à-vis its nationals and crimes on its territory. Yet, the process is proceeding, with the 30 ratifications accomplished, and several other States Parties in the process of ratifying the amendment. US concern that humanitarian intervention would be criminalized may be something of a “red herring” – first, the US does not appear to have any clear and consistent policy of humanitarian intervention (for instance, as the UK has) and second, because, as at least most scholars seem to agree, humanitarian intervention would not be covered by the crime, as it would not constitute a “manifest” Charter violation. (The crime has a significant “threshold” in requiring that there be a “manifest” Charter violation [.pdf]; this means that only very serious cases that are unambiguously illegal , could be prosecuted.) The crime of aggression, in these ways, is rather conservative — having both jurisdictional loopholes and this high threshold.

There is still a chance, that, at some point, the ICC judges will find that Palestine is not a “state,” and thus was incapable of ratifying the Rome Statute, and similarly incapable of ratifying the crime of aggression amendment. (Judges always have jurisdiction to review their own jurisdiction – so regardless of the UN’s acceptance of the instruments of ratification, the ICC Judges could view the issue differently.) This would have little impact on the process of activating the crime, since several ratifications are in the pipeline, and will undoubtedly happen prior to December 2016. (There must be a year’s delay after the 30th ratification, for activation, along with the ASP vote).

Overall, while the Palestinians may have hoped to make a strong political statement, what the ICC crime of aggression tries to do is take the issue of aggression more out of the political process and into judicial hands. How one feels about this may depend on one’s confidence in the ICC, which, despite some setbacks, has gradually been proving itself to be a responsible, judicial institution, warranting confidence and support.

5 Responses

  1. The crime of aggression amendment is important in and of itself, irrespective of the Palestinian attempt to ratify it. The accentuation in this article on Palestine is curious, and even unnecessary, especially in light of the last paragraph which sensibly places the issue in its true juridical perspective. Since clearly there exists no legal basis for a Palestinian state, and hence the Palestinian attempt to ratify the amendment, like the whole issue of the Palestinian putative accession to the Rome statute, is fictitious.

  2. I agree with you that the crime of aggression is important. However, Palestine’s accession is of importance for being the 30th State Party which fulfilled the first condition of activating the ICC jurisdiction.

    Since the 2012 UNGA Res., Palestine has been accorded a new status enabling it to act as a State at the international level and acceded to a vast range of treaties without any single reservation and, as expected, only three States objected and presented the same argument.

    Whether you recognized Palestine as a State or not it is a matter of relations and non-recognition is not going to affect neither the existence of Palestine nor its legal status.

  3. I don’t believe the quoted sentence that “non-States Parties are thus excluded both as potential aggressor and victim States” is accurate. While that is in fact a quote from the Handbook published by the Liechtenstein Institute on Self-Determination, this statement appears to be contradicted elsewhere in the Handbook and, more importantly, it does not appear to be supported by the language of Article 15 bis (5).

    On page 10 of the Handbook, the quote is preceded by the following contradictory sentence: “According to paragraph 5, the ICC may not exercise jurisdiction regarding non-States Parties to the Rome Statute, i.e. whenever a crime of aggression is committed by a national of a non-State Party or on its territory.” To then say that “non-States Parties are thus excluded both as potential aggressor and victim States” does not logically follow the previous sentence. Moreover, the table on page 10 that summarizes the “complex jurisdictional regime of Article 15 bis (4)” directly conflicts with the quoted sentence. The last cell on the right of the top row says that jurisdiction exists when the aggressor State has ratified and not opted out and the victim State has not ratified the amendments.

    The Handbook suggests that the quoted sentence is an interpretation of Article 15 bis (5). That paragraph states: “In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.” A reading of this paragraph only supports an interpretation that excludes non-States Parties from being aggressor States, not from being victim States.

  4. The quoted language that “non-States Parties are thus excluded both as potential aggressor and victim States” is accurate.

    Page 10 of the Handbook does not contradict this. The table on page 10 is referring to States Parties and not non-States Parties. (One could do a much bigger table if one wanted with all the permutations covering non-States Parties, but the answer for them will always be no jurisdiction.)

    The answer also makes sense from a logical/parity standpoint: if non-States Parties cannot be prosecuted for crime of aggression at the ICC based on State Party and proprio motu initiation (art. 15bis(5)), then they also do not get the benefit when they are a victim.

    The Handbook was drafted by the key drafters of the Kampala amendment, and thus is a correct interpretation of the agreement reached.

    You are however correct that the text of art 15bis(5) does not precisely state this. In fact, I am a little dismayed at the idea that a State Party that has ratified the amendment, not opted out, and the amendment activates, still cannot be prosecuted for aggression when committed against a non-State Party.

    So, in some ways, I would actually prefer your reading. I just do not believe it was what was agreed to.

  5. Thank you for the response and for correcting my mistake regarding the handbook.

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