The Opt-Out Camp Possibly Folds — Clearing Way for Aggression?

by Kevin Jon Heller

A new document is being circulated at the Assembly of States Parties entitled “Draft Resolution: Activation of the jurisdiction of the Court over the crime of aggression.” Operative Provision 1(b) seems to indicate that the opt-out camp, led by Liechtenstein, has conceded the jurisdictional point to the opt-in camp, led by Japan, Canada, and the United Kingdom. Here is the text of OP1(b):

(b)    The Assembly unanimously confirms that, in accordance with the Rome Statute, in case of a State referral or proprio motu investigation the Court shall not exercise its jurisdiction in respect of the crime of aggression when committed by nationals or on the territory of the States Parties referred to in subparagraph (a), unless they ratify or accept the amendments regarding the crime of aggression.

The provision makes clear that the Court will have no jurisdiction over any act of aggression involving a state party that does not ratify or accept the aggression amendments — thus placing states parties in the same position as non-state parties.

There is, however, one twist. To take advantage of OP1(b), a state will have to make its agreement with the opt-in camp known by no later than 31 December 2018, when the Court’s jurisdiction will begin. That’s the result of reading OP1(b) in conjunction with OP1(a). Here is the text of the latter provision:

(a)      The Assembly acknowledges the positions expressed by States Parties, individually or collectively, as reflected in the Report on the facilitation or upon adoption of this resolution to be reflected in the Official Records of this session of the Assembly or communicated in writing to the President of the Assembly by 31 December 2018 that, for whatever reason, including based on paragraph 5 of article 121 of the Rome Statute, they do not accept the Court’s exercise of jurisdiction over the crime of aggression unless they ratify or accept the amendments regarding the crime of aggression,

I can’t see why the Draft Resolution would not satisfy the opt-in states. So if the opt-out camp supports the resolution, it should ensure that the aggression amendments are adopted by consensus later today.

NOTE: As I read the Draft Resolution, states that join the Court after 31 December 2018 would have to opt-out of aggression jurisdiction, because OP1 would not apply to them. That’s an interesting twist/compromise!

http://opiniojuris.org/2017/12/14/the-opt-out-camp-folds-clearing-way-for-aggression/

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