Activating the Crime of Aggression: A Response to Stürchler

by Kevin Jon Heller

Nikolas Stürchler, the Head of International Humanitarian Law and International Criminal Justice Section at the Swiss Federal Department of Foreign Affairs, has a new post at EJIL: Talk! discussing the ASP’s decision to completely exclude states parties from the crime of aggression unless they ratify the aggression amendments — the “opt-in” position advocated by a number of states, most notably the UK, Japan, and Canada. The post is very long and quite technical, so I won’t try to summarise it. Basically, Stürchler argues that the judges are still free to adopt the “opt-out” position, because the Resolution “confirming” the opt-in position, despite being adopted by consensus, conflicts with Art. 15bis(4) of the Rome Statute, which reflects the opt-out position. Here are the relevant paragraphs:

What remains is an operative paragraph 2 that, like the second sentence of paragraph 5 of article 121 of the Rome Statute which it seeks to leverage, stands in contradiction to paragraph 4 of article 15bis of the Rome Statute. Paragraph 4 of article 15bis literally asserts that the Court has jurisdiction over a crime of aggression “arising from an act of aggression 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.” In this sense, it is somewhat difficult to argue that operative paragraph 2 is simply a case of interpreting or clarifying the crime of aggression amendments. If the intended point of operative paragraph 2 is to revise paragraph 4 of article 15bis, the problem is that it was not passed pursuant to the Statute’s amendment provisions. One could argue that the Assembly did no more than clarify that the second sentence of paragraph 5 of article 121 fully applies, thus conditioning the application of article 15bis on a State Party’s ratification or acceptance, but this nonetheless would seem to imply a revision of the plain reading of article 15bis.

Be it as it may, with the Assembly having achieved activation, it is now up to the Court to determine the extent of its jurisdiction over acts of aggression committed by nationals or on the territory of non-ratifying States Parties. It is for this reason that the reference to the independence of the judges in operative paragraph 3 is so important. Pending a clear pronouncement by the Court, the only way for any State Party to legally ensure that its nationals fall outside the remit of the ICC’s jurisdiction continues to be to file an opt-out declaration in accordance with paragraph 4 of article 15bis of the Rome Statute.

I want to make three quick points here. The first is that, in fact, Operative Paragraph 3 (OP3) of the Resolution is completely irrelevant to the jurisdictional question. The judges are independent because of Art. 40 of the Rome Statute; OP3 simply reiterates their independence. So the judges would have the right to decide on the jurisdictional question even if OP3 was not included in the Resolution. (In that regard, I’m not sure why the states promoting the opt-in position were so opposed to OP3. A paragraph that tried to take away judicial independence concerning the interpretation of the new crime of aggression would have been patently ultra vires.)

The second — and more important — point is that Stürchler’s argument about the conflict between Operative Paragraph 2 (OP2) and Art. 15bis(4) is remarkably selective. The underlying principle is that the ASP cannot adopt a provision that conflicts with an article in the Rome Statute unless it formally amends the Rome Statute itself. As he writes, “[i]f the intended point of operative paragraph 2 is to revise paragraph 4 of article 15bis, the problem is that it was not passed pursuant to the Statute’s amendment provisions.” I agree with the principle! But here is the problem: Art. 15bis(4) was also not adopted pursuant to the Rome Statute’s amendment provisions. Art. 121(5)’s second sentence “literally asserts” that, “[i]n 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.” Art. 15bis(4)’s requirement of an opt-out thus can only apply to a state that has ratified the aggression amendments. If a state does not ratify the amendments, Art. 121(5) — which pre-existed Art. 15bis(4) — controls, the unamended Rome Statute applies to that state, and the Court has no jurisdiction over an act of aggression committed by that state’s nationals or on its territory.

This is not — or should not be — a controversial point. Not even the opt-out positions’s most fervent defenders claim that the adoption of Art 15bis(4) was consistent with the amendment provisions in Art. 121(5). Instead, they argue that the ASP agreed by consensus to apply only the first sentence of Art. 121(5), excluding the inconvenient second sentence. Stürchler’s own principle, therefore, means that the judges are perfectly free to ignore Art. 15bis(4) and apply Art. 121(5) as written — thus ending up with the same opt-in provision that OP2 is designed to confirm. Stürchler and the other opt-out proponents cannot have it both ways: either both OP2 and Art. 15bis(4) are valid (in which case opt-in applies) or neither of them are (in which case opt-in applies).

The third and final point is that Stürchler’s principle — that the ASP cannot adopt a provision that conflicts with an article in the Rome Statute unless it formally amends the Rome Statute itself — supports what I argued a few weeks ago: that the new weapons amendments adopted by the ASP apply to non-states parties even though the ASP declared that they do not. As I noted in that post, the ASP did not amend the Rome Statute to exclude non-states parties, as it did with the crime of aggression. Instead, the ASP simply confirmed its understanding that the new war crimes (covering the use of biological, fragmenting, and blinding weapons) would not apply to non-states parties. According to Stürchler’s principle, therefore, the judges are free to ignore the ASP’s declaration and apply the Court’s normal jurisdictional regime in Art. 12(2) to the new war crimes — which means that the Court has every right to prosecute the national of a non-state party who uses a prohibited weapon on the territory of a state party.

http://opiniojuris.org/2018/01/27/activating-crime-aggression-response-sturchler/

5 Responses

  1. Thanks Kevin – I will use this and the EJIL blog for teaching tomorrow night… Bill

  2. Is the ongoing Turkish military intervention in Syria aggression?

  3. I think it pretty clearly violates the jus ad bellum. See Anne Peters’ excellent recent post at EJIL: Talk! We’d need facts to know who might be criminally responsible.

  4. Thanks for the reaction and sorry for the late reply. I’ll respond very briefly on the main point you make about paragraph 4 of article 15bis. This really goes back to the lengthy and already well documented discussion prior to the activation decision (something I tried to avoid to keep the post within limits!). The quick version of the argument is that article 15bis was adopted as a new provision of the Rome Statute in Kampala on the basis of article 5(2), according to which the ASP did have the authority to define the conditions under which the Court could exercise jurisdiction over the crime of aggression notwithstanding the second sentence of article 121(5). Article 5(2) thus gave the ASP the authority, for the very exceptional, one-off case of the crime of aggression, to not apply the second sentence of article 121(5). Therefore, article 15bis(4) was adopted in conformity with the Rome Statute’s amendment provisions, and thus there is no equivalence of legal status between article 15bis(4) and OP2 of ICC-ASP/16/Res.5. I am happy to acknowledge that numerous arguments have been made in favor and against the reading whether the second sentence of article 121(5) applies to the crime of aggression, but all of them have been well documented before the ASP16. And that is actually the point: despite the ASP’s activation decision in December and the attempt to settle the controversy over the extent of the Court’s jurisdiction for good, a closer look reveals a déjà vu of familiar legal questions. It is like the long journey you undertake only to discover at the end of the day that you are back to where you came from! Fortunately, what is clear is that the Court will exercise its jurisdiction over the crime of aggression starting 17 July 2018.

    As for the Belgian amendments, in fact both the enabling resolution in Kampala and now at the ASP16 adopted what was labeled the “negative understanding” of the second sentence of article 121(5) in the run-up to Kampala. In other words, the ASP in December reiterated its understanding that States Parties and non-States Parties should be equally exempt, despite the clear wording of the provision. I would agree that the question of what constitutes treaty interpretation vs. an attempted treaty revision also arises in this context.

  5. Thanks for the reply. I have to confess, though, that I find the Art. 5(2)/Art. 121(5) argument more than a little puzzling. Art. 5(2) provides that “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.” Art. 5(2) thus explicitly conditions jurisdiction on the ASP adopting an amendment pursuant to Art. 121 — paragraph 5, in this case. Art. 5(2) does not suggest that the ASP was free to modify Art. 121(5) as it saw fit. Indeed, its language suggests precisely the opposite.

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