The Rome Statute’s Flawed Amendment Regime — Starvation in NIAC Edition

On Friday, the Assembly of States Parties unanimously adopted a Swiss proposal to extend the war crime of starvation to non-international armed conflict (NIAC). Previously, for reasons that seem to be largely accidental, the war crime only applied in international armed conflict (IAC).

The new war crime is, of course, a welcome development. There is no justification for ever using starvation as a weapon of war — in IAC or in NIAC. Congratulations are due to all of the states, individuals, and groups who worked so hard to ensure the adoption of the amendment. (For a nice summary of those efforts, see Federica d’Alessandra’s Facebook post here.)

That said, we should not delude ourselves about the practical implications of the new war crime. Here, for example, is a snippet of the press release issued by the Swiss Ministry of Foreign Affairs following the vote:

Following a Swiss initiative, the International Criminal Court (ICC) will from now on be able to prosecute the intentional starvation of civilians in civil wars as a war crime. The ICC Assembly of States Parties took a unanimous decision to this effect earlier today. It strengthens the protection of victims of war.

This optimism is, unfortunately, considerably overstated. The Swiss starvation proposal amends Art. 8 of the Rome Statute, the war-crimes provision. The effect of the amendment is thus governed by Art. 121(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.

As Art. 121(5) makes clear, the new war crime will apply only to members of the ICC that choose to ratify the starvation amendment — and only then one year after ratification. If a member state does not ratify, it will remain free (from a criminal perspective) to starve its civilian population. And the new war crime will have no effect on states that have not ratified the Rome Statute, at least insofar as they starve their own civilians. (Non-member states are, of course, already prohibited from starving another state’s civilian population by the current war crime of starvation in IAC.)

Will member states that use starvation as a weapon of war ratify the starvation amendments? I doubt it. It’s possible there are member states in which rebel groups use starvation as a weapon of war; those states might have a small incentive to ratify. But I can’t think of any examples off the top of my head. (Readers?)

To be sure, the new war crime is of potential use via a Security Council referral — and that possibility alone justifies the adoption of the Swiss proposal. But here, too, we have to temper our expectations, because we are all aware of the Security Council’s flaws. To take the most obvious examples, the Security Council will never refer the two situations in which the new starvation war crime would have the most immediate practical application: Syria and Yemen.

I am not trying to be a Debbie Downer, because the new war crime is a genuine achievement. But I think supporters of the ICC — of which I am still one, despite my regular skepticism — need to accept that the Rome Statute’s amendment regime is fundamentally and irredeemably flawed. The practical genius of the Rome Statute is its adoption of automatic jurisdiction for all the substantive crimes: when a state joins the Court, it has no choice but to accept the Court’s nationality and territorial jurisdiction over all the crimes in the original Statute. But that automatic jurisdiction applies only to the original crimes: there is no automatic jurisdiction over crimes later added by amendment. As a result, both current member states and future member states are always free to “opt out” of new crimes by declining to ratify the relevant amendment. That limit is problematic for all new crimes, but it is particularly devastating for those that are government-oriented and committed solely on a state’s territory. A member state would be crazy to voluntarily subject itself to a new crime that it might someday want to commit.

The ratification — or, more precisely, the lack of ratification — of the new war crimes prohibiting the use of biological, fragmenting, and blinding weapons in both IAC and NIAC supports this criticism. The amendments that added those war crimes to Art. 8 were adopted almost exactly two years ago. Yet only two member states have chosen to ratify them: Luxembourg and Slovakia. All the other member states who stood up at the ASP and celebrated the adoption of the amendments? Stony silence.

I was not at the Rome Conference, so I do not know why states adopted such a restrictive amendment regime for substantive crimes. Under Art. 121(4), procedural amendments at least automatically apply to all member states once 7/8 of them ratify (itself a ridiculously high threshold). If a non-ratifying member state does not want to be bound by a new procedural amendment, its only choice — pace Art. 121(6) — is to withdraw from the Rome Statute entirely. A similar regime should have been used for amendments to Arts. 5-8. There is no reason why a member state should be able to exempt itself from new crimes endorsed by an overwhelming majority of its fellow members. If the state feel so strongly about leaving open the possibility of committing the new crime down the road, it should leave the ICC.

The Rome Statute’s amendment regime for substantive crimes does, however, have a saving grace: even if member states can pick and choose among new crimes, non-member states cannot. They are still subject to the Court’s territorial jurisdiction over the new crimes.

At least they should be. Unfortunately, to its lasting discredit, the ASP has exempted non-member states from all of the crimes that have been adopted by amendment. That exclusion applies to aggression and to the use of biological, fragmenting, and blinding weapons. (Although I have argued that the Court would be entitled to apply the new weapons amendments to non-member states. See the post linked to above.) That was a political choice, not a legal one. There is absolutely no legal reason why the ASP could not have applied the Court’s normal territorial jurisdiction regime to the new crimes. But it still chose not to — not once, but twice. Low politics at its worst.

Again, the adoption of the Swiss starvation amendment is a major achievement, and the states, individuals, and groups that lobbied tirelessly for the extension of the war crime of starvation to NIAC deserve nothing but our gratitude and praise. But we need to openly acknowledge that the new war crime will have little practical effect — the sad but inevitable result of the Rome Statute’s flawed amendment regime.