States Seek to Harmonize ICC Jurisdiction Regarding Aggression

On April 4, a group of five states — Costa Rica, Germany, Sierra Leone, Slovenia and Vanuatu — formally submitted to the UN Secretary-General the text of a proposed amendment to the Rome Statute. The amendment seeks to harmonise the ICC’s jurisdiction over the crime of aggression with the jurisdictional regime that applies to the other crimes. It would do so by amending Art. 15bis to read as follows:

Amendments to article 15 bis of the Rome Statute Article 15bis (4) and (5) are replaced by the following text inserted after article 15bis (3):

4. The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression if one or more of the following States have ratified or accepted the aggression amendments, or have accepted the exercise of the jurisdiction of the Court over the crime of aggression in accordance with paragraph 5:

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

(b) The State of which the person accused of the crime is a national.

5. If the acceptance of a State that has not ratified or accepted the aggression amendments, or that is not a Party to this Statute, is required under paragraph 4, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court over the crime of aggression in accordance with article 12, paragraph 3.

If it entered into force, the amendment would have two effects. First, it would end the exclusion of non-member states from the Court’s aggression jurisdiction — an exclusion that currently exists only for aggression. (Which is why the Court cannot prosecute Russians for aggression but can prosecute them for war crimes, crimes against humanity, and genocide.) Second, it would mean that member states could no longer insulate themselves from being prosecuted for aggression simply by not ratifying the aggression amendments. (Contrary to the claims of some, opting-out is not required.)

I have long criticised the narrow jurisdictional regime that states adopted for the crime of aggression, so I am happy to see the proposed amendment. It is important to be honest, though, and acknowledge that it has almost no chance of ever entering into force. Because the proposal does not seek to amend Arts. 5-8 in the Rome Statute, the amendment is subject to the procedure set out in Art. 121(4):

Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them.

This means that the amendment would not enter into force for any state unless and until 110 states ratified it. That is unlikely, to say the least. After all, only 47 states have ratified the aggression amendments themselves even though they have been open for ratification for nearly 15 years. And those are the amendments that include the narrow jurisdictional regime that treats member states differently for aggression than for the other crime. Although Russia’s aggression against Ukraine has convinced some holdouts to sign on — a group that includes my beloved Denmark — the numbers simply aren’t there and probably never will be.

Per Art. 121(2) of the Rome Statute, the proposed amendment will now be considered at the next meeting of the Assembly of States Parties — whether its regularly scheduled one at the end of the year or one specifically convened to address the proposal. At that meeting, 2/3 of ICC member states — 83 states — will have to vote to adopt the amendment and open it for ratification. I’m dubious the amendment will pass even that hurdle. But I hope I’m wrong.