ICC’s Jurisdiction over the Crime of Aggression: Amending Article 5 Instead of Article 15bis (Part II)

[Terje Einarsen is Professor of International Law at the University of Bergen and Chairperson of the Norwegian Section of International Commission of Jurists] 

Part I of this post discussed why the jurisdiction should be extended and the current proposal to amend Article 15bis.

An Alternative Proposal: Amending Article 5

Against this background (see Part I), it would presumably be better and more effective to amend Article 5 instead, by introducing a new second paragraph, for example as follows:

New Article 5(2):

Option 1

The Court shall exercise jurisdiction over the crime of aggression in article 5(1)(d) in accordance with article 8bis and article 12(2) for a State Party that have accepted the present article 5(2), in accordance with article 121(5) first sentence. Article 121(5) second sentence shall not apply to this amendment. For a State Party accepting the present article 5(2), article 15bis shall not apply.

Option 2

The Court shall exercise jurisdiction over the crime of aggression in article 5(1)(d) in accordance with Article 8bis and articles 12 and 13(a) and (c) for a State Party that have accepted the present Article 5(2), in accordance with article 121(5) first sentence. Article 121(5) second sentence shall not apply to this amendment. For a State Party accepting the present article 5(2), article 15bis shall not apply.

The first option refers to Article 12(2) only. This is because the substantial difference goes between the general rules of Article 12(2) and the special rules of Article 15bis (4) and (5). So, by implication, Article 12(3) will apply as well. The second option makes this even clearer through a general reference to Article 12. In the second option it is also clear that Article 13(a) and (c) apply to the amendment (the difference is marked in bold). This means that the special rules of Article 15bis (6) to (8) on the procedural relationship with the Security Council for the crime of aggression will not apply, only the general rules of Article 13(a) and (c), thus aligning the jurisdiction over the crime of aggression fully with the other crimes. 

However, a third option would also be possible, if this would be necessary to get the amendment adopted:

Option 3

The Court shall exercise jurisdiction over the crime of aggression in article 5(1)(d) in accordance with Article 8bis and articles 12 and 13(a) and (c), and article 15 bis (6) to (8), for a State Party that have accepted the present Article 5(2), in accordance with article 121(5) first sentence. Article 121(5) second sentence shall not apply to this amendment. For a State Party accepting the present article 5(2), article 15bis shall not apply.

Legal Consequences

The legal consequences of amending Article 5 in the way proposed above seem to be clear. If adopted by consensus or by a two-thirds majority, see Article 121(3), Article 121(5) first sentence alone will for sure apply to the amendment. 

While Article 121(4) is not amended, the new second paragraph of Article 5 would become lex specialis in relation to the general rule in Article 121(4). This is not only legally permissible but seems to be in line also with the broadminded thinking behind the original Article 5(2), first sentence, which was deleted as part of the Kampala amendment:

“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.”

This provision did neither rule out that the jurisdiction over the crime of aggression would be aligned with the jurisdiction over the other crimes enumerated in Article 5(1), nor that special jurisdictional rules might be enacted. Consequently, a temporary period of time with special rules followed finally by alignment, is also fully compatible with the Rome Statute system, including its spirit and purpose, see its preamble. Thus, the treaty history to some extent also supports a new second paragraph in Article 5, by bringing home, so to speak, the Court’s jurisdiction over all Rome Statute crimes on an equal and legally secure footing.  

The amendment, if adopted, will enter into force one year after ratification for those States Parties which ratify it. Thus, if adopted in July 2025, it might be possible for any State, acting as rapidly as possible, to gain territorial protection from aggression under the Rome Statute from any other State in the world from the autumn of 2026. 

Furthermore, because the crime of aggression was activated under the Rome Statute on 17 July 2018, a State may even lodge a declaration under Article 12(3) to provide the Court with jurisdiction over its territory and its nationals from this point in time onwards. 

Notably, the  legality principle (nullum crimen sine lege) would not be an obstacle in this regard. Article 22(1) makes clear that a person shall not be criminally responsible under the Rome Statute “unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court”. This requirement would be met, because the crime of aggression has been a crime within the jurisdiction of the Court since 17 July 2018. Thus, there would be no issue of unlawful retroactive application of law, only permissible retroactive enforcement of the law.   

What then, about States having ratified the Kampala amendment? First, those States may also ratify the proposed Article 5(2). Second, it would then be natural to withdraw from the Kampala amendment simultaneously. For those Kampala States Parties which do not ratify the proposed Article 5(2), the obligations and the more limited legal protection under the Kampala Amendment would continue to apply. Thus, there would be no need for additional amendments to the Kampala Amendment or any transitional provision.

Conclusion

Should the Review Conference adopt the proposed amendment to Article 5(2), preferably option 2, instead of the proposed amendment to Article 15bis, the territorial protection of victim States under the Rome Statute would soon become effective. The Court’s jurisdiction over aggression would be fully aligned with the Court’s jurisdiction over genocide, crimes against humanity and war crimes. Furthermore, States Parties at the Review Conference would have no doubt about the legal consequences of this amendment. 

If adopted, many State Parties would most likely ratify this amendment as soon as possible because it provides for real and certain legal, territorial protection for victim States. It would even become a new important incentive for non-state parties to join the Rome Statute.