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The Cyber “Shipwrecked” and the Second Geneva Convention

by Jeffrey Biller

[Jeffrey Biller, Lt Col, USAF, is the Associate Director for the Law of Air, Space and Cyber Operations at the Stockton Center for the Study of International Law, US Naval War College.]

This May, the law of naval warfare took a significant step forward with the International Committee of the Red Cross (ICRC) release of an updated commentary on the Second Geneva Convention (GCII). The updated commentary is the first since the original commentary was released in 1960, and recognizes significant changes both in the conduct of naval conflicts and interpretations of the governing law. One such significant change is the advent of the cyber domain as a key component in naval operations. This post examines one potential impact of the cyber domain on naval operations – the protections afforded to shipwrecked crews under Article 12 of GCII.

Recent examples of potential cyber operations targeting maritime vessels include the infection of an 80,000-ton ship’s navigation system via a malware-infected USB stick and the possible GPS spoofing of at least twenty ships near the Russian port of Novorossiysk. Modern naval vessels utilize programmable logic controllers to interface hardware components with the physical systems onboard a ship. This creates potential vulnerabilities to power, hydraulic, steering, propulsion, and other critical systems. Should some or all of these systems be subject to a cyber-attack during an armed conflict, with the result that the ship becomes disabled, questions arise as to the status of that ship and whether the crew must be afforded certain protections under GCII.

Article 12 of GCII provides that “[m]embers of the armed forces . . . who are at sea and who are wounded, sick or shipwrecked, shall be respected and protected in all circumstances,” affording them protections against further attack once they qualify as “shipwrecked.” Traditional notions of shipwreck conjure up images of ships ablaze and beginning to sink as the result of cannon, torpedo, or aerial bombs. However, Article 12 states, “the term ‘shipwreck’ includes shipwreck from any cause.” Given the reliance of many modern warships on cyber controlled critical systems, it begs the question: can the crew of a warship be shipwrecked, within the meaning of GCII, by purely cyber means, thereby affording protections from further attack. Although no State has yet officially addressed this specific question, a review of the updated commentary’s Article 12 analysis suggests an answer in the affirmative.

The 2017 commentary states, “to qualify as shipwrecked the person must be in a situation of peril at sea” and “in all cases the person must refrain from any act of hostility.” (See Updated Commentary, para. 1379). Thus, we have two criteria that must be met and are difficult to determine in the cyber context: establishing whether the crew of a ship disabled by cyber means is in “peril at sea,” and, if so, how to determine if that crew has refrained from engaging in hostilities.

Peril at Sea

Framing the analysis of whether a ship’s crew disabled through cyber means can be considered in peril is the guidance to read the term shipwreck “as being broad.” (See Updated Commentary, para. 1383). The 2017 commentary reiterates the 1960 commentary exhortation for the term to be “taken in its broadest sense.” (Commentary to Geneva Convention II for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea 84–92 (Jean Pictet ed., 1960)). Despite a broad reading of the term shipwrecked, it can initially be difficult to accept that a ship with no outwardly apparent damage should be considered in peril. However, the loss of propulsion, steering, life-support, and other critical systems is enough to create a dangerous situation, even if it is not immediately life threatening. To this point, the 2017 commentary finds that “[p]ersons on a fully disabled ship . . . whose situation is dangerous but not necessarily imminently life-threatening, are also covered, as long as they refrain from any act of hostility . . . .” (See Updated Commentary, para. 1384). Furthermore, the commentary states “[s]ituations that are potentially life-threatening . . . also render persons on board ‘in peril’ at sea.” (See Updated Commentary, para. 1385).

Perhaps the primary difficulty in determining whether the crew of a ship disabled by cyber means is in peril is that the extent of that damage may be unknown, initially even to the crew itself. The damage to networked systems may require extensive repair necessitating new equipment or experts be brought on board before critical systems can be repaired. Conversely, the damage might quickly be repaired, with a ship’s weapon systems again posing a deadly threat to opposing warships.

Furthermore, the attribution of who or what is responsible for the disabling of the ship’s networks may be initially unclear. Indeed, it may be that the damage is entirely self-inflicted or unintentionally caused by malware previously and unknowingly introduced by a member of the ship’s crew. In these situations, the commentary’s inclusion of “shipwrecks caused by human error or a malfunction”(See Updated Commentary, para. 1386) in its definition of “any other cause,” makes clear that a ship’s crew could be rendered shipwrecked through cyber means even if the damage to the ship’s networks is self-inflicted or caused by means other than enemy action. Accordingly, a determination of attribution is legally unnecessary in evaluating whether protections should be afforded.

Refraining from Hostilities

In addition to being at peril, the commentary indicates that a crew does not receive the protections of Article 12 unless they also refrain from any further act of hostility. Determining whether a warship’s crew has complied with this requirement can be difficult even when the signs are visually observable, such as when members of the crew can be seen abandoning the ship. A ship’s weapon systems may remain functional even while other systems are severely damaged and there may be members of the crew operating those systems. Recall that the ship itself remains a military object subject to attack throughout; it is only the crew that receives protections in a shipwreck situation. This 2017 commentary recognizes this difficulty:

However, it will likely be very difficult or even impossible for an enemy to know whether the crew is working to repair weapons with the aim of continuing hostilities without an outward sign indicating otherwise. Furthermore, as the sailors are on board a military objective, it is likely that a disabled or damaged warship would need to surrender (e.g. by striking its colours) in order for protection to be secured. (See Updated Commentary, para. 1390).

A question specific to the cyber domain is what cyber defense measures a crew may take to prevent further cyber damage to the ship, while still refraining from hostilities. Here, the distinction between active cyber defenses, sometimes referred to as “hack-backs,” and passive defenses may hold the answer. Whereas active cyber defenses may pose a threat to opposing actors in the conflict, passive defenses pose no such threat and are akin to trying to save a damaged ship. Whereas refraining from further hostilities make no requirement that a crew stop trying to save a damaged ship, there is an obligation to refrain from acts that pose a threat to opposing forces.

Finally, determining whether a crew is refraining from hostilities in this context will likely required some communication to other forces taking part in the engagement. Unfortunately, the same cyber event that damaged other critical systems may also have damaged the disabled ship’s communications equipment. Although the commentary suggests “striking its colours” as a means of signaling the cessation of hostilities, most naval engagements of the future are likely to be fought at standoff range and visual signals may be useless.

Future Considerations

Whereas many practical difficulties inhibit the determination of whether the crew of a ship disabled by cyber means should be afforded Article 12 protections, the commentary suggests that it is clearly possible. GCII makes no requirement as to how a ship becomes disabled and the commentary stresses that the protections are quite broad. This difficulty does raise several interesting questions for naval forces who operate warships largely dependent on networked systems. These naval powers may need to retain non-digital methods of communication such as analog radios or high-range visual systems that can indicate a ship is in peril and is refraining from hostilities. Moreover, the question of whether states employing cyber methods and means in an attempt to disable enemy warships must notify their own warships operating in the area of such efforts is a valid question.

Unfortunately, the impact of cyber operations on the Geneva Conventions was limited to the discussion of the scope of applicability in the new commentary. This is understandable given the nascent stage of determining the applicability of international humanitarian law to cyber operations. However, the increased depth of analysis in the new commentary does aid in making the analysis clearer. Ensuring that GCII protections will be afforded to the crews of potential “cyber shipwrecks” is one such area that must be considered by naval powers going forward.

Piecing the Withdrawal Puzzle: May the ICC still open an investigation in Burundi? (Part 2)

by Sergey Vasiliev

[Sergey Vasiliev is an Assistant Professor of International Law, Grotius Centre for International Legal Studies, Leiden University. This is the second part of a two-part contribution. The first part can be found here.]

Initiation of an investigation by the OTP post-withdrawal

As I argued previously, no investigation in the Situation in Burundi can be initiated after 27 October 2017 unless the OTP made a confidential request under Article 15(3) prior to the date on which the withdrawal became effective (the scenario I considered in Part I of this post). The ICC retains (temporal, material, and personal/territorial) jurisdiction over the crimes committed while Burundi was a party. But as that jurisdiction remains dormant until it is activated under Article 13(c), and the expiry of the one-year period precludes such activation, the Court cannot exercise it by way of letting the situation progress to the formal investigation. Thus, while I agree with the authors of the Amnesty HRIJ blog that there is jurisdiction (in principle), I reject their claim that opening an investigation remains a possibility.

First, the distinction between mere existence of jurisdiction and the Court’s ability to exercise it, is important to maintain. It is the cornerstone of the Court’s jurisdictional mechanism which consists of two elements – [1] the preconditions to the exercise of jurisdiction (or dormant jurisdiction, as aptly phrased by Héctor Olásolo in his excellent 2005 book, p. 39) (Article 12); and [2] triggering mechanisms set out in Article 13. For the Court to be able to exercise the (otherwise dormant or latent) jurisdiction which it possesses in respect of crimes under Articles 5, 11 and 12, the jurisdiction needs to be triggered either by a State Party referral (Article 13(a)) or by the Prosecutor through the initiation of an investigation proprio motu (Article 13(c)).

Article 12(2)(a), (c) and (3) establishes the parameters of the acceptance by relevant States of the Court’s jurisdiction as the precondition to its exercise by the Court whilst Article 13 (‘Exercise of Jurisdiction’) governs the activation of that jurisdiction. It provides that ‘[t]he Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: … (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.’ This means that if the Prosecutor has not triggered the ICC’s jurisdiction by initiating an investigation, i.e. by filing with the PTC a request to authorize it to open investigation accompanied by supporting material, the jurisdiction remains dormant and cannot be exercised by the Court. In case of Burundi, the ICC’s jurisdiction was not activated by the time when the withdrawal became effective since under the scenario I am considering here the Prosecutor did not make an Article 15(3) request prior to 27 October 2017.

As the second step, I posit that Article 127(2) precludes the activation of the Court’s jurisdiction by the Prosecutor in accordance Articles 13(c), 15(3) and 53(1) of the Statute in the post-withdrawal stage. Rather than reproducing the text of Article 127(2) verbatim, it would be helpful to paraphrase it in positive terms: [1] withdrawal discharges a State from any obligations that would have arisen for it under the Statute had it remained a Party, including any financial obligations [1st sentence]; [2] its withdrawal shall affect cooperation with the Court in connection with criminal investigations and proceedings in relation to which the State would have otherwise had a duty to cooperate, and which had not been commenced prior to the date on which the withdrawal became effective [2nd sentence; 1st part]; and [3] withdrawal shall prejudice the consideration of any matter that was not already under consideration by the Court prior to the date on which the withdrawal became effective [2nd sentence; 2nd part].

As noted by other commentators, Article 127(2) of the Statute reflects and details for the purpose of the Statute the standard of Article 70 of the VCLT which governs the consequences of the termination of a treaty. Although this is open to debate, it is arguable that Article 70 VCLT informs the interpretation and application of Article 127(2) and/or applies subsidiarily pursuant to Article 21(1)(b) of the Statute. According to Article 70 VCLT, a State’s withdrawal from a multilateral treaty releases it from ‘any obligation further to perform the treaty’ but ‘[d]oes not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination’. This implies that withdrawal from a multilateral treaty does affect any right, obligation or legal situation of the parties that was not created through the execution of the treaty prior to withdrawal.

At this juncture, let us apply the elements of the provision of Article 127(2), as paraphrased for convenience and seen in light of Article 70 VCLT, to the situation of Burundi.

[1] The scope of obligations the withdrawing State is released from as per the 1st sentence of Article 127(2) is unqualified and subject only to a temporal limitation as it covers all putative obligations under the Statute postdating the withdrawal. The former State Party is exempted from further performing not only the duties of cooperation vis-à-vis the Court (specifically, yet only partially, addressed in the 2nd part of the 2nd sentence). The exemption also covers any obligations constituting the ‘legal situation of the parties created through the execution’ of the Rome Statute. These include duties vis-à-vis States Parties which, if it had not withdrawn, would have otherwise arisen for the State in question on account of the Court’s exercise of its complementary jurisdiction in respect of the crimes over which that State would normally exercise jurisdiction.

The ‘legal situation’ in connection with the Court’s exercise of jurisdiction encompasses, among others, the State Party’s duties to submit oneself to the ICC’s scrutiny as part of the complementarity analysis and to its admissibility determinations, as well as the duty to accept any prospective investigation or prosecution stemming from the activation of the Court’s jurisdiction by the Prosecutor in accordance with Article 15(3). For the withdrawing State to continue to be bound by these obligations post-withdrawal under Article 127(2), the Court must have commenced to exercise its jurisdiction before withdrawal becomes effective. As noted, this has not happened in case of Burundi under the present scenario and the Court’s jurisdiction remained dormant. Therefore, the Prosecutor’s attempt to trigger it after 27 October 2017 would fall outside of the scope of the 1st sentence of Article 127(2) and Article 70(1)(b) VCLT insofar as it would amount to nothing else than seeking to create a new legal situation through a continued execution of the treaty as if the withdrawal did not happen.

For this reason, I find the Amnesty HRIJ blog authors’ VCLT-based argument not sufficiently sensitive to the nuances of the ICC’s jurisdictional setup and ultimately not convincing in justifying the conclusion that the Prosecutor may initiate investigation in Burundi following the withdrawal. To quote a passage from Olásolo’s book (p. 135): “the lack of activation of the Court’s dormant jurisdiction over the situation in which such crimes were allegedly committed prevents the assertion of the existence of a “right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.”

[2] The 1st part of the 2nd sentence of Article 127(2) does not concern the implications of the effectuation of the withdrawal for the Court’s jurisdiction. Rather, it is limited to its effects on the withdrawing State’s cooperation duties. For these duties to continue to apply to a former State Party in connection with any specific investigations and proceedings, these activities must have commenced prior to the date on which the withdrawal became effective. It is clear that if no proprio motu investigation in Burundi was ‘initiated’ by the OTP before 27 October 2017, none has been ‘commenced’ prior to that date either. The moment of the commencement of a proprio motu investigation is marked by its authorization, which is within the PTC’s competence. In the scenario I am considering, the PTC was not seized of the matter, and much less decided on it, by the expiry of the Article 127(1) period.

Even if one admits arguendo that the investigation could be opened after 27 October (which I do not believe is legally possible), there is no way Burundi would have a duty to cooperate in connection with this investigation. This is a valid policy consideration in itself that militates against the OTP seeking an authorization to investigate in the post-withdrawal stage. This concern has been raised by commentators (notably, by Alex Whiting) who, without making an argument on jurisdiction similar to mine, emphasized the importance for the OTP, in case it intended to launch an investigation and/or prosecutions in a withdrawing State, to care to do so while that State was still a party to the Statute. This is a matter of due diligence that goes to securing a waterproof legal basis for demanding and obtaining cooperation that is essential for effective investigations. As noted by Roger Clark, ‘[a] vigilant Prosecutor who bears pending withdrawals in mind will need to be careful to commence proceedings formally within the relevant time-frame.’ (R. Clark, ‘Article 127’, Triffterer/Ambos (eds), The Rome Statute, 3rd ed. (Beck–Hart–Nomos, 2016) 2324, emphasis added).

[3] Finally, the basic point of the 2nd part of the 2nd sentence of Article 127(2) is that withdrawal prevents the consideration of any matter not already under consideration by the Court prior to the effectuation of the withdrawal. I am not convinced by the arguments positing the possibility of a post-withdrawal Article 15(3) request with reference to this limb of Article 127(2). Kevin and Dov may have a point when they challenge the notion that the ‘Court’ in this article should be read to include the OTP, and that a preliminary examination can properly be deemed a ‘matter’, respectively, although I am not interested to consider whether the interpretations they take issue with are invalid and implausible. I generally find these terms too elastic, arbitrary, and elusive to serve as the basis for any conclusive argument. The somewhat haphazard choice of terminology and less than impeccable coordination in the drafting of the different parts of the Statute sets limits on the cognitive and practical utility of systemic or contextual interpretation.

Instead, I do not think one can rely on the last sentence of Article 127(2) for extending the OTP’s power to file an Article 15(3) request to the post-withdrawal stage because the ‘matter’ underlying the request for an authorization to investigate coming before the PTC is materially and procedurally distinct from the ‘matter’ under consideration by the ‘Court’ (in the broad sense) in the context of the preliminary examination. In other words, the matter of the initiation of investigation (Article 15(1)-(3)) is distinguishable from that of its commencement (Article 15(4)), among others, given the different actors, legal bases, process, and substance. These ‘matters’ are similar due to an overlap in subject-matter and temporal proximity in the procedural chronology. But they are definitely not identical since the ‘consideration’ of each of them is carried out by different organs of the Court and is subject to distinct provisions. Presenting them as one and the same ‘matter’ in the singular would be stretching this notion to the point where it loses any meaning. The consideration of the OTP’s request by the PTC judges in accordance with Article 15(4) and Rule 50, aims to establish whether there is a reasonable basis to proceed and whether an investigation should be authorized. By contrast, the OTP’s preliminary examination (which does have a formal status in the ICC regime since it is mentioned in the Statute, even if once, – in Article 15(6)), is governed by distinct provisions (Article 15(1)-(3) and Rules 46-50) and directed towards the former determination but not the latter, which is for the Chamber to make. Thus I do not see why, despite the continuity between the Article 15(3) and Article 15(4) determinations, they should be considered as the same ‘matter’. Therefore, even though the preliminary examination in Burundi can continue post-withdrawal as per the last sentence of Article 127(2), it cannot progress to a formal investigation under that provision.


The fact that the Court retains jurisdiction over the crimes committed in Burundi while it was a State Party to the ICC Statute, does not mean that it is still possible for the Prosecutor to seek authorization to investigate and for the Court to exercise its jurisdiction over that situation after the withdrawal became effective. Statements to the effect that the withdrawal ‘does not affect’ the Court’s jurisdiction are not exactly accurate. While the dormant jurisdiction (or the preconditions to its exercise) is not thereby removed, the exercise of jurisdiction by the Court is precluded.

The OTP may not and should not request authorization to open investigation in Burundi after 27 October. This is so not only because it would be problematic for policy reasons—which I will not go into here other than mentioning the thin prospects of obtaining cooperation from this former State Party—, but also because such a step would be inconsistent with the Statute or, at the very least, rest on a shaky legal foundation. The OTP’s own legal analysis from one year ago may be taken as indirectly acknowledging this. It would be ill-advised to try to compensate for its inaction under Article 15(3) in the course of one year since the withdrawal notice (if there indeed was such inaction).

Regrettable as it were, the Burundi ship has sailed and the ICC should let go – at least until such time as the exercise of its jurisdiction might be rendered possible, for example, by Burundi’s accession to the Statute, Article 12(3) declaration, or a UNSC referral. If the history of States’ political maneuvering with international criminal justice institutions can teach us anything, it is perhaps that everything is possible and nothing is guaranteed.

Piecing the Withdrawal Puzzle: May the ICC still open an investigation in Burundi? (Part 1)

by Sergey Vasiliev

[Sergey Vasiliev is an Assistant Professor of International Law, Grotius Centre for International Legal Studies, Leiden University. This is the first part of a two-part contribution.]

Questions raised by the ICC’s reaction to Burundi’s withdrawal

On 27 October 2017, one year after Burundi notified the UN Secretary-General of its intention to withdraw from the Rome Statute, the withdrawal became effective in accordance with Article 127(1). The preliminary examination of the situation in Burundi has been ongoing since 25 April 2016, as announced by the Prosecutor. The expiry of the ‘cooling off period’—and the first effective withdrawal in the ICC’s 15-year history—was an event of some significance; more so perhaps than those covered in its press releases on or around the same date. The observers expected an official acknowledgement from the Court that the Article 127(1) term had ended. The Court could have also taken the opportunity to provide clarity on the status of the situation to the public and, above all, to the withdrawing State whose representatives (like some Bijumbura residents), yearned for a sense of closure and had already bade the Court a festive farewell.

Disappointingly, no planned ICC statement followed. The ICC spokesperson’s curt and enigmatic response to the journalists’ queries (see BBC, AP, Al Jazeera and communications to Benjamin Dürr and Anna Holligan) only thickened the plot. The spokesperson intimated that an announcement regarding the results of the Burundi preliminary examination would be made in due course in accordance with the OTP’s practice. More controversially, he asserted that ‘the Burundi withdrawal does not affect the jurisdiction of the Court with respect to the crimes alleged to have been committed during the time it was a State Party, namely up until 27 October 2017’.

The latter point raises questions about the legal consequences of withdrawal: in particular, whether the Court retains jurisdiction over the crimes committed in Burundi while it was a State Party, and whether an investigation could still be opened in the aftermath of the withdrawal. The OTP’s 2016 Report on Preliminary Examination Activities neither unequivocally asserted nor ruled out the possibility of initiating an investigation after the withdrawal becomes effective: ‘According to its legal assessment, the Office could also initiate investigations at least during this one-year period.’ (para. 60). Notably, the Report said nothing about the impact of the withdrawal on jurisdiction. The position that jurisdiction remains unaffected is far-reaching and not as straightforward as presented in the statement; the issue of jurisdiction is not squarely addressed in Article 127. This led some observers (this writer included) to wonder whose legal opinion the spokesman expressed and what the legal basis for it was.

The—so far the only available—ICC’s official reaction to the Burundi’s effective withdrawal is in line with the view expressed by the authors of the Amnesty HRIJ blog post and other commentators (see Alex Whiting’s 2016 post), who consider that the consummation of withdrawal does not (necessarily) extinguish the ICC’s jurisdiction. The authors of the Amnesty HRIJ post further argue that, therefore, an investigation into the Situation in Burundi could still be opened, even after 27 October 2017. Somewhat differently, Alex Whiting found Article 127(2) of the Statute to be unclear on this point—which it certainly is—and, therefore, considered it safer for the Prosecutor to request judicial authorization under Article 15(3) before the withdrawal became effective. By contrast, Dov Jacobs and Kevin Jon Heller took the position in their recent posts that the ICC had missed the train and that no formal investigation could be launched as of 27 October 2017. I agree with this conclusion but take a different route in arriving at it. 

Confidential request scenario

Before explaining why opening an investigation is in my view no longer an option, absent any material change in circumstances (such as Burundi re-acceding to the Statute or filing an Article 12(3) declaration), I should clarify that this argument, which I set out in Part II of this post, is limited to the scenario under which the Prosecutor had not filed a confidential request for an authorization to launch an investigation before the withdrawal became effective.

I will briefly consider here the alternative scenario, namely that the Article 15(3) was filed confidentially. There is nothing in Article 15(3), Rule 50, or Regulations 45 and 49 RoC to preclude a confidential request, and I do not rule out the possibility that the Prosecutor did file one prior to 27 October. This is still a missing piece of the factual puzzle at present and it will be dispositive of the possibility to open an investigation in the aftermath of the withdrawal.

On the one hand, one would think of a confidential request as an unusual and unlikely move for the Prosecutor. Firstly, as Dov has noted, this would depart from previous practice: past requests under Article 15(3) were filed as public documents (with confidential annexes). Second, going confidential seems peculiar in the situation complicated by the impending withdrawal—which is a factor arguably calling for transparency rather than confidentiality—absent any (self-evident) situation-specific reasons for keeping both the Regulation 45 notice and the Article 15(3) application under seal. On the other hand, I admit that the OTP possibly had good grounds for preferring to proceed confidentially, which are not (yet) in the public domain relating, for example, to the serious security risks for information providers.

If the Prosecutor did make a confidential Article 15(3) request, I believe it could be decided upon by the PTC even after 27 October 2017, with the possibility of giving the green light to the investigation. The second part of the second sentence of Article 127(2) allows for a ‘continued consideration of [the] matter which was already under consideration by the Court prior to the date on which the withdrawal became effective’. The ‘matter’ here would be the OTP request under Article 15(3) (as opposed to the preliminary examination as such, which, as I explain below, is a different ‘matter’); the question before the judges being whether there is ‘a reasonable basis to proceed with an investigation, and [whether] the case appears to fall within the jurisdiction of the Court’ (Article 15(4)). The notion of ‘matter’ is sufficiently broad (and vague) to cover an OTP request to open investigation. Since it would be the PTC judges who would be seized of it at the time when the withdrawal became effective, it is not an issue whether ‘the Court’ in the second sentence of Article 127(2) refers to the judiciary alone or also includes other organs (such as the OTP).

If the (hypothetical) confidential request to open an investigation was indeed filed before the expiry of the Article 127(1) term and is going to be authorized by the PTC after that deadline, the investigation cannot be considered as having been ‘commenced prior to the date on which the withdrawal became effective’. In that case, Article 127(2) exempts Burundi from an obligation to cooperate with the Court in connection with the investigation. It is questionable whether opening the investigation within one year since the withdrawal notice rather than later would have made any difference in terms of the availability of cooperation. As others note, Burundi would likely be unwilling to cooperate with the Court even if it were under an obligation to do so. But it does matter, both legally and symbolically. If the investigation had been commenced before 27 October 2017, the Court would have been legally entitled to demand cooperation from the former State Party in connection with the investigation, possibly also giving it a stronger leverage with actors capable of inducing cooperation politically. Burundi would have also had a more difficult time justifying any failures to perform its cooperation duties.

In Part II of this post, I will look at the scenario under which no confidential Article 15(3) request had been filed before the withdrawal became effective (while accepting the possibility that the future will prove me wrong). It is important to consider, as a matter of law, whether a proprio motu investigation may be initiated in respect of a situation in a State that has effectively withdrawn from the Statute.

It’s High Time for the US to Conduct Complementarity As To Crimes in Afghanistan

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the Center for Global Affairs at New York University.]

The ICC Prosecutor announced last week that she was requesting the ICC Pre-Trial Chamber to authorize the Afghanistan Preliminary Examination moving into the Investigation stage. This would take the ICC’s Afghanistan investigation one step closer to resulting in actual cases.

We have known for quite a while that the Prosecutor was examining the situation in Afghanistan, and her past reports and press releases indicate she has been examining war crimes and crimes against humanity committed by the Taliban, Afghan government forces, and US nationals—US armed forces and CIA.

As Kevin Jon Heller notes, it will be interesting to see the US reaction to this news, yet it should hardly come as a surprise. As he also notes, the Prosecutor has been under pressure to expand her docket beyond the African continent. The US does not have anyone in the post of US War Crimes Ambassador (or head of the Office of Global Criminal Justice), so it is unclear who would lead any US response.

The US has of course one very simple way that it could react to this news, and that is to endorse the rule of law, and itself conduct any investigations into torture or ill-treatment at the hands of US nationals, be they armed forces, CIA, or contractors of either.

Under the principle of complementarity (Rome Statute art. 17), any state can avoid an ICC case proceeding by conducting a good faith investigation and/or prosecution into the same conduct. It has been high time for the US to do this, but the Prosecutor’s announcement illustrates the urgency of the US finally taking this seriously.

As a US national and a supporter of the ICC, I don’t really want to see the US locked in a showdown against the ICC. Yet, past experience (the misnamed American Servicemember Protection Act, bilateral immunity agreements, legislation allowing US forces in invade The Hague to liberate Americans in ICC custody) suggests such a confrontation is quite possible. Such an approach would not well serve either the ICC or the US, as it would amount to mere bully-tactics by the US against an institution, supported by all the US’s key allies, that is committed to ensuring rule of law for the worst crimes of concern to the international community.

Both the ICC and the US have the same interest in adhering to the rule of law, and there is a simple rule-of-law-abiding solution here: the US must undertake to do complementarity. The UK, faced with the possibility of the ICC proceeding against UK nationals for abuses committed in Iraq has been working hard to conduct complementarity; the US should do the same.

Alex Whiting raises the possibility that US conduct might not satisfy the ICC’s fairly high “gravity threshold”; yet, if the Prosecutor also includes certain “black sites” run by the CIA that were located in Rome Statute States Parties, such as Poland, Romania and Lithuania (as her announcement suggests), it is also possible that the gravity threshold will be met.  (Her announcement stated, in addition to crimes in Afghanistan, her request for authorization would include “war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.”)

We should not lose sight of the fact that the ICC is not aiming this investigation solely towards US nationals, and to the extent the ICC can prosecute the much more extensive crimes committed by the Taliban or other armed groups in Afghanistan, these would be welcome developments. Afghanistan has been plagued by decades of crimes, with those pertaining to US nationals constituting just one subset of what is at issue.

Meanwhile, the US should expeditiously fill the post of US War Crimes Ambassador (head of the Office of Global Criminal Justice), with the office’s initial focus being to finally conduct complementarity to ensure that justice for crimes in Afghanistan is done, and that to the extent US nationals are implicated in wrongdoing, that it is addressed within the US legal system. The US has credible and effective military and civilian investigative capacity and court systems which can and should be utilized.

Initial Thoughts on the ICC’s Decision to Investigate Afghanistan

by Kevin Jon Heller

Very significant news out of the ICC today: after a decade-long preliminary examination, the OTP has finally decided to ask the Pre-Trial Chamber to authorize a formal investigation into the situation in Afghanistan. Here is a snippet from Fatou Bensouda’s announcement:

For decades, the people of Afghanistan have endured the scourge of armed conflict.  Following a meticulous preliminary examination of the situation, I have come to the conclusion that all legal criteria required under the Rome Statute to commence an investigation have been met.  In due course, I will file my request for judicial authorisation to open an investigation, submitting that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan.  It will be for the Judges of the Court’s Pre-Trial Chamber, constituted by the Presidency, to decide whether I have satisfied them that the Statute’s legal criteria to authorise opening an investigation are fulfilled.

Given the limited temporal scope of the Court’s jurisdiction, my request for judicial authorisation will focus solely upon war crimes and crimes against humanity allegedly committed since 1 May 2003 on the territory of Afghanistan as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.  The Court has no jurisdiction respecting crimes alleged to have been committed before those cut-off dates.

Assuming the PTC grants the OTP’s request — which is basically a foregone conclusion — Afghanistan will become (following Georgia) the second ICC investigation outside of Africa.

It will be very interesting to see how the US reacts to the announcement. The OTP made it clear in its 2016 preliminary-examination report that it intends to investigate crimes committed by the US military and the CIA:

211. The information available provides a reasonable basis to believe that, in the course of interrogating these detainees, and in conduct supporting those interrogations, members of the US armed forces and the US Central Intelligence Agency (“CIA”) resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape. These acts are punishable under articles 8(2)(c)(i) and (ii) and 8(2)(e)(vi) of the Statute. Specifically:

  • Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014. The majority of the abuses are alleged to have occurred in 2003-2004.
  • Members of the CIA appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape on the territory of Afghanistan and other States Parties to the Statute (namely Poland, Romania and Lithuania) between December 2002 and March 2008. The majority of the abuses are alleged to have occurred in 2003-2004.

212. These alleged crimes were not the abuses of a few isolated individuals. Rather, they appear to have been committed as part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees. According to information available, the resort to such interrogation techniques was ultimately put to an end by the authorities concerned, hence the limited time-period during which the crimes allegedly occurred.

213. The Office considers that there is a reasonable basis to believe these alleged crimes were committed in furtherance of a policy or policies aimed at eliciting information through the use of interrogation techniques involving cruel or violent methods which would support US objectives in the conflict in Afghanistan. Likewise, there is a reasonable basis to believe that all the crimes identified herein have a nexus to the Afghanistan conflict.

If the US formally challenges the investigation — a big if, because it would probably see doing so as an acknowledgment of the investigation’s legitimacy — it will no doubt rely on Mike Newton’s argument in the Vanderbilt Journal of Transnational Law that the Status of Forces Agreement (SOFA) between Afghanistan and the United States precludes the ICC from exercising jurisdiction over American soldiers. (The SOFA presumably doesn’t apply to CIA operatives, who are not part of the US armed forces.) Oversimplifying a bit, Mike argues that Afghanistan has no jurisdiction that it can delegate to the ICC, because the SOFA provides that the US retains exclusive jurisdiction over crimes committed by American soldiers. I disagree with the argument, for reasons ably laid out by Roger O’Keefe and Carsten Stahn. But it is a serious argument that deserves serious consideration.

Like Dov Jacobs, I am also intrigued by the OTP’s stated intention to investigate crimes committed by the CIA in Romania, Lithuania, and Poland. There is no jurisdictional problem, because those states are all members of the ICC and the the SOFA that applies to NATO states is based on shared jurisdiction, not exclusive jurisdiction. And I don’t think anything in the Rome Statute prohibits the OTP from defining a situation to include territory of multiple states. But we have definitely never seen a situation like this before.

I doubt that we will see the ICC issue arrest warrants for an American soldier or CIA operative anytime soon. My guess is that the OTP will begin with crimes committed by the Taliban, which will be much easier to investigate and prosecute than American crimes. (If only because Donald Trump might be crazy enough to actually invade The Hague if the Court ever got its hands on an American.) But this is still a momentous — if long overdue — day for the ICC. Opening an investigation that could lead to Americans being prosecuted, even if only in theory, is a remarkable act of bravery for a Court that has proven largely impotent with regard to crimes committed by government officials.

Kudos to Fatou Bensouda and the OTP.

Reflections on Burundi’s Withdrawal from the International Criminal Court

by Jennifer Trahan

[Jennifer Trahan is Associate Professor, The Center for Global Affairs, NYU-SPS, and Chair of the International Criminal Court Committee of the American Branch of the International Law Association.]

On Friday, October 27, Burundi’s withdrawal from the International Criminal Court’s Rome Statute, filed one year earlier, became effective. This sad event —the first ever withdrawal from the Court to become effective — warrants reflection.

While it is frequently recited that the ICC’s Rome Statute needs to move towards “universality” as to ratifications, we should be concerned that the number of ratifying countries (which had stood at 124), has decreased (to 123). Undoubtedly, the situation could be worse, in that other States Parties that have at times threatened individual or mass withdrawal (particularly African States Parties) have not done so. But, it might behoove us to reflect on the slowing pace of ratifications and now this backwards slide.   Burundi’s withdrawal should serve as a wake-up call that States Parties and Civil Society need a revitalized approach to advancing Rome Statute ratifications, because it is only through increasing membership towards universality that the ICC will ultimately escape accusations of double-standards and uneven application of international criminal justice.

Withdrawal of a State Party also illustrates that it is ultimately much more difficult for the ICC to investigate and/or prosecute where state actors are allegedly implicated in crimes. If the state where the crimes occurred is not in favor of the ICC’s involvement, the state can block the ICC from entering its territory, making investigations difficult. Then, the state can refuse to comply with requests for cooperation (as to documents and/or witnesses), and, ultimately, it can ignore any arrest warrants that issue. This is most likely to occur where there has been proprio motu initiation of the ICC’s work (that is, it was the Office of the Prosecutor (OTP)’s initial idea to originate the ICC investigation or prosecution). In such situations the country where the crimes occurred is presumably not in favor of ICC involvement, or it would have made a referral in the first place. (Yes, a State Party, where there has been proprio motu initiation owes Rome Statute cooperation obligations, but these do not always seem to carry the day.)

Where the UN Security Council has referred the situation, one might imagine the Court’s authority would be the strongest, because it could be backed up by the coercive enforcement powers of the UN Security Council. But we all know, this has never happened, and far from exerting the strongest compliance-pull, the situation of Security Council referrals has resulted in no effective follow-up. So here too, the Court is left to try to obtain cooperation from a state that has never sought its intervention and not voluntarily joined the Rome Statute system—so it neither supports the cases being brought, nor does it necessarily support the ICC in any way. Thus, far from the ICC’s power being at its height (which it could be with proper UN Security Council support), the ICC’s power is likely at its lowest ebb.

This then leaves only situations where the State Party has made a self-referral (which presumably means the State would like the ICC to prosecute either rebels or ex-regime officials); only in these situations does one expect the State Party actually has cause to cooperate—but only insofar as the ICC’s work remains aligned with State goals (that is, the prosecutions remain only directed towards rebels or ex-regime officials). In short, the ICC has built-in structural difficulties, stemming from the voluntary nature of the Rome Statute system and a need to rely upon state cooperation. The moment the ICC’s actions do not accord with a state’s self-perceived interests (judged by those in power at the time), the State Party can refuse to cooperate and/or leave the Rome Statute system entirely, as Burundi has now done.

Given all these difficulties, what more can be done to support the ICC?

First, there should be widespread condemnation of Burundi by States Parties at the upcoming International Criminal Court’s Assembly of States Parties. When a country turns its back on justice for the worse crimes of concern to the international community, it is turning its back on its own citizens, prioritizing perceived self-interest in helping perpetuate impunity. (States Parties might also commend The Gambia and South Africa—countries that initially seemed poised on also withdrawing, but ultimately reversed their withdrawals.) A clear distinction should be made between States Parties committed to ensuring accountability for Rome Statute crimes, and non-States Parties, who lack the conviction to endorse the rule of law.

Second, the difficulties the Court is having in terms of non-cooperation need to be more effectively addressed. At present, the Assembly of States Parties is still not playing an effective role in dealing with non-cooperation. An effective role, is one that would impose consequences for violations; absent serious ramifications, non-cooperation will continue. And, of course, most to blame is the UN Security Council. Why make a referral if there is no will to ensure it is effective? One would think the UN Security Council would be concerned about its referral being seen as impotent when it fails to provide follow-up. Perhaps the Prosecutor can state this more forcefully to the Council (although she probably already has) — that by failing to follow up on referrals, the Security Council is undermining not only the ICC’s authority, but also the Security Council’s own authority.

Third, we should be most concerned for the people of Burundi, who will now be effectively unprotected at the international level if crimes against humanity and war crimes are perpetrated against them. Crimes committed prior to the date of Burundi’s withdrawal, would still be within the ICC’s jurisdiction, and could in theory be prosecuted in the future (as the ICC has an open Preliminary Examination). But these could become hard to investigate and/or prosecute if Burundi refuses to cooperate (which we can now assume, despite its treaty obligations to cooperate, which would technically continue). As to ongoing and future crimes one should explore a UN Security Council referral of the situation in Burundi, so the ICC would continue to have jurisdiction going forward—but only if the UN Security Council also agrees to ensure follow-up to make its referral meaningful.

A Dissenting Opinion on the ICC and Burundi

by Kevin Jon Heller

As has been widely reported, Burundi has just become the first state to formally withdraw from the ICC. The OTP has been examining the situation in Burundi since April 2016, but it did not formally ask the Pre-Trial Chamber (PTC) to authorize an investigation prior to Burundi’s withdrawal becoming effective. So what does Burundi’s withdrawal mean for the OTP’s preliminary examination (PE)? Can the OTP still ask the PTC to authorize an investigation into crimes committed in Burundi prior to withdrawal? Or does Burundi’s withdrawal divest the Court of jurisdiction over the situation?

The relevant provision is Art. 127(2) of the Rome Statute (my emphasis):

A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

The ICC is taking the position that Art. 127(2)’s bolded language means Burundi’s withdrawal does not affect the Court’s jurisdiction over crimes committed prior to the date the withdrawal became effective — 28 October 2017. It does not explain why, but the argument is relatively straightforward: (1) the PE in Burundi began prior to 28 October 2017; (2) a PE qualifies as a “matter”; (3) the OTP is part of the Court. Hence (4) the Burundi PE “was already under consideration by the Court prior to the date on which the withdrawal became effective” and the Court continues to have jurisdiction over (“consider”) the situation.

A number of commentators agree with the ICC’s position, including Amnesty International and Beitel van der Merwe. The only dissenting voice is Dov Jacobs, who is skeptical about point (2) — whether a PE really qualifies as a “matter” for purposes of Art. 127(2). Here is what he says:

The key issue is what is covered by the expression “any matter already under consideration by the Court”. Alex Whiting makes the argument that this expression is broad enough to cover preliminary examinations by the OTP. Possibly, he is right from a linguistic point of view. However, I have a difficulty with the idea that such an informal phase as a preliminary examination (which might simply involve an OTP investigator sitting in front of his computer in The Hague downloading HRW and Amnesty International reports) might have such massive consequences as trumping the decision of a State to withdraw from the Rome Statute.

I agree with Dov. As is well known, the OTP divides the preliminary-examination process into four phases: (1) determining whether a situation falls “manifestly outside” of the ICC’s jurisdiction; (2) determining whether there is a reasonable basis to believe an international crime was committed in the situation; (3) assessing admissibility; (4) assessing the interests of justice. According to the OTP, a “formal” PE begins with Phase 2 (emphasis mine):

80. Phase 2, which represents the formal commencement of a preliminary examination of a given situation, focuses on whether the preconditions to the exercise of jurisdiction under article 12 are satisfied and whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court. Phase 2 analysis is conducted in respect of all article 15 communications that were not rejected in Phase 1, as well as of information arising from referrals by a State Party or the Security Council, declarations lodged pursuant to article 12(3), open source information, and testimony received at the seat of the Court.

Dov’s example of the OTP investigator downloading HRW or AI reports about a situation is thus spot on. Because such reports are “open source information,” the very act of looking at it means that a PE is at Phase 2 and a “formal” PE has commenced. Which means in turn that — according to the ICC’s interpretation of Art. 127(2) — the Court retains jurisdiction over the situation in the report. (And retains it in perpetuity, because there is no time limit on an OTP decision to advance a PE to a full investigation, as the 13 year-old Colombia PE indicates.)

Like Dov, I am not sure “matter” can or should be interpreted to include any formal PE, even one triggered by an OTP investigator (or even an intern?) downloading an NGO report (or even just reading it on the screen?). But I think there is a more important question about the ICC’s interpretation of Art. 127(2): whether a situation is under “consideration by the Court” simply by virtue of the OTP preliminarily examining it. Alex Whiting believes that it is (emphasis mine):

There is a decent but far from certain argument that jurisdiction should survive at least for any crimes that are the subject of a preliminary examination by the Office of the Prosecutor before the date of a State Party’s effective withdrawal. Following the broad first sentence of Article 127(2), the provision addresses two specific situations: (1) when an investigation or proceeding is underway before effective withdrawal, the departing State Party continues to have a legal duty to cooperate with the Court’s inquiry even after the State Party has left the Court, and (2) the State Party’s departure cannot prejudice the Court’s “consideration of any matter” that was already underway before departure. The “Court” in the Rome Statute refers to the entire ICC, including the Prosecutor, and not just the judges.

I disagree. There is no question that “the Court” sometimes refers to “the entire ICC,” such as when the Rome Statute is referring generically to the ICC’s location or international legal personality. Indeed, Art. 34 says that “the Court” is composed of the Presidency, the judiciary, the OTP, and the Registry.

But the Rome Statute also uses “the Court” in a more restrictive fashion — to refer specifically to the judiciary, excluding the OTP. Here are some examples:

[1] Art. 19(3) provides that “[t]he Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility.”

[2] Art. 19(7) provides that “[i]f a challenge is made by a State referred to in paragraph 2 (b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17.”

[3] Art. 19(10) provides that “[i]f the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision.”

[4] Art. 21(2) provides that “[t]he Court may apply principles and rules of law as interpreted in its previous decisions.” The OTP doesn’t issue decisions.

[5] Art. 65(5) provides that “[a]ny discussions between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court.”

[6] Art. 66(3) provides that, “[i]n order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.”

[7] Art. 67(2) provides that, with regard to the rights of the defendant, “[i]n case of doubt as to the application of this paragraph, the Court shall decide.”

I could go on. The point is that, contra Alex, we cannot simply assume that Art. 127(2)’s reference to “the Court” includes both the judiciary and the OTP. It may well be that Art. 127(2) refers only to the judiciary. The distinction, of course, is critical in the context of Burundi’s withdrawal: if a matter must be “under consideration by” the judiciary for Art. 127(2) to apply, then the OTP’s failure to open an investigation into the situation means that the Court (writ large) no longer has jurisdiction over any crimes committed in Burundi — not even over those committed prior to the date Burundi’s withdrawal became effective.

I cannot claim with absolute certainty that the more restrictive reading of Art. 127(2) is correct, especially as Amnesty International says that the travaux preparatoires do not shed any light on the issue. But it seems like the much stronger position. Most importantly, the precise expression “under consideration by the Court” also appears in Art. 95, which deals with the postponement of requests in connection with admissibility challenges (emphasis mine):

Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19.

“Under consideration by the Court” in Art. 95 clearly means “under consideration by the judiciary.” Normal rules of treaty interpretation thus suggest that the same expression in Art. 127(2) is similarly restrictive.

This interpretation of Art. 127(2) is also supported by the problem Dov identifies — that deeming any PE a “matter” gives the OTP so much power that the withdrawal provision is a virtual nullity. A PE does indeed seem like a “matter,” but that does not mean a PE is a matter “under consideration by the Court.” The better view is that a situation is only “under consideration by the Court” once the OTP asks the PTC to authorize an investigation into that situation.

The upshot of all of this is that, in my view, the Court no longer has jurisdiction over crimes committed on the territory of Burundi prior to the state’s withdrawal from the ICC. If the OTP had wanted to keep alive the situation, it needed to ask the PTC before 28 October 2017 for permission to open an investigation. And it failed to do so.

International Law Pays No Homage to Catalonia’s Declaration of Independence

by Julian Ku

International law is famously mushy and subject to a variety of interpretations.  But there are some issues upon which there is more consensus under international law, such as the illegality of Russia’s annexation of Crimea.  But is there any reasonable argument favoring the legality of the Catalan Parliament’s recent declaration of independence from Spain?  I don’t think so.

At the outset, it is worth reminding ourselves, as Chris does in this post on Crimea, that there is no right to secede under international law. Chris argues that secession is a factual question: it has either occurred or it has not occurred.  But he says that legality of secession remains contested by international lawyers.

I agree with Chris that there is no right to secede under international law (see my post on Calexit here), but I would add that secession is generally only legal under international law when the parent state gives consent to secession.  Such consent might occur after a civil war or rebellion, but it seems a necessary formality to legalize a secession.  On the flip side, as is the case in both Spain or the United States, the domestic law of a parent country usually prohibits secession absent such consent.  Section 2 of the Spanish Constitution of 1978 begins by declaring that is based on “on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards.” Similarly, the U.S. Supreme Court decided in the 1869 Texas v. White decision that “[w]hen Texas became one of the United States, she entered into an indissoluble relation,”

Thus, there is no international legal right to secede, and it is usually (and appears clearly) illegal for Catalonia to do so under Spanish constitutional law.  It is for this reason that I do not think there is any reasonable argument that the Catalan declaration of independence is lawful or protected by international law.

The Catalans might (and do) fall back on invocations of the international right of self-determination.  Such a right does indeed exist under international law, but it is highly doubtful that such a right justifies secession in the case of Catalan. The right of self-determination does not guarantee the right of secession.  Moreover, as the Supreme Court of Canada rightly held in the case of Quebec:

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.

Unlike Serbia under Milosevic with respect to Kosovars, Spain is a state which has granted Catalonians representation on the basis of equality and without discrimination. It is also not a situation of decolonization, as Professor Sterio explained on OJ here.   I just don’t see a credible argument here that the situation of the Catalonians triggers some kind of “external” right of self-determination.

Does this matter? At the margins, the lack of legality for the Catalans’ declaration of independence probably bolsters the unwillingness of any foreign state to recognize Catalonia as an independent state. I am doubtful legality is decisive here, but it certainly weakens what is already a pretty weak Catalan case for independence.

New Essay: Specially-Affected States and the Formation of Custom

by Kevin Jon Heller

I have just posted on SSRN a draft of a (very) long article entitled “Specially-Affected States and the Formation of Custom.” It represents my first real foray into both “classic” public international law and postcolonial critique. Here is the abstract:

Although the US has consistently relied on the ICJ’s doctrine of specially-affected states to claim that it and other powerful states in the Global North play a privileged role in the formation of customary international law, the doctrine itself has been almost completely ignored both by legal scholars and by the ICJ itself. This article attempts to fill that lacuna. In particular, by focusing on debates in a variety of areas of international law – with particular emphasis on the jus ad bellum and jus in bello – it addresses two questions: (1) what makes a state “specially affected”? and (2) what exactly is the importance of a state qualifying as “specially affected” for custom formation? The article concludes not only that the US approach to the doctrine of specially-affected states is fatally flawed, but also that a more theoretically coherent understanding of the doctrine would give states in the Global South power over the development of custom that the US and other Global North states would never find acceptable.

You can download the article here. As always, comments most welcome!

China’s Rising Geolegal Sphere

by Malcolm Jorgensen

[Malcolm Jorgensen is a Research Fellow at the Berlin Potsdam Research Group “International Law–Rise or Decline?”]

In their new book The Internationalists: How a Radical Plan to Outlaw War Remade the World, Oona Hathaway and Scott Shapiro assert that Chinese occupation of maritime features in the South China Sea is “worth little as long as the rest of the world refuses to recognize them.” That conclusion follows a sophisticated argument that legal prohibitions against territorial conquest, tracing back to 1928, remain the necessary source of legitimacy for exercising effective global power. Evidence from the South China Sea, however, suggests an important exception to this claim, with China increasingly demonstrating effective exercise of regional power without the authority of international law.

The observation that international law facilitates effective power turns on a globally recognised order in which legal rules inform states’ rational calculations about what actions will likely be challenged as threats to that order. In Hathaway and Shapiro’s words: “Real power—power useful for achieving important political objectives—does not exist in the absence of law. Law creates real power. States can reach their goals only if others recognize the results of their actions.” To demonstrate this point, they argue that the outlawing of war in the 1928 Kellogg-Briand Pact ensured that Japan’s 1931 occupation of Manchuria yielded little benefit, since “it was not enough if no one treated Manchuria as Manchukuo.” The “Stimson Doctrine” of 1932 confirmed this as US policy against recognising territorial claims achieved by conquest.

Excessive Chinese maritime claims are plainly illegal, with the “Nine-Dash line” they have long been based upon firmly discredited in the 2016 award of the Permanent Court of Arbitration, initiated by the Philippines. Yet China now enjoys unchallenged de facto possession of the artificial island features it claims, which have been described as “unsinkable aircraft carriers” allowing the projection of military power far from China’s mainland. Of the seven artificial islands, up to three may be capable of accommodating fighter jets, being equipped with runways, radars and surface-to-air missiles. Likewise, physical possession secures potential Chinese access to maritime resources it has long claimed.

Moreover, the relative decline of US power in the region ensures there is now no reasonable prospect of China being dislodged from its possession of these features – the calculus of the military violence required to disrupt the status quo favours no state or coalition of states. The US military conducts freedom-of-navigation operations, and calls on allies to support them in emphasising the illegitimacy of China’s possession. But this does not extend to measures for returning the region to a legitimate situation under international law. Southeast Asian leaders have now dropped criticisms of “land reclamation and militarization” long included in official statements. The calculus has already shifted from preventing to managing Chinese occupation.

The limitation of The Internationalists is that it does not take account of the way that international law is refracted through geographical configurations of power and thus operates in differentiated ways across regions. The Asia-Pacific now resembles a “geolegal” sphere of Chinese influence, in which China’s growing regional dominance over multilateral institutions and legal development amplifies its rising geopolitical power. China’s primary geostrategic interest is to establish uncontested military power within its “near seas,” rather than global hegemony, and is now leveraging its geolegal sphere to shift states towards acquiescence to a nationalist maritime order, and away from international law.

China’s geolegal sphere is built on its record as an effective rule maker – leading a major diplomatic defeat in establishing the Asian Infrastructure Investment Bank against US objections and promoting the Regional Comprehensive Economic Partnership as a free trade alternative to the Trans-Pacific Partnership. Proponents of Chinese integration into existing rules and institutions have long argued that a Chinese stake commensurate to its growing power will ultimately complement the existing legal order, and is therefore “unlikely to undo the rules, norms, and structures that exist today.” Yet China’s greater legal role arguably now enables rather than constrains incentives to carve out zones of non-law in the maritime domain that are insulated against legal sanctions.

Increasing geolegal power manifests as pressure on states to accede to China’s will, including its preference to resolve disputes bilaterally rather than through legal institutions. In 2012 the Philippines deployed navel assets to protect the disputed Scarborough Shoal, which provoked Chinese economic retaliation – ranging from tourism bans to leaving tonnes of banana imports rotting at port. Increasing governance of international economic rules will only heighten such powers, and increase costs of opposition. The Philippines has now effectively set aside the definitive 2016 legal ruling made in its favour, to pursue a joint development agreement with China. This so-called “modus vivendi” leaves the status quo legal position of China undisturbed, who frames the agreement as a mere political concession.

The submission of the Philippines speaks to a broader dynamic in China’s favour, which is the unwillingness of individual states to risk isolation when openly defying Beijing. This is a classic prisoner’s dilemma, in which China divides and conquers opponents until they submit to its rules whether legal or not. The core problem for the arbitral ruling, and the broader legal system it represents, is that they are now sufficiently detached from regional geopolitical power that China can openly assert alternative non-legal principles for allocating rights and resources, and that these facilitate effective use of political power. As between the pronouncements of the PCA and the CPC, the latter’s account is increasingly a more accurate description of effective rules operating in the South China Sea.

China continues to assert claims in the language and symbols of international law, but drawn from “historical rights” as a concept largely unknown to the law. China’s latest iteration of the Nine-Dash Line adapts the rules of the UN Convention on the Law of the Sea itself to make territorial claims around the “Four Sha” island groups located within that line. Yet these are rights only available to an archipelagic state – which China is not. At best these various claims resemble “Folk International Law”: “a law-like discourse that relies on a confusing and soft admixture of [principles] to frame operations that do not, ultimately, seem bound by international law.” Yet, the geographically limited aim of controlling China’s near seas means that lack of global legal recognition is of secondary relevance. China’s sui generis rules now inform states’ rational calculations about what actions will likely be challenged as threats to the existing order.

The assumption of a positive relationship between a rising Chinese stake in the international legal system and respect for that system does not appear to be holding, as China leverages its geolegal sphere to carve out a maritime domain of non-compliance. There is thus no prospect of returning to an Asia-Pacific in which maritime order aligns with the rules set out in UNCLOS – previously signed or ratified by all states in the region, including China. Continued denial of the legality of this nascent order remains crucial, as it undoubtedly renders Chinese power less efficient, but the terms of UNCLOS are no longer an effective blueprint for rational behaviour by regional stakeholders.

Hathaway and Shapiro’s conclusions are dangerous if they treat the ideal of the rule of international law as a description of political reality. Their own argument concludes that the foundation of an effective international legal order remains American willingness to underpin it with real hard power – the continuation of Pax Americana. Here the Trump administration’s withdrawal from the TPP may well have foreclosed the last major initiative capable of meaningfully slowing the transfer of geolegal power. The TPP was crucial not merely as the embodiment of liberal trading rules, but as a demonstration of the US role as anchor to that order. The region is now witnessing the global pretentions of international law following the fate of fragmenting geopolitical power.

The South China Sea remains an ongoing dialogue between embryonic Chinese maritime rules and the rule of international law, but one that will be increasingly difficult to untangle. The anchor of Western legal policy in a regional “rules-based order” is thus almost literally one embedded in shifting sands. The strategic objective for regional stakeholders should be effective geolegal balancing by denying the lawfulness of Chinese claims, but as complimentary rather than an alternative to effectively balancing geopolitical power. Failing to defend the rule of international law will ensure that the pockets of non-law asserted by a single state expand to eclipse the previous order, and ultimately become international law itself.

The Kampala Amendments on the Crime of Aggression Before Activation: Evaluating the Legal Framework of a Political Compromise (Part 2)

by Astrid Reisinger Coracini

[Astrid Reisinger Coracini is is Lecturer at the University of Salzburg and Director of the Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law (SLS). This is the second of a two-part post on the subject. The first can be found here.] 

1. Does the non-application of Art. 121(5) second sentence violate the law of treaties?

Article 40(4) of the Vienna Convention in the Law of Treaties (VCLT) stipulates that unless the treaty provides otherwise, ‘[t]he amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement’. The rule reflects the consent principle, which is also the basis of the general rule regarding third States formulated in Art. 34 VCLT, ‘[a] treaty does not create either obligations or rights for a third State without its consent’.

The Rome Statute does provide otherwise than the VCLT in its general amendment procedure. Art. 121(4) of the Statute foresees an entry into force erga omnes partes after acceptance of an amendment by seven-eighths of the States parties. The Statute also provides otherwise for amendments to provisions of an institutional nature, which are expressly listed in Art. 122. The amendment procedure according to Art. 121(5), on the other hand, follows the default rule. The first sentence of Art. 121(5) guarantees that an amendment (to articles 5 to 8 of the Statute) only enters into force for those States parties that have accepted it. Differently, Art. 121(5) second sentence does not deal with questions of treaty law but with the consequences of exercising (international) criminal jurisdiction over individuals. It defines conditions for the exercise of jurisdiction over crimes covered by an amendment and it thereby establishes a separate jurisdictional regime, different from Part 2 of the Statute.

Art. 15bis equally establishes a distinct jurisdictional regime, which differs from Part 2 of the Statute as well as from Art. 121(5). The common denominator, however, is that all three jurisdictional regimes, the one under Part 2, the one under Art. 121(5), and the one based on Art. 5(2), may affect nationals or the territory of a State that has not accepted the treaty or an amendment and that is consequently not bound by them. Whether the consequences of the exercise of international criminal jurisdiction over individuals (the Court’s jurisdictional reach) are binding or in any way create obligations or rights for third States was extensively discussed in the aftermath of the Rome Conference. The general view has been that consequences of the jurisdictional reach do not affect treaty relations and that there was no requirement of State consent for the exercise of (international) criminal jurisdiction. Consequently, the Court’s jurisdictional reach does not establish a new treaty regime, let alone one with obligations erga omnes. The requirement of 30 ratifications remains a condition for the Court’s exercise of jurisdiction over the crime of aggression.

The aggression amendments also do not establish cooperation obligations for States parties that do not adhere to them. It has been argued that a general obligation to cooperate fully with the Court in its investigation and prosecution of the crime of aggression already stems from Art. 86, which, at the time of adoption, acceptance or ratification of the Statute, referred to all ‘crimes within the jurisdiction of the Court’. If such a general duty to cooperate in the investigation and prosecution of crime of aggression did not exist in the Statute prior to the aggression amendments, but was created by them, it would only create obligations for States that accept them.

What remains, is the claim that the non-application of Art. 121(5) second sentence violates a treaty right that was established by the Statute for States parties to shield their nationals and their territory from the Court’s exercise of jurisdiction of the crime of aggression. Still, the same right is granted to States parties under the aggression amendments. The dispute is consequently reduced to the modification that while Art. 121(5) second sentence grants this right unconditionally, under the Kampala compromise it is granted upon declaration. However, this claim remains a theoretical one. If Art. 121(5) does not apply to the provision on aggression in the first place, the aggression amendments cannot affect any obligations or rights of States parties enshrined therein. The same is true, if the application of Art. 121(5) second sentence is subjected to the mandate of setting out conditions for the exercise of jurisdiction under Art. 5(2). In that case, all obligations and rights would lawfully be subjected to possible alterations within the mandate of Art. 5(2).

2. Does the non-application of Art. 121(5) second sentence violate general international law?

It has been argued that the crime of aggression is different from the other three core crimes because it requires the Court to determine a question of State responsibility as a precondition for the exercise of jurisdiction and that the determination of an act of aggression may require consent of the States concerned [for a detailed discussion, see Astrid Reisinger Coracini & Pal Wrange, ‘Is the Crime of Aggression Different from the other Crimes under International Law?’ in: Claus Kreß/Stefan Barriga (eds.), The Crime of Aggression – A Commentary (Cambridge University Press, 2016) p. 307-350].

The discussion is somewhat moot as the jurisdictional regime established by the aggression amendments is factually a consent-based regime. The Kampala compromise imposes an even stricter regime than Art. 121(5) second sentence. The requirement of a double consent (of the State where the conduct occurred and of the State of nationality of the accused) for the exercise of jurisdiction is required with regard to States parties and non-States parties. But independent of the Kampala compromise, is there a consent requirement under international law for the exercise of jurisdiction of the crime of aggression?

A noteworthy case was made in that regard on the basis of the ICJ’s jurisprudence based on Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America). The consent principle is without doubt a fundamental principle under international law. It also underlies the jurisdiction of international courts adjudicating disputes between States and was therefore applied by the ICJ and other consent based jurisdictions in proceedings against States. It is however contended whether the principle is directly applicable in the context of international criminal jurisdictions, the consequences of which may affect nationals or the territory of non-consenting States, in proceedings against individuals.

Even under the ICJ’s consent-based jurisdictional regime, an indirect determination of acts of non-consenting States may be possible, if it remains without legal consequences for these States. In Certain Phosphate Lands in Nauru (Nauru v. Australia), the ICJ held that it was in no way precluded from adjudicating upon the claims against one out of three States that shared responsibility in the administration of the territory in question, provided the legal interests of the third States which might possibly be affected did not form the actual subject-matter of the requested decision.

It is undisputed that an act of aggression by a State is one of the elements of the definition of the crime of aggression that needs to be established for individual criminal responsibility to arise. Assessing the elements of a crime is not a formal determination of State responsibility. It requires the establishment of facts and their legal evaluation as a precondition for reaching a verdict. There are no consequences for a State that follow from the Court’s determination of an act of aggression. The ‘very subject-matter’ of the Court’s decision remains the innocence or guilt of an individual.

The ‘requirement’ to determine an act of State may be unique to the crime of aggression, however, this distinction is merely semantic. A consent requirement cannot be based on the frequency of the determination of an act of State but it is a matter of principle. Either the determination of an act of State by an international criminal jurisdiction requires State consent or not. In that regard, all four core crimes can be (and frequently are) committed by State organs. Each determination of guilt or innocence of an organ of a State or any other person whose conduct is attributable to a State, comprises ipso facto a determination of an act of State. This indirect determination of State responsibility has not been an obstacle to establishing a Court with jurisdiction over nationals of non-consenting States.

In conclusion

  1. The political compromise that was reached in Kampala excludes the application of Art. 121(5) second sentence to the crime of aggression. This non-applicability can be reasonably argued on the basis of the relevant provisions of the Rome Statute.
  2. Art. 121(5) is not the starting point but one out of several possible answers to the question which procedure applies to the provision of aggression. The mandate of Art. 5(2) to adopt such a provision is vague and allows for different interpretations. While there were competing claims as to which procedure was the best position under international law, a full application of Art. 121(5) was only one of them. The compromise decision taken in Kampala is based on a different legal position, which acknowledges the special position of the crime of aggression under the Statute, and which was overwhelmingly supported by a majority of States.
  3. The majority understanding of Art. 121(5) second sentence is that it establishes a specific jurisdictional regime for crimes covered by an amendment, which differs from Part 2 of the Statute. The Kampala compromise does not establish agreement on a different reading of Art. 121(5) second sentence. The Kampala compromise establishes agreement on a reading of Art. 5(2) and Art. 12(1) that leads to the non-applicability of Art. 121(5) second sentence to the crime of aggression.
  4. If Art. 121(5) second sentence does not apply, the aggression amendments cannot infringe upon a right, enshrined in this sentence. The agreement reached at the Review Conference, which is based on one of several possible and reasonable interpretations of the applicable law, cannot violate rights a State may have enjoyed if an alternative interpretation had been agreed upon. This simply falls beyond the scope of Art. 34 and Art. 40(4) VCLT.
  5. Consent to be bound by a treaty and consent to the jurisdictional reach by the Court are two separate matters. Only States that adhere to the aggression amendments are bound by them (as a matter of treaty law). The fact that nationals or the territory of a State may be affected by the exercise of the Court’s criminal jurisdiction over individuals does not qualify as a binding effect for that State.
  6. It is difficult to comprehend how a view that the Court cannot exercise its jurisdiction regarding the crime of aggression over nationals of a State or committed on the territory of a States unless that State accepts or ratifies the aggression amendments could be ‘clarified’ without re-opening the text of the amendments. Any subsequent agreement in that regard would clearly reverse the contents of the compromise of Kampala and refute the negotiations process. It would also pose difficulties for the 35 States that have taken legal steps on the basis of the Kampala compromise.
  7. Reopening the compromise, which was a package deal, would not only affect the exercise of jurisdiction over a crime of aggression, arising from an act of aggression by a State party that does not adhere to the aggression amendments. It would equally affect other components of the compromise. If Art. 5(2) was not the legal basis to establish conditions for the exercise of jurisdiction over the crime of aggression that might differ from Part 2 and from Art. 121(5) second sentence, Art. 15bis and Art. 15ter would need to be interpreted through the jurisdictional regime of 121(5). This would undermine compromise decisions relating to the opt-out regime, the preferential treatment of opting-out States parties as victims of an act of aggression, referrals by the Security Council, and ultimately the exercise of jurisdiction over nationals and the territory of non-States parties.
  8. It was suggested that the opt-out regime of Art.15bis would not be deprived of its meaning if interpreted in light of Art. 121(5) second sentence, because it could allow States parties to opt out in order to fall within the Court’s jurisdictional protection as a victim of aggression. But there is no rational consolidated reading of these two provisions. An interpretation that suggests an opt-out from a jurisdictional regime that States do not consider themselves ‘in’ is unreasonable.
  9. Furthermore, the possibility to opt out of the Court’s jurisdictional reach was a concession to those States parties that believed they had acquired a right under Art. 121(5) second sentence to be exempt from the effects of the Court’s exercise of jurisdiction over the crime of aggression. The drafters transposed such a right to the aggression amendments. In order to counterweigh the requisite of depositing a (low impact, yet public) declaration, they even added another right. States parties that opt out in accordance with Art. 15bis, remain under the Court’s protection should they become a victim of an act of aggression. This additional privilege was not given to States parties without a cause. It was a trade-off in order to establish consensus on the basis of the non-applicability of Art. 121(5) second sentence.

At the upcoming session of the Assembly of States Parties, it will be the responsibility of States to defend the compromise they have reached at the Kampala Review Conference. Discussions on the crime of aggression and the jurisdiction of an international criminal court over this crime have started at the time of the League of Nations and they could be easily continued ad infinitum; but it is time for a closure. It lies in the nature of a compromise decision that it cannot reflect all positions. States which supported a meaningful exercise of the Court’s jurisdiction over the crime of aggression under the existing framework of the Statute have succeeded in upholding some structural principles, but have made major concessions when it comes to the factual exercise of jurisdiction by the Court. In that regard, the Kampala compromise was particularly sensitive towards the concerns of some States. Eventually, the aggression amendments are not all that was wished for, but evidently, they are what lies on the table and what will be subjected to an activation decision in December.

Against the never-ending fascination to discuss legal aspects of one sentence of one article of the Rome Statute, the larger issues at stake must not be let out of sight. The Court’s jurisdiction over the crime of aggression should not be considered a mere nuisance when it comes to a decision on the use of armed force. Even under a narrow definition and with limited jurisdiction, the crime of aggression still protects one of the fundamental principles of international law, the prohibition of the use of force. Seven years after Kampala, the significance and urgency of strengthening the protecting scope of this principle unfortunately seems to have increased rather than declined.

The Kampala Amendments on the Crime of Aggression Before Activation: Evaluating the Legal Framework of a Political Compromise (Part 1)

by Astrid Reisinger Coracini

[Astrid Reisinger Coracini is is Lecturer at the University of Salzburg and Director of the Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law (SLS). This is the first of a two-part post on the subject. The second can be found here.] 

In December 2017, the Assembly of States Parties of the Rome Statute of the International Criminal Court will hold its sixteenth session with the ‘activation of the Court’s jurisdiction over the crime of aggression’ on its agenda. Almost twenty years after the crime of aggression was included within the subject-matter jurisdiction of the Court as one of the four core crimes and seven years after the adoption of a ‘provision on the crime of aggression’ in accordance with article 5(2) of the Rome Statute (hereinafter all articles refer to the Rome Statute, unless otherwise clarified), the Review Conference’s determination to activate this jurisdiction ‘as early as possible’ (preambular paragraph 6 of Resolution 6) will be put to a test. Once the ‘decision to be taken after 1 January 2017’ (common para. 3 of Arts. 15bis and 15ter) will have been reached, the Court will be able to exercise jurisdiction ‘with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties’ (common para. 2 of Arts. 15bis and 15ter), a temporal condition that was met on 26 June 2017.

In preparation of its upcoming session, the Assembly established ‘a facilitation, based in New York, open only to States Parties, to discuss activation of the Court’s jurisdiction over the crime of aggression’ (ICC-ASP/15/Res.5, annex I, para. 18(b)). The activation decision is a mere procedural step. However, given the continuing unease voiced by a few States, the facilitation seems to also provide a platform for discussions on substance. This post will address arguments that were presented during the facilitation process by academic experts, Prof. Dapo Akande, Prof. Roger Clark, Prof. Kevin Heller, and Prof. Noah Weisbord. Considering that the current discussion has narrowed down to the question of the Court’s jurisdictional reach, so will this post.

1. The Kampala compromise

Notwithstanding the two temporal conditions for the exercise of jurisdiction over the crime of aggression (entry into force of a minimum number of ratifications and the activation decision), the Kampala compromise is embedded in the jurisdictional regime of the Rome Statute. Following a referral by the Security Council of the United Nations, the Court may exercise its jurisdiction in accordance with Art. 13(b) (Art. 15ter). Following a referral by a State party to the Rome Statute or a proprio motu investigation by the prosecutor, the preconditions for the exercise of jurisdiction as defined in Art. 12 apply (Art. 15bis referring to Art. 13(a) and (c)), albeit with two restrictions.

First, Art. 12 only applies in situations involving ‘a crime of aggression, arising from an act of aggression committed 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’ (Art. 15bis(4)). In other words, the Court may not exercise jurisdiction over an act of aggression committed by a non-State party or committed by a State party that has previously opted-out.

Second, the Court shall not exercise its jurisdiction over the crime of aggression when committed by nationals or on the territory of a non-State party (Art. 15bis(5)). Accordingly, the exercise of jurisdiction is further excluded over any crime of aggression arising from an act of aggression committed against a non-State party as well as over any non-State party national contributing to a crime of aggression over which the Court otherwise could exercise its jurisdiction. As part of the compromise reached in Kampala, States parties further decided that the provision on aggression shall enter into force only for those States that ratify or accept the amendments (in accordance with Art. 121(5)). A more detailed analysis can be found here, here, and in this Chart.

The conditions for the Court’s exercise of jurisdiction over the crime of aggression allow for broad exceptions from the Court’s default jurisdictional regime. Those regarding non-States parties are absolute exceptions and unprecedented in the general jurisdictional regime of the Statute. Those regarding States parties are less expansive but still represent serious deviations from Part 2 of the Statute. The exceptions were strongly criticised, for being too far-reaching as well as for not being sufficiently far-reaching, for establishing a different jurisdictional regime relating to States parties that do not accept the amendments on the one hand and to non-States parties on the other hand, or for establishing a third jurisdictional regime different from Part 2 of the Statute and from Art. 121(5). Still, they represent the compromise that was negotiated in good faith and adopted by consensus in Kampala in 2010. It is a compromise that determines who should be covered by the Court’s jurisdiction over the crime of aggression, which has so far been ratified by 34 States parties, and on the basis of which an opt-out declaration has once been lodged.

2. Does the political compromise of Kampala include application of Art. 121(5) second sentence?

A preliminary note on the meaning of Art. 121(5) second sentence: the overwhelming view holds that Art. 121(5) second sentence establishes a distinct jurisdictional regime for crimes covered by an amendment when committed by nationals or on the territory of a State party that does not accept that amendment. Art. 121(5) second sentence is not directed at non-States parties. The Court’s jurisdictional reach over nationals and the territory of non-States parties remains governed by Part 2 of the Statute and any deviation thereto would require a formal amendment (States should therefore refrain from eroding Part 2 through an enabling resolution). But Art. 121(5) second sentence provides a privileged position for States parties regarding the Court’s jurisdiction over amended crimes. I have argued elsewhere that this provision should be interpreted systematically and in light of the object and purpose of the Statute to not have such a wide scope. The subject-matter jurisdiction of the Court, which is ‘limited to the most serious crimes of concern to the international community as a whole’ (Art. 5(1)), sets a high threshold for amendments. Either a crime is generally accepted to fulfil this criterion and warrants inclusion in the Statute, or it does not and should consequently not be the subject of an amendment. If all crimes equally fulfil this criterion, it is debateable why the sole fact of a later inclusion should submit ‘amended most serious crimes’ to a different jurisdictional regime. Applying two different jurisdictional regimes leads to particularly odd results in the interpretation of the ‘Belgian amendments’ that expand war crimes in the context of a non-international armed conflict. The Court’s jurisdictional reach over the same conduct includes nationals and the territory of States parties when it is committed in the context of an international armed conflict. When it is committed in the context of a non-international conduct, the Court’s reach over nationals or the territory of States parties that have not (yet) accepted the amendment is excluded. The precluded reach over ‘territory’ deprives a non-accepting State party from the protection it otherwise enjoys in the context of an international armed conflict. The precluded reach over ‘nationals’ seems to privilege foreign fighters that join an organized armed group in a fight against governmental authorities. They would be exempt from the Court’s reach, whereas members of the regular armed forces (which under the same constellation would internationalize the conflict) could be prosecuted by the Court. For these reasons, I uphold my previous position, but this interpretation remains a minority view and was not further discussed or acted upon during the negotiations on the crime of aggression. The Kampala compromise is without doubt based on the generally accepted interpretation of Art. 121(5) second sentence. This post will therefore proceed on this basis.

The main controversial issue is currently whether Art. 121(5) second sentence applies to the aggression amendments. To answer this question, it is fundamental to first establish whether the application or non-application of that provision is part of the compromise adopted in Kampala.

A textual interpretation of Art. 15bis and 15ter suggests that the jurisdictional regime established for the crime of aggression differs and partly directly contradicts Art. 121(5) second sentence. First, Art. 15bis and 15ter foresee different conditions for the exercise of jurisdiction for different trigger mechanisms. Art. 121(5) second sentence applies to all trigger mechanisms; at least in the ordinary meaning of its words. Second, Art. 15bis defines an absolute exception to the exercise of jurisdiction over crimes committed by nationals or on the territory of non-States parties. Art. 121(5) second sentence does not exclude the exercise of jurisdiction with regard to non-States parties and it was argued that the main purpose of the provision was not to open such an exception, but instead to privilege States parties and thus provide an incentive for non-States parties to join the Statute. Third, Art. 15bis is based on the assumption that nationals and the territory of States parties that do not accept an amendment are within the Court’s jurisdictional reach. Art. 121(5) second sentence is generally interpreted to provide the contrary. Fourth, a State party that opts-out in accordance with Art. 15bis is still be protected by the Court’s jurisdictional reach as a victim of an act of aggression. Art. 121(5) second sentence on the other hand does not concern itself with State acts and would provide for the same limited jurisdictional regime for aggressor States and their victims.

The aggression amendments do not only constitute a compromise in substance. A major component of the Kampala compromise was to establish agreement on the question of which of the three available amendment mechanisms was to be applied. This also included the question of how the conditions for the exercise of jurisdiction were to be consolidated with the consequences that these mechanisms may provide. The possibility that a compromise may not include Art. 121(5) second sentence had been discussed in detail prior to Kampala. The travaux préparatoires of Kampala provide clear evidence that the non-applicability of Art. 121(5) second sentence was part of the negotiations leading to the compromise. This is particularly underlined by the explanation of position by the delegation of Japan, criticizing ‘cherry picking’ from the relevant provisions of the Statute from a legal point of view.

Finally, it would be incomprehensible why States should have invested in lengthy and arduous negotiations to find a compromise if its essence would subsequently be reversed by way of an amendment procedure. It is therefore understood that the reference to article 121(5) in operative para. 1 of Resolution 6, in the context of the expressions ‘adoption, in accordance with Art. 5(2)’ and ‘shall enter into force in accordance with Art. 121(5)’, must be read as referring to the entry into force leg of article 121(5), namely its first sentence.

3. Does the non-application of Art. 121(5) second sentence violate the Statute?

Having established that the non-applicability of Art. 121(5) second sentence was part of the political compromise reached in Kampala, the key question remains whether this was lawfully so.

In order to address this question, it is necessary to recall the relevant provisions of the Rome Statute, which were themselves the result of a compromise that allowed removing the brackets around the crime of aggression during the final days of the Rome Conference. Accordingly, the crime of aggression falls within the subject-matter jurisdiction of the Court, but the Court shall only exercise its jurisdiction once a provision would be adopted, in accordance with articles 121 and 123, defining the crime and setting out the conditions for the exercise of jurisdiction thereover (Art. 5(1)(d) and Art. 5(2)).

The mandate of Art. 5(2) has generally been interpreted as giving the negotiators wide discretion in order to agree upon a provision on the crime of aggression. That includes that the conditions for the exercise of jurisdiction over the crime of aggression might differ from the general jurisdictional regime established in the Statute. On the procedural level, Art. 5(2) refers to ‘adoption’ in accordance with Art. 121 at a review conference (Art. 123). This reference is indisputably imprecise and it has therefore generated three readings: (i) that a provision on the crime of aggression merely required adoption in accordance with Art. 121(3); (ii) that it required adoption and entry into force in accordance with Art. 121(4); and (iii) that it required adoption and entry into force in accordance with Art. 121(5).

It is inherent in the vagueness of Art. 5(2) that all three readings may be legally substantiated or criticised. However, the decision taken in Kampala renders these competing arguments obsolete. The question today is not anymore, which argument is the strongest one (and therefore merits reflection in the compromise decision). The question today is rather whether the decision taken in Kampala can be reasonably argued within the legal framework of the Statute. Against this background, the provisions of the Statute may support different justifications, which are not mutually exclusive, on the non-applicability of Art. 121(5) second sentence to the provision on the crime of aggression; a position that was expressed in academia and that was supported by a majority of States in the negotiation process.

The Kampala compromise has its foundation in the Art. 5(1) and Art. 12(1) ‘jurisdiction’ argument. Art. 5(1) clearly provides that the crime of aggression falls within the jurisdiction of the Court. This understanding is emphasised by Art. 12(1), which provides that States parties accept the Court’s subject-matter jurisdiction, including over the crime of aggression, upon acceptance or ratification of the Statute. The crime of aggression has a specific position, insofar, as it was expressly listed in the Statute at the time of its adoption. Since the Court’s jurisdiction was already accepted by all States parties, it may be argued that the provision on the crime of aggression does not require further acceptance.

The Art. 5(2) ‘adoption’ argument comes to a similar result. It contends that the aggression amendments are based on Art. 5(2) and require mere adoption in accordance with Art. 121(3). This view was supported by some States during the negotiation process. In Kampala, this minority view was joined by a large number of States that shared arguments based on the specific position of the crime of aggression within the Statute but would not accept a solution without an entry into force mechanism. Under the premise not to be bound by either Art. 121(4) or 121(5), the Kampala conference consequently agreed on an individual entry into force of the amendments in accordance with (and as provided by) the first sentence of Art. 121(5).

According to the Art. 5(2) ‘conditions’ argument, Art. 121(5) may in principle apply to the aggression amendments, albeit subject to the mandate provided by Art. 5(2). Given the broad authority to define specifically the conditions for the exercise of jurisdiction of the crime of aggression in the mandate of Art. 5(2), it is not convincing that the drafters would have been mandated to override conditions prescribed in Part 2 with regard to the crime of aggression but would be limited by conditions foreseen in Art. 121(5) second sentence.

All these elements were part of debates before and in Kampala and helped pave the way for the compromise. They were reflected in the decision of the review conference ‘to adopt’ the provision on aggression ‘in accordance with article 5, paragraph 2’.