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International Criminal Law

Call for Submissions / Nominations: The Francis Lieber Prize

by Chris Borgen

The American Society of International Law’s Lieber Society on the Law of Armed Conflict awards the Francis Lieber Prize to the authors of publications that the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.
 
Criteria:         Any work in the English language published during 2017 or whose publication is in final proof at the time of submission may be nominated for this prize.  Works that have already been considered for this prize may not be re-submitted.  Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.
 
Eligibility:       Anyone may apply for the article or book prize.  For those in academia or research institutions, the prize is open to those who are up to 8 years post-PhD or JD or those with up to 8 years in an academic teaching or research position. Membership in the American Society of International Law is not required.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Submissions from outside the United States are welcomed.
 
Submission:     Submissions, including a letter or message of nomination, must be received by 10 January 2018.  Three copies of books must be submitted.  Electronic submission of articles is encouraged. Authors may submit their own work.  All submissions must include contact information (e‑mail, fax, phone, address) and relevant information demonstrating compliance with eligibility criteria.  The Prize Committee will acknowledge receipt of the submission by e‑mail. 
 
Printed submissions must be sent to:
 
Professor Laurie Blank
Emory University School of Law
1301 Clifton Road
Atlanta, Georgia  30322
USA
 
Electronic submissions must be sent to:
 
 Lblank[at]emory.edu
 
Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.
 
Prize:   The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2018. 
 
In 2017, the winners were:
 
Book prize:
— Kenneth Watkin, “Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict” (OUP 2016)


Article prize:

— Tom Dannenbaum, “Why Have We Criminalized Aggressive War?,” 126 Yale Law Journal (2017)
 

 

Vargas Niño’s Mistaken Critique of My Position on Burundi

by Kevin Jon Heller

Spreading the Jam has a guest post today from Santiago Vargas Niño criticising my argument that the OTP was required to notify Burundi as soon as it decided to ask the OTP to authorize the investigation. Here is what he says:

Professor Heller cites Article 15(6) to argue that, by receiving information under articles 15(1) and 15(2) of the Statute, the Prosecution has initiated an investigation. An equally plain reading of Article 18 would suggest that a parallel duty to notify concerned States would arise as soon as a situation caught the Prosecutor’s eye. Yet he acknowledges that “notification cannot be required every time the OTP decides to advance a preliminary examination (…) The better interpretation of Art. 18 is that notification is required once the OTP has decided to ask the PTC to authorize an investigation.”

Not only is that moment different to the “initiation” of an investigation, both under articles 15 and 18, thus rendering any claims of “natural” interpretation of the Statute inane, but professor Heller’s amalgamation of preliminary examination and investigation flies in the face of Article 15(3). This provision orders the Prosecution to submit a request for authorisation if it concludes that there is a reasonable basis to proceed with an investigation. Years of unchallenged practice have led to the understanding that such conclusion can only be reached through the preliminary examination, a stage that precedes the opening of an investigation and that is described by Article 15(2) – not by Article 15(1). Professor Heller’s argument also discounts the significance of Article 15(4), which squarely attributes the power to authorise the “commencement” (i.e. “initiation”) of an investigation to the PTC, and which conditions it upon the Prosecution’s demonstration that there is a reasonable basis to proceed under Article 53(1).

Furthermore, equating the launch of a preliminary examination with the artificial “initiation” of an investigation under Article 15(1) is extremely risky. If that were the case, the Prosecution should not have rushed to apply for authorisation to commence an investigation in Burundi before 25 October 2017 because its preliminary examination would have constituted a “criminal [investigation] (…) which [was] commenced prior to the date on which the withdrawal became effective” under Article 127. Such interpretation would also allow the Prosecution to exercise its powers under Article 54, as professor Jacobs puts it, since the moment: “an OTP investigator sitting in front of his computer in The Hague [starts] downloading HRW and Amnesty International reports.”

According to Vargas Niño, my argument “stems solely from [my] peculiar approach to Article 15.” Alas, it is his approach that is peculiar. And not just peculiar — wrong…

How the PTC Botched the Ex Parte Request to Investigate Burundi

by Kevin Jon Heller

Last week I argued that the OTP’s failure to ask the Pre-Trial Chamber to authorize an investigation prior to Burundi’s withdrawal from the ICC becoming effective — 28 October 2017 — meant that the Court no longer had jurisdiction over crimes committed on Burundi’s territory prior to that date. I still think my legal analysis is correct, but my factual assumption was clearly not. As it turns out, the OTP filed an authorization request with the PTC on September 15, but did so ex parte and under seal — a possibility the ever-brilliant Sergey Vasiliev discussed a few days ago here at Opinio Juris. The PTC authorized the investigation on October 25, three days before Burundi’s withdrawal became effective, but only released a public redacted version of its decision yesterday, November 9. As it stands now, therefore, the ICC retains jurisdiction over crimes committed in Burundi prior to 28 October 2017.

Unfortunately, the PTC’s decision contains a critical legal flaw — one whose importance cannot be overstated. Because the OTP filed its request to open an investigation ex parte and under seal, Burundi was not informed that the request existed until after the PTC had already decided to grant the request and authorize the investigation. The PTC makes this clear in paragraph 11 of its decision:

11. In sum, the Chamber finds that, on the basis of a combined reading of articles 15(3), 18 and 68(1) of the Statute and rule 50(1) of the Rules, a procedure pertaining to a request for authorization of an investigation may, under certain circumstances, be conducted under seal, ex parte, with the Prosecutor only.

In fact, the OTP did not even inform Burundi about the investigation immediately after the PTC authorized it, because the PTC accepted the OTP’s argument that it needed 10 additional days to ensure that victims and witnesses were protected. (See paragraphs 16-19.)

Here is the problem: Art. 18 of the Rome Statute required the OTP to notify Burundi when it initiated the investigation into the situation there, not when the PTC authorized the investigation. Here is what the PTC says in paragraph 17 (emphasis mine)…

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.

Conclusion

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.

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!

Apparently Perfidy Is Not Prohibited in 2256

by Kevin Jon Heller

I have just started watching Star Trek: Discovery, the first new Star Trek series in a decade. It’s excellent — dark, well-acted, with beautiful special affects. But I have to say that it was shocking to see the Captain of a Federation starship engage in a blatantly perfidious act in the second episode. The Federation has just come out on the losing end of a major battle with the Klingons. Captain Georgiou transports a photon torpedo into the torso of a dead Klingon, the lead Klingon ship retrieves the dead Klingon for burial, and… boom, the Klingon ship is disabled, with hundreds if not thousands dead.

As I have explained in a scholarly article, it is perfidious to use a booby-trap in a manner that violates the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices. Art. 2(4) of the Protocol defines a booby-trap as “any device or material which is designed, constructed or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act.” And Art. 7(1)(b) specifically provides that “it is prohibited in all circumstances to use booby-traps and other devices which are in any way attached to or associated with… sick, wounded or dead persons.” Captain Georgiou’s use of a booby-trapped dead Klingon to disable the Klingon ship was thus unequivocally perfidious.

The Star Trek universe always presents the Federation as the height of legal and moral rectitude. At least for one episode of Star Trek: Discovery, that was not the case.

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.