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

[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’.