02 Oct Amending the Kampala Amendments: A Proposal to Harmonize the ICC’s Jurisdiction
[Jennifer Trahan is a Clinical Professor at NYU’s Center for Global Affairs and Director of their Concentration in International Law and Human Rights.]
It is time for States Parties to amend the Kampala crime of aggression amendments and remove the jurisdictional gaps.
At the Rome Conference, many states, particularly those from the Non-Aligned Movement, Germany, and Italy advocated for the inclusion of the crime of aggression in the Rome Statute. Other states, however, including important military powers, were not supportive of preserving the Nuremberg and Tokyo legacy on crimes against peace in the Statute of the International Criminal Court (ICC). Only at the very end of the negotiations, the first group of States, supported by eminent individuals such as former Nuremberg Prosecutor Benjamin Ferencz, succeeded in including the crime of aggression within the jurisdiction of the Court. This, however, happened only in the form of a placeholder which essentially amounted to a mandate for States to define the crime and agree on the conditions for the Court’s exercise of jurisdiction over it.
While states took on the challenge and states parties ultimately activated the ICC’s jurisdiction over the crime of aggression, as defined in Art. 8 bis of the Rome Statute, a few states vehemently insisted on a jurisdictional regime that would not permit the Court to deal with the crime of aggression under the same conditions as cases of alleged genocide, crimes against humanity and war crimes. As a result, and as detailed below, the conditions for the Court’s exercise of jurisdiction over the crime are quite different from the Court’s ability to exercise jurisdiction over its other core crimes.
In the course of negotiations, sceptics often said that aggression was mainly a concern of the past. Since 24 February 2022, it is plain that this assessment was premature to put it very mildly. One sees the dramatic illustration of what the difference in jurisdiction means in the situation of Ukraine. The Prosecutor is able to investigate and prosecute only three of the ICC’s four crimes, while his hands are tied when it comes to the alleged crime of aggression. Currently this stands in the way of providing Ukraine and its people with comprehensive international accountability for the terrible injustice they have been suffering. In short, the Court’s jurisdictional restraints with respect to the crime of aggression have now revealed themselves as what they have been from the beginning: a glaring jurisdictional gap.
While this gap is illustrated now related to the situation of Ukraine, it could most certainly apply to other situations in the future. The jurisdictional gap means that, in contradistinction to the Court’s jurisdiction over its other core crimes, the nationals of all non-State Parties are entirely immune if they commit the crime of aggression, including the most egregious examples of the annexation and occupation of another State’s territory, absent a Security Council referral. The ICC’s ability to investigate and prosecute the crime of aggression committed by the nationals of States Parties is also quite limited.
The jurisdictional gap also provides a disincentive for states considering acceding to the Kampala crime of aggression amendments. Ratifying the amendments will not create as comprehensive a level of protection against the crime being committed against their state as states subscribing to the Kampala amendments deserve to receive.
While States are set to review the crime of aggression amendments in 2025, the matter has turned out to be urgent. Hence, there is no reason to wait until then. Rather, the diplomatic process to improve the ICC Statute should begin now.
The Global Institute for the Prevention of Aggression (“GIPA”) a group of approximately 50 experts on the crime of aggression and international criminal law has set forth both reasons to amend as well as a fully worked out amendment proposal that contains a proposed draft Assembly of States Parties (”ASP”) resolution, a proposed draft amendment text, and a detailed explanation of the proposed text.
The amendment proposal focuses on two jurisdictional carve-outs in the text of Article 15bis—carve outs created mostly due to the resistance by the permanent members of the UN Security Council and a few other states to accept a more robust jurisdictional regime. Article 15bis (5) carves-out of the ICC’s jurisdiction crimes of aggression arising out of acts of aggression allegedly committed by non-state parties. Article 15bis(4), in addition, allows States Parties to opt out of crime of aggression jurisdiction. The former is what prohibits the ICC from investigating and prosecuting the crime of aggression related to the situation of Ukraine. The second has proven less significant to date as only two states have employed the opt out.
To close the resulting jurisdictional gap, GIPA experts have proposed an amendment that would replace paragraphs (4) and (5) of Article 15 bis with the same jurisdictional rules that apply to the ICC’s other core crimes. This would harmonize the ICC’s jurisdiction over all four of its crimes. Details of the GIPA amendment proposal will be covered in a second post at Opinio Juris by Dr. Carrie McDougall.
The GIPA proposal also discusses in some detail the two paths to effectuate the amendment—namely, Rome Statute Article 121(4) or Article 121(5). Under Article 121(4), the amendment would enter into force one year after seven-eighths of States Parties deposit their instruments of ratification or acceptance of the amendment. This sets a very high threshold, but then the amendment would enter into force for all States Parties. Under Article 121(5), the amendment would enter into force for each State Party one year after it deposits its instrument of ratification or acceptance of the amendment; this is the process used for the original Kampala crime of aggression amendments.
Because of the complexities involved with the amendment process (see Reisinger Coracini) and potential time-table for the amendment to go into effect, as well as the likelihood that any amendment could not apply retroactively, the amendment proposal should not be seen to supplant proposals for a free-standing aggression-specific tribunal for the situation of Ukraine. Thus, GIPA’s proposal is without prejudice to the ongoing conversation about the establishment of a Special Tribunal.
While the adoption of the crime of aggression amendments at the Kampala Review Conference was historic in that the crime of aggression was finally removed from the shelf so that the Court’s jurisdiction over it could be activated, the jurisdictional agreement, as indicated above, was the result of a thorny compromise. The horrors being inflicted on Ukraine on a daily basis—the result of an imperialistic power grab (see Labuda)—serve as a stark reminder that these jurisdictional carve-outs are impossible to defend as a matter of sound principles of justice. To eliminate these carve-outs would decisively enhance the legitimacy of the international criminal justice system. Equally, strengthening the ICC’s jurisdiction, as proposed by the GIPA, would bolster the international legal order and most particularly the prohibition of the use of force at a moment of dire need to do precisely this.
Germany, supported by other states, has initially come forward with the important call that the amendment needs to occur and quite a few states parties from different regions of the world have already headed that call. It is highly desirable that other states parties join those that have made the first step in the right direction and that progress toward a fully worked out amendment text begins. The GIPA proposal demonstrates that this is quite possible to do.
[Full disclosure: Trahan serves as Convenor of the Global Institute for the Prevention of Aggression; Benjamin Ferencz served as President Emeritus until his death this past spring.]