Day 6: All Aggression, All the Time

The second week of the RevCon is almost exclusively dedicated to the consideration of proposed amendments. The main event is undoubtedly the crime of aggression, and this will occupy the overwhelming majority of the energy and time over the next four to five days. Many delegations held informal bilateral meetings over the weekend, and views appear to be slowly converging towards a few main options. To that end, the Chair of the Working Group released a new Conference Room Paper, the text of which can be found on Professor Schabas’ blog. The crime of aggression not being a subject of personal expertise, I am wary of providing detailed analysis here. Instead, I offer a more modest summary of the key outstanding issues at this point.

Jurisdictional Filter / Trigger Mechanism: In the most recent Paper, the General Assembly and/or International Court of Justice have been removed as potential “external” filters in determining whether an act of aggression had been committed. As such, the UN Security Council and an “internal” filter within the ICC itself (in the form of the Pre-Trial Chamber) are the only remaining options being considered. The question then comes down to whether delegates will endow the UNSC with the exclusive right to refer apparent cases of aggression to the Court, or whether the ICC will be able to assert jurisdiction over this crime independently. The Argentinian-Brazilian-Swiss proposal revealed on Friday incorporates these in a staged fashion, via two different modes of ratification.

Entry Into Force and Aggressor State Consent: In order for amendments to take effect, they must enter into force via an established procedure as enumerated in the Rome Statute. And here there remains a major divergence of views. Two possible options–at least–may govern the proposed amendment. Article 121.5 of the Rome Statute would seem to be the operative article. The Article in question states that “Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance.” Equally important is the second sentence of the paragraph which reads: “In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.” By this mechanism, only those states that explicitly consent to the amendment via ratification will be subject to its jurisdiction. As the crime of aggression is explicitly included in Article 5, many delegates have argued that Article 121.5 is the only legally appropriate mechanism for including the crime by amendment. Canada, among others, noted that this approach respects the fundamental legal principle of state consent. Japan pointedly stated in the Working Group session today that any other approach would constitute an extra-legal amendment of the Statute, and would severely undermine the legitimacy of the ICC.

However, some states have argued that because the proposed amendment will alter constitutional elements not strictly related to the crime of aggression itself, these aspects should properly by incorporated via Article 121.4. This provides that “an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them.” While this approach establishes a higher initial threshold for entry-into-force—since gaining the positive ratification of seven-eights of all Parties could take a long time or indeed never be achieved—once in force it would apply for all States Parties, regardless of their particular status vis-à-vis the amendment.

At the present time, there appears to be general consensus that Article 121.5 will apply at least to the more controversial filters which go beyond UNSC authority. And the question of how to employ Article 121.5, in turn, is inextricably linked to the issue of whether the alleged aggressor state need have previously consented to the Court’s jurisdiction over the matter. The strict reading of Article 121.5 implies that only those states which explicitly accept the amendment by ratification will be subject to its jurisdiction. This so-called “negative understanding” is favoured by a number of prominent supporters of the Court, including Australia, Canada, Norway, and Japan — again, invoking the principle of state consent. Some states have proposed an alternative “positive understanding” whereby the amendment may have jurisdiction over a crime if only the state which has had an act of aggression committed against it has accepted the amendment. Proponents of the “negative understanding” assert that aggressor state acceptance is necessary to authorize jurisdiction; supporters of the “positive understanding” argue that only the consent of the alleged victim state is essential.

At this point, all that can be said definitively is that much remains to be decided, and so much work remains to be done.