Talk:Amendments to the Rome Statute

One year

Hi! I would say that "one year after the deposit" is on 26 September 2012, not 25 September. At least in Germany's civil law, the day of the event triggering a time span is not included in the time span itself. I don't know if there are jurisdictions that consider time spans otherwise and if yes, what rule to follow. --EBB (talk) 12:31, 1 October 2011 (UTC)

Ah. The linked UN Treaty Database itself gives 26 September 2012 as the date of the entry into force, so I will change that date. --EBB (talk) 13:00, 1 October 2011 (UTC)

That makes since. I think I assumed that the leap year might have changed the date, but I guess it didn't. Also, in the "Summary of adopted amendments to the Rome Statute" section I removed the date and just left the note under the "In force on" column. For amendments to articles 5, 6, 7, or 8 I think that table should not have a date, since it would only be specific to one country and it is simply not feasible to have multiple dates, especially since there is another table with the country-specific dates below. I think that column should only be filled for amendments that require seven-eighths approval before taking effect. – Zntrip 19:26, 1 October 2011 (UTC)

Referrals and jurisdiction

I think everyone agrees that crimes that are covered by an amendment but not by the Statute itself cannot be prosecuted against nationals of non-states parties and nationals of states parties that have not ratified the amendment if the case is investigated by the Prosecutor proprio motu. The same should be true (due to the pretty clear formulation) for referrals by a state-party. I am not sure whether a non-state party can accept the jurisdiction for article 8 (amendment) crimes because if it could it would be pretty senseless that a state party to the Statute which has not ratified the amendment could not accept the jurisdiction as well. The most elegant solution might be that a state party which has not ratified the amendment can accept the amendment jurisdiction in quite the same way a non-state party can accept the (whole) jurisdiction of the court. The next question I have is whether an amendment crime can be prosecuted after a UNSC referral. I would assume this to be possible against the national of any state (non-state party, state party not having ratified, state party having ratified).

So, I assume that

• the Court has jurisdiction for an article 8 amendment crime
  • in the case of a proprio motu investigation by the Prosecutor only for states for which the amendment is in force (one year after ratification) or if the state party or non-state party has accepted the Court's jurisdiction (also temporal!) in the same way a non-state party can accept the Court's jurisdiction (Côte d'Ivoire example)
  • in the case of a state referral only for states for which the amendment is in force (again, a state referral regarding an article 8 amendment crime would have to be interpreted as an acceptance of jurisdiction, triggering only the proprio motu possibility)
  • in the case of a United Nations Security Council referral for all states (in accordance with the UNSC resolution), beginning on 26 September 2012 (the date of the entry into force of the first ratification, by the way: Then the entry into force for the amendment to article 8 would be sensible to be taken as 26 September 2012).

I more and more come to the conclusion that (more probably) I don't understand the amendment rules or the amendment-adopters did not (either), making this whole thing a pretty unpretty mess. What do others (Zntrip!) think?

Additionally, one question: If my conclusion is correct regarding state referral and proprio motu investigation, any state referrals prior to 26 September 2012 (or the adoption of the amendment?) cannot be construed to include article 8 amendment crimes, right?

I'd be very thankful if anyone could explain those things to me ... --EBB (talk) 11:09, 16 October 2011 (UTC)

I agree with your first two bullet points. That is how I would interpret jurisdiction for a crime in an article 5, 6, 7 or 8 amendment. However, I am not sure about a Security Council referral only because it is not clear to me when an article 5, 6, 7 or 8 amendment enters into force. What is known is that a general (non-article 5, 6, 7 or 8) amendment "shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited ... by seven-eighths of them" according to article 121(4) of the Statute. Furthermore, article 121(5) provides that "[a]ny 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. 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."

With that in mind I have two inferences:

1. If an amendment to article 5, 6, 7 or 8 enters into force for Security Council referrals one year after the first instrument of ratification is deposited, then the state ratification threshold for article 5, 6, 7 or 8 amendments is lower than general amendments (i.e. one state party as opposed to seven-eighths of the states parties).
2. If the Court cannot exercise jurisdiction over crimes in article 5, 6, 7 or 8 amendments committed by non-ratifying states parties' nationals or on their territory (I am assuming the Court cannot do so even with a Security Council referral) then a higher degree of protection is afforded to states parties which have not ratified an amendment than to states which have ratified neither.

If these two inferences are correct then there seems to be an two contradictions: (1) that it is easier for the Security Council to apply article 5, 6, 7 or 8 amendments than it is for general amendments to take effect and that (2) when it comes to crimes in article 5, 6, 7 or 8 amendments, non-ratifying states parties may have perpetual immunity from Security Council referrals.

I'm therefore unsure about the application of article 5, 6, 7 or 8 amendments by the Security Council. Because the Security Council never refers a type of crime to the Court, the only way for this issue to be resolved is by a the Prosecutor attempting to indict someone in a Security Council-referred situation with an article 5, 6, 7 or 8 amendment crime and the Pre-Trial Chamber making a ruling on the Court's jurisdiction. At least that's how I see it. – Zntrip 21:49, 16 October 2011 (UTC)

Firstly, I think a 121(4) amendment is meant to be an amendment to the Statute which regards the functioning of the court (e.g. to remove or strongly modify the confirmation of charges hearing) which usually would only come into force after ratification by all states. Here, I understand article 121(4) to simplify the procedure by squeezing out the remaining hesitating one eighth of states parties.

Secondly, (given the almost unlimited power of the UNSC to address law-of-nations crimes) if the UNSC can refer a situation regarding a pre-amendment crime in a non-ratifying state, I would consider it to be inconsequent to not allow it to refer a situation regarding an amendment crime in a state which has accepted ICC jurisdiction in principle (by ratifying the Statute) but that has not (yet) ratified the amendment. Regarding a non-state party, where is the difference between a pre-amendment crime and an amendment crime as the state has ratified neither the Statute nor the amendment?

Thirdly, regarding your first contradiction: I think that in connection with my first point today there must be made the point that the UNSC can refer situations to the ICC triggering the ICC's jurisdiction but the UNSC does not interfere with the administration of the referral and the investigation. The administration within the Court is solely governed by the Statute. So, the UNSC does IMHO simply not 'apply' general amendments in contrast to article 5-8 amendments.

Fourthly, regarding your second contradiction: Don't you think that would be inconsequent due to the fact that a state party has in principle accepted the ICC's jurisdiction?

Do we agree that the crime of aggression amendment is, although not explicitly an amendment to (only) article 5-8 (while being inclusive of an amendment to article 5) is covered by article 121(5)? I understand that the UN Treaty Database does not explicitly state its opinion regarding this issue. But from a teleologic point of view, I think it should be considered an 121(5) amendment as it defines a crime as do articles 5-8.

Of course I do agree with your final statement that we do not decide what the ICC will do. Nonetheless, I think that we should be able to figure out such a fundamental issue, at least in principle. Argh. And thanks for your thoughts ... --EBB (talk) 15:49, 17 October 2011 (UTC)

Ah, additionally the crime of aggression amendment must be a 121(5) amendment, as otherwise the 30th state condition in articles 15^bis and 15^ter would make no sense. Given that article 15^ter does provide for the referral of a situation to the ICC by the Security Council even in case of non-ratifying state parties (while stating additional conditions), the main point, namely that the UNSC can refer a situation regarding a 121(5) amendment crime in a non-amendment-ratifying state party, must hold as well. --EBB (talk) 15:54, 17 October 2011 (UTC)

I must clarify that if forced to make a final decision I would agree with the conclusions made in your first post, but I simply want to test any doubts that I have. You have convinced me on almost every point. The only thing that still troubles me is the entry into force of the article 8 amendment for purposes of a Security Council referral. The one-year-after-the-first-ratification rule seems arbitrary to me. The resolution adopted by the Review Conference seems to insinuate that its adoption amended the Statute for purposes of general application (i.e. Security Council referral). It notes that in accordance with article 40(5) of the Vienna Convention, a state can choose to ratify or accede to the Statute with or without the amendment, suggesting that the amendment essentially becomes an optional protocol to the Statute immediately following its adoption. Therefore I would come to the conclusion that in the case of a United Nations Security Council referral for all states (in accordance with the UNSC resolution), the Court has jurisdiction for an article 8 amendment crime beginning on 10 June 2010. This interpretation could be tested if a former Libyan official is indicted for using hollow point bullets, an allegation that I have read recently. – Zntrip 22:52, 17 October 2011 (UTC)

Hi! Your 10 June 2010 jurisdiction beginning argument is interesting. I think one can, however, argue as well that in the context of the jurisdiction of the ICC beginning on the date of its entry into force for a certain number of states (in this case, 60) that also any amendment jurisdiction could only begin when it has entered into force for a certain number of states. As there is no certain number explicitly mentioned in the article 8 amendment, "one" may (or may not) be a reasonable number as per article 121(5). Of course, here I cannot argue with the crime of aggression amendment as here the amendment is exceptionally clear on the 30 states + 2017 decision rule.

Thanks anyway for your answers. At least for myself many of the issues concerning the amendments have become a bit clearer although I of course do not know if my solutions are correct as will be decided by the ICC. By the way: If/when you happen to come to Europe, I'd love to attend an ICC hearing with you ... --EBB (talk) 09:09, 25 October 2011 (UTC)

Hi and argh. I have (once again) read Resolution 5 adopted during the Review Conference and realized that I had missed its preamble which reads "Noting article 121, paragraph 5, of the Statute which states that any amendment to articles 5, 6, 7 and 8 of the 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 and that in respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party’s nationals or on its territory, and confirming its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted the amendment applies also in respect of States that are not parties to the Statute" (emphasis added). Thus, my whole nice theory regarding the article 8 amendment is gone while Zntrip's initial arguments are in total agreement with the will of adopters (apologies for not ready properly!).

Therefore the situation seems to me to be as follows:

• • • • • • Regarding the article 8 amendment (10 June 2011), this is only applicable to countries that have ratified (or accepted) the amendment. Full stop.
          • Regarding the crime of aggression amendment (11 June 2011), the amendment itself (jurisdiction begins one year after ratification of 30th state party; actual exercise of jurisdiction needs seperate approval by ASP in 2017 or later) is pretty clear.

Doesn't appear that unclear after all. --EBB (talk) 19:07, 25 October 2011 (UTC)

I am totally confused and will be quiet in this regard for some time until I have made up my mind ... --EBB (talk) 19:16, 25 October 2011 (UTC)

I too am confused. Correct me if I am wrong, but the only contentious issue is when the article 8 amendment comes into force for purposes of Security Council referrals. Also, thanks for the ICC hearing offer. I don't have any current plans to visit Europe (I don't travel often as you can tell by my paltry 4+3 countries to your 72+2), but when I do I would love to. – Zntrip 20:50, 25 October 2011 (UTC)

Crime of aggression jurisdiction

Hi! I simply cannot be silent I think ... Could someone please read Part II of the Official Record of the Review Conference [1] and there

• Article 15bis in Annex I of Resolution 6 (page 19 as can be seen in the lower right corner of the page), and there paragraphs 2 and 3:

"2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.

3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute."

The same text can be found in Article 15ter paragraphs 2 and 3.

• In Annex III to that Resolution 6 (page 22), understanding 3 which reads: "3. It is understood that in case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction only with respect to crimes of aggression committed after a decision in accordance with article 15 bis, paragraph 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later."

It seems to me that the Article 15 text says something different than the understanding because, assumed that the 30th state ratifies the amendment on 13 September 2016 and the approval of the ASP takes place on 18 December 2017 and there is no Security Council referral,

• the Article 15 seems to say that while the jurisdiction itself begins on 13 September 2017 (one year after the ratification of the 30th state), the ICC can exercise this jurisdiction (i.e. investigate, indict people etc.) only from 18 December 2017 on. Thus, a crime of aggression committed on 13 September 2017 could be prosecuted.
• On the other hand, the understanding in Annex III seems to say that jurisdiction itself (and exercise thereof) begin only at the later date of {30th ratification + one year; ASP approval} i.e. on 18 December 2017. Thus, a crime of aggression committed on 13 September 2017 could not be prosecuted.

It is interesting that the understanding explicitly refers to state referral and proprio motu investigations (Article 13(a) and (c); Article 15bis) although the text in Article 15ter which refers to Security Council referral (Article 13(b)) is exactly the same. As I am not a native English speaker, I simply hope that I misunderstand the two texts. Please clarify. Thank you. --EBB (talk) 13:15, 26 October 2011 (UTC)

Article 15 bis puts two conditions on the exercise of jurisdiction. To me it seems clear that both must be met for jurisdiction to begin. That being said the Court would not have jurisdiction until 18 December 2017. Likewise, if the Assembly voted on 18 December 2017 to approve the amendments, but only 25 states have ratified the amendments, then jurisdiction would only begin a year after the 30th ratification.

Paragraph 2 says the Court may exercise jurisdiction one year after the 30th ratification, while paragraph 3 says it shall exercise jurisdiction after the Assembly's vote. The former seems to be a less authoritative declaration suggesting that paragraph 2 jurisdiction is conditional on paragraph 3. – Zntrip 16:41, 26 October 2011 (UTC)

Thanks for the explanation. Then I have misunderstood that by thinking there was a difference between the beginning of jurisdiction and the beginning of exercising that jurisdiction. --EBB (talk) 15:45, 27 October 2011 (UTC)

Hi I'm the principal author of the Crime of aggression article. The article was written with review by The Global Institute for the Prevention of Aggression led by Liechtenstein as state sponsor. As you probably know, Christian Wenaweser, Permanent Representative of Liechtenstein to the United Nations and former President of the Assembly of States Parties to the Rome Statute of the International Criminal Court, who chaired all of the Special Working Group on Crime of Aggression discussions, leads this action. So you can say the article is a authentically and widely agreed set of descriptions on the amendments that could address many of your questions discussed above. Please have a look. --Etranger (talk) 08:00, 31 October 2013 (UTC)

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