Identifying the Rough Edges of the Kampala Compromise

Criminal Law Forum

Volumn 21, Issue 3, 2010, Pages 417-443

  Manson, Robert L ^a  

^a NONE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78650518351     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1007/s10609-010-9125-x     Document Type: Article

References (54)

1. Article 5(1) reads: "The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Arts. 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations". More to the point perhaps para. 7 of resolution F, adopted by the Rome Conference, called upon the Preparatory Commission for the Establishment of the Court, to continue work towards an agreement among participant states on these provisions, which was subsequently work carried on by the SWGCA (established in 2002 after the Statute's entry into force), under the auspices of the then Assembly of States Parties to the Rome Statute, and which concluded with a final draft resolution appended to that Group's final Report, as adopted by the resumed 7th session of the ASP in New York in 2009: ICC-ASP/7/SWGCA/2 Annex. 1.
2. For further discussion, see Claus Kress, The Crime of Aggression before the First Review of the ICC Statute, 20 LJIL 851 (2007)
3. Niels Blokker, The Crime of Aggression and the United Nations Security Council, 20 LJIL 867 (2007)
4. Astrid Reisinger, Defining the Crime of Aggression, in Future Perspectives on International Criminal Justice (Carsten Stahn & Larissa van den Herik eds, 2010), 425
5. Nicolaos Strapatsas, Complementarity and Aggression: A Ticking Time Bomb?, in Future Perspectives on International Criminal Justice, ibid., 450
6. Roger Clark, The Crime of Aggression, in The Emerging Practice of the International Criminal Court (Carsten Stahn & Goran Sluiter eds 2009), 709
7. Benjamin Ferencz, Defining International Aggression: The Search for World Peace, Vol. II (1975).
8. 15(bis) "exercise of jurisdiction over the crime of aggression (State referral, proprio motu)" and 15(ter) "exercise of jurisdiction over the crime of aggression (Security Council Referral)".
9. In the instance where it has, the Prosecutor is then empowered to proceed forthwith, see para. 7 in the new Art. 15(bis).
10. Special in the sense of requiring an authorisation of the full pre-trial Division', as opposed to merely a Chamber' of only three judges, which is the case when authorising an investigation proprio motu by the Prosecutor, per any of the other existing crimes. See Art. 15(3).
11. See in particular the proposed Alternative 1 options for Art. 15(bis) para. 4 in the draft resolution ICC-ASP/8/Res.6, by which the ASP forwarded proposals on a provision on the CoA to the Review Conference for its consideration, and which included both (i) exclusive Council predetermination or (ii) a green light' as alternate options.
12. For the debate on whether or not the amendment is to Art. 5 or rather the Statute as a whole, see e.g. Astrid Reisinger Coracini, Ámended Most Serious Crimes': A New Category of Core Crimes within the Jurisdiction but out of the Reach of the International Criminal Court, 21 LJIL 699-718 (2008)
13. Roger S. Clark, Negotiating Provisions Defining the Crime of Aggression, its Elements and the Conditions for ICC Exercise of Jurisdiction Over It, 20 EJIL 1103-1115 (2009).
14. If a SP still objects to being bound by the amendment, its only option then is to withdraw from the Statute entirely instead, see Art. 121 para. 6.
15. Art. 121(5)'s infamous second sentence states unambiguously that "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".
16. In my view this provision and its construction is greatly bolstered by reference to the effect of Art. 40(4) of the VCT (1969) which states in short that: "The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement;". Whilst I accept that states are, of course, free to agree on a settlement different to this position, this offers in my view the default position. Those who contend for a contrary position must show the evidence of a contrary agreement, such as in Art. 121(4).
17. What is now set out in the new Art. 15(ter).
18. Which, of course, would in its turn, first have had to have been be accepted/ ratified and entered into force, under the Art. 121(4) provisions, requiring ratification by seven-eights of the ASP a year before entry into force, and all before, in turn, it could then be later used to ratify an amendment on the crime of aggression, under the amended amendment procedure!
19. As a part and parcel of the package of amendments on the crime of aggression adopted by the Resolution, Art. 5(2) has now been deleted (see para. (1) of the Annex), but its effect, as bearing upon the relevant contextual history on the adoption of these amendments, of course, remains valid.
20. Para. (4) "The Court may, in accordance with article 12, exercise jurisdiction over 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. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years."
21. Given the provisions of Art. 15(bis) & (ter) common para. (2) see below, which defers the Court's exercise of jurisdiction until a year after the ratification or acceptance of the amendment by 30 States Parties, such a rationale for instance might well include a State Party's wanting to add its weight to the number of SP ratifications of the amendment, so as to thereby hasten the initiation of the EoJ by the Court, whilst remaining itself, at least for the time being, opted out of that very exercise of jurisdiction.
22. "The Review Conference. notes that any State Party may lodge a declaration referred to in Art. 15 bis prior to ratification or acceptance.", what we may then call instead an opt out before opting in' option!
23. Just by way of a further twist it is well worth asking how would it affect matters if the "victim state" had both accepted the amendment, but also "opted out" of the exercise of jurisdiction? Would the opt out then destroy territorial jurisdiction per Art. 12?
24. Although there is no reason why they could not be contained within the very same declaratory communication, and in practice probably would be.
25. RC/WGCA/1 page 7 Annex III understanding 6. Alternative 1 and alternative 2.
26. See now para. (5) of Art. 15(bis) which states simply that: "In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State's nationals or on its territory."
27. Ibid, see supra note 9 above.
28. See for example paras. 38-39 (p. 27) of the SWGCA Report to the 7th ASP. ICC-ASP/7/20/Add.1.
29. Indeed at one point this consensus even led to a proposed further understanding per:"It is understood that the notion of "conduct" in article 12, paragraph 2(a), of the Statute encompasses both the conduct in question and its consequence", as to which see Head IV para. 12 p. 36 of Appendix II to the SWGCA Report, ibid. This understanding only failed to make it into the draft proposed Annex III list of Understandings', because, as I understand it, in the end it was felt be otiose.
30. Ibid, see supra note 14, above.
31. See for instance the language of the text proposed by Slovenia.
32. This new provision deals with exercise of jurisdiction over the crime of aggression in the case of a Security Council referral under the provisions of Art. 13(b) of the Statute. There is no other limitation or modality on the exercise of jurisdiction by the Court in this instance, in particular no opt-out for States Parties and no exemption for non-States Parties.
33. As to which see para. 2. In the new 15(bis), repeated again at para. 2 in the new 15(ter).
34. See Art. 126 of the Statute.
35. Which in short provides that these amendments shall enter into force for those States Parties which have accepted the amendments, 1 year after the deposit of their instruments of ratification or acceptance.
36. However, the reader may be interested to know of a letter, copy seen by this author, written shortly after the Kampala Conference (dated 24 June 2010) from Mr Henry Bellingham (Minister of State at the UK Foreign Office with responsibility for the ICC) to Mr Jeremy Browne MP (also as it happens a Minister of State at the Foreign Office with responsibility for criminal law matters) and who therein specifically describes the "conditions", set out in the Kampala Resolution, as maintaining a long standing UK position that the Council must have "the primary role" in deciding when a state act of aggression has been committed. NB, the "primary" not the "exclusive" role? Does this represent a subtle but significant reformulation' of the UK Government position, and thus explain its willingness to consent?
37. As to which see now common para. 3 in the new Art. 15(bis) repeated in Art. 15(ter), as follows: "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."
38. See Donald M. Ferencz, Some Personal Reflections on Kampala, 23 LJIL905 (2010).
39. This would have required a concurrent vote of 75 States Parties, being twothirds of the current composition of the ASP, as required by Art. 121(3) of the Statute, the ASP at the time comprising 111 States Parties.
40. It was the Japanese delegation who had earlier first raised objection to the ABS proposal (as above), for exhibiting a want of legal logic, regarding its approach on using both the entry into force procedures, and applying them instead differentially, as per the different trigger mechanisms.
41. See supra note 10 above.
42. I am willing to accept that the use here of the conjunctive participle "and", in this expression, was an oversight, and that it must instead be construed in the context as if it said "or" instead.
43. See supra note 13 above.
44. As I understand it from authorities, under the Latin law rule, where the expressions (bis) and (ter) etc are typically employed, to the introduction of a new article or paragraph into a text, say after an existing Art. 8, and called then 8(bis) instead, is not to be treated as in any manner an amendment to the existing Art. 8, but rather simply as the introduction of a new article, equivalent to the English convention, per naming it Art. 8A.
45. Such a speculative argument would of course lose much, if not all, force were there to have been, at the relevant time, acceptance/ratification by the 7/8th of the ASP, thus permitting entry into force as provided by Art. 121(4) language instead.
46. Indeed, logically there might also need to be a specific further decision by the ASP, to delay the activation of any new substantive Art. 5 amendments, until a point in time after the deletions of the Kampala amendments had taken effect, that is following their acceptance or ratification by seven-eights of the ASP.
47. On the principle of complementarity relating to the crime of aggression, see also Strapatsas, supra note 2.
48. The language used in Art. 12(3) is "with respect to the crime in question".
49. In passing, I should observe that although specifically concerned with temporal retrospection, since entry into force "for a State Party" under Art. 121(5) first sentence, is expressly conditional upon acceptance by the State Party concerned, it follows that this Understanding further strongly bolstered the view that the Court is barred from the exercise of jurisdiction, with respect to a non-accepting State Party, and had it survived to be included in the final Resolution, I should have clearly cited it in further support of my separate conclusion on that matter.
50. Electronically published at 12:00 h on the Thursday (10th of June) as to which see then proposed provision 15(bis)(1)(ter) on p. 3 thereof.
51. Electronically published 16:30 h on the final day Friday 12th, by when the text on the exclusion of non-States Parties had been finally placed at 15(bis)(5) instead.
52. See above supra note 20.
53. Such declaratory acceptance' in the case of the State Party deriving from its declaration of acceptance under Art. 121(5), and where it has not then also opted-out', and in the case of the non-State Party from a specific Art. 12(3) ad hoc declaration.
54. Judgment of 1 October 1946, Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November-1 October 1946, Vol. 1, p. 186.