The Rome Statute's amendment on the crime of aggression: Negotiations at the Kampala review conference

International Criminal Law Review

Volumn 11, Issue 1, 2011, Pages 49-104

  Trahan, Jennifer ^a  

^a NEW YORK UNIVERSITY   (United States)

Author keywords

Aggression; crime of aggression; International Criminal Court; jurisdiction; Review Conference; Rome Statute

Indexed keywords

EID: 79251525911     PISSN: 1567536X     EISSN: 15718123     Source Type: Journal    
DOI: 10.1163/157181211X543920     Document Type: Article

References (253)

1. Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9*, 17 July 1998, 2187 U.N.T.S. 90 ("Rome Statute").
2. An estimated 84 States Parties attended. See "Delegations to the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May -11 June 2010," RC/INF.1, dated 26 August 2010, at (listing the names of delegates from 84 States Parties, and 32 Non-States Parties as attending the Review Conference). An estimated 500 members of civil society registered to attend.
3. These panels addressed four areas: the impact of the Rome Statute system on victims and aff ected communities; peace and justice; complementarity; and cooperation.
4. For discussion of the other two amendment issues-the so-called Belgian war crimes amendment and the proposal to delete Article 124 of the Rome Statute, see note 70 infra.
5. Ambassador Wenaweser is also Permanent Representative of Liechtenstein to the United Nations, and was previously Chair of the Special Working Group on the Crime of Aggression.
6. Prince Zeid became Chair of the Special Working Group on the Crime of Aggression subsequent to Ambassador Wenaweser.
7. Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 October 1945 - 1 October 1946 (1947-1949), Vol. XXII International Military Tribunal 427 (1948), at < www.loc.gov/rr/frd/Military- Law/NT-major-war-criminals.html > (emphasis added).
8. See, e.g., Andreas Paulus, 'Second Thoughts on the Crime of Aggression,' 20 European J of Int'l Law 1119, p. 1126 (2010).
9. See, e.g., Benjamin B. Ferencz, 'Getting Aggressive about Preventing Aggression,' 6 Brown J of World Aff airs 87, p. 93 (1999).
10. The definition of the crime of aggression does not cover the initiation of internal armed conflict.
11. There have been an estimated 225 armed conflicts since the end of World War II-"163 internal conflicts (32 of which had external participation by other states ...), 21 extrastate conflicts, and 42 interstate conflicts." Nils Petter Gleditsch et al ., 'Armed Conflict 1946-2001: A New Dataset,' 39(5), J. of Peace Research p. 615 (2002).
12. These include the four 1949 Geneva Conventions, as well as the two 1977 Protocols thereto. See Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949; Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949; Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non- International Armed Conflicts (Protocol II), 8 June 1977.
13. For example, "[i]n the Korean War, an estimated 1.7 percent of the combined population of the two Koreas died from wartime violence in 1950." Human Security Report Project, Human Security Report 2009: The Shrinking Costs of War (Oxford University Press, 2009), p. 26, at < www.hsrgroup .org/docs/Publications/HSR2009/2009HumanSecurityReport-Complete.pdf >. As to the Democratic Republic of the Congo, the International Rescue Committee estimates a recent civilian fatality fi gure of 2.83 million.
14. Ibid. , p. 42. Certain civilian fatalities (collateral damage) are permissible under the laws of war. However, even when the laws of war are not violated- i.e ., one could not prosecute for war crimes-vast suffering occurs during international armed conflict. Thus, the argument that one does not need to prosecute the crime of aggression because one could alternatively prosecute for war crimes is not necessarily the case. Furthermore, diff erent individuals would most likely be implicated depending if the charges are for the crime of aggression or for war crimes.
15. Needless combatant suff ering might occur, for example, when prohibited weapons are used, for example, as was done by the Iraqi Army during the Iran-Iraq war, causing an estimated 20,000 fatalities on the Iranian side. See Federation of American Scientists, 'Chemical Weapons Programs: History,' 12 July 2010 (1998), at < www.fas.org/nuke/guide/iraq/cw/program.htm > (citing 5,500 Iranian fatalities due to Tabun-fi lled aerial bombs during the Iran-Iraq war, and 16,000 Iranian fatalities due to toxic blister agent mustard gas between August 1983 and February 1986). But even when prohibited weapons are not used, the killing of combatants (permitted under the laws of war) undeniably causes extreme suff ering as well.
16. Given the pervasive human rights violations that occur in every armed conflict, the failure of key human rights organizations-Amnesty International and Human Rights Watch in particular-to support the conclusion of an agreement on the crime of aggression, was extremely disappointing, and arguably represented a significant lapse in judgment in failing to comprehend the magnitude of the stakes at issue (trying to deter aggressive use of armed force), and the vast numbers of human rights violations resulting therefrom.
17. See, e.g. , Amnesty International, Press Release 'Proposals Threaten International Criminal Court's Independence,' 8 June 2010;
18. Human Rights Watch, 'Making Kampala Count: Advancing the Global Fight against Impunity at the ICC Review Conference,' 10 May 2010, at < www.hrw.org/en/node/90282/section/8 > (urging "states to reject any jurisdictional regime that requires approval by any entity external to the ICC itself " and arguing "that inclusion of a definition and jurisdictional filter [for the crime of aggression] could diminish the court's role ... as an impartial judicial arbiter of international criminal law."). The Open Society Institute also opposed the aggression amendment, arguing that such an amendment would "politiciz[e] and overburden[]" the ICC.
19. See letter from Aryeh Neier, President of the Open Society Institute, et al . to Foreign Ministers, dated 10 May 2010. Given how restrictive the jurisdiction agreed upon for the ICC will be over the crime of aggression ( see Section 3.2. infra ), OSI's fears of overburdening the Court clearly will not come to pass. The argument that the Security Council should not serve as a jurisdictional filter vis-à-vis the crime of aggression ignores that the Security Council already may refer cases to the ICC vis-à-vis its other three crimes (genocide, war crimes and crimes against humanity) as well as stop such prosecutions, so an important role for the Security Council already exists under the original Rome Statute.
20. See Rome Statute, Arts. 13 (referrals) & 16 (deferrals). Arguing that the Security Council should play no such role regarding the crime of aggression, while based on understandable and important concerns about judicial independence, was at the same time utterly unrealistic and arguably failed to recognize the Security Council's role under the U.N. Charter in determining when an act of aggression occurs.
21. See U.N. Charter, Art. 39. Had the Rome Statute amendment process failed to recognize this role-which it was mandated to recognized pursuant to Rome Statute Article 5(2)-it could have created a conflict between the Rome Statute and the U.N. Charter, in which case the U.N. Charter would prevail.
22. See U.N. Charter Art. 103.
23. "Prior to the 1920's, states viewed war as a lawful means to redress grievances and alter legal relations between states." Jeff rey L. Dunoff , Steven R. Ratner, and David Wippman, International Law: Norms, Actors, Process: A Problem-Oriented Approach (2d ed. Aspen Pub. 2006), p. 877.
24. Kellogg-Briand Pact (1928), Treaty Between the United States and Other Powers Providing for the Renunciation of War as an Instrument of National Policy, signed at Paris, 27 August 1928, at < www.yale.edu/lawweb/avalon/imt/ kbpact.htm >. The Covenant of the League of Nations also contained provisions attempting to prevent "external aggression" against "territorial integrity and ... political independence" of another member of the League, and required parties to submit "any dispute likely to lead to a rupture" to arbitration or judicial settlement.
25. See Covenant of the League of Nations, as amended, December 1924, Arts. 10-13.
26. Article 2(4) of the U.N. Charter states: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." U.N. Charter, Art. 2(4).
27. Article 51 of the U.N. Charter states: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security...."
28. See U.N. Charter, Chapter VII.
29. There is no express provision permitting humanitarian intervention in the U.N. Charter. However, fairly recent advances in the doctrine of the "responsibility to protect" suggest that the law is moving towards the position that a nation that in good faith utilizes its armed forces (unilaterally or multilaterally) to prevent large scale war crimes, crimes against humanity or genocide in another country, should not be considered to violate international law.
30. See, e.g., The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty ("ICISS Report") (2001);
31. see also 2005 World Summit Outcome, G.A. Resolution 60/1, 24 October 2005, A/RES/60/1 ("2005 World Summit Outcome"), at paras. 138-39 (recognizing a responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity). The doctrine, admittedly, is not fully agreed upon, and some sources state that such intervention is still only permissible when sanctioned by the U.N. Security Council, and should not be unilateral or multilateral.
32. See, e.g., 2005 World Summit Outcome, para. 139.
33. The Nuremberg (London) Charter defines "crimes against peace" as "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing." Charter of the International Military Tribunal, Art. 6(a).
34. See also Charter of the International Military Tribunal for the Far East (Tokyo), Art. 5(a) (similar, adding that the war could be declared or undeclared); Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, 3 Offi cial Gazette Control Council for Germany 50-55 (1946), art. II (1)(a) (also covering "initiation of invasions," and not limiting the forms of responsibility to planning, preparation, initiation or waging).
35. See Rome Statute, Art. 5(1) ("The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) [t]he crime of genocide; (b) [c]rimes against humanity; (c) [w]ar crimes; [and] (d) [t]he crime of aggression.").
36. Specifically, Article 5(2) of the Rome Statute states: "The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 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." Rome Statute, Art. 5(2).
37. The Preparatory Commission was charged with drafting texts of: (a) rules of procedure and evidence; (b) elements of crimes; (c) a relationship agreement between the Court and the United Nations; (d) basic principles governing a headquarters agreement to be negotiated between the Court and the host country; (e) financial regulations and rules; (f ) an agreement on the privileges and immunities of the Court; (g) a budget for the first financial year; (h) the rules of procedure of the Assembly of States Parties; and (i) proposals for a provision on aggression. See Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, done at Rome on 17 July 1998, U.N. Doc. A/CONF.183/10, Annex I, Resolution F.
38. Sixty ratifications were required. See Rome Statute, Art. 126(1). In April 2002, the final ratifications were simultaneously deposited, bringing the total to 66.
39. See The Princeton Process on the Crime of Aggression: Materials of the Special Working Group on the Crime of Aggression, 2003-2009 , edited by Stefan Barriga, Wolfgang Danspeckgruber and Christian Wenaweser (hereinafter, " The Princeton Process ").
40. As discussed further below, the United States-a Non-State Party to the Rome Statute-did not attend the meetings of the Special Working Group, although the meetings were open to Non-States Parties. With the change to the administration of President Obama, the U.S. began to attend negotiations at the Eighth Session of the Assembly of States Parties, which took place in The Hague in November 2009. When the U.S. first voiced its substantive views as to the crime of aggression first in The Hague at the Eighth Session of the Assembly of States Parties, but more fully during the Resumed Eighth Session in March 2010 at the U.N., it had a panoply of concerns with the definition of the crime as well as other concerns. See Comments of Harold H. Koh, Legal Adviser U.S. Department of State, Resumed Eighth Session of the ASP.
41. See Report of the Special Working Group on the Crime of Aggression, February 2009, Resolution ICC-ASP/7/20/Add.1, Annex II., at Annex to Appendix, reproduced in The Princeton Process , pp. 60-61.
42. Resolution RC/Res.6, advance version, 28 June 2010, 18:00, available at < www.icc-cpi.int/ iccdocs/asp-docs/Resolutions/RC-Res.6-ENG.pdf > [last visited 22 September 2010], Annex I. Also fairly well-accepted by the time of the Resumed Eighth Session (and also ultimately adopted at the Review Conference) were the Amendments to the Elements of Crimes to cover the crime of aggression: 1. The perpetrator planned, prepared, initiated or executed an act of aggression. 2. The perpetrator was a person in a position eff ectively to exercise control over or to direct the political or military action of the State which committed the act of aggression. 3. The act of aggression - the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations - was committed. 4. The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations. 5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations. 6. The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations. Resolution RC/Res.6, advance version, 28 June 2010, 18:00, Annex II. There is a footnote to element 2 providing: "[w]ith respect to an act of aggression, more than one person may be in a position that meets these criteria."
43. Ibid. The following "[i]ntroduction" is also given: 1. It is understood that any of the acts referred to in article 8 bis , paragraph 2, qualify as an act of aggression. 2. There is no requirement to prove that the perpetrator has made a legal evaluation as to whether the use of armed force was inconsistent with the Charter of the United Nations. 3. The term "manifest" is an objective qualification. 4. There is no requirement to prove that the perpetrator has made a legal evaluation as to the "manifest" nature of the violation of the Charter of the United Nations.
44. Ibid..
45. Charter of the International Military Tribunal, Art. 6(a). Of course, a significant diff erence is that the London Charter covered the "planning, preparation, initiation or waging of a war of aggression " (emphasis added), while the new definition covers the planning, preparation, initiation or execution of an act of aggression. As discussed further below, it was specifically debated at Princeton, New Jersey, as part of the negotiations of the Special Working Group whether only a "war" of aggression should be covered by the definition.
46. See June 2006 SWGCA meeting, paras. 21-24, reproduced in The Princeton Process , p. 144. Th at approach was ultimately rejected as too restrictive. Most states wanted to cover lesser incursions that did not amount to full-scale war.
47. See U.N. Charter, Art. 2(4), quoted at note 18 supra.
48. See General Assembly Resolution 3314 (XXIX) of 14 December 1974.
49. While it is possible to imagine an individual acting alone might engage in "planning," "preparation" or "initiation" of an act of aggression, the Amendments to the Elements of Crimes make clear that an act of aggression-that is, the act by the state-must also occur.
50. See Resolution RC/Res.6, advance version, 28 June 2010, 18: 00, Annex II, element 3 ("The act of aggression... was committed."). Indeed, if an individual engaged in planning, preparation or initiation of an act of aggression that did not result, this would hardly meet the gravity threshold necessary for Rome Statute crimes.
51. See Rome Statute, preamble ("[a]ffirming that the most serious crimes of concern to the international community as a whole must not go unpunished ..."). "Attempt" is still a form of individual criminal responsibility under Rome Statute Article 25.
52. See Rome Statute, Art. 25(3)(f ). Presumably, this means that attempts at "planning", "preparation", "initiation" or "execution" of an act of aggression would be covered (even where the attempts at planning, preparation, initiation or execution fail); such a scenario, again, would hardly make a strong ICC case. There was discussion during the Special Working Group meetings of whether to delete "attempt" as a means of committing the crime of aggression.
53. See June 2006 SWGCA Meeting, paras. 36-46, in The Princeton Process , pp. 146-47 (discussing "attempt");
54. see also June 2005 SWGCA Meeting, paras. 33-43, in The Princeton Process , pp. 171-72 (same). It was ultimately decided that only "indispensable minimal modifications should be made " to the structure of the Rome Statute when adding the crime of aggression, June 2004 SWGCA Meeting, conclusions after para. 18, and the provision covering "attempt" as a form of individual criminal responsibility was not altered.
55. For background, see Stefan Barriga, in The Princeton Process , pp. 7-8.
56. For additional discussion of the leadership requirement, see Roger S. Clark, 'The Crime of Aggression: From the Trial of Takashi Sakai, August 1946, to the Kampala Review Conference on the ICC in 2010," paper to be presented 14-16 October 2010, Melbourne Law School [draft, on file with the author].
57. Resolution RC/Res.6, advance version, 28 June 2010, 18:00, Annex I, 8 bis, para. 1.
58. Resolution RC/Res.6, advance version, 28 June 2010, 18:00, Annex I, 8 bis, para. 1 (emphasis added).
59. See, e.g. , June 2006 Princeton Meeting, in The Princeton Process , p. 143, paras. 18-20 (discussing the terms "manifest" and "fl agrant").
60. See Stefan Barriga, in The Princeton Process , p. 8.
61. February 2009 SWGCA Meeting, in The Princeton Process , p. 51, para. 13.
62. June 2008 SWGCA Meeting, in The Princeton Process , p. 87, para. 68.
63. Thus, for example, "the requirement that the character, gravity and scale of an act of aggression amount to a manifest violation of the Charter would ensure that a minor border skirmish would not be a matter for the Court to take up." Stefan Barriga, in The Princeton Process , p. 8.
64. Excluding legally debatable cases means that humanitarian intervention is not covered. See Claus Kreß (German delegation), 'Time for Decision: Some Thoughts on the Immediate Future of the Crime of Aggression: A Reply to Andreas Paulus,' 20 Eur. J. of Int'l L. 1129, p. 1140
65. citing Elizabeth Wilmshurst (UK delegation), in R. Cryer, H. Friman, D. Robinson, and E. Wilmshurst (eds.) An Introduction to International Criminal Law and Procedure (2007), p. 268 ("genuine humanitarian intervention" is excluded). Additional provisions in the Rome Statute that protect against bringing legally borderline cases include: (i) Article 31(3)'s exclusion of criminal responsibility if conduct is permissible under applicable law; (ii) Article 21's inclusion of principles and rules of international law; (iii) the requirement of proof beyond a reasonable doubt, and (iv) the principle in dubio pro reo (a defendant may not be convicted when doubts about guilt remain).
66. Th at point is reinforced by the "understandings" agreed upon at the Review Conference, discussed in Section 2.4. infra . At the same time, as noted above, States Parties did not go so far as to only criminalize a "war" of aggression, as was the case before the Nuremberg and Tokyo Tribunals. See note 31 supra. Acts covered by sub-paragraph (a), which "corresponds to the most traditional notion of 'aggressive war,'" "will presumably always constitute 'a manifest violation of the Charter of the United Nations.'" David Donat Cattin, 'Brief Commentary to the 2010 Amendments to the Rome Statute of the International Criminal Court (ICC) Concerning the Crime of Aggression,' pp. 2-3 (emphasis omitted). The acts listed in sub-paragraphs (b) and (g) would have to be evaluated to see if they satisfy the threshold in the chapeau of the definition.
67. David Donat Cattin, 'Brief Commentary to the 2010 Amendments to the Rome Statute of the International Criminal Court (ICC) Concerning the Crime of Aggression,' Ibid.,p. 3.
68. See Rome Statute, preamble ("[a]ffirming that the most serious crimes of concern to the international community as a whole must not go unpunished ...").
69. See Roger S. Clark, 'Amendments to the Rome Statute of the International Criminal Court Considered at the first Review Conference on the Court, Kampala, 31 May - 11 June 2010,' 2 Göttingen J of Int'l L 689, 696 (2010) ("The list of 'acts' in Article 8 bis (2), taken verbatim from Resolution 3314, may be open-ended to the extent that it does not say that no other acts can amount to aggression [but additional acts would need to be interpreted narrowly and satisfy the threshold clause].").
70. With an "open list," the acts listed in subsections (a)-(g) would be illustrative of acts of aggression, and "sufficiently open to cover future forms of aggression." See June 2008 SWGCA Meeting, in The Princeton Process , p. 89, para. 75.
71. Th ose who favoured a "closed list" expressed concerns that the principle of legality or nullum crimen sine lege could be violated by an open list. See Stefan Barriga, in The Princeton Process , pp. 10-11.
72. Stefan Barriga, in The Princeton Process , p. 11.
73. Nullum crimen sine lege literally means "no crime without law" and refers to the prohibition on ex post facto laws.
74. It is also worth noting that the crime against humanity of "other inhumane acts" has been upheld many times at the international level, without any express statutory articulation of what these other acts might be. See Jennifer Trahan, Genocide, War Crimes and Crimes Against Humanity: A Digest of the Case Law of the International Criminal Tribunal for Rwanda (Human Rights Watch 2010), pp. 142-46 (citing cases). As explained by the International Criminal Tribunal for Rwanda's Trial Chamber: The crime of 'other inhumane acts' encompasses acts not specifically listed as crimes against humanity, but which are nevertheless of comparable nature, character, gravity and seriousness to the enumerated acts in sub-articles (a) to (h) of Article 3. The inclusion of a residual category of crimes in Article 3 recognizes the difficulty in creating an exhaustive list of criminal conduct and the need for fl exibility in the law's response ....Prosecutor v. Muvunyi, (ICTR Trial Chamber), 12 September 2006, para. 527.
75. See also Prosecutor v. Kamuhanda , (ICTR Trial Chamber), 22 January 2004, para. 716 (similar);
76. Prosecutor v. Kajelijeli, (ICTR Trial Chamber), 1 December 2003, para. 931 (similar).
77. Observations as to the content of discussion at Preparatory Commission meetings, Special Working Group meetings, and the Review Conference not otherwise specifically attributed are based on the author's observations.
78. U.N. Charter, Art. 39 (emphasis added).
79. Rome Statute, Art. 5(2).
80. Of course, under the original Rome Statute, the ICC is not wholly independent of the Security Council. Under Article 13, the Security Council may refer cases to the ICC, and under Article 16, the Security Council may suspend an investigation or prosecution for a period of 12 months in a resolution adopted under Chapter VII. See Rome Statute, Arts. 13 & 16.
81. See, e.g., ICC-ASP/7/20/Add.1, Annex.
82. Ibid .
83. If there is a referral by the Security Council, ratification becomes irrelevant, as even crimes committed in the territories of Non-States Parties may be referred to the ICC by the Security Council. See Rome Statute, Art. 13(b).
84. Rome Statute, Art. 12(2).
85. See February 2009 SWGCA Report, paras. 38-39; November 2008 SWGCA Report, paras. 28-29 (acknowledging that the crime of aggression is usually considered to take place concurrently on the territory of both the aggressor state and victim state).
86. "Illustrative chart on conditions for the exercise of jurisdiction," dated 2 March 2010, 10:00.
87. Author's notes of the Resumed Eighth Session, on file. Considering these figures a bit, one can extrapolate that both "box 1" and "box 2" states (11 in total) wanted a Security Council filter. On the other hand, both "box 3" and "box 4" states (52 in total) wanted an external filter (GA or ICJ) or no filter. (While the voting did not diff erentiate between those States Parties that support the GA or ICJ as filter, versus those States Parties that supported no filter (e.g., the ICC itself as an "internal filter"), as noted above, most states appeared to be moving towards using no filter-the ICC itself.) It was at least clear that, numerically, far more States Parties favoured not using the Security Council as a filter. However, the voting in no way considered the geopolitical infl uence of some of the "box 1" states nor did it factor in the views of Non-States Parties, among whom there would be some strong "box 1" supporters.
88. The issue of which State Party would have to accept the aggression amendment in part overlapped with the question of amendment procedures, because Article 121(5)'s second sentence 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." Rome Statute, Art. 121(5). It had previously been discussed that there could be either a "positive understanding" or "negative understanding" of the second sentence of Article 121(5). The "positive understanding" would have provided: "It is understood that article 121, paragraph 5, second sentence of the Statute does not prevent the Court from exercising jurisdiction in respect of an act of aggression committed against a State Party that has accepted the amendment." RC/WGCA/1, p. 7, Annex III, understanding 6, Alternative 1. The "negative understanding" would have provided: "It is understood that article 121, paragraph 5, second sentence of the Statute prevents the Court from exercising jurisdiction in respect of an act of aggression committed by any State that has not accepted the amendment." RC/WGCA/1, p. 7, Annex III, understanding 6, Alternative 2. Neither of these understandings was incorporated into the final understandings agreed upon in Kampala. See Resolution RC/Res.6, advance version, 28 June 2010, 18:00, Annex III. Given that the Review Conference ultimately decided to use the amendment procedure of Article 121(5), see Section 2.6. infra , it would have been helpful to include in the Review Conference's resolution some mention of how to interpret the second sentence of Article 121(5) vis-à-vis the crime of aggression. One possibility is that one is simply reading it out of the Rome Statute for the current aggression amendment (but possibly still reading it in for future amendments vis-à-vis new crimes or future aggression amendments).
89. See, e.g., Jutta F. Bertram-Nothnagel, 'A Seed for World Peace Planted in Africa: The Provisions on the Crime of Aggression Adopted at the Kampala Review Conference for the Rome Statute of the International Criminal Court,' [draft version of 20 August 2010, submitted to the African Legal Aid Quarterly, on file with the author] (off ering two interpretations that, in the absence of Security Council referral, exercise of jurisdiction may be possible even if the aggressor State Party has not ratified the amendment; one interpretation does not require ratification by the victim state, but the other one does. The argument that ratification by the aggressor State Party is not absolutely necessary follows from the possibility of opting out prior to ratification; if exercise of jurisdiction were never possible without ratification of the amendment by the aggressor State Party, there would be no need for a pre-ratification opt out). Th at author also argues that one could avoid applying the second sentence of Article 121(5) because it pertains to the exercise of jurisdiction, and Rome Statute Article 5(2) charged the Review Conference to set forth conditions for the exercise of jurisdiction for the crime of aggression-thereby suggesting that Article 121(5)'s second sentence could be freely revised for the crime of aggression. Others have argued that the second sentence of Article 121(5) must be read according to its plain meaning; thus, as to the crime of aggression, the ICC will not be able to exercise jurisdiction if the crime has been committed by nationals of, or on the territory of, a State Party that has not accepted or ratified the aggression amendment.
90. See, e.g., R. Manson, 'Identifying the Rough Edges of the Kampala Compromise.' For further discussion of this issue, see note 148 infra .
91. Rome Statute, Art. 121(4)-(5) (emphasis added).
92. "[T]he 'disadvantage' [of using Article 121(5)] is the creation of a 'two-tier' jurisdiction in the Court, as between accepting and non-accepting [States Parties]." R. Manson, "Identifying the Rough Edges of the Kampala Compromise."
93. For discussion of the new Article 8 bis, see Sections 1.1.-1.2. supra . For discussion of the new Articles 15 bis and 15 ter , see Section 2.6. infra . As to Article 9 (on elements of the crimes), it was agreed at the Review Conference that the first sentence of article 9, paragraph 1 of the Statute would be replaced by the following sentence: "Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7, 8 and 8 bis ." As to Article 20, paragraph 3 ( ne bis in idem ), the chapeau is replaced by the following paragraph: "No person who has been tried by another court for conduct also proscribed under article 6, 7, 8 or 8 bis shall be tried by the Court with respect to the same conduct unless the proceedings in the other court." For discussion of the change to Article 25, see text accompanying note 36 supra.
94. A better interpretation might be that Article 8 bis is a new article falling between Articles 8 and 9.
95. As one representative closely involved in the negotiations has explained, there were at least six approaches to the issue: (1) that the provisions on aggression need not be ratified, but only "adopted" in accordance with Article 5(2); (2) that the amendments must be ratified pursuant to Article 121(5); (3) that the amendments must be adopted pursuant to Article 121(4); (4) that a combination of Articles 121(4) and (5) should be utilized; (5) that a consequential approach to Articles 121(4) and (5) should be utilized; and (6) that the amendment procedure should be amended, using Article 121(4).
96. For additional discussion of the Rome Statute's amendment procedures, including the argument that the crime of aggression amendment could have been accomplished under Article 121(3) by mere "adoption" at the Review Conference, see Roger S. Clark, 'Ambiguities in Articles 5(2), 121 and 123 of the Rome Statute,' 41 Case W. Res. J. of Int'l L. (2009).
97. Use of the amendment procedures of Article 121(4) would suggest that once seven-eighths of States Parties ratified the amendment, future states to join the Rome Statute would have no choice whether or not to accept the aggression
98. See Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (1969), Art. 40(5) ("Any State which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a diff erent intention by that State: (a) be considered as a party to the treaty as amended; and (b) be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement") (emphasis added). These provisions suggests that future States Parties will be bounded to the amended Rome Statute (with the crime of aggression added) at least vis-à-vis other States Parties that have accepted the amendment, but, because the aggression amendment is done pursuant to the amendment procedures of Article 121(5), will not have aggression jurisdiction exercised against them absent ratification or acceptance of the amendment. (Th at interpretation rests on a strict reading of the second sentence of Article 121(5);
99. see note 148 hereto.) A question also exists whether future States Parties could express an intention not to be bound to the amended treaty, or whether that might be treated as a reservation, and the Rome Statute permits no reservations.
100. See Rome Statute, Art. 120.
101. See note 3 supra . Some states expressed concern that "stocktaking" had been added to the Review Conference's agenda in case no agreement could be reached on the crime of aggression, so that the conference could appear to be at least a partial success. Others took the view that the "stocktaking" focus was extremely significant in itself, as a measure of states' commitment to the field of international justice and the ICC as a whole. The author's view is that the "stocktaking" will only prove significant if it results in a sustained focus on the issues raised.
102. The Belgian war crimes amendment (which was adopted) added three war crimes that had previously been Rome Statute crimes if committed during international armed conflict, but will now be crimes if committed during internal armed conflict: (i) employing poison or poisoned weapons; (ii) employing asphyxiating, poisonous or other gases, and all analogous liquids, materials and devices; and (iii) employing bullets which expand or fl atten easily in the human body.
103. See Report of the Review Conference, Resolution RC/Res.5, advance version 16 June 2010, 13:00, at < www .icc-cpi.int/iccdocs/asp-docs/Resolutions/RC- Res.5-ENG.pdf > [last visited 23 September 2010]. States Parties at the Review Conference were also expected to agree to delete Article 124 of the Rome Statute, which allows States Parties to opt out of jurisdiction over war crimes for seven years. See Rome Statute, Art. 124. Ultimately, the decision whether to remove that provision was deferred until the 14 th session of the Assembly of States Parties (five years from now).
104. For additional discussion of the Belgian war crimes amendment and decision to retain Article 124, see Clark, supra note 46, pp. 691-92 & pp. 707-09.
105. See Section 1.1., supra (quoting the definition).
106. See note 30 supra (listing the Amendments to the Elements of Crimes).
107. The author did not attend the first week of the Review Conference; thus, this article presents only a very rough synthesis of arguments presented during the first week. Aggression-related sessions were held on Tuesday, 1 June (to introduce the Chairman's paper and non-paper), with the first formal debate occurring on Friday, 4 June.
108. See Astrid Reisinger Coracini, 'The International Criminal Court's Exercise of Jurisdiction Over the Crime of Aggression - at Last ... in Reach ... Over Some,' 2 Göttingen J of Int'l L 745, 756 (2010). A "non-paper" was also presented by Brazil entitled "2 successive modalities on the entry into force of the amendment on the crime of aggression," 4 June 2010.
109. Ibid..
110. Statement by Harold Hongju Koh, Legal Adviser U.S. Department of State, Review Conference of the International Criminal Court, Kampala, Uganda, 4 June 2010, available at < www.state .gov/s/l/releases/remarks/142665.htm > [last visited 22 September 2010].
111. See also Statement by Stephen J. Rapp, U.S. Ambassador-at-Large for War CrimesReview Conference of the International Criminal Court Kampala, Uganda, 1 June 2010, available at < www.icc-cpi.int/iccdocs/asp-docs/ RC2010/Statements/ICC-RC-gendeba-USA-ENG.pdf > [last visited 22 September 2010].
112. Ibid..
113. These comments arguably fail to consider the vast number of human rights violations that occur during aggressive use of armed force, and that the multilateral system of peace and security that exists under the U.N. Charter prohibits aggressive use of force, see U.N. Charter, Art. 2(4), but has not succeeded in preventing it. Thus, aggression prosecutions are designed to protect against human rights violations during aggressive use of armed force, and to reinforce the importance of using, and thus strengthening, the multilateral system of peace and security.
114. See "Non paper submitted by Argentina, Brazil and Switzerland as of 6 June 2010."
115. Under the ABS Proposal, Security Council referrals would be covered by amending Article 5, making use of Article 121(5)'s amendment procedures (which govern amendments to Articles 5-8) completely appropriate. The changes to Article 8 would also use Article 121(5)'s amendment procedure.
116. Under the ABS Proposal, Pre-Trial Chamber authorizations would be covered by an amendment to Article 15, making use of Article 121(4)'s amendment procedures (which govern amendments to articles other than 5-8) completely appropriate. The ABS Proposal, thus, comes the closest of all the proposals to adhering to the text of the Rome Statute to accomplish the amendments.
117. States Parties and Non-States Parties had extremely diverse views. It is beyond the scope of this article to specify the views of particular states.
118. Both "box 3" and "box 4" States Parties (a total of 52 states) wanted a non-Security Council filter or no filter ( i.e. , an internal ICC filter). For discussion of "box 3" and "box 4," see Section 1.3.1. supra .
119. Th ose states that supported jurisdiction that would cover all States Parties were presumably concerned that absent it, certain States Parties (presumably those most likely to commit aggression) simply would never ratify the aggression amendment. Use of Article 121(4)'s amendment procedures was thus seen to create more of a level playing field among States Parties, and thus more uniform application of the rule of law.
120. For discussion of "box 1," see Part 1.3.1., supra.
121. Both "box 1" and "box 3"-type states (a total of 29 states) supported requiring aggressor state consent.
122. Both "box 1" and "box 2" states (a total of 11 States Parties) supported using a Security Council filter; thus, use of a Security Council filter was not only supported by the Permanent Members of the Security Council.
123. Comments by one member of the U.S. negotiating team to the author suggested that, if the ABS Proposal were agreed to, the U.S. might do its utmost to ensure that ratification by seven-eighths of States Parties was never achieved. Given the massive eff ort of the U.S. during the Bush Administration to enter into so-called "Article 98 agreements" or "bilateral immunity agreements," and the threatening of states with the loss of U.S. assistance should they not enter into such agreements, such threats were not to be considered idle boasts.
124. For background on "bilateral immunity agreements," see American Non-Governmental Organizations Coalition for the International Criminal Court, Bilateral Immunity Agreements (BIAs), at < www.amicc.org/usinfo/ administration-policy-BIAs .html >.
125. Proposal by Canada, dated 8 June 2010, 9:30.
126. These were alternative formulations set forth in brackets in the proposed text.
127. Many states supported such "green light" language, out of concern that it would be far more difficult for the Security Council to reach an actual determination that an act of aggression had occurred than to make a more generic referral that contained no such express finding.
128. See December 2007 SWGCA Meeting, paras. 35-38, in The Princeton Process , pp. 105-06 (discussing the Security Council giving a "green light").
129. Conversations of the author with the Canadian delegation.
130. When the Security Council refers a case to the ICC, it is acting both as a "trigger"-in making the referral-and as a "filter."
131. With a Pre-Trial "filter" mechanism, the State Party making the referral or the Prosecutor, acting proprio motu , is the "trigger."
132. For discussion of "box 1," "box 3," and "box 4," see Section 1.3.1., supra .
133. In the final agreement reached, see Section 2.6., infra , the delay gives States Parties time to determine whether they want to ratify the aggression amendment and/or file an "opt out" declaration, prior to jurisdiction commencing. It could also allow countries to implement national legislation on the crime of aggression, and thus be able to utilize the complementarity feature of the Rome Statute.
134. See Rome Statute, Art. 17.
135. Non-Paper by Slovenia, dated 8 June 2010.
136. Non-Paper by Slovenia, dated 8 June 2010, 4 bis .
137. Ibid .
138. For example, the U.K. delegation opposed the Canadian proposal, even though that proposal was giving a considerable role to the Security Council and made it quite hard to use the Pre-Trial Chamber as a jurisdictional filter. On 9 June, a document was also circulated titled "Declaration (Draft of 9 June 2010 16h00)" that was intended as a compromise between the ABS Proposal and Canadian Proposal. According to one member of the Austrian delegation, the non-paper was elaborated jointly by Argentina, Brazil, Switzerland, Canada, Slovenia and other "like-minded" countries. Coracini, supra note 73, at note 79. Th is non-paper was the basis for the "opt-out approach" taken in the President's Non- Paper, discussed below. According to one representative closely involved in the negotiations, the non-paper was significant because it shows what was meant to be achieved with the opt-out: to bridge the gap between states supporting the ABS Proposal and states supporting the Canadian Proposal. The non-paper also included a provision excluding from jurisdiction the crimes of nationals of a Non-States Party and crimes committed on the territory of a Non-State Party (which also became part of the final agreement).
139. The author is unaware of public discussion of the document, which is included hereto as Appendix D. For additional discussion of the non-paper, see Coracini, supra note 73, p. 760.
140. Untitled document distributed at the Review Conference. The draft "understandings" were formally introduced with the U.S.'s presentation on 7 June 2010, in a statement by William K. Lietzau, Deputy Assistant Secretary of Defense (Detainee Policy).
141. See, e.g ., Statement of Harold H. Koh, Legal Adviser U.S. Department of State, Resumed Eighth Session of the ASP.
142. The author had advocated to the U.S. delegation prior to the Resumed Eighth Session that the U.S. was joining the negotiations too late to eff ectively change the definition, having failed to partici pate in nearly a decade of negotiations, and should concentrate its focus on open issues. See Letter by the American Branch of the International Law Association ICC Committee, dated 19 March 2010, to State Department Legal Adviser Harold H. Koh and U.S. War Crimes Ambassador Stephen J. Rapp, signed by chairperson, Jennifer Trahan. While the U.S. delegation did not appear receptive to that letter at the Resumed Eighth Session, they appear to have heeded the advice (or perhaps independently reached the same realization) by the time of the second week of the Review Conference.
143. The U.S., at the Review Conference, had also suggested not adopting the elements of the crime of aggression until a later date, but that approach did not obtain support from other states.
144. Untitled paper by the U.S. delegation (emphasis in original).
145. NGOs could also attend such meetings, but were only given very limited opportunities to intervene directly.
146. See note 22 supra . See also Clark, supra note 46, p. 698, note 27 (discussing that the requirement of a "war of aggression" "prompted the International Military Tribunal to draw a de facto distinction between the conquests of Austria and Czechoslovakia (achieved without actual fighting) on the one hand, and the invasions of Poland and others (achieved with considerable fighting) on the other.").
147. See June 2006 SWGCA Meeting, paras. 21-24, in The Princeton Process , p. 144 (refl ecting the issue being debated).
148. See U.N. Charter, Art. 51 & Chapter VII.
149. For example, the ICISS Report suggests the following criteria would need to be satisfied to justify military intervention to protect human rights: ongoing or imminent "serious and irreparable harm" involving "large scale loss of life," or "large scale 'ethnic cleansing"; the use of force as a last resort; and the use of "proportional means" meaning that "[t]he scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the defined human protection objective." ICISS Report, supra note 21. The Secretary-General's High Level Panel suggests five criteria: seriousness of threat; proper purpose; last resort; proportional means; and balance of consequences.
150. See 'A More Secure World: Our Shared Responsibility,' Report of the High-Level Panel on Th reats, Challenges and Change, U.N.G.A. Doc. A/59/565 (2 December 2004) ("Secretary-General High-Level Panel"), para. 207.
151. Claus Kreß, a Professor at the University of Cologne and member of the German delegation, primarily handled these discussions.
152. The understandings in paragraphs 4-5 were already included in the proposed understandings in an earlier Conference Room paper.
153. See Conference Room Paper on the Crime of Aggression, RC/ WGCA/1/Rev.1, 6 June 2010, Annex III, p. 6, para. 4 bis .
154. Resolution RC/Res.6, advance version, 28 June 2010, 18:00, Annex III. In addition to the understandings quoted above, three other understandings were adopted: Referrals by the Security Council 1. It is understood that the Court may exercise jurisdiction on the basis of a Security Council referral in accordance with article 13, paragraph (b), of the Statute only with respect to crimes of aggression committed after a decision in accordance with article 15 ter , paragraph 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later. 2. It is understood that the Court shall exercise jurisdiction over the crime of aggression on the basis of a Security Council referral in accordance with article 13, paragraph (b), of the Statute irrespective of whether the State concerned has accepted the Court's jurisdiction in this regard. Jurisdiction ratione temporis 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.
155. Ibid..
156. Rome Statute, Art. 10.
157. See Rome Statute, Art. 17 (complementarity).
158. Adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948.
159. See note 12 supra (listing the Geneva Conventions).
160. There is, however, at least some concern that the understanding could be interpreted as narrowing the principle of complementarity to imply that a victim state does not have the right to exercise jurisdiction over individual leaders of an aggressor state. [Carrie McDougall e-mail to author, dated 5 September 2010.] Th at interpretation could lead to some confusion. A good number of states already include the crime of aggression under their domestic laws.
161. See note 157 infra (listing states). For those states, the aggression amendment would not create obligations to prosecute the crime before their national courts, but those states may have such obligations based on their national laws. Similarly, if States Parties that in the future ratify the aggression amendment incorporate the definition of the crime of aggression into their national laws, again, the aggression amendment would not create a basis for prosecutions, but such national laws might. Furthermore, under the principle of complementarity in Article 17 of the Rome Statute, an option to avoid ICC prosecutions is to conduct a domestic trial (as long as it satisfies certain criteria that the domestic judiciary is not "unwilling" or "unable" to conduct such a prosecution).
162. See Rome Statute Art. 17. Clearly this understanding should not be read to alter the complementarity regime established under Rome Statute Article 17; a future ICC aggression prosecution should be able to be prosecuted before national courts if appropriate legislation is in place. (As noted below it might be useful to consider further whether aggression should not be subject to the complementarity regime of the Rome Statute see note 158 infra ; however such a result if that was intended would require a statutory amendment and cannot be achieved through an understanding.) For the argument that the prohibition of aggression is a jus cogens norm which obligates states to ensure that they can prosecute its violation under their domestic laws and that this understanding is inconsistent with that obligation see David Donat Cattin supra note 44 pp. 3-5. Furthermore, if the "understanding" is attempting to prevent domestic prosecutions of the "crime" of aggression, it may be miss-worded, because it addresses "domestic jurisdiction with respect to an act of aggression committed by another State" (emphasis added); yet, acts "committed by States" "obviously cannot fall under the criminal jurisdiction of domestic courts.".
163. Ibid. , p. 4. "[T]he right [and/or obligation] to exercise domestic jurisdiction stems not from the decisions of the Review Conference but from general international law."
164. Ibid..
165. See General Assembly resolution 3314. The language that "a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case" is also taken from the preamble to General Assembly resolution 3314.
166. Ibid..
167. See Rome Statute, preamble (the ICC has "jurisdiction over the most serious crimes of concern to the international community as a whole").
168. The understandings in paragraphs six and seven, discussed above, may be somewhat helpful in this respect.
169. See Section 1.2., supra .
170. See note 43 supra .
171. Some states, of course, remain deeply suspicious of "humanitarian intervention," particularly when it is unilateral, out of concern that its use could be used as a pretext for other goals. (Indeed, some have suggested that much of that suspicion may be aimed at the United States, so the likelihood of the U.S. successfully negotiation such an understanding was perhaps particularly unlikely.) An express carve-out of humanitarian intervention from the definition of aggression was not really possible because the law regarding the "responsibility to protect" is not fully formed. There is neither full agreement as to precisely when it should occur, whether there are specifi c criteria that would need to be satisfied as to its use, nor what body (if any) other than the Security Council may authorize it. Compare 'The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty' (2001); Secretary-General's High-Level Panel, supra note 107; 2005 World Summit Outcome, supra note 21 (suggesting diff erent criteria as to when the responsibility to protect should be triggered). For these reasons, it became impossible to create an express carve-out because aggression negotiations would have devolved into a discussion of the scope, requirements, and trigger mechanisms for the "responsibility to protect," something that has been discussed at great lengths in other fora, and not conclusively resolved.
172. Non-Paper by the President of the Assembly, 10 June 2010, 10:00.
173. Ibid ., (emphasis added). Th is language was set forth in bracketed new paragraphs 1 bis and 1 ter. Both concepts were first introduced by way of a document suggested by Argentina, Brazil, Switzerland, Canada, Slovenia, and other like-minded countries, titled "Declaration (Draft of 9 June 2010 16h00)."
174. See discussion, note 97 supra .
175. Ibid . (setting forth both an "Alternative 1" and "Alternative 2" to paragraph 4).
176. Ibid..
177. Rome Statute Article 13(b) states that the ICC may exercise jurisdiction over "[a] situation in which one or more of [the] crimes appears to have been committed [when it] is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations." Rome Statute, Art. 13(b).
178. Non-Paper by the President of the Assembly, 10 June 2010, 10:00.
179. Ibid. , n. 3.
180. Ibid. , n. 4. A similar result was proposed for Article 15 ter by deleting certain language that referred to the Security Council making "a determination of an act of aggression."
181. The Pre-Trial Division would consist of not less than six judges, whereas the Pre-Trial Chamber consists of three judges.
182. Non-Paper by the President of the Assembly, 10 June 2010, 10:00, n. 5.
183. Th is raises a good question: why would a state ratify or accept the aggression amendment (opt in) only to then opt out? First of all, states SHOULD not do this, but stand for principle and ratify the amendment (without opting out), and thereby advance respect for the rule of law, particularly in this case, where the amendment furthers a key foundational principle of the U.N. Charter-the prohibition of the aggressive use of force. It is, however, possible to envision a few scenarios where States Parties might nonetheless be tempted in the opposite direction. For example, absent 30 ratifications of the aggression amendment, even Security Council referrals will not commence, so no ICC jurisdiction over the crime of aggression can be exercised; a State Party might want to ratify the amendment in order for Security Council referrals to commence, but (hypocritically) not want to subject itself to state referrals or proprio motu , and hence exercise the opt out. Another reason to exercise the opt out would be far more serious (and troubling)-a State Party ratifies the crime of aggression amendment, but subsequently contemplates the aggressive use of force (or something that could be construed as such); it might then lodge the opt out declaration prior to the use of force in an attempt to avoid jurisdiction. See Bertram-Nothnagel, supra note 62, at note 98. An opt out might also be lodged by a State Party that initially ratifies the amendment but later plans to conduct, or join a coalition to conduct, humanitarian intervention, but distrusts whether its actions will be viewed as humanitarian; this should be unnecessary as humanitarian intervention is not covered by the definition. See note 43 supra . An opt out might also be lodged by a State Party that originally ratifies the amendment but later comes to believe that State Party referrals under Article 15 bis are being made in a politicized manner; this too should be unnecessary, because the Pre-Trial Division should provide a sufficient protect against this occurrence. [Author e-mail exchange with Jutta F. Bertram-Nothnagel, 21 September 2010, on file with the author.] See also Coracini, supra note 73, p. 778 (raising the question whether the entire "opt out" concept is permissible given the "undeniably wide discretion provided in Article 5 (2) or whether such a declaration would amount to a prohibited reservation according to Article 120.").
184. NGOs were left to informal means of asking delegates what was happening and off ering comments to delegates, in the hope that the delegates, if in agreement, might pass them on to Ambassador Wenaweser or Prince Zeid. NGOs were able to "compare notes" through periodic and extremely useful NGO team meetings coordinated by William Pace and Osvaldo Zavala-Giler of the Coalition for the International Criminal Court ("CICC"), under the leadership of NGO team leader Jutta Bertram-Nothnagel, who also represented Union Internationale des Avocats .
185. Untitled paper. Th is concept was suggested by the author to a member of the Canadian delegation.
186. Untitled paper. Th at language, of course, was unnecessary, since the Security Council could use existing Rome Statute Article 16.
187. Untitled paper.
188. On 11 April 2002, at the U.N., when the final instruments of ratification were deposited bringing the Rome Statute into eff ect, the NGO representatives present erupted in cheers of excitement. By contrast, at the close of the Kampala Review Conference, while Don Ferencz (son of Nuremberg Prosecutor Benjamin Ferencz) did play his bagpipes, the mood was not entirely celebratory. (Ferencz explained that he played Nkosi Sikelel' iAfrika , the national anthem of South Africa, considered a pan-African piece, titled "Lord, bless Africa").
189. The text of the definition did not change during the Review Conference. It remained what had been previously designated as Article 8 bis. See discussion of Article 8 bis , Section 1.1., supra.
190. Thus, the earliest aggression jurisdiction could commence would be 2 January 2017, if the required vote is achieved on 2 January 2017, and 30 States Parties ratify the aggression amendment by 1 January 2016. If 30 ratifications take longer, the earliest jurisdiction could commence would be one year after the 30 ratifications are achieved (assuming the vote is also by then accomplished).
191. Resolution RC/Res.6, advance version, 28 June 2010, 18:00, Annex I (emphasis added).
192. Exactly which States Parties (the victim and/or aggressor state) must ratify or accept the aggression amendment for there to be ICC jurisdiction in the event there is no Security Council referral appears open to some debate. One interpretation would be that because of the use of Article 121(5)'s amendment procedures, the Court cannot exercise any jurisdiction regarding crimes committed by the nationals of or on the territory of a State Party that has not ratified or accepted the amendment.
193. See R. Manson, "Identifying the Rough Edges of the Kampala Compromise." Others argue that the ICC could have jurisdiction if the aggressor State Party has not opted out of jurisdiction, particularly if the victim State Party has ratified or accepted the amendment.
194. See, e.g. , Bertram-Nothnagel, supra note 62 ("the ratification or acceptance of the amendments may be not at all or not always necessary for the Court's exercise of jurisdiction over the crime of aggression."). The questions are not limited to these scenarios: one could imagine at least 25 permutations based on whether the aggressor state and victim state each: (a) have ratified the amendment but opted out of jurisdiction; (b) have not ratified the amendment but have opted out of jurisdiction (theoretically possible because the Review Conference's resolution in paragraph 1 states that "any State Party may lodge a[n] [opt out] declaration ... prior to ratification or acceptance"); (c) have ratified the amendment but not opted out of jurisdiction; (d) have not ratified the amendment and not opted out of jurisdiction; or (e) are Non-States Parties. Chart of R. Manson, < www.bepj.org.uk/ wordpress/wp-content/uploads/Robbies-Table.pdf > [viewed 1 October 2010] (chart including 16 permutations); Coracini, supra note 73, p. 782 (chart including 16 permutations). The areas of dispute primarily appear to be when the aggressor State Party has not ratified the amendment and not filed an opt out declaration, whether there would be jurisdiction vis-à-vis a victim State Party that has ratified the amendment, or a victim State Party that has not ratified the amendment.
195. The opt out declaration may be withdrawn at any time. Resolution RC/Res.6, advance version, 28 June 2010, 18:00, Annex I, Article 15 bis , para 4.
196. Th is language was a change from the language of the President's Non-Paper which stated only that the Court would not have jurisdiction "with respect to an act of aggression committed by a Non-State Party." Non-Paper by the President of the Assembly 10 June 2010, 10:00.
197. Seven years "after the beginning of the Court's exercise of jurisdiction," there would also be "review [of ] the amendments on the crime of aggression."
198. See Resolution RC/Res.6, advance version, 28 June 2010, 18:00, preamble, para. 4.
199. Resolution RC/Res.6, advance version, 28 June 2010, 18:00, Annex I (emphasis added).
200. Th is is presumably the case, because there is no language in Article 15 ter that the Security Council must have "made a determination" of an act of aggression (which existed in prior drafts). In fact, it appears that the Security Council could merely refer the situation, without being aggression- specifi c.
201. See Rome Statute, Art. 13(b) (the ICC may exercise jurisdiction over "[a] situation in which one or more of [the] crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations"). An interesting question exists whether the Security Council could refer a situation for the Prosecutor to investigation the possible occurrence of genocide, war crimes and/or crimes against humanity, and exclude a referral for the crime of aggression. [R. Manson e-mail to author, dated 21 July 2010.] Because the Security Council's powers emanate from Chapter VII of the U.N. Charter, and not from the Rome Statute or any amendment to it, presumably the Security Council could do so. Th is interpretation would also be helpful in not discouraging Security Council referrals regarding the other three crimes. Strangely, the language in Article 15 bis is not parallel to the language in Article 15 ter , but states that the Prosecutor would ascertain whether the Security Council " has made a determination of an act of aggression." (emphasis added.) In fact, Article 15 ter does not require such a "determination," so presumably the Prosecutor will simply ascertain whether the Security Council has made a referral.
202. The language that "[a] determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court's own findings" is crucial to maintain the presumption of innocence and keep the burden of proof on the prosecution.
203. See June 2006 Princeton Meeting, in The Princeton Process , p. 151, para. 71. Thus, even if the Security Council makes a determination that an act of aggression has occurred, that conclusion would not bind the ICC, which would make its own determination.
204. See December 2007 SWGCA Meeting, in The Princeton Process , p. 103, para. 24; June 2007 Princeton Meeting, in The Princeton Process pp. 118-19, para. 54.
205. Resolution RC/Res.6, advance version, 28 June 2010, 18:00, para. 1. The use of Article 121(5) presents two peculiar issues. First, as noted above, the amendments deleted Article 5(2), added Articles 8 bis , 15 bis and 15 ter , and made minor changes to Articles 25, 9 and 20.
206. See note 65 supra and accompanying text. Given that only the deletion of Article 5(2) and the addition of Article 8 bis -if adding 8 bis is even viewed as amending Article 8; it might more appropriately be viewed as a new article-are the only amendments arguably to Rome Statute Articles 5, 6, 7 and 8, how do we reconcile the use of Article 121(5)'s amendment procedures, which are supposed to only be used for amendments "to articles 5, 6, 7, and 8"? The best answer perhaps is this: Article 121(5) is clearly to be used for amendments to the "core crimes" (contained in Articles 5, 6, 7 and 8). The aggression amendment is clearly an amendment to a core crime (and thus, it is appropriate to use Article 121(5)), but there are other areas of the Rome Statute that require modification to achieve that. The argument would be that these changes should be seen as a "package," which amends a core crime, even though other provisions of the Rome Statute are impacted. One could have drafted the amendments so that they were all amendments to Articles 5 and 8-and that might have been preferable.
207. See, e.g., R. Manson, 'Smoothing out the Rough Edges of the Kampala Compromise,' at (making that suggestion);
208. see also David Donat Cattin, supra note 44, p. 10 (arguing that the "ordinary meaning" of Articles 121(4) and 121(5)-which should govern pursuant to Article 31 of the Vienna Convention on the Law of Treaties-"is that only the amendments to articles 5, 6, 7 and 8 shall enter into force through article 121(5)."). The Japanese delegation, in its interventions at the Review Conference, was clearly troubled by these issues, and ultimately nearly spoiled consensus over them. Other states did not appear as troubled, and perhaps considered the Japanese objections unduly technical. The ABS Proposal perhaps best dealt with these issues, by drafting the changes as ones to Articles 5 and 8, to be governed by Article 121(5)'s amendment procedures, and the changes to Article 15 to be governed by Article 121(4)'s amendment procedures.
209. See notes 77-78 supra.
210. The use of Article 121(5) also presents one other difficulty. The final text of Article 15 bis , creates an "opt out" regime (states need to file "opt out" declarations with the ICC Registrar in order not to accept jurisdiction as to state referrals and proprio motu ), yet using Article 121(5)'s amendment procedures appears to create an "opt in regime"-states need to ratify the amendment to be bound to it. How are these two concepts to be reconciled? In other words, must States Parties ratify the aggression amendment (as one would assume from the use of Article 121(5)) before they can be subject to jurisdiction under Article 15 bis ? One might think so. (For an alternative construction, see Clark, supra note 46, p. 704, note 55 ("If all State Parties are not to be bound, the opt-out option makes no sense.").) As noted above, while it had been debated what kind of understanding to attach to the second sentence of Article 121(5), see note 62 supra (discussing the "positive" and "negative" understandings of the second sentence), ultimately, no such understanding was included in the final text agreed upon at the Review Conference, presumably leaving the second sentence as written: "In respect of a State party which has no accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that States Party's
211. See R. Manson, "Identifying the Rough Edges of the Kampala Compromise." (Indeed, a strict reading of the second sentence would tend to suggest that the victim state must ratify as well for crimes committed "on its territory" to be covered; such a strict reading for the victim state, however, can be avoided because the crime most likely also occurred on the territory of the aggressor state if planning, preparation, initiation or execution of the crime occurred there, making the victim state's ratification less significant.) As discussed above, contrary interpretation have been off ered that aggressor state ratification is not required, at least as to an aggressor State Party that has not filed an "opt out" declaration, particularly where the victim state has ratified the amendment.
212. See note 62 supra. The author takes no position in this article as to which position is correct, but suggests that it is the intent of those States Parties that forged the compromise to use the "opt out" mechanism (particularly Argentina, Brazil, Switzerland, and Canada), as communicated to other States Parties at Kampala, that should govern.
213. For discussion of "box 3" and "box 4," see Section 1.3.1., supra .
214. As noted elsewhere, the issue of precisely which States Parties (aggressor and/or victim state) would need to ratify or accept the amendment for jurisdiction to exist absent Security Council referral is in some debate, see notes 141, 148 supra .
215. See Rome Statute, Art. 16.
216. A vote at an Assembly of States Parties would normally be governed by the ASP's rules of procedure, and could either be done by consensus (Rule 61) or two-thirds (Rule 63). However, Articles 15 bis and 15 ter state that the vote shall be done "subject to a decision ... by the same majority of States Parties as is required for the adoption of an amendment to the Statute," Resolution RC/ Res.6, advance version, 28 June 2010, 18:00, Annex I. Th at would also require consensus or a twothirds vote-but a two-thirds vote of all States Parties (not just those present).
217. See Rome Statute, Art. 121(3) ("[t]he adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties.");
218. see also D. Scheff er, "Adoption of the Amendments on Aggression to the Rome Statute of the International Criminal Court," dated 12 June 2010
219. and R. Manson, 'Smoothing out the rough edges of the Kampala Compromise,' both posted at (agreeing that Article 121(3) would apply, and thus that two-thirds or consensus vote would be required);
220. Coracini, supra note 73, p. 770 (agreeing and making the point that it would be twothirds of States Parties, and not merely two-thirds of the States Parties present).
221. The sixth preambular clause of the enabling resolution also states the intent "to activate the Court's jurisdiction over the crime of aggression as early as possible," which is clearly aspirational, but, at the same time, probably represented the view of most delegations in Kampala.
222. Conversations with Swiss, German and Samoan delegates on 11 June 2010.
223. Statement by Harold H. Koh, on behalf of the U.S., early Saturday morning, 12 June 2010.
224. See, e.g., note 148 supra (discussing the difficulty of explaining the use of Article 121(5) when not all amendments were amendments to Rome Statute Articles 5, 6, 7 and 8).
225. To date, there has been at least one aggression-related case in the U.K. and two aggressionrelated investigations in Germany.
226. See, e.g. , House of Lords, R . v. Jones , Session 005-006, [2006] U.K.H.L. 16 (where several criminal defendants were charged with criminal damage and trespass arising from actions taken against U.S. bombers and British tanks stationed in England while awaiting deployment during the 2003 Iraq war tried unsuccessfully on appeal to the House of Lords to assert prevention of the crime of aggression as an affi rmative defence), discussed in " R v. Jones : A Crime Against Justice," R. Manson, at < www.bepj.org.uk/legal-issues/ the-fairford-five >;
227. see also Claus Kreß, 'The German Chief Federal Prosecutor's Decision Not to Investigate the Alleged Crime of Preparing Aggression against Iraq,' 2(1) J. of Int'l Crim. Justice (Oxford U. Press, 2004), 245-64 (discussing the decisions not to investigate Germany's participation in the use of force against the Federal Republic of Yugoslavia and Iraq). "[S]tatutory provisions relating to the crime of aggression" (which do not necessarily resemble the current Rome Statute amendment) already exist "in some 25 countries, predominately Eastern European and Central Asian states."
228. See, e.g., Astrid Reisinger Coracini, 'National Legislation on Individual Responsibility for Conduct Amounting to Aggression,' in Roberto Bellelli (ed.), International Criminal Justice: Law and Practice from the Rome Statute to Its Review (2010) 547-78, note 29 (citing laws in Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina (criminal codes of the Federation, Brcko District and Republika Srpska), Bulgaria, Croatia, Estonia, Georgia, Hungary, Kazakhstan, Kosovo, Latvia, Macedonia, Moldova, Mongolia, Montenegro, Poland, Russian Federation, Serbia, Slovakia, Slovenia, Tajikistan, Ukraine, Uzbekistan).
229. At a future date, additional consideration might be given to whether the ICC's relationship to national court proceedings regarding the crime of aggression should be a relationship of "primacy" and not "complementarity," so that the ICC could preempt national court aggression prosecutions by conducting its own investigation and/or prosecution. "When the International Law Commission (ILC) was about to finalize its Draft Code of Crimes against the Peace and Security of Mankind, it reported to the General Assembly 'that the crime of aggression was inherently unsuitable for trial by national courts and should instead be dealt with only by an international court.'" Astrid Reisinger Coracini, supra note 157, p. 547, citing Report of the International Law Commission on the Work of its Forty-Seventh Session, 2 May to 2 July 1995 (A/50/0), p. 9;
230. Statement by Harold Hongju Koh, supra note 74 (questioning when it would be "appropriate for one state to bring its neighbor's leaders before its domestic courts for the crime of aggression").
231. See also Pål Wrange, 'The Principle of Complementarity under the Rome Statute and its Interplay with the Crime of Aggression,' in summary of Conference on International Criminal Justice held in Turin, Italy, 14-18 May 2007, Doc. ICC-ASP/6/INF.2 at 37 (2007) (raising the issue of whether domestic aggression prosecutions might be blocked by domestic immunity laws vis-à-vis foreign leaders, at least while they hold offi ce);
232. see also Clark, supra note 35 (noting that "it is at least possible that the immunity problems will have been removed in Rome Statute implementation legislation"; also raising the question of whether, under Rome Statute Article 17, domestic prosecutions could be brought by a state using universal jurisdiction). As to whether the definition agreed upon is a sound one, a full analysis is beyond the scope of this article. Th is author believes that many of the concerns that have been raised, for example, by Michael Glennon's recent article are overstated and/or fallacious.
233. See M. Glennon, 'The Blank-Prose Crime of Aggression,' 35 Yale J. of Int'l L. 71 (2010).
234. For a response to similar criticisms, see Claus Kreß, 'Time for Decision: Some Thoughts on the Immediate Future of the Crime of Aggression: A Reply to Andreas Paulus,' 20 Eur. J. of Int'l L. 1129 (2010).
235. The "opt out " regime applies only to state referrals and proprio motu , so even a State Party that exercises the opt out could be referred to the ICC by the Security Council pursuant to Article 15 ter , so use of the opt out does not provide complete insulation from jurisdiction. Similarly, the exemption from jurisdiction for individuals from Non-States Parties and vis-à-vis crimes committed on the territory of Non-States Parties applies only to state referrals and proprio motu ; jurisdiction could still result if there is a Security Council referral.
236. See Coracini, supra note 73, p. 779 & note 176 (questioning why the U.N. Secretary General was not made the recipient of such opt out declarations, expressing concern that the ICC Registrar might not even be required to make public the receipt of such declarations, and recommending that the ASP require the Registrar to make such information public).
237. The idea of a "circle of virtuous states" was first raised by Robbie Manson, who attended the Kampala Review Conference as a representative of the UK Coalition for the ICC and on behalf of the Institute for Law, Accountability and Peace. [11 June conversation of author with R. Manson.]
238. See note 70 supra for discussion of the war crimes opt out.
239. Also, as noted above, this author had advocated that the opt out declaration expire after a certain number of years, but under the text accepted, it would last indefinitely, although its withdrawal would need to be "considered within three years." The wording is not clear whether the withdrawal of the opt out would have to be considered only once-three years after the fi ling of the initial opt out declaration-or every three years thereafter, or whether there would be an ongoing duty of good faith consideration created after three years.
240. By the time this language was added, as mentioned above, deliberations were occurring bilaterally, making it very hard to ascertain which states were taking which positions. David Scheff er, former U.S. Ambassador at Large for War Crimes Issues (who also attended the Review Conference), suggests that the provision was sought by China, India, Indonesia, Russia and the U.S.
241. See D. Scheff er, "States Parties Approve New Crimes for International Criminal Court," ASIL Insight, 22 June 2010, vol. 14, issue 16.
242. See Rome Statute, Art. 12. As one author has pointed out, the amendment is disadvantageous to States Parties. Even if a State Party ratifies the aggression amendment, it can still be freely invaded by a Non-State Party ( i.e ., there would be no ICC jurisdiction over actions of the nationals of the Non-State Party).
243. See David Donat Cattin, supra note 44, p. 9 ("the Kampala amendment procedure ... will result in all States Parties losing any form of protection against nationals of Non- Sates Parties, as these individuals will be completely exempted from the Court's jurisdiction on aggression (unless the jurisdiction will be given through a UN Security Council referral).").
244. Again, this is broader than the original Rome Statute which, as to the other three crimes, creates jurisdiction if the crimes are committed by a national of a State Party even if they occur on the territory of a Non-State Party.
245. See Rome Statute, Art. 12.
246. Th is assumes a conservative interpretation that the aggressor State Party must ratify the aggression amendment; other views are possible.
247. See note 68 supra . In theory, a Security Council referral would be possible, but of course the U.S., U.K. and France would all be in a position to veto such a referral.
248. One concern, however, is whether States Parties will decline to join coalitions to engage in humanitarian intervention, particularly if their country has ratified the aggression amendment and not filed an opt out declaration. Hopefully this will not come to pass, as the definition does not encompass such humanitarian intervention, see note 43 supra , and various of the understandings agreed upon may help to clarify that, see note 118 supra.
249. Actually, that might not have even been possible by the end of the Review Conference, because either the U.K. or France could have ruined the "consensus" vote. By the final night of the Review Conference (with some delegations having left Kampala already), there probably were no longer enough delegations present to adopt the amendment by 2/3rd vote.
250. As noted above, if a conflict were created, the Charter would prevail over inconsistent treaty language. See U.N. Charter, Art. 103.
251. The London Charter creating the Nuremberg Tribunal was originally agreed upon by the U.S., U.S.S.R., France and the U.K., but many of its provisions were later also endorsed by the U.N.'s General Assembly and International Law Commission. See UN Doc. A/RES/95 (1946) para. 1, 11 December 1946;
252. International Law Commission, Principles of the Nuremberg Tribunal (1950), at .
253. While General Assembly Resolution 3314 was intended as "guidance" for the Security Council, see United Nations General Assembly resolution 3314 (XXIX), para. 4, the General Assembly lacks the power to mandate that the Security Council apply any particular criteria, and the Security Council would certainly not have to set forth its reasoning in a manner similar to a judicial opinion, and is not necessarily obligated to act consistently in similar cases.