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‘Amended Most Serious Crimes’: A New Category of Core Crimes within the Jurisdiction but out of the Reach of the International Criminal Court?

Published online by Cambridge University Press:  01 September 2008

ASTRID REISINGER CORACINI
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Abstract

Article 121(5) Rome Statute provides for a specific regime for amendments to Articles 5–8 of the Statute. Its final clause precludes the exercise of the jurisdiction of the International Criminal Court over a crime covered by an amendment when committed by a national or on the territory of a state party which has not accepted the amendment. This provision has been understood as derogating from the Statute's general rules on jurisdiction. The present article argues that a stringent reading of the clause as well as a systematic and teleological approach warrant an alternative interpretation in conformity with the jurisdictional system of the Statute.

Keywords

aggressionamendmentsfirst review conferenceInternational Criminal Courtjurisdiction

Information

Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Court and Tribunals
Information
Leiden Journal of International Law , Volume 21 , Issue 3 , September 2008 , pp. 699 - 718
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2008

1. Introduction

While the International Criminal Court (ICC or the Court) gradually proceeds to test the Rome StatuteFootnote 1 in practice, the Assembly of States Parties (ASP) is launching preparations for the 2010 review conference. The agenda of this meeting has not yet been decided. Although there is no legal obligation to deal with ‘the list of crimes contained in article 5’ at the first review conference,Footnote 2 discussions relating to the Court's jurisdiction ratione materiae have not abated since RomeFootnote 3 – good reason to take a closer look at the rules applicable to ‘amendments to articles 5, 6, 7 and 8’.Footnote 4

Article 121(5) contains a particular amendment regime for changes regarding the definitions of crimes and categories of crimes falling within the jurisdiction of the Court. The provision sets out that such amendments only enter into force for states parties which have accepted them. Furthermore, it provides that ‘[i]n respect to 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 national or on its territory’. The latter clause has been understood as derogating from the Statute's jurisdictional system laid down in Articles 12 and 13. Notwithstanding the establishment of a jurisdictional link, crimes covered by an amendment allegedly committed by nationals of a state party which has not accepted the amendment or on its territory would be categorically exempt from the jurisdiction of the Court; a ‘privilege’ not granted to third statesFootnote 5.

This paper will challenge the above interpretation, by scrutinizing the interrelation between the Court's competence ratione materiae and the (pre)conditions under which it may exercise its jurisdiction. At the outset, the analysis will therefore deal with relevant aspects of the ICC's jurisdictional regime (section 2) and give a brief overview of the Statute's provisions on amendment and review (section 3). It will then discuss in detail the rule on amendments to Articles 5–8, its relation to other provisions in the Rome Statute, and its implications regarding third states (section 4). Finally, the relevance of Article 121(5) for the first review conference will be examined (section 5).

2. The Rome Statute's jurisdictional regime

2.1. Inherent jurisdiction over core crimes

On becoming a party to the Rome Statute, states accept the Court's jurisdiction over crimes referred to in Article 5.Footnote 6 This inherent or automatic competence, independent of the particular consent of any state, was vigorously discussed during the preparatory process. The 1994 Draft Statute drawn up by the International Law Commission (ILC) had foreseen a strict system of state consent (or opt-in) for crimes within the jurisdiction of an ICC.Footnote 7 Accordingly, states ratifying the treaty were merely deemed to support the establishment of an ICC, but not per se committed to accept its jurisdiction. The Court would have been able to exercise jurisdiction only if the ‘State which has custody of the suspect with respect to the crime’ and the ‘State on the territory of which the act or omission in question occurred’ had particularly consented thereto.Footnote 8 Such state consent was irrelevant only for situations referred to the Court by the UN Security Council under Chapter VII of the UN Charter and cases involving the crime of genocide.Footnote 9

On this basis several proposals, ranging from automatic jurisdiction for all crimes to a procedure whereby up to five states should consent cumulatively to activate the Court's competence in every individual case, were tabled during the negotiations.Footnote 10 Eventually it became clear that the acknowledgement of automatic jurisdiction was closely linked to the question of which crimes would fall within the Court's jurisdiction. With the evolving concentration on crimes under international law, delegations showed more flexibility as to establishing a strong Court with inherent jurisdiction over those crimes.Footnote 11 The finally agreed formula, ‘the most serious crimes of concern to the international community as a whole’,Footnote 12 makes it clear that only those particularly serious crimes, which violate fundamental values of the international community as a whole – that is, ‘the peace, security and well-being of the world’ – fall under the jurisdiction of the ICC.Footnote 13 This generic definition of the ICC's ratione materiae competence is concretized by a conclusive list of categories of crimes which at the time of the Rome Conference were generally deemed to fulfil that condition:Footnote 14 genocide, crimes against humanity, war crimes, and the crime of aggression.

The term ‘core crimes’ emerged during the negotiations as referring to crimes which a growing majority of states considered as most serious and of concern to the international community as a whole. It was consequently used to distinguish these crimes from others which were deemed to fall short of the established threshold. The term ‘treaty crimes’, which is sometimes used for the latter category, is somewhat confusing, since quite a number of core crimes have previously also been defined by international treaties.Footnote 15 However, the distinction reveals the concept underlying the Court's jurisdiction. It was generally understood that the Statute should merely codify customary crimes, those which are acknowledged as directly punishable under international law.Footnote 16 Therefore the generic definition of crimes falling within the Court's jurisdiction can be linked to the concept of crimes under international law. An evolution of the scope of this notion is not impossible. However, respecting the framework of the Statute, any crime to be included within the Court's jurisdiction must cross the particular threshold, in that it endangers fundamental values of the international community as a whole. Other internationalized crimes, which endanger primarily values of the national legal order, are better dealt with domestically, relying on enhanced international co-operation.Footnote 17

2.2. Jurisdiction ratione loci

The Rome Statute does not contain a particular provision defining the Court's jurisdiction ratione loci; it is potentially unlimited. If a situation is referred to the Court by the UN Security Council, the ICC may exercise jurisdiction over any person allegedly committing crimes within its jurisdiction on any territory.Footnote 18 If a situation is referred to the ICC by a state party or the Prosecutor initiates investigations proprio motu, a jurisdictional link enabling the ICC to exercise its jurisdiction needs to be established as a precondition for the exercise of its competence.Footnote 19 The Court may base its jurisdiction alternatively on the principle of territoriality or on the nationality of the accused. It therefore may exercise its jurisdiction over core crimes which are committed on the territory of a state party, independent of whether or not the perpetrator is a national of a state party. It may equally exercise its jurisdiction over core crimes perpetrated by nationals of states parties, independent of whether or not the crimes were committed on the territory of a state party.Footnote 20 The same preconditions for the exercise of jurisdiction apply with regard to those non-states parties which have accepted the jurisdiction of the ICC ad hoc, for a certain situation.Footnote 21

This disjunctive regime was at the core of the final package deal of the Bureau of the ASP leading to the adoption of the Statute in Rome.Footnote 22 It constitutes a major concession by a majority of states which supported a broader jurisdictional regime.Footnote 23 When consensus on the principle of the Court's automatic jurisdiction over states parties was emerging, the debate on requirements of state consent was transposed into the context of non-states parties. On the one hand, Germany, relying on the right of states to enforce crimes under international law through universal jurisdiction and their ability to do jointly what they can do alone, sought a Court with universal jurisdiction independent of any further consent.Footnote 24 On the other hand, a majority of states supported the need for a certain link of the ICC's jurisdiction to states parties to the Statute.Footnote 25 The insistence of some states on consent by the state of nationality of the accused and a proposal tabled by the US delegation requiring the cumulative acceptance of the territorial state and the state of nationality of the accusedFootnote 26 eventually led to the final compromise of alternative jurisdictional links enshrined in Article 12(2).

The reach of the ICC over nationals of non-states parties thereby established continues to be subject to strong criticism.Footnote 27 Capturing all the details of the ongoing debate would exceed the scope of this paper;Footnote 28 suffice it to say that the prevailing majority holds the opinion that the Statute does not violate the customary law rule pacta tertiis nec nocent nec prosunt also codified in Article 34 of the Vienna Convention on the Law of Treaties (VCLT).Footnote 29 By setting up a mechanism to enforce international criminal law, the Statute does not impose any obligations or create duties for third states, but reflects existing rights to prosecute individuals, independent of their national or territorial state, for most serious crimes prohibited under international law.Footnote 30 Furthermore, the Statute's complementarity system accepts the priority of any domestic procedure. As long as a state party or non-state party genuinely exercises the ius puniendi of the international community as a whole,Footnote 31 a case falling within the jurisdiction of the Court will not be admissible.Footnote 32

3. Amendments to and review of the Statute

The Rome Statute empowers different institutional fora to consider amendments: a review conference convened by the ASP, the ASP during one of its sessions (Art. 121), and a review conference convened by the UN Secretary-General (Art. 123). While states parties may decide to convene or request the UN Secretary-General to convene such a conference,Footnote 33 Article 123(1) provides for the automatic convening of a review conference ‘seven years after the entry into force of the Statute’.Footnote 34 The Statute does not substantially differentiate between amendments and review.Footnote 35 Although the term ‘review’ might suggest the discussion of substantive amendments affecting the treaty as a whole,Footnote 36 nothing precludes the ASP from considering the same amendments at a regular session.

Procedurally, three different amendment mechanisms can be distinguished. Article 121(4) contains the general rule. Specific provisions on ‘amendments to articles 5, 6, 7 and 8’ of the Statute and ‘amendments to provisions of an institutional nature’ are to be found in Articles 121(5) and 122. The rules for adoption of an amendment are the same for all of these three types. If consensus cannot be reached, a qualified majority of two-thirds of states parties is required.Footnote 37 However, the provisions differ concerning the entry into force of the respective amendment.

According to the general rule, amendments enter into force for all states parties one year after seven-eighths of them have deposited an instrument of ratification or acceptance with the UN Secretary-General.Footnote 38 Until the deposit of the last required instrument the amendment is not effective. After entry into force it is applicable to all states parties. This provision reflects the need for a uniform application of organizational structures when treaties establishing international organizations are concerned. The erga omnes effect, however, was obtained at a high price,Footnote 39 the number of necessary ratifications (seven-eighths) significantly exceeding the requirements for adoption (two-thirds).Footnote 40 For a state party which has not accepted such an amendment, Article 121(6) offers the possibility of opting out: it may withdraw from the Statute with immediate effect.Footnote 41

Any amendment to Articles 5, 6, 7, and 8 of the Statute enters into force only for those states parties which have accepted it (opt-in), one year after the deposit of the respective instrument of ratification or acceptance.Footnote 42 This provision relates on the one hand to any extension of the list of crimes contained in Article 5. On the other hand, it is also constituent for adding, deleting, or changing definitions of crimes contained in Articles 6–8.Footnote 43 Contrary to the general rule, this provision does not foresee the possibility for states parties not accepting the amendment to withdraw from the Statute with immediate effect. This is due to the fact that ‘their legal position is in no way modified’.Footnote 44

A simplified procedure is applicable for amendments to provisions of an institutional nature, which are exclusively listed in Article 122. These may be proposed by any state party at any time, notwithstanding the time frame set out in Articles 121 and 123.Footnote 45 They enter into force for all states parties six months after their adoption by the ASP or a review conference.Footnote 46

4. Analysis of Article 121(5)

4.1. Entry into force of amendments to Articles 5–8

Two particularities can be identified regarding the entry into force of amendments to Articles 5–8. First, no specific number of ratifications is requested. Such a procedure has been justified by the ‘non-reciprocal nature’ of the provisions regulating the jurisdiction of the ICC, which are related to norms protecting human rights.Footnote 47 Second, the amendment enters into force only with regard to the accepting state. This mechanism reflects a general tendency in treaty practice: the reluctance of states to be bound by amendments they have not accepted.Footnote 48 It might be regarded as positive in that it opens the possibility for further commitments of some states parties. However, it is unfortunate when applied to a treaty that is the founding instrument of an international organization, and may create ‘significant problems of interpretation and implementation’.Footnote 49

These two issues are interrelated and ought to be evaluated against the background of the jurisdictional regime of the ICC. Any amendment to Articles 5–8 will ipso facto enlargeFootnote 50 the inherent jurisdiction of the Court according to Article 12(1), which refers to the groups of crimes listed in Article 5.Footnote 51 States parties which accept an amendment do not thereby alter any reciprocal relationship to other states parties but furnish the Court with further competences to adjudicate crimes under international law. In relations between states parties which have accepted an amendment and those which have not accepted it, the unamended treaty will be applicable.Footnote 52 Nevertheless, the Court, by way of entry into force of an amendment, is equipped with extended competences which may affect any state. This view is backed by the formulation ‘shall not exercise its jurisdiction’ (Art. 121(5), emphasis added), which acknowledges that the Court has jurisdiction over a crime covered by an amendment. As a consequence Article 13, which similarly refers to crimes listed in Article 5, applies fully with regard to situations including crimes covered by an amendment. States partiesFootnote 53 as well as the Security Council may refer situations in which such crimes have allegedly been committed; and the prosecutor may initiate proprio motu investigations.

4.2. The Court's exercise of jurisdiction over crimes covered by an amendment

If the Court's jurisdiction over crimes covered by an amendment is accepted, it remains to be discussed in what ways its exercise of jurisdiction may be confined by Article 121(5). In this regard, the formulation of the last clause of Article 121(5) – ‘the Court shall not exercise’ – is in conflict with Article 12(2) – ‘the Court may exercise’ – upon which a state party which has accepted an amendment may rely. A literal reading of the provision's last clause suggests that the Court will not be able to exercise jurisdiction in distinct cases. But should that mean in any case, even involving a state party, which has accepted an amendment? Has the provision to be read in accordance with the framework established by Part 2 of the Statute? Or is it to be seen as an additional precondition to the exercise of the Court's jurisdiction over ‘amended crimes’? Both interpretations seem to be covered by the wording, although leading to opposing solutions.

The majority view reads the final clause of Article 121(5) as a complete ban on the Court's exercise of jurisdiction when a crime covered by an amendment is allegedly committed by a national or on the territory of a state party which has not accepted the amendment.Footnote 54 According to this view, Article 121(5) sets up a specific jurisdictional regime for crimes covered by an amendment, which requires the cumulative establishment of two jurisdictional links. Only if the crime in question was committed by a national of a state party which has accepted the amendment as well as on the territory of the same or another state party, which has equally accepted the amendment, would the Court be able to exercise its jurisdiction. To this extent, Article 121(5) would derogate from Article 12(2) with a view to preconditions to the exercise of jurisdiction in the case of a state party referral or a proprio motu investigation. But unlike Article 12(2), Article 121(5) does not distinguish between different ‘trigger mechanisms’. Therefore the same preconditions arguably need to be established, even upon a referral by the UN Security Council. As a consequence, states parties would to a large extent be able to shield their nationals from the Court's jurisdiction over crimes covered by an amendment.Footnote 55

However, in line with the ordinary meaning of its words, the provision can equally be interpreted in a narrow way. In the context of the final clauses, Article 121(5) has been identified as a specific norm with regard to the general rule of amendments as contained in Article 121(4). It should not be understood as a more specific rule with regard to other provisions of the Statute, which are furthermore subject to a different amendment regime. Article 121(5), therefore, needs to be interpreted in accordance with the Statute, in particular its Part 2. Its last clause clarifies the position of a state party which has not accepted an amendment; it does not give any further indication with regard to the status of other states. It simply makes it clear that although the state in question is a party to the Statute, the Court shall not exercise its (potential) jurisdiction as long as this state has not ratified the amendment. This state party takes the position of a third state with respect to a crime covered by an amendment. Consequently, the Court would not be able to exercise its jurisdiction over crimes committed by a national of that state party or on its territory unless a situation was submitted by the UN Security Council, or a jurisdictional link to a state party which had accepted the amendment could be established according to Article 12(2).Footnote 56 As Professor Pellet confirms,

Entry into force of an amendment to Articles 5 to 8 leaves both third States and those who, though parties to the Statute, have not ratified the amendment in an exactly identical position: each are unaffected by the amendment. The fact that the amendment may apply not to them as States, but, should the case arise, to their nationals . . . has absolutely nothing to do with the amending procedure; it is the normal consequence of the territoriality of penal competence.Footnote 57

This interpretation also gives due respect to the fact that the will of a state party not to be bound by an amendment may not be given more weight than the will of another state party to submit its territory and nationals to the jurisdiction of the Court. It seems in line with the aforementioned considerations that the following wording has not found its way into the Rules of Procedure and Evidence:

[W]ith respect to a crime added by amendment to the Statute pursuant to article 121, paragraph 5, the Court may exercise jurisdiction only if the amendment has entered into force for both the State of nationality of the alleged perpetrator and the State in whose territory the crime was committed.Footnote 58

What has been elaborated with an emphasis on amendments to Article 5 is equally applicable to amendments covering Articles 6–8 when new acts, respectively definitions of crimes, are to be included in a category of crime.Footnote 59 Certainly the consequences of a broad interpretation with respect to shielding an alleged perpetrator from international criminal jurisdiction are less far-reaching. Any limitations to the Court's exercise of jurisdiction would concern only specific acts and not a whole category of crimes.

The harmful effects of the impunity gap also seem less severe where amendments to existing definitions of crimes are concerned. Even if states parties were able to shield their nationals from the Court's reach over a criminal act as amended, they would nevertheless be bound to co-operate by the original definition of the crime in question. But a broad understanding of Article 121(5) might lead to unsatisfactory consequences with a view to an alleged perpetrator. One may think of a situation where criminal conduct involves a particular crime against humanity whose definition has been changed by an amendment. A suspect, the national of a state party which has accepted the amendment, allegedly perpetrated the amended crime against humanity on the territory of another state party which has not accepted the amendment. The Court will be faced with two definitions of a crime, both seemingly applicable to the same conduct. Could the Court simply apply the definition more favourable to the accused?Footnote 60 Would reference to the VCLT suggest the application of the unamended definition of crime as contained in the treaty to which both states are a party?Footnote 61 Or is this provision not applicable, because the last clause of 121(5) is evidence that states have decided to ‘provide otherwise’ in the Rome Statute?Footnote 62 A further elaboration of these questions would exceed the scope of this paper. However, it should be kept in mind that the Rome Statute as a criminal code should be precise and foreseeable for potential perpetrators.

4.3. Guidelines deriving from Article 124?

Article 124 permits a state, on becoming a party to the Statute, to declare that ‘for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory’. This ‘transitional provision’ is a further element of the final compromise accepted at Rome, a concession to a minority of states insisting on a state consent system.Footnote 63 It is ‘the narrow exception from article 120’.Footnote 64

The Statute is silent with regard to the provision's interaction with Articles 12 and 13. As in the context of Article 121(5), two readings seem possible. The predominant view understands Article 124 as a ‘de facto opt-out regime for war crimes’, which negates the Court's inherent jurisdiction over all core crimes according to Article 12(1) and excludes war crimes from its subject-matter jurisdiction for a period of seven years with respect to the declaring state.Footnote 65 Accordingly, the ICC would have no jurisdiction over any war crime committed on the territory of the declaring state (independent of the alleged perpetrator's nationality) or over nationals of the declaring state committing war crimes abroad (including on the territory of another state party). The territory and nationals of a state party invoking Article 124 would be out of the reach of the ICC's jurisdiction. Such an understanding has been justified by the fact that states parties, which prescribe the subject-matter jurisdiction of the Court, are also in a position to limit it.Footnote 66 However, even if this argumentation were followed, it is still not understandable why, by opting out, the declaring state should gain priority over other states parties which enable the ICC to establish a necessary jurisdictional link in the event of a state party referral or a proprio motu investigation.Footnote 67 It is questionable whether the consensus of Rome includes a privilege of state parties to shield their nationals from the jurisdiction of the Court, even if this very effect was aimed at, at least by some delegations.Footnote 68

Despite their understanding of Article 124 as a substantive opt-out of the Court's inherent jurisdiction over war crimes, a number of authors suggest that this would not affect situations referred to the Court by the UN Security Council.Footnote 69 This argumentation is inconsistent and not reflected in the Statute's provisions. If the Court's jurisdiction over a certain category of crimes with regard to a declaring state is categorically denied, why should a Security Council referral make a difference? The Court's jurisdiction, or rather its lack of jurisdiction, for war crimes over a declaring state is independent of the trigger mechanisms invoked. The Security Council's power to refer a situation is a procedure to initiate Court action; it is no source of the ICC's jurisdiction ratione materiae.Footnote 70 Certainly, the result is unsatisfactory given the competence of the Security Council to establish ad hoc tribunals under Chapter VII of the UN Charter and the reason behind Article 13(b), which was to enable the Security Council to use the institution of the permanent ICC as an alternative for such tribunals.Footnote 71

It has therefore also been argued that the wording of Article 124 allows the interpretation that a declaring state is to be considered as holding the same position as a third state for the period of seven years with regard to war crimes.Footnote 72 Consequently an Article 124 declaration would be irrelevant with regard to a Security Council referral. Concerning a state party referral or proprio motu investigation, the Court could not base its jurisdiction on the alleged perpetration of war crimes on the territory or by nationals of a declaring state. Nonetheless, Article 12(2) would allow for the prosecution of war crimes, for example of nationals of the declaring state when committed on the territory of a state party or of nationals of a state party committing war crimes on the territory of the declaring state. The necessary preconditions for the exercise of jurisdiction would be established by way of the non-declaring state.

The latter interpretation would support a narrow reading of Article 121(5). But even if Article 124 required an interpretation in the sense of a categorical exemption of the Court's jurisdiction, it would not justify a broad reading of Article 121(5). Certainly, from the wording it might be argued that Article 124 goes further than Article 121(5). Article 124 is based on the assumption that a state does not accept the jurisdiction, whereas Article 121(5), on the other hand, respects the Court's jurisdiction for the crime in question since the ICC will not exercise its jurisdiction over the crime concerned. Nonetheless, Article 124 represents a relatively smaller infringement of Article 12 and the basic structure of the Statute than Article 121(5). Article 124 is expressly formulated as an exception to Article 12 and is subject to various restrictions. The regulation is a ‘transitional provision’, which necessarily needs to be reviewed at the first review conference.Footnote 73 The declaration can only be made once, upon ratification or accession to the Statute, it can be withdrawn at any time,Footnote 74 and its effect is limited for a period of seven years after the entry into force of the Statute for the respective state. Furthermore, it has been argued that Article 124 does not create impunity for war crimes, since large-scale crimes may be captured by the definition of crimes against humanity and the obligations under the Geneva Conventions remain applicable.Footnote 75 It has even been suggested that war crimes committed during the seven-year period might be prosecuted before the ICC after the expiration of the transitional period for the state concerned.Footnote 76

4.4. Unjustified discrimination against third states?

With a view to the commission of a crime covered by an amendment on the territory of a state party that has accepted the amendment, it has been argued that nationals of a state party which has not accepted the amendment are in a ‘privileged position’ as compared with perpetrators from a third state. While states parties may shield their nationals from the jurisdiction of the Court, non-states parties may not.Footnote 77 Such ‘asymmetric immunity for treaty parties’ has been criticized as ‘unfair and parochial’.Footnote 78 This critique, though acknowledged as politically uncomfortable,Footnote 79 has been countered by the absence of a rule of international law that would forbid states to conclude treaties to accord each other privileges which they do not grant to third states. Furthermore, the expectation to ‘acquire rights under Articles 121(5) and 124’ by becoming party to the treaty was deemed an incentive to become a state party before the adoption of amendments.Footnote 80

That may be an accurate account, but is such a self-privilege acceptable under the object and purpose of the Statute? Does it not nourish a false impression of states parties promoting the goals of international justice but at the same time intending to shield their nationals from international prosecution? The complementary jurisdiction of the ICC was established particularly to counter such risks. The Statute's express purpose is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole and thus to contribute to the prevention of these crimes.Footnote 81

However, the claim of a different treatment of state-party and third-state nationals is only legitimate if an analysis of Article 121(5) was based on a broad interpretation. Beyond that, no asymmetric immunity for treaty parties of any sort may be traced.Footnote 82 According to a narrow reading of the provision, a state party that has not accepted an amendment would be simply in the same position as a third state in relation to a state party that has accepted the amendment.Footnote 83

If an imbalance between states parties and third states exists, it may only relate to a third state being able to become a party only to the amended Statute.Footnote 84 The Rome Statute does not expressly tackle the issue of states acceding to the Statute after an amendment to Articles 5–8 has entered into force. The issue, however, was discussed by the special working group on the crime of aggression.Footnote 85 While the crime of aggression is profoundly distinct from any other crime or category of crimes potentially covered by an amendment, since it already falls under the jurisdiction of the ICC, the question also merits attention in a more general context.

The default rule on amendments of multilateral treaties foresees that ‘[a]ny State which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a different 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’. The default rule is, however, only applicable ‘unless the treaty otherwise provides’.Footnote 86

At the outset, it should be recalled that since no reservations may be made to the Statute (Art. 120), any ‘expression of a different intention’ according to Article 40 VCLT can only be lawfully invoked if expressly provided for. Article 121(5) obviously leaves states parties the free choice whether or not to accept an amendment.Footnote 87 But it is silent with regard to states acceding to the Statute. In this context it has been suggested that the term ‘state party’ might be understood not only in terms of a state that is a party to the Statute at the time of the entry into force of an amendment. Under a wider reading, it may refer also to states acceding to the Statute after that point in time.Footnote 88 The latter interpretation is certainly disputable. But the possibility of granting states acceding to the Statute after the entry into force of an amendment the same choice as states parties has also been endorsed by scholars.Footnote 89

4.5. Travaux préparatoires

According to practice, the ILC had not produced language on final clauses for its Draft Statute.Footnote 90 For the March–April Preparatory Committee, the Secretariat introduced a draft which provided for a general and a simplified amendment procedure as well as a review of the Statute by the ASP.Footnote 91 All amendments, not underlying the simplified procedure, were proposed to enter into force uniformly ‘for all States Parties [60] days after instruments of acceptance have been deposited with the Secretary-General of the United Nations by [2/3] [3/4] of [all the States Parties] [those present and voting]’.Footnote 92 The draft articles were consequently incorporated into the Zuthphen Draft without changes.Footnote 93 First discussions are reflected in the Consolidated Draft, which included options regarding the requirements for adoption of an amendment as well as review of the Statute.Footnote 94 Its Article 111 option 2 introduced the depositary's competence to convene a meeting of the ASP exclusively ‘in order to consider additions to the list of crimes within the jurisdiction of the Court’ as well as the automatic convening of a first meeting, ‘[five]’ years after the entry into force of the Statute', ‘to review the list of crimes within the jurisdiction of the Court contained in Article 5, in order to consider additions to the list.’ The option further suggested that

‘[a]ny amendment . . . shall enter into force with regard to those States Parties which have deposited their instrument of acceptance on the [thirteenth] day following the deposit of the [tenth] instrument of acceptance . . . If an amendment has not entered into force for a State, the Court shall not exercise its jurisdiction with respect to a crime covered by the amendment when committed on the territory of that State or by its nationals.Footnote 95

The main discussions on the final clauses took place at the Rome Conference,Footnote 96 where further proposals were also tabled.Footnote 97 The views on introducing a special mechanism for amendments to the Court's substance-matter jurisdiction were divided, with a majority being against.Footnote 98 However, given firm minority resistance in the informal consultations, the Co-ordinator on the Final Clauses could not finally clarify the issue. Therefore the Co-ordinator's recommendation to the Committee of the Whole reproduced the whole of Article 110(5) in brackets:

[5. Any amendment to article 5 of the Statute shall enter into force for those State Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance [, unless the Assembly or the Conference has decided that the amendment shall enter into force for all States Parties once it has been accepted by [5/6] [7/8] of them].]Footnote 99

A second set of brackets provided for the possibility of the ASP equipping amendments with an erga omnes effect, which was opposed by a firm minority.Footnote 100 Further brackets concerned the majority requirement for this decision. The provision confirmed that amendments to Article 5 should enter into force only for states parties which had accepted the amendment. It is noteworthy that no reference at all to a limited exercise of jurisdiction regarding the territory or nationals of a state party which had not accepted the amendment was maintained. Such a reference was introduced, however, as part of the final compromise package.Footnote 101

Given the considerations in the previous sections, a good-faith interpretation of Article 121(5) in accordance with the ordinary meaning of the terms in their context and in the light of the treaty's object and purpose clearly supports a narrow reading of the provision's last clause.Footnote 102 The preparatory works are of little help in confirming any particular meaning.Footnote 103 The final tangible document before the adoption of the Statute does not contain the critical language on the Court's exercise of jurisdiction. What followed were merely unpublished oral debates and informal consultations, which renders recourse to the travaux préparatoires particularly questionable.Footnote 104

5. Relevance for the first review conference

Notwithstanding the mandatory language of Article 123(1), practical considerations have led to the postponement of the review conference to the first half of 2010.Footnote 105 Since the Statute is silent regarding the procedure to propose amendments for a review conference according to Article 123, the ASP resorted to Article 121(1).Footnote 106 Article 123 suggests that the first review conference shall ‘consider any amendments’ and ‘[s]uch review may include, but is not limited to, the list of crimes contained in article 5’. Accordingly, it is not obligatory for amendments regarding the groups of crimes falling under the jurisdiction of the Court to be dealt with during the first review conference or any other review conference. This result somewhat contradicts the expectations of many delegations in Rome that the first review conference should deal in particular with the subject-matter jurisdiction of the Court.Footnote 107 Nevertheless, a number of potential ratione materiae issues for review have been discussed at the political as well as the academic level since Rome and might play a role in 2010.

The most evident loophole in the Statute relates to the crime of aggression. Although this category of crime was included in the jurisdiction of the Court in Rome, the ICC will not be able to exercise this jurisdiction until ‘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’.Footnote 108 Failing to reach a decision, the Rome conference secured the continuation of negotiations on a provision on aggression.Footnote 109 Despite the lack of a legal obligation to consider the crime of aggression at the first review conference, there is a strong political momentum behind putting it on the agenda, ideally leading to the adoption of a provision on aggression.Footnote 110

Aggression differs from any other crime that might be of relevance during the first review conference, in that it is listed as one of the groups of crimes over which states parties have accepted the Court's inherent jurisdiction. Therefore the view has been expressed that Article 5 needs to be ‘applied’ rather than ‘amended’,Footnote 111 with the effect that the Statute's amendment mechanisms may only partly apply. The special working group on the crime of aggression has discussed several possibilities for adopting a provision on aggression ‘in accordance with articles 121 and 123’.Footnote 112 Relying on the terminology that ‘a provision’ has to be ‘adopted’,Footnote 113 it was argued that the ASP or a review conference simply needs to take a decision by consensus or by a two-thirds majority to complete the Statute.Footnote 114 The Court's jurisdiction would thereby be made functional without any need for further procedure. If a full amendment procedure had to be applied, the question would arise whether the future provision on aggression should enter into force according to Article 121(4) or (5). Given the fact that the crime of aggression is already enshrined in Article 5(1), the provision can hardly be considered an amendment to Article 5, even less an amendment to Articles 6, 7, or 8.Footnote 115 If one excludes that option, Article 121(4) remains as a catch-clause. The only teleological argument for the applicability of Article 121(5) would be to assume that any change of a provision that affects the subject-matter jurisdiction of the ICC necessarily needs to be covered by Article 121(5).Footnote 116 From a policy perspective, the application of Article 121(5), if interpreted as suggested in this paper, could be an incentive for states to accept the amendment. The provision could serve as a deterrent and protect a state from outside attacks amounting to aggression. However, given the difficulties in applying the existing amendment mechanisms, it is also arguable that the provision on aggression should contain and follow its own entry-into-force mechanism.Footnote 117

The Statute's provision on war crimes also contains a lacuna that could not be finally regulated in Rome. Article 8(2)(b)(xx) refers to an annex to the Statute which shall be adopted as an amendment in accordance with Articles 121 and 123. Its purpose will be to describe those

weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition . . .Footnote 118

The exclusion of employment of all weapons of mass destruction from the Statute was the only possible solution after failing to reach a consensus in Rome. Although reference to biological and chemical weapons was largely supported, delegations refused to accept a provision omitting the employment of nuclear weapons, which had been set out as a precondition by others.Footnote 119 Including an annex of weapons of mass destruction could be seen, like aggression, as a completion of what had not been achieved in Rome.Footnote 120 Article 8(2)(b)(xx) expressly refers to ‘an amendment’, but it might be argued that Article 121(4), not 121(5), would be the appropriate mechanism to deal with such an annex.Footnote 121 No discussions on the issue have taken place so far at the ASP.

Crimes of terrorism and international trafficking of illicit drugs were discussed during the Rome Conference, but finally were not included in the Statute.Footnote 122 Resolution E of the Final Act therefore recommends that a review conference pursuant to Article 123 consider the crimes of terrorism and drug crimes.Footnote 123 The inclusion of such new categories of crimes would undoubtedly invoke the amendment mechanism of Article 121(5). However, unlike the preparation of proposals for a provision on aggression, no comparable mechanism has been established by the Rome Conference for crimes of terrorism and drug crimes. Crimes of terrorism are being discussed outside the framework of the ASP with a view to elaborating a comprehensive convention on terrorism. No comparable discussions are taking place regarding drug crimes. Further crimes referred to by publicists include trafficking in human beings or other forms of organized crimes,Footnote 124 corruption and sexual abuse within the UN system,Footnote 125 or adding conspiracy to commit genocide as an inchoate offence under Article 25.Footnote 126

The interest of states regarding amendments seems rather cautious so far.Footnote 127 Suggestions have been voiced that the scope of the first review conference on ratione materiae issues be limited to the recommendations contained in the Final Act,Footnote 128 or even that other topics besides Article 124 and the crime of aggression should be discussed at the review conference only if they have broad support among states.Footnote 129 With an additional focus on a ‘stocktaking’ of the achievements of international criminal justice and the political aim of a successful review conference,Footnote 130 it remains to be seen whether controversial proposals will come up. However, formal debates on the agenda of the first review conference have not yet started, and proposals for amendments are not to be expected before the expiry of ‘seven years after the entry into force’ of the Statute.Footnote 131

6. Conclusion

Article 121(5) relates to provisions at the core of the Rome Statute: the ICC's competence ratione materiae and its exercise of jurisdiction. When considering amendments to Articles 5–8, the specificity of the Court's subject-matter jurisdiction needs to be underlined. According to Article 5, each amendment can only concern a crime or a category of crimes that is considered a ‘most serious crime of concern to the international community as a whole’, arguably constituting a crime under international law. If a crime were considered to meet this high threshold and included within the inherent jurisdiction of the Court, it is not understandable why such a new core crime should be subordinated to a different legal regime.

Article 121(5) is a specific rule on amendments derogating from the general rule on amendments contained in Article 121(4) when Articles 5–8 are concerned. Article 121(5) is not to be considered a more specific norm with regard to any other provision of the Statute. As a consequence, it has to be read and interpreted in conformity with all the other articles of the Statute. In so far as it may have a limiting effect on other provisions, Article 121(5) shall be construed narrowly in order to respect the integrity of the Statute. The provision, therefore, should be interpreted as treating a state party that has not accepted an amendment in the same way as a non-state party with regard to a crime covered by an amendment. It should neither be understood as reintroducing a system of state consent which was rejected at Rome, nor be used as a tool to shield alleged perpetrators from individual criminal responsibility or as a pretext for states to derive rights contrary to the object and purpose of international criminal justice. Such a stringent reading of Article 121(5) is covered by its wording. It is also warranted to safeguard a coherent enforcement of crimes as well as the rights of states parties under the Statute. It would also reinforce the Statute's deterrent function for crimes covered by an amendment and prevent further fragmentation of international criminal law.

The relevance of the Statute's provision on amendments to Articles 5–8 for the first review conference cannot be evaluated conclusively at this point. Preparations for the conference are still at an early stage and have not yet tackled concrete substantive issues. Certainly the crime of aggression is assumed to be on the agenda of the first review conference, but its submission to a particular amendment regime has not been resolved thus far. Further issues concerning the Court's jurisdiction ratione materiae which would require application of Article 121(5) seem currently not to be an issue but are not precluded from coming up with the commencement of formal debates.

References

1 Rome Statute of the International Criminal Court, A/CONF.183/9 of 17 July 1998 as corrected by procès-verbaux (hereinafter Rome Statute or the Statute). Articles given without further reference are those of the Rome Statute.

2 Art. 123(1).

3 For an overview see e.g. Clark, R. S., ‘Possible Amendments for the First ICC Review Conference in 2009’, (2007) 4 New Zealand Yearbook of International Law 103, at 106 ff.Google Scholar; C. Wenaweser, ‘Crimes within the Jurisdiction of the Court – Going beyond the Core Crimes?’, in Austrian Federal Ministry for Foreign Affairs and Salzburg Law School on International Criminal Law (eds.), The Future of the International Criminal Court – Salzburg Retreat, 25–27 May 2006 (2006), available at http://www.sbg.ac.at/salzburglawschool/Retreat (hereinafter Salzburg Retreat), 20.

4 Art. 121(5).

5 For details see infra section 4.

6 Art. 12(1). See generally S. Bourgon, ‘Jurisdiction ratione temporis’, in A. Cassese, P. Gaeta, and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), I, 543, at 549; S. A. Williams, ‘Article 12’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, Observers' Notes, Article by Article (1999), margin no. 13.

7 Report of the International Law Commission on the work of its forty-sixth session, 2 May to 22 July 1994 (A/49/10) (hereinafter 1994 ILC Draft), 43, at 82–4. By contrast, the 1993 ILC Draft optionally provided for a general assumption of acceptance of jurisdiction for states parties with the possibility of opting out for specific crimes (alternatives B and C, draft Art. 23, Report of the International Law Commission on the work of its forty-fifth session, 3 May to 23 July 1993 (A/48/10), Annex). For details see M. E. Corrão, ‘Jurisdiction of the International Criminal Court and State Consent’, in F. Lattanzi (ed.), The International Criminal Court, Comments on the Draft Statute (1998), 79, at 82 ff.

8 1994 ILC Draft, supra note 7, Art. 22.

9 Ibid., Arts. 23(1), 21(1)(a). For details see e.g. S. A. Williams, ‘Article 13’, in Triffterer, supra note 6, margin no. 3.

10 See, e.g., Art. 9, further option, and Art. 7, option 2, Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute for the International Criminal Court, A/CONF.183/2/Add.1, 14 April 1998 (hereinafter Consolidated Draft); Art. 34 in A/AC.249/L.3 of 6 August 1996 (France).

11 E. Wilmshurst, ‘Jurisdiction of the Court’, in R. S. Lee (ed.), The International Criminal Court (1999), 127, at 130, 134.

12 Preamble, paras. 4 and 9, Art. 1, Art. 5(1).

13 Preamble, para. 3. For details see M. Bergsmo and O. Triffterer, ‘Preamble’, in Triffterer, supra note 6, margin nos. 9, 12, 21.

14 E.g. Nsereko, D. N., ‘The International Criminal Court: Jurisdictional and Related Issues’, (1999) 10 Criminal Law Forum 87, at 93–4CrossRefGoogle Scholar.

15 See also 1994 ILC Draft, supra note 7, Art. 20 and annex, at 30 listing among others grave breaches of the Geneva Conventions and Additional Protocol I, apartheid, and torture as treaty crimes. Generally, on difficulties in distinguishing between crimes under customary law and treaty crimes, see e.g. Danilenko, G. M., ‘The Statute of the International Criminal Court and Third States’, (2000) 21 Michigan Journal of International Law 445, at 462Google Scholar.

16 For many see O. Triffterer, ‘Preliminary Remarks: The Permanent International Criminal Court – Ideal and Reality’, in Triffterer, supra note 6, margin no. 72.

17 O. Triffterer, ‘Concluding Remarks’, in Salzburg Retreat, supra note 3, 26, at 30–1; see also H. van Hebel, ‘Crimes within the Jurisdiction of the Court’, in Lee, supra note 11, 79, at 81. On general difficulties concerning the prosecution of transnational crimes see Wenaweser, supra note 3, at 22.

18 Art. 13(b).

19 Arts. 13(a) and (c), and 12(2). For a recent analysis of the Court's two jurisdictional regimes, see Fletcher, G. P. and Ohlin, J. D., ‘The ICC: Two Courts in One?’, (2006) 4 Journal of International Criminal Justice 428, at 433CrossRefGoogle Scholar; see also Kaul, H.-P. and Kreß, C., ‘Jurisdiction and Cooperation in the Statute of the International Criminal Court: Principles and Compromises’, (1999) 2 Yearbook of International Humanitarian Law 143, at 172CrossRefGoogle Scholar.

20 For the prevailing opinion see S. Bourgon, ‘Jurisdiction ratione loci’, in Cassese, Gaeta, and Jones, supra note 6, 559, at 564–6; Williams, supra note 6, margin no. 15.

21 The reference to ‘the crime in question’ (emphasis added) in Art. 12(3) was identified as a drafting error by the Chairman of the Drafting Committee; it should read ‘situation’ in accordance with the structure of the Statute. Bassiouni, M. C., ‘Negotiating the Treaty of Rome on the Establishment of the International Criminal Court’, (1999) 32 Cornell International Law Journal 443, at 453–4Google Scholar. This misleading reference was corrected by Rule 44 ICC Rules of Procedure and Evidence, PCNICC/2000/1/Add.1, 2 November 2000.

22 See generally Bassiouni, supra note 21, at 453; P. Kirsch and J. T. Holmes, ‘The Rome Conference on an International Criminal Court: The Negotiating Process’, (1999) 93 AJIL 2, at 10–11; T. N. Slade and R. S. Clark, ‘Preamble and Final Clauses’, in Lee, supra note 11, at 424.

23 G. Hafner, K. Boon, A. Rübesame, and J. Huston, ‘A Response to the American View as Presented by Ruth Wedgwood’, (1999) 10 EJIL 108, at 116; Nsereko, supra note 14, at 107.

24 A/AC.249/1998/DP.2 of 23 March 1998. For details see Kaul and Kreß, supra note 19, at 145 ff.

25 For the various options see Bureau discussion paper regarding part 2, A/CONF.183/C.1/L.53 of 6 July 1998 incorporating A/CONF.183/C.1/L.6 of 18 June 1998 (Korea), UK statement of 19 June 1998, amending A/AC.249/1998/WG.3/DP.1 of 25 March 1998. For details see e.g. Kaul and Kreß, supra note 19, at 152–3; F. Lattanzi, ‘The Rome Statute and State Sovereignty: ICC Competence, Jurisdictional Links, Trigger Mechanisms’, in F. Lattanzi and W. Schabas, Essays on the Rome Statute of the International Criminal Court, Vol. 1 (1999), 51, at 55–8; Williams, supra note 6, margin nos. 5–12.

26 A/CONF.183/C.1/L.70 (USA). For details see D. J. Scheffer, ‘The United States and the International Criminal Court’, (1999) 93 AJIL 12, at 20; Williams, supra note 6, margin no. 10. The main US objective was described as shielding US citizens from the Court's jurisdiction; see Philips, R. B., ‘The International Criminal Court Statute: Jurisdiction and Admissibility’, (1999) 19 Criminal Law Forum 61Google Scholar, section 4; van der Vyver, J. D., ‘Personal and Territorial Jurisdiction of the International Criminal Court’, (2000) 14 Emory International Law Review 1, at 18Google Scholar.

27 For views expressed by US writers in particular see, e.g., Morris, M., ‘High Crimes and Misconceptions: The International Criminal Court and Non-Party States’, (2000) 64 Law & Contemporary Problems 15Google Scholar; Scheffer, supra note 26; R. Wedgwood, ‘The International Criminal Court: An American View’, (1999) 10 EJIL 93. For a different voice see e.g. Scharf, M., ‘The ICC's Jurisdiction over the Nationals of Non-party States: A Critique of the US Position’, (2001) 64 Law & Contemporary Problems 67CrossRefGoogle Scholar.

28 For a recent analysis see Akande, D., ‘The Jurisdiction of the International Criminal Court over Nationals of Non-parties: Legal Basis and Limits, (2003) 1 Journal of International Criminal Justice 618CrossRefGoogle Scholar.

29 For many see A. Pellet, ‘Entry into Force and Amendment of the Statute’, in Cassese, Gaeta, and Jones, supra note 6, 145, at 163.

30 Brown, B. S., ‘US Objections to the Statute of the International Criminal Court: A Brief Response’, (1999) 31 New York University Journal of International Law and Politics 855, at 869–70Google Scholar; Danilenko, supra note 15, at 458–64; Hafner et al., supra note 23, at 117–18; Kaul and Kreß, supra note 19, at 150. See also La Haye, E., ‘The Jurisdiction of the International Criminal Court: Controversies over the Preconditions for Exercising Jurisdiction’, (1999) 46 Netherlands International Law Review 1, at 19CrossRefGoogle Scholar; G. Palmisano, ‘The ICC and Third States’, in Lattanzi and Schabas, supra note 25, 391, at 396–7; Paust, J. J., ‘The Reach of ICC Jurisdiction over Non-signatory Nationals’, (2000) 33 Vanderbilt Journal of Transnational Law 1, at 3 ff.Google Scholar; Scharf, supra note 27, at 98.

31 Triffterer, supra note 17, at 32.

32 Preamble, para. 10, Arts. 1, 17. On procedural safeguards for states, including non-states parties, see Arts. 18 and 19; for details see Danilenko, supra note 15, at 476; Nsereko, supra note 14, at 116; Scheffer, supra note 26, at 15.

33 While the Secretary-General shall convene a review conference at the request of a state party ‘upon approval by a majority of States Parties’ (Art. 123(2)), the voting requirement for the ASP is considerably lower (Art. 121(2)).

34 This provision aimed at securing the automatic convening of a review conference, in spite of possible resistance by states who are sceptical towards any enlargement of the Court's jurisdiction; see e.g. S. J. Gerber, ‘Commentary on Parts 10 and 11 of the Zutphen Intersessional Draft: Enforcement and Final Clauses’, (1998) 13bis Nouvelles études pénales 103, at 111. Seven years seemed an appropriate time in Rome, ensuring that some significant practice would have developed; see R. S. Clark, ‘Article 123’, in Triffterer, supra note 6, margin no. 2. Today this assumption appears rather optimistic. With the first trial to start some time in 2008, the Statute will have been tested only partly in practice.

35 R. S. Clark, ‘Article 121’, in Triffterer, supra note 6, margin no. 8; Pellet, supra note 29, at 177.

36 See e.g. United Nations (ed.), Final Clauses of Multilateral Treaties (2003), at 96. Art. 111, option 2, para. 1 Consolidated Draft had originally foreseen dedicating a review exclusively to ‘the list of crimes within the jurisdiction of the Court contained in article 5, in order to consider additions to the list’. Today Article 121(2) continues to empower the ASP to convene a review conference ‘if the issue so warrants’. But see Clark, supra note 35, margin no. 8.

37 Art. 121(3). The two-thirds majority is counted from the totality of states parties, not from those present and voting as stipulated, e.g., in Art. 121(2). This voting requirement is more stringent than the ASP's default rule on matters of substance, Art. 112(7)(a).

38 Art. 121(4).

39 Slade and Clark, supra note 22, at 434; Pellet, supra note 29, at 180.

40 Since the Rome Statute is silent regarding the basis on which the seven-eighths have to be calculated, the depositary will refer to the number of states parties at the time a relevant instrument of ratification or acceptance was deposited, United Nations, supra note 36, at 75. According to this practice, states ratifying the Statute after the adoption but before the entry into force of an amendment also play a significant role in reaching the necessary seven-eighths.

41 For particularities on the time frame see Clark, supra note 35, margin no. 13.

42 Art. 121(5).

43 When the Rome Statute was adopted on 17 July 1998 the paragraph still referred to ‘[a]ny amendment to article 5’ only (see UN Doc. A/CONF.183/9). The wording was subsequently altered by way of a procès-verbal. The chairman of the Committee of the Whole clarified that since at the time Art. 121(5) was finalized Art. 5 contained both the list of crimes and their definitions, the missing reference to what is now contained in Arts. 6–8 was an ‘inadvertent technical error’. The intention of the Bureau when negotiating a compromise regarding Art. 121(5) had not been to suggest different rules applicable for Art. 5 on the one hand and Arts. 6–8 on the other hand. For details see Clark, supra note 35, margin no. 11; Pellet, supra note 29, at 181; Slade and Clark, supra note 22, at 435–7.

44 Pellet, supra note 29, at 182. For details see infra section 4.

45 The provision prescribes further procedural particularities. Proposals may be directed not only to the Secretary-General (as is the case for amendments according to Art. 121(1)) but also to ‘such other person designated by the assembly of states parties’. Proposals shall be circulated to states parties (as also foreseen in Art. 121(1)) as well as to others participating in the Assembly.

46 Art. 122(2).

47 Pellet, supra note 29, at 181–2; in this regard see also e.g. Kaul and Kreß, supra note 19, at 174.

48 For details see United Nations, supra note 36, at 70.

49 Ibid.

50 Or reduce, as the case may be, although the latter seems rather unlikely.

51 Although Arts. 6, 7, and 8 are not expressly mentioned, they are incorporated insofar as they only constitute a refinement of what is laid down in Art. 5.

52 Arts. 40(4), 30(4)(b) VCLT.

53 General application of Art. 13 leads to the unusual opportunity for states parties which have not accepted an amendment to refer to the Court a situation in which crimes covered by the amendment appear to have been committed.

54 In this sense see e.g. Brown, supra note 30, at 887; Danilenko, supra note 15, at 494; Hafner et al., supra note 23, at 118; Morris, M., ‘Terrorism and Unilateralism: Criminal Jurisdiction and International Relations’, (2004) 36 Cornell International Law Journal 473, at 487Google Scholar; Scheffer, supra note 26, at 20; Wedgwood, supra note 27, at 104; van der Vyver, supra note 26, at 36.

55 Hafner et al., supra note 23, at 118; Nsereko, supra note 14, at 104; accordingly also Paust, supra note 30, at 8. For details see infra section 4.3.

56 See e.g. Pellet, supra note 29, at 180, 182; N. Strapatsas, ‘Analysis of the Amendment Rules Applicable to the Inclusion of the “Crime of Aggression” into the ICC Statute’, paper available at http://www.coeicl.de, at paras. 27–28, comes to a similar conclusion although partly based on a jus cogens argument in the particular circumstances of the crime of aggression.

57 Pellet, supra note 29, at 182, footnotes omitted.

58 Proposal Submitted by the United States of America Concerning Rules of Evidence and Procedure Relating to Part 13 of the Statute (Final Clauses) 2, UN Doc. PCNICC/2000/WGRPE(13)/DP.1 (2000).

59 See supra note 43. The proposition to apply the same amendment rule for all provisions concerning the Court's subject-matter jurisdiction is convincing. However, it should not be forgotten that even reference to Articles 5–8 may not capture all relevant provisions. Some types of criminal conduct, which are covered only in the general part (e.g. the crime of incitement to genocide), still fall under the general amendment regime according to Article 121(4). Hence it has also been argued that Art. 121(5) was ‘intended to apply to the inclusion of new crimes’ only, see Report of the Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression of the Assembly of States Parties of the International Criminal Court, Liechtenstein Institute for Self Determination, Woodrow Wilson School, at Princeton University, 13–15 June 2005, ICC-ASP/4/SWGCA/INF.1 (hereinafter 2005 Princeton Report), para. 12.

60 Art. 24(2) covers cases of changes in the law applicable to a specific case prior to a final judgment, but does not seem to relate strictly to the simultaneous existence of two deviating definitions of a crime.

61 Arts. 40(4), 30(4)(b) VCLT.

62 Art. 40(1) VCLT.

63 Art. 124 was not negotiated in the context of the final clauses but directly by the Bureau during the last week of the Rome Conference, Slade and Clark, supra note 22, at 443. France originally sought exemption from the Court's jurisdiction over war crimes and crimes against humanity, the United States for the possibility of shielding their nationals from prosecution for these crimes. A first proposal by the five permanent members of the Security Council (P5) including an opt-out possibility for both crimes for a period of ten years, with non-states parties being able to prevent ICC action over their nationals when committed on an official mission (A/CONF.183/C.1/L.90), was eventually watered down. For details see Kaul and Kreß, supra note 19, at 155–6; Wilmshurst, supra note 11, at 137–8; van der Vyver, supra note 26, at 30.

64 O. Triffterer, ‘Introductory Remarks’, in Salzburg Retreat, supra note 3, 17, at 18; generally G. Hafner, ‘Article 120’, in Triffterer, supra note 6, margin nos. 10, 23, understanding Art. 124 as the sole admissible reservation under the Rome Statute; Amnesty International, ‘International Criminal Court: Declarations Amounting to Prohibited Reservations to the Rome Statute’ (2005), AI Index: IOR 40/032/2005.

65 La Haye, supra note 30, at 17; see also Bourgon, supra note 20, at 564, interpreting Art. 124 as a ‘stand-alone provision adopted as a compromise which affects the economy of the complete Statute’ (ibid., 565); Danilenko, supra note 15, at 453, 493; Hafner et al., supra note 23, at 118; Kaul and Kreß, supra note 19, at 171; Lattanzi, supra note 25, at 54–5; Wilmshurst, supra note 11, at 140; van der Vyver, supra note 26, at 29; A. Zimmermann, ‘Article 124’, in Triffterer, supra note 6, margin no. 7.

66 Hafner et al., supra note 23, at 119.

67 See in this regard also H. Olasolo, The Triggering Procedure of the International Criminal Court (2005), at 133; Pellet, supra note 29, at 170–1.

68 Wilmshurst, supra note 11, at 140; van der Vyver, supra note 26, at 18. See also Scheffer, supra note 26, at 19–20.

69 See e.g. van der Vyver, supra note 26, at 35; Zimmermann, supra note 65, margin no. 8; see also Scheffer, supra note 26, at 19–20, who, referring to a P5 proposal, argues in favour of a Security Council right to decide whether or not to overrule a reservation according to Art. 124.

70 See in this regard L. Condorelli and S. Villalpando, ‘Can the Security Council Extend the ICC's Jurisdiction?’, in Cassese, Gaeta, and Jones, supra note 6, 571, at 580; Bourgon, supra note 6, at 556; Bourgon, supra note 20, at 565, 568, arguing that the Security Council cannot override the opt-out mechanism, since any extension of the Court's jurisdiction would be ultra vires.

71 E.g. Nsereko, supra note 14, at 111; Palmisano, supra note 30, at 417.

72 Brown, supra note 30, at 876; Olasolo, supra note 67, at 133; Palmisano, supra note 30, at 394; Pellet, supra note 29, at 170; Zimmermann, supra note 65, margin nos. 5–6, takes note of this option.

73 Art. 124 is the only obligatory agenda idem for the first review conference.

74 Bourgon, supra note 6, at 555–6.

75 States were ready to accept Art. 124 as a compromise solution also because it was deemed unlikely that many states would invoke it. See P. Kirsch and D. Robinson, ‘Reaching Agreement at the Rome Conference’, in Cassese, Gaeta, and Jones, supra note 6, 67, at 85, n. 62. Indeed, only Colombia and France have submitted a declaration according to Art. 124 so far.

76 Bourgon, supra note 6, at 556; differently e.g. Wilmshurst, supra note 11, at 141.

77 Hafner et al., supra note 23, at 118; Scheffer, supra note 26, at 20.

78 Wedgwood, supra note 27, at 104.

79 E.g. Hafner et al., supra note 23, at 118.

80 Ibid., at 119; Brown, supra note 30, at 887; Wedgwood, supra note 27, at 104.

81 Preamble paras. 4 and 5 Rome Statute. As has been summarized, ‘[a] State has no right, under international law, to shield its nationals from criminal responsibility for serious international crimes. It is both irresponsible and counterproductive to endorse misleading legal arguments to the contrary’, Brown, supra note 30, at 890.

82 Pellet, supra note 29, at 182.

83 Ibid.

84 Ibid., at 182.

85 Report of the Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression of the Assembly of States Parties of the International Criminal Court, Liechtenstein Institute for Self Determination, Woodrow Wilson School, at Princeton University, 21–23 June 2004, ICC-ASP/3/SWGCA/INF.1 (hereinafter 2004 Princeton Report), para. 16.

86 Art. 40(1) and (5) VCLT.

87 The term ‘acceptance’ in this context does not relate to the amendment's adoption according to Art. 121(3), but to its acceptance or ratification according to domestic law.

88 J. Bertram-Nothnagel, ‘Some Thoughts about the Question if a State which Is Becoming a Party to the Rome Statute of the International Criminal Court after the Adoption of the Provision on the Crime of Aggression May Choose Not to Be Bound by that Provision’ (2005, informal paper distributed during the 2005 Princeton meeting, on file with the author), section III, option 2. It may be noted that the Statute when referring to ‘states parties’ in other circumstances may be directed at third states as well, e.g. to non-states parties which accepted the exercise of jurisdiction by the Court with respect to a situation, or states that concluded an agreement of co-operation with the ICC according to Art. 87(5).

89 R. S. Clark, ‘The Crime of Aggression and the International Criminal Court’, in J. Doria, H.-P. Gasser and M.Ch. Bassiouni (eds.), The Legal Regime of the International Criminal Court: Essays in Honor of Professor Igor Pavlovich Blishchenko (2008 forthcoming), at n. 57; Pellet, supra note 29, at 182.

90 1994 ILC Draft, supra note 7, at 147.

91 Arts. C, D, E, A/AC.249/1998/L.11, 20 December 1997.

92 Art. C(5).

93 Part 11, Arts. 91[A]–99[I] Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands (A/AC.249/1998/L.13, 1998).

94 Arts. 110(3), 111 Consolidated Draft.

95 Art. 111, option 2, para. 1, Consolidated Draft.

96 For details see Slade and Clark, supra note 22, at 432–8.

97 A/CONF.183/C.1/L.24 of 29 June 1998 (Switzerland); A/CONF.183/C.1/L.29 of 29 June 1998 (Denmark).

98 See Clark, supra note 89, text after n. 52 and n. 53. See in this context the proposal to merge draft Arts. 110 and 111 Consolidated Draft, ibid., at 165, n. 3.

99 A/CONF.183/C.1/L.61 and Corr. 1 of 11 July 1998.

100 Slade and Clark, supra note 22, at 436. This would have opened an option for the ASP to unify the amendment procedure even if a dual system was established by the Statute.

101 Art. 121(5).

102 Art. 31 VCLT; see supra sections 4.1–4.4.

103 Art. 32 VCLT.

104 Pellet, supra note 29, at 171.

105 See Progress Report by the Focal Point, Mr. Rolf Einar Fife, ICC-ASP/6/INF.3 of 4 December 2007, para 11; ICC-ASP/6/Res.2 of 14 December 2007, para. 53. Legal arguments to that effect, based on a reading of the term ‘convene’ not in the sense that the review conference should be taking place ‘seven years after the entry into force of the Statute’ but as mandating the Secretary-General to issue invitations in July 2009, or based on an incorporation of the amendment mechanism according to Art. 121 are not convincing. See in this regard Report of the Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression of the Assembly of States Parties of the International Criminal Court, Liechtenstein Institute for Self Determination, Woodrow Wilson School, at Princeton University, 11–14 June 2007, ICC-ASP/6/SWGCA/INF.1, para. 61; R. E. Fife, ‘Scenarios and Options for the Review’, in Salzburg Retreat, supra note 3, at 33.

106 Rule 49(1), Draft rules of procedure of the Review Conferences (ICC-ASP/6/20, Annex IV), provides that ‘[t]he Conference may only consider amendments to the Statute presented in accordance with Articles 121 and 122 of the Statute’. This provision is rather startling, since Art. 123 seems to exclude the application of Art. 121(1) and (2) (see also supra note 105). By incorporating Art. 121(1), the ASP has clarified that only states parties may propose amendments at a review conference according to Art. 123. While Arts. 121(1) and 122(1) clearly suggest that ‘any state party’ may propose amendments, Art. 123(1), providing that the review conference may consider ‘any amendment’, is not explicit in this regard. Undoubtedly, the Statute does not entitle non-states parties to vote (see Arts. 121(3) and 123(3)).

107 E.g. Slade and Clark, supra note 22, at 440–1; see also Art. 111, option 2, para. 1, Consolidated Draft.

108 Art. 5(2).

109 Resolution F para. 7 of the 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, A/CONF.183/10 (hereinafter Final Act); see also ICC-ASP/1/Res.1(2).

110 Slade and Clark, supra note 22, at 441; Wenaweser, supra note 3, at 20, 22.

111 2004 Princeton Report, supra note 85, para. 14; R. S. Clark, ‘Article 121’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, Observers' Notes, Article by Article (2008, forthcoming) margin no. 6.

112 2005 Princeton Report, supra note 59, paras. 6 ff.

113 Arts. 5(2), 121(3).

114 2005 Princeton Report, supra note 59, para. 14; see also R. S. Clark, ‘Possible Issues for the 2009 Review Conference’, in Salzburg Retreat, supra note 3, 23, at 24; Clark, supra note 89, text around n. 39.

115 See e.g. 2005 Princeton Report, supra note 59, para.12.

116 See also the view that Art. 121(5) was drafted with aggression in mind, considering the fact that aggression was included in the list of crimes under Art. 5 only at a very late stage of the Rome Conference, ibid., para 5. When the proposal of the non-aligned countries reintroduced aggression as a crime within the jurisdiction of the Court on 14 July 1998 (A/CONF.183/C.1/L.59 and Corr. 1), the co-ordinator for the Preamble and Final Clauses had already forwarded his final version of the text to the committee as a whole (A/CONF.183/C.1/L.61 and Corr. 1 of 11 July 1998). See Clark, supra note 89, text around nn. 50–3. For a possible compromise solution, combining the two procedures laid down in paras. 4 and 5, see 2005 Princeton Report, supra note 59, paras. 11, 13.

117 Compare e.g. Art. 3 of the Amendment to the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (1999).

118 See generally R. S. Clark, ‘The Rome Statute of the International Criminal Court and Weapons of a Nature to Cause Superfluous Injury or Unnecessary Suffering, or Which Are Inherently Indiscriminate’, in J. Carey, W. V. Dunlap, and R. J. Prichard (eds.), International Humanitarian Law: Challenges (2004), 259.

119 For the discussions at Rome, see e.g. van Hebel, supra note 17, at 114–16.

120 Clark, supra note 89, at 25; also Triffterer, supra note 17, at 26, understands aggression and the war crimes annex as distinct from any other crime possibly discussed for inclusion in the Statute.

121 Clark, supra note 89, at 25.

122 See supra text before note 17.

123 Final Act, Resolution E, para. 8. A proposal to treat terrorism and drug crimes similarly to the crime of aggression, including them in the list of crimes while postponing the Court's exercise of jurisdiction, did not find much support, van Hebel, supra note 17, at 86. For the current academic discussion see e.g. P. Robinson, ‘The Missing Crimes’, in Cassese, Gaeta, and Jones, supra note 6, 497.

124 See in this regard e.g. Wenaweser, supra note 3, at 23.

125 Scheffer, D., ‘The Future US Relationship with the International Criminal Court’, (2005) 17 Pace International Law Review 161, at 175Google Scholar.

126 See Clark, supra note 89, at 24, summing up the current discussion. According to the systematic of the Statute, the latter act would probably be added in Part 3 of the Statute and therefore again not fall within the scope of Art. 121(5); see e.g. Art. 25(3)(e).

127 Fife, supra note 105, at 35.

128 See e.g. Wenaweser, supra note 3, at 23.

129 Progress Report, supra note 105, para 27.

130 Ibid., paras. 28 ff.

131 Arts. 123(1), 121(1); see supra note 106.