Déjà vu All over Again

On the Intlawgrrls blog, Beth van Schaack writes about a debate concerning the aggression amendment package to the Rome Statute of the International Criminal Court at the Review Conference in Kampala last year. Beth was an academic member of the United States delegation at the Conference.

The issue concerns the possible jurisdiction of the Court over States Parties to the Rome Statute that do not ratify the amendments. One reading of the amendments suggests that they enter into force with respect to all States Parties once thirty ratifications have been obtained and the resolution of the Assembly of States Parties is adopted. A State Party that does not want to accept the jurisdiction of the Court to prosecute aggression may make a declaration by which it opts out of the regime. Readers are referred to the text of article 15bis. Another reading of the amendments suggests that they only enter into force with respect to States that have ratified the amendments. This is the reading that Beth appears to favour.

Beth says that this debate ‘threatens the very legality of the amendment package. It is important to gain precision on this point so that the world’s legislative bodies can make informed policy choices about the propriety of ratification.’

There is no doubt that this is an interesting debate about interpretation of the amendments, which inevitably have their ambiguities. But it is hyperbole to claim that the problem ‘threatens the very legality of the amendment package’.

Most laws have ambiguities. The United States constitution has ambiguities. That helps explain why there are so many decisions that are 5-4 or 6-3, and why from time to time the Court reverses its precedents.

The Rome Statute, too, is not without many ambiguities. These are being clarified over time by the case law of the Court. Some ambiguities may never be resolved, because real disputes will simply not arise and clarification will therefore not be required.

What exactly is the serious threat raised by the ambiguity about the application of the amendments to States Parties that do not formally ratify them?

Most of them will never be concerned by this issue because most States never commit aggression. They don't even come close. Their only concern is being protected from aggressors.

For example, although Ireland has an army, its soldiers never leave the country unless they are wearing a blue helmet and they have a Security Council resolution in their pocket. They aren’t worried about being prosecuted for aggression.

There are a few States Parties with big armies who like to use them in various parts of the world. If they don’t ratify the amendments and want to make sure they are not subject to the Court’s jurisdiction, then there is a very simple solution: they can make the declaration that is provided for in article 15bis.

The idea that there are States Parties who are not inclined to ratify the amendments but who are concerned about the jurisdiction of the Court being exercised over them and who are either unwilling or unable to make a simple declaration sounds like a moot court problem rather than something that could happen in the real world.

This sort of talk reminds me of the attacks on the Rome Statute that emanated from the United States in the years following its adoption. Creative academics and lawyers in the State Department concocted arcane scenarios and interpretations of provisions of the Statute in an effort to show it was fatally flawed in some respect. This generated a certain amount of ephemeral hysteria in some circles. But the Statute did enter into force, problems were solved, provisions were tweaked in the Rules of Procedure and Evidence, and the Court operates.

That is what will happen with the crime of aggression too. At the last Assembly of States Parties, several delegations indicated their intention to ratify the amendments in the near future. Others have said the same in different contexts. Getting to the required thirty ratifications by 2017 should not be a problem at all.

It is unfortunate that the big NGOs and the Coalition for an International Criminal Court are not engaged in encouraging this process. But all they are proving is that the process goes on without them. Perhaps we will come to reassess the significance of the legendary NGO contribution to the Rome Statute when we see that this essentially State-driven process goes on whether or not they are involved.