Ambiguities in articles 5(2), 121 and 123 of the Rome Statute.

• Author: Clark, Roger S.

There is a fundamental ambiguity in the Rome Statute's requirements dealing with entry into force of the provision on aggression that is necessary for the Court to exercise jurisdiction over the crime of aggression. On one interpretation of Article 121, the provision (or provisions) will apply to all States Parties once seven-eighths of them have accepted the provision. One another interpretation, the provisions will apply only to those States (no matter how few) that specifically agree to it. The author examines the relevant language of the Statute, the less-than-conclusive preparatory work, and the political considerations that might lead to some kind of compromise or "fix" in time for the Review Conference in 2010.

1. INTRODUCTION

   In Article 5(1) of the Rome Statute of the International Criminal Court (Rome Statute), "[t]he crime of aggression" is listed as one of the four "[c]rimes within the jurisdiction of the Court." (1) Article 5(2) of the Rome Statute provides, however, that:

   [t]he 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 the crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations. (2) Resolution F of the Final Act of the Rome Conference instructed the Preparatory Commission for the Court (PrepCom) to "prepare proposals for a provision on aggression, including the definition and Elements of Crimes of aggression and conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this crime." (3) These proposals, for a "definition" and "conditions," were to be submitted "to the Assembly of States Parties at a Review Conference, with a view to arriving at an acceptable provision on the crime of aggression for inclusion in the Rome Statute." (4) The PrepCom was not successful in finalizing the proposals before it expired in 2002 and the Special Working Group on the Crime of Aggression (Special Working Group), open to all States, is carrying forward that work.

2. THE PROBLEM: HOW IS THE "PROVISION" ON AGGRESSION TO BE BROUGHT INTO EFFECT?

   Exactly how Articles 121 and 123 of the Rome Statute play out with respect to aggression is a fundamental issue of interpretation that was not addressed during the PrepCom but which received some attention at the 2004 and 2005 informal inter-sessional meetings of the Special Working Group (5) and was discussed again at a formal meeting of the group in 2008. (6) It is not clear from the language of the Rome Statute what procedure has to be followed in order for the Court to exercise its jurisdiction over the crime of aggression. Article 5(2) speaks of a "provision" on aggression to be "adopted in accordance with Articles 121 and 123." (7) Article 121 relates to "Amendments" (8) and Article 123, headed "Review of the Statute," contemplates Review Conferences which are to "consider any amendments to this Statute." (9) In essence these two have the same effect; the relevant provisions of Article 121 are incorporated by reference in Article 123. Those provisions of Article 121 assert:

   3. The 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.

   4. Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after the instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them.

   5. Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals or on its territory. (10)

   Some general interpretative questions leap off the page. What is the effect of the phrase "in accordance with" as used in Article 5(2)? (11) Does it mean that all of Article 121 applies in the same manner as it would if aggression were being added as an "amendment" to the Statute? Note that Article 5(2) does not use the noun "amendment;" it uses the verb "adopted." (12) What is meant by "is adopted?" Given the reference to Articles 121 and 123, the provision on aggression must be an "amendment" in some respects. However, is it an "amendment" to Article 5? "Amendment" normally implies that something is being changed or altered. One could contend strongly that it is not necessary to change the wording or effect of Article 5 in order to fulfil the expectations of the drafters. Article 5(2), on this argument, provides a way forward and explains when jurisdiction can be exercised, namely "once a provision is adopted." (13) It is arguably an example of a facilitative or enabling provision which is a condition to be met, rather than an obstacle that needs to be changed. Does it need to be "applied" rather than "amended?" Is the provision on aggression a "completion" of, rather than an amendment to, Article 5? Is it filling an anticipated gap rather than changing something in the Statute?

   The best argument on the other side, I think, is that Article 5(2) contains a state of affairs that has to be changed: an inability to exercise jurisdiction. Article 5, on this argument, needs to be amended to remove the inability.

   I believe that the more natural interpretation of the paragraph is the "enabling" one. Adding new crimes likes drugs or terrorism to Article 5(1) is subject to Article 121(5); completing the negotiation on Article 5(2) is subject to Article 121(4).

   It will be noted that in the various drafts that have appeared from the Special Working Group, there is nothing that alters any wording in Article 5. The only language produced that is clearly an amendment to a particular existing article is the leadership language designed to amend Article 25(3) of the Statute. (14) Other proposals on the table (8 bis, (15) and 15 bis (16)) obviously amend the Statute by adding new material to it, but are they functionally amendments to Article 5? (17) Can it be argued that there is a distinction between a formal alteration of Article 5 (by adding or deleting text) and a functional one (affecting it in some way but by text included elsewhere in the Statute)?

   There are (at least) three (18) possible interpretations of Article 121 (and thus of Article 123) as applied to Article 5(2). Which interpretation is the most plausible was vigorously debated in the Special working Groups in 2005 and 2008 but not resolved.

   The first interpretation is simply that, once the Assembly of States Parties has agreed upon the relevant language, it is binding on all parties. Bear in mind Article 5(2)'s words "is adopted." Article 121 (3) provides that "The 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." (19) It is apparent that the word "adoption" is used in Article 121(3), at least in part, as it is typically in modern treaty practice: to speak of agreement on a text, which is then sent to capitals for nations to decide whether to ratify. But how does that apply when read in context with Article 5(2)? That provision says nothing about ratification or acceptance; it, like Article 121(3), merely refers to adoption. Could it be, then, that "adoption" means the same thing in both Article 5(2) and Article 121 (3)--acceptance by the Assembly of States Parties? Could "adoption" in this way be all that is required? It is notable also that the drafters of the Statute contemplated that some amendments could become applicable to all parties merely upon adoption by the Assembly or a Review Conference. Article 122 (20) deals with certain "Amendments to provisions of an institutional nature." (21) Such amendments come into force thus:

   Amendments under this article on which consensus cannot be reached shall be adopted by the Assembly of States Parties or by a Review Conference, by a two-thirds majority of States Parties. Such amendments shall enter into force for all States Parties six months after their adoption by the Assembly or, as the case may be, by the Conference. (22) Could it be that this provided the model for Article 5(2)? The last sentence, clarifying the result and the timeframe, was perhaps forgotten in the excitement of the final days of the Rome Conference. Nothing more than agreement in the Assembly or a Review Conference is required for "amendments" under Article 122(2). Literally, this may be all that is required under Article 121. Defining aggression is certainly more politically significant than making the "institutional" or "technical" changes with which Article 122 (23) deals, but nevertheless, as in the case of those changes, the question is making the Court's jurisdiction functional. On the other hand, are we to conclude that the drafters of Article 5(2) were using the word "adoption" in the present context to include something...