As of Monday, a window of historic alternative will likely be open for States Events to the Rome Statute of the Worldwide Prison Courtroom (ICC Statute) for 3 days to offer the Courtroom with a more practical and extra legit authorized framework for the train of jurisdiction over the crime of aggression. The next blogpost units out why the brief and concise modification proposal, which States Events will discover prepared for adoption once they convene for a Particular Session of their Meeting, is sound as a matter of regulation and eminently wise as a matter of authorized coverage and that there isn’t a good argument in assist of the final minute-attempt by some States Events to defer the badly wanted reform to an unsure second sooner or later.
1. The Harmonization Amendments and its Proposed Entry Into Pressure
On 7 April 2025, the Secretary-Basic of the United Nations, performing in his capability as depositary of the ICC Statute, circulated amendments to Article 15bis of the Statute proposed by Costa Rica, Germany, Sierra Leone, Slovenia, and Vanuatu that are primarily based on preparatory work of a bigger cross-regional group of States.
The proposed amendments goal at harmonizing the Worldwide Prison Courtroom’s (ICC/the Courtroom) train of jurisdiction over the crime of aggression with the Statute’s default jurisdictional regime that applies to genocide, crimes towards humanity and warfare crimes. Most importantly, they might take away the exceptions in Article 15bis (4) and (5) that severely curtail the prosecution of the crime of aggression following a State celebration referral or a proprio motu investigation, which States launched as a part of the consensus adoption of the Kampala amendments on the crime of aggression on the First Assessment Convention of the Rome Statute in 2010.
15 years and a number of other acts of aggression later, it has change into plain for all to see that the distinctive restrictions on the ICC’s jurisdiction over the crime of aggression represent a double customary that’s detrimental to the worldwide justice undertaking and that undermines the legitimacy of the ICC (see e.g. Kress, Grzebyk, Nsereko, GIPA). The proposed harmonization amendments handle these shortcomings by deleting the present textual content of Article 15bis (4) and (5) and by introducing language that mirrors Article 12 (2) and (3). As a consequence, the Courtroom’s default jurisdictional regime would apply to the crime of aggression (for particulars see MacDougall, Reisinger Coracini, Trahan). It is very important observe that the proposed amendments goal exactly these provisions that created the hole within the Courtroom’s jurisdictional attain. They don’t query the precious procedural ensures in Article 15bis (6)-(9).
The proposed amendments have been submitted on the idea of Article 121 (1), which permits any State Celebration to suggest amendments to the ICC Statute after the expiry of seven years from its entry into power. Extra importantly, the proposal has been submitted within the context of the necessary overview of the aggression amendments seven years after the start of the Courtroom’s train of jurisdiction, as mandated by States Events in Kampala (RC/Res.6, para. 4). Whereas a ‘overview’ doesn’t essentially require the adoption of harmonization amendments, such amendments fall squarely inside the Meeting’s mandate. The proposed amendments have been circulated three months earlier than the start of the overview of the Kampala amendments on the Particular Session of the Meeting of States Events to be held from 7-9 July 2025 in New York (ICC-ASP/23/Res.1, para. 16(b)) and due to this fact fulfil the procedural precondition set out in Article 121 (2) of the ICC Statute, permitting States Events to determine whether or not to take up the proposal on the Particular Session.
The proposed amendments cope with the substantive points of harmonizing the Courtroom’s train of jurisdiction. They neither handle the connection of the harmonization amendments with the Kampala amendments, nor the entry into power mechanism. These points are addressed in a ‘Draft Decision on the Crime of Aggression, Article 15bis Rome Statute’, submitted by a gaggle of states on 5 June 2025. The latter stipulates that the amendments, as soon as adopted by consensus or by a majority of two/3rds of States Events (Article 121 (3) ICC Statute), shall enter into power for these States Events which have accepted them one 12 months after the deposit of their devices of ratification or acceptance (draft Decision OP 1). It’s thus primarily based on the entry into power mechanism of Article 121 (5) first sentence.
This submit units out to clarify why this strategy is sound as a matter of regulation and compelling as a matter of coverage (see infra 2 to 4). Following this, the textual content explains how the activation of Article 12 (3), as envisaged by the harmonization proposal would function (infra 5) and the way the harmonization modification, if adopted, would interrelate with the Kampala amendments (infra 6). In conclusion, we enchantment to States Events to the ICC Statute to not let cross earlier than them the historic alternative to make the Courtroom’s jurisdictional regime more practical and extra legit by adopting the harmonization proposal subsequent week in New York.
2. The ICC Statute’s Authorized Framework for the Entry into Pressure of Amendments and the Peculiar Problem of Making use of this Framework within the Case of the Crime of Aggression
Leaving apart Article 122, which is relevant to a number of provisions of an institutional nature, the ICC Statute comprises two entry into power mechanisms for amendments: Article 121 (5) first sentence offers for a subjective entry into power mechanism. Amendments to Articles 5, 6, 7, and eight enter into power just for these States Events that settle for them, one 12 months after the deposit of their instrument of acceptance. The supply doesn’t set up any quantitative threshold for the entry into power of an modification. It’s accompanied by a second sentence which formulates circumstances for the train of the Courtroom’s jurisdiction over ‘amended crimes’.
With a view to all different articles, Article 121 (4) foresees an goal entry into power mechanism. As soon as 7/8ths of States Events have accepted the amendments, they enter into power for all States Events. On the similar time, the Statute affords States Events that haven’t accepted the amendments the chance to withdraw from the Statute with quick impact (Article 121 (6)). A majority of seven/8ths would at the moment equate to 109 states. However it needs to be saved in thoughts that the precise variety of required States is a transferring goal because it depends upon the variety of States Events on the related time.
The appliance of this authorized framework to the crime of aggression presents a peculiar problem: The crime of aggression discovered its approach into the ICC Statute solely in the midst of the ultimate hours of the Rome diplomatic convention, and States Events determined to accord to this crime a definite place. Whereas Article 5(1)(d) of the ICC Statute as adopted in 1998 included the crime into the ICC’s jurisdiction from the outset, Article 5(2) stipulated that the Courtroom’s train of jurisdiction over the crime was suspended pending each its definition and the setting of the circumstances for the train of jurisdiction over it. This political compromise has led to an inextricable connection between the formulation of the definition of the crime and the circumstances for the train of jurisdiction over it. The ICC’s modification provisions have been thus negotiated and finalised with out having in thoughts the distinct compromise concerning the crime of aggression together with, specifically, the inextricable connection between substance and process. This explains why not one of the choices for the entry into power in Article 121 of the ICC Statute present a neat match for an modification fulfilling the mandate given to States Events in Article 5 (2) to outline the crime of aggression and to set out the circumstances for the Courtroom’s train of jurisdiction over that crime.
Extra particularly, Article 5 (2) stipulates that such a provision shall be adopted in accordance with Article 121 and thus immediately hyperlinks to paragraph 3 of Article 121, which requires consensus or the affirmative vote of two/3rds of States Events for the adoption of an modification. Article 5 (2) doesn’t say something additional as regards the entry into power. An interpretation of Article 5 (2) along with Article 121 additionally remained inconclusive: On the one hand, the availability on aggression didn’t require an modification to Articles 5, 6, 7, or 8, which pointed in the direction of entry into power in accordance with Article 121 (4). Then again, the definition of the crime of aggression, which was a necessary a part of the modification provision, involved the Courtroom’s subject material jurisdiction and thus bore way more resemblance to the scope of software of the entry into power mechanism within the first sentence of Article 121 (5) than with that in Article 121 (4).
On this state of affairs, States thought of the opportunity of making use of the primary sentence of Article 121 (5) to the definition of the crime of aggression and Article 121 (4) to the procedural a part of the Kampala amendments. This concept, nonetheless, was shortly deserted for its apparent impracticability: it will have meant that even when elements of the aggression amendments had entered into power for accepting States Events beneath the primary sentence of Article 121 (5), the related procedural amendments would have wanted to await acceptance by 7/8ths of the States Events pursuant to Article 121(4). To keep away from such an odd end result, States Events shortly agreed that every one amendments referring to the crime of aggression, which kind the ‘provision on the crime of aggression’ as mandated in Article 5 (2), ought to enter into power beneath the identical process (ICC-ASP/6/20/Add.1, paras. 6 et seq.; ICC-ASP/7/20/Add.1, paras. 6 et seq.).
All this meant that States Events have been required to choose, and the selection they made in Kampala was to proceed consistent with the primary sentence of Article 121 (5).
3. A Legally Sound and Eminently Smart Proposal: Staying with the First Sentence of Article 121 (5)
The draft Decision’s proposal to proceed consistent with the primary sentence of Article 121 (5) follows exactly this Kampala consensus. For the explanations that observe, this proposal is as legally sound as it’s the top approach ahead.
The proposed harmonization of the ICC’s jurisdiction raises comparable modification points as States Events confronted in Kampala, because the substantive and procedural parts of the aggression amendments stay inextricably intertwined.
That is notably true for non-Kampala States: it’s inconceivable they might settle for the harmonization amendments with out concurrently accepting the Kampala amendments. In any other case, a State could be sure solely by a fraction of the aggression amendments, that’s by the modification of a provision that it continues to not be sure by. Most significantly, non-acceptance of the definition of the crime of aggression in Article 8bis would preclude the ICC from exercising its jurisdiction over a criminal offense of aggression dedicated towards that State (by a non-Kampala State Celebration or a non-State Celebration) as a result of a failure to determine a jurisdictional hyperlink beneath Article 12 (2) as mirrored within the proposed modification of Article 15bis (4).
There may be thus no compelling authorized purpose for States Events now to vary route with respect to their alternative of the entry into power mechanism. Very a lot on the contrary: The consensus determination of Kampala to use the entry into power mechanism within the first sentence of Article 121 (5) to the Kampala amendments of their entirety is greatest understood for instance of subsequent apply by States Events to the ICC Statute inside the which means of Article 31 (3) (b) of the Vienna Conference on the Legislation of Treaties (VCLT) embodying an settlement as to the entry into power of amendments referring to the availability on aggression.
Moreover, it’s a well-established authorized precept that an preliminary act and any eventual act of revocation or modification have to be handed upon the identical authorized authority. The actus contrarius precept thus additionally serves as a justification to use the identical process that was beforehand used to introduce a provision to amend the availability in query. In different phrases, the harmonization amendments ought to enter into power beneath the identical mechanism because the Kampala amendments.
Continuing consistent with the primary sentence of Article 121 (5) can also be eminently wise from a coverage standpoint: The target entry into power mechanism in Article 121 (4) requires a really excessive threshold to be handed. The harmonization amendments would solely enter into power as soon as 7/8ths of States Events have ratified them. The benefit of this process could be the uniform software of the harmonized jurisdictional regime for all States Events. However the very severe drawback lies within the prolonged time period that might be required to achieve the 7/8ths threshold. States Events that want to avail themselves of the authorized safety towards crimes of aggression couldn’t obtain this end result on their very own. Within the worst, and on no account unrealistic situation, the harmonization amendments may by no means enter into power and therefore would stay a purely symbolic act.
Continuing consistent with the primary sentence of Article 121 (5) means avoiding this very severe drawback: it will enable for a gradual growth of the Courtroom’s jurisdictional attain. By ratifying the harmonization amendments, States might avail themselves of the authorized safety of the Courtroom’s jurisdiction towards a doable crime of aggression sooner or later.
Some have spoken of a danger of ‘fragmentation’ on this context. The very actual and detrimental fragmentation, nonetheless, consists of the fragmentation that at the moment exists inside the ICC Statute, which leaves the Courtroom no alternative, however to use the crimes beneath its jurisdiction selectively with a marginal place being accorded to the crime of aggression.
4. The Have to Distinguish Between Entry into Pressure and Situations for the Train of Jurisdiction – and Therefore Between the First and the Second Sentence of Article 121(5)
It’s typically stated that continuing consistent with the primary sentence of Article 121 (5) would entail the necessity to additionally apply the second sentence of Article 121 (5). This argument, nonetheless, ignores the truth that these two sentences are sharply distinct as regards their subject material: whereas the primary sentence offers for an entry into power mechanism, the second sentence offers with the circumstances for the train of the Courtroom’s jurisdiction. On the Kampala Assessment Convention, States Events determined by consensus that the Kampala amendments ought to enter into power in accordance with the primary sentence of Article 121 (5). On the similar time, the Kampala amendments replicate the understanding that the mandate of Article 5 (2) allowed States Events to not apply the second sentence of Article 121 (5) to the crime of aggression, however to set the circumstances for the crime of aggression independently of the latter provision.
The choice made by States Events in Kampala was legally sound not solely due to the specific wording of Article 5 (2), but in addition in view of the truth that the crime of aggression was not a ‘new’ crime however one which was beneath the Courtroom’s jurisdiction from the outset, in order that the motivation that underlies the stringent hurdles for the train of jurisdiction formulated within the second sentence of Article 121 (5) doesn’t apply within the case of the crime of aggression. What was true in 2010 in Kampala stays legitimate for the 2025 overview of the Kampala amendments.
A correct understanding of the sharp distinction between the subject material of the 2 sentences of Article 121 (5) additionally clears the way in which for a correct understanding of how these sentences do and don’t relate to worldwide treaty regulation. The primary sentence is a direct reflection of a fundamental rule of worldwide treaty regulation, extra particularly the res inter alios acta rule, in keeping with which a treaty, save for very restricted exceptions, creates obligations and rights just for its events.
In accordance with this fundamental precept, the primary sentence of Article 121 (5) determines ratification or acceptance as the suitable ‘technique of expressing consent to be sure’ (Article 11 of the VCLT) by an modification to Articles 5, 6, 7, and eight of the ICC Statute and ensures that ‘the amending settlement doesn’t bind a State celebration that doesn’t change into a celebration to the amending settlement’ (Article 40 (4) of the VCLT). The second sentence of Article 121 (5) is worried with one thing utterly completely different: it stipulates the circumstances beneath which the ICC could train its jurisdiction over crimes dedicated on a sure territory or by sure nationals. The supply thus doesn’t create obligations for States and, specifically, it doesn’t create obligations for States that don’t settle for the modification in compliance with Article 34 of the VCLT. As a substitute, it’s addressed on the ICC and immediately impacts people who thereby change into uncovered to the train of the Courtroom’s jurisdiction. Any try to learn the second sentence as a obligatory corollary of the treaty regulation precept of res inter alios acta rule is due to this fact misconceived.
5. Advert Hoc Acceptance of the Courtroom’s Jurisdiction Over the Crime of Aggression
The proposed harmonization amendments goal at eradicating the jurisdictional restrictions launched into the ICC Statute by the Kampala amendments. These restrictions embrace the inapplicability of Article 12 (3) which, inter alia, allows the Courtroom to train its jurisdiction over conduct dedicated on the territory of or by nationals of a non-State Celebration the place that State has consented to such an train of jurisdiction by advantage of a declaration submitted advert hoc with respect to the state of affairs involved. The modification proposal for a brand new Article 15bis (5) thus explicitly offers that Article 12 (3) would additionally apply to crimes of aggression and therefore to all 4 crimes inside the Courtroom’s jurisdiction equally.
The proposed modification of Article 15bis (5) would additionally enable States Events that haven’t accepted the Kampala amendments to simply accept the Courtroom’s jurisdiction over the crime of aggression on an advert hoc foundation in accordance with Article 12 (3). This doesn’t represent an modification of Article 12 (3). It simply makes Article 12 (3) relevant in conformity with its textual content and spirit. For non-Kampala States Events possess the standing of a non-State Celebration so far as the Kampala amendments are involved. To proceed in any other case would lead to an absurdity, as it will withhold to a State Celebration to the ICC Statute the facility flowing from Article 12 (3) as regards the crime of aggression whereas giving the identical energy to a State which isn’t celebration to the Statute.
If the harmonization proposal enters into power consistent with the primary sentence of Article 121 (5), the brand new Article 15bis (5) will likely be activated one 12 months after the ratification of the harmonization amendments by one State Celebration. The identical logic led drafters of the Kampala amendments to the conclusion that one ratification would suffice to activate Article 15ter and permit the Courtroom to train its jurisdiction over the crime of aggression within the case of a UN Safety Council referral to the Courtroom of the related state of affairs (ICC-ASP/7/20/Add.1, paras.28 et seq and Appendix II).
The Kampala compromise launched temporal circumstances for the train of jurisdiction over the crime of aggression for all set off mechanisms. Widespread paragraphs 1 and a couple of of Articles 15bis and 15ter finally each included a minimal threshold of 30 ratifications and a requirement that the Meeting of States Events make an extra determination to activate the ICC’s jurisdiction over the crime of aggression (see ICC-ASP/16/Res.5). It is necessary, nonetheless, to emphasize that these temporal circumstances weren’t required by the ICC Statute and didn’t represent an modification to Article 121 (5), however that they constituted additional circumstances for the train of the Courtroom’s jurisdiction that States Events thought of themselves licensed to set in fulfilling their mandate beneath Article 5 (2) of the 1998 ICC Statute, and have been the result of a political compromise.
Up to now, advert hoc acceptances of the Courtroom’s jurisdiction have primarily been used as a instrument to increase the Courtroom’s temporal jurisdiction again in time (for an incomplete file, see right here). This conforms to the prevailing interpretation of Article 12 (3) along with Article 11 (2). Beneath this interpretation, a State that turns into a celebration after the entry into power of the Statute on 1 July 2002 can allow the Courtroom to train temporal jurisdiction over crimes dedicated earlier than the entry into power of the Statute for that State consistent with the retrospective impact specified by the State involved in a declaration submitted beneath Article 12 (3).
Within the context of the harmonization proposal, the query has arisen as whether or not the advert hoc acceptance of the Courtroom’s jurisdiction over the crime of aggression as envisaged within the proposed Article 15bis (5) would come with the opportunity of increasing the Courtroom’s temporal jurisdiction to a time earlier than the entry into power of the harmonization amendments. Such a temporal extension is at the moment neither explicitly offered by the proposed harmonization amendments nor by the draft Decision. A powerful argument has been made that the prohibition of retroactivity contained within the Statute precludes the opportunity of a State offering the Courtroom with the facility to use the brand new paragraphs 4 and 5 of Article 15bis retroactively to conduct that has taken place earlier than their entry into power (MacDougall). However to make a purely potential software of the harmonization amendments legally watertight, States might add a paragraph within the draft decision to this finish.
6. The Interrelation Between the Harmonization Amendments and the Unamended Kampala Amendments
Kampala States that want to be sure by the harmonization amendments merely must ratify or in any other case settle for them.
This is able to not, nonetheless, be enough for States Events that haven’t but accepted the Kampala amendments or for States that aren’t but events to the Statute. That is so as a result of the harmonization amendments exchange however one aspect of the Kampala amendments and wouldn’t be operable with out the rest of them. For instance, neither non-Kampala States Events nor States not celebration to the Statute would change into sure, by the definition of the crime of aggression in Article 8bis contained within the Kampala amendments by advantage of an acceptance to be sure by the harmonization amendments. In view of this inextricable linkage between the harmonization amendments and the Kampala amendments, the draft Decision means that the harmonization amendments and the Kampala amendments kind an inseparable package deal.
In view of this, the draft Decision proposes in its OP 3 that non-Kampala States Events can’t settle for both the harmonization amendments or the Kampala amendments with out the opposite. There isn’t a authorized obstacle for States Events to set such a situation within the enabling Decision. To simply accept the harmonization amendments and the Kampala amendments as a package deal can also be within the curiosity of non-Kampala States Events. For less than by continuing in that approach, will these States safe full authorized safety in case of a criminal offense of aggression dedicated towards them by a State that has not accepted the aggression amendments.
The state of affairs is completely different with respect to States not celebration to the ICC Statute. 4 completely different prospects require consideration in case of the adoption of the harmonization amendments. The next two of them don’t require any additional clarification: Clearly, future States Events might adhere to the Statute, as amended by the Kampala amendments and the harmonization amendments. Per present apply, such States would additionally stay able to stick to the Statute with out accepting any aggression modification.
It has, nonetheless, been questioned whether or not States Events can forestall future States Events from accepting solely the Kampala amendments. Article 40 (5) (a) of the VCLT offers that “[a]ny State which turns into a celebration to the treaty after the entry into power of the amending settlement shall, failing an expression of a special intention by that State: be thought of as a celebration to the treaty as amended”. In different phrases, the availability favours the belief {that a} State would change into a celebration to the amended treaty, however a State could declare its intention to change into a celebration to the treaty in its unamended kind. This provision is, nonetheless, a default one; a treaty could present in any other case (Article 40 (1) VCLT) and require a State that needs to stick to a treaty to change into sure by the treaty solely in its amended kind. The ICC Statute is silent on the matter, and former apply concerning amendments coming into into power beneath Article 121 (5) leaves aspiring States Events the choice to simply accept the ICC Statute in its unamended or one in all its amended variations. This apply, in addition to the underlying modification regime of Article 121 (5) itself, have led to an unlucky fragmentation of the Courtroom’s jurisdictional framework.
Because of this, it will be fascinating that States not celebration to the Statute settle for the Kampala amendments and the harmonization amendments as a package deal in the identical method as OP 3 mandates in case of non-Kampala States Events. It’s troublesome to see why States Events, being the masters of their treaty, needs to be legally prevented from posing a situation to that impact of their enabling decision. However in gentle of their earlier apply, States Events appear reluctant to proceed in that approach. The draft decision, due to this fact, comprises not more than an encouragement to take action. This mere encouragement mustn’t give rise to worries, as it’s onerous to see why a State not celebration needs to be fascinated by adhering to the Statute with the Kampala amendments, however with out the harmonization amendments, as a result of solely collectively the State involved would safe full authorized safety towards a criminal offense of aggression dedicated towards it.
The fourth and final chance for a State not celebration to the Statute could be to stick to the Statute with the harmonization amendments, however with out the Kampala amendments. Clearly, such an strategy wouldn’t be wise as a result of the adhering State wouldn’t hereby change into sure by the definition of the crime of aggression in Article 8bis and would due to this fact not present the Courtroom with a jurisdictional hyperlink beneath Article 12(2). Once more, the State involved wouldn’t take pleasure in full authorized safety towards a criminal offense of aggression dedicated towards it. There could be no authorized obstacle for States Events to incorporate within the enabling Decision a provision to the impact that States not celebration to the Statute can adhere to the Statute with the harmonization amendments solely along with the Kampala amendments. On the Particular Session, States Events may want to contemplate the inclusion of such a provision into the draft decision.
7. No Time to Delay – An Attraction to States Events
The foregoing explanations have proven the next: The proposals for a harmonization modification and its entry into power are sound as a matter of regulation and eminently wise as a matter of authorized coverage. Whereas some finetuning of sure parts of the proposed enabling Decision definitely stays doable, the proposed reform for a extra sturdy and extra legit jurisdictional regime within the ICC Statute for the crime of aggression is prepared for adoption.
Nonetheless, on 27 June 2025, Canada, France, Japan, New Zealand and the UK have submitted the proposal to defer such a call. The central argument is that the Kampala amendments have been accepted ‘solely’ by 48 States Events up to now and that it will thus be preferable first to attend and see whether or not extra States Events are keen to stick to the Kampala amendments. This argument, nonetheless, is flawed: it ignores the truth that many States Events have withheld their acceptance of the Kampala amendments exactly as a result of they contemplate them ineffective and unprincipled. As South Africa’s Kampala delegate André Stemmet astutely predicted: ‘The most important weak point is, in fact, that Non-State Events (…) will have the ability to commit aggression with a way of impunity, and this reflection of realpolitik could lead to a really gradual strategy of ratification and acceptance.’
One different argument that was made in assist of ‘postponement’ factors to the troublesome state of affairs through which the Courtroom presently finds itself and to due to this fact abstain from adopting the reform proposal now. Additionally this argument fails to persuade: Whereas the outline of the current state of affairs of the Courtroom is definitely true, aside from its being an understatement, the conclusion to attract from the intense threats the Courtroom is at the moment going through shouldn’t be to overlook a historic alternative to strengthen the Courtroom and to eradicate a double customary that’s haunting it. The proper approach ahead for States Events on this difficult state of affairs is exactly the alternative: to remain calm and resolve to make the Courtroom’s authorized framework more practical and legit with regard to the crime of aggression – not in an unsure future, however now.
