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Roger S. Clark[*]
Article 123 of the Rome Statute of the International Criminal Court (the Statute) calls for the convening of a Review Conference ‘to consider any amendments to’ the Statute seven years after the entry into force of the Statute.[1] The Statute came into force on 1 July 2002, so the first Review Conference will take place in late 2009 or early 2010 (depending on its scheduling in the international calendar). No doubt States parties to the Statute will use the meeting as an opportunity to take stock of the Court’s performance and reaffirm their commitment to it. They may also wish to examine matters of major importance to the Court, such as issues of State cooperation with the Court and national implementation of the Statute. But the major focus of the review, as the Statute says, is ‘any amendments’.
This essay is the result of examining the Rome Statute, the Final Act of the Rome Conference, and all the literature I could find that mentions issues that might be considered as amendments at the first Review Conference or at subsequent reviews. I say a little about each of the issues that I have located, bearing in mind that this first review is not likely to entail a wholesale re-writing of the Statute. Only a few of them will probably be considered at the Review Conference, since only proposals that have a reasonable chance of achieving support by consensus are likely to be considered fully. But in the interests of transparency it is important at this stage to lay out the possibilities that have found their way into print. Reasonable people may differ about the plausibility of some of them.
Needless to say, I doubt that I have found everything that there is, but I hope my readership will help me to fill in the gaps. Some conversations have begun in anticipation of the Review. At its Third and Fourth Sessions in The Hague in 2004 and 2005, the Assembly of States Parties (ASP) of the Court appointed Mr Rolf Fife, Director-General of the Legal Department of the Royal Norwegian Ministry of Foreign Affairs, as the Focal Point for review of the Statute (although I could not find this on the Court’s web-site). An early exploration of the issues took place on 25-27 May 2006 at an informal Retreat organized in Salzburg by the Salzburg Law School on International Criminal Law and the Austrian Federal Ministry for Foreign Affairs.[2]
It is worth recalling the text of the apposite articles of the Statute. Article 123 governs the convening of Review Conferences and the adoption and entry into force of amendments ‘considered’ at such a Conference:
1. Seven years after the entry into force of this Statute the Secretary-General of the United Nations shall convene a Review Conference to consider any amendments to this Statute. Such review may include, but is not limited to, the list of crimes contained in article 5.
2. At any time thereafter, at the request of a State Party and for the purposes set out in paragraph 1, the Secretary-General of the United Nations shall, upon approval by a majority of States Parties, convene a Review Conference.
3. The provisions of article 121, paragraphs 3 to 7, shall apply to the adoption and entry into force of any amendment to the Statute considered at a Review Conference.
Thus, the provisions on Review Conferences dovetail with those on amendments contained in article 121 of the Statute.[3] Paragraph 1 of article 123 relates to the first Review Conference that must be scheduled seven years after the entry into force of the Statute. It can consider ‘any amendments’ which may include the list of crimes in article 5.[4] Subsequent Review Conferences will occur only through specific approval by the ASP under paragraph 2. There is no guarantee that any will occur, although amendments can take place without them, under the auspices of the ASP. Amendments adopted at the ASP and Review Conferences are governed, pursuant to paragraph 3 of article 123, by article 121, paragraphs 3-7, which provide:
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 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.
There seem to be three categories of potential subjects at the first Review Conference:
• A small set of possibilities concerning the crimes within the jurisdiction of the Court and which are either mentioned in the Final Act of the Rome Conference or are implicit in the Statute;
• Article 124 of the Statute; and
• Other matters that are entirely at large, but which I have found referred to in various items of literature.
In what follows, I offer some remarks on each of the three categories. I should add that I have not found any references in debates or literature to any specific ‘amendments to provisions of an institutional nature’ that might be made by the simplified procedure set out in article 122[5] (although there are occasionally suggestions that there are discrepancies between the various language texts that might be straightened out in this way). Apparently none of the problems contemplated by those articles have yet emerged forcefully enough in the experience of the organs of the Court to date to generate concrete proposals for amendment.
Resolution E, annexed to the Final Act, records the regret of the participants that ‘no generally acceptable definition of the crimes of terrorism and drug crimes could be agreed upon for the [sic] inclusion, within the jurisdiction of the Court.’ Accordingly, it recommends ‘that a Review Conference pursuant to article 123 of the Statute of the International Criminal Court consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion within the list of crimes within the jurisdiction of the Court’.[6] I have not located any concrete proposals on drugs or terrorism that are on the table at present.
Resolution F speaks to proposals for “a provision on aggression, including the definition and Elements of Crimes of aggression and the conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this Crime.”[7] Work is continuing on a draft at the Assembly’s Special Working Group on the Crime of Aggression.[8] Drafting the ‘provision’ on aggression, contemplated both by article 5(2) of the Statute and Resolution F of the Final Act, is indeed the issue on which most work has been done in preparation for the Review Conference.[9]
Resolutions E and F are matters which the first Review Conference could be expected to take up, but it is perhaps worth noting that the reference is to “a” Review Conference,[10] not necessarily to the first such Conference. Given the subsequent work in respect of aggression, it would be a major breach of faith were that issue not on the agenda for the first Review.
I do not detect any current disposition to re-negotiate articles 6, 7 and 8 of the Statute in any significant way. But implicit in the Statute is that a Review Conference may consider the matters concerning weapons, projectiles, material and methods of warfare that are referred to in article 8(2)(b)(xx):
Employing 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 and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123.
The provision was adopted against the background of the discussion of chemical weapons, biological weapons, nuclear weapons, anti-personnel land mines and the like. Some of these (chemical and biological weapons) were regarded by most participants in 1998 as already the ‘subject of a comprehensive prohibition’ but agreement could not be reached to include them in light of the refusal to include nuclear weapons.[11] Many, perhaps a substantial majority, regarded nuclear weapons as prohibited, but an adamant group believed to the contrary. The ban on anti-personnel mines was fairly recent in 1998, but the treaty[12] is now widely ratified (with over 150 parties) and perhaps provides a basis for the proposition that the prohibition is now ‘comprehensive’.[13]
The ‘provision’ on aggression and the potential addition to the Statute of an Annex on weapons and methods of warfare, contemplated in article 8 of the Statute, raise some awkward questions concerning the appropriate procedures to be followed in effecting the relevant ‘amendments’. It will be recalled that article 123, paragraph 3 says that ‘[t]he provisions of article 121, paragraphs 3 to 7, shall apply to the adoption and entry into force of any amendment to the Statute considered at a Review Conference’. Adding, say, terrorist offences to the Statute seems fairly clearly to be governed by paragraph 5 of article 121. As an ‘amendment to article 5’ (by adding a new categories of crimes within the jurisdiction of the Court), it must apply only to those parties ‘which have accepted the amendment’. But is the provision on aggression, on the other hand, governed by paragraph 3 alone? Is all that is required that is to be ‘adopted’ by a two-thirds majority? Article 5(2) speaks to the ‘provision’ being ‘adopted’ (the word also used in paragraph 3). If more is required, is it subject to paragraph 5 or to paragraph 4? If paragraph 4 applies, seven-eighths acceptance is required, but then it would apply to everyone! If paragraph 5 applies, only those who accept it (from the first one onwards) are bound. Paragraph 5 applies, inter alia, to amendments to article 5. In plain language, the provision on aggression is hardly an amendment to article 5 like the addition of terrorism or drugs to the list of offences – it is simply the fulfilment of its expectations that something be drafted later. By the same token, is the addition of a weapon to the now empty Annex an amendment to article 8? Or is it simply a fulfilment of the expectations of article 8(2)(b)(xx) (as I am inclined to think)? These are knotty questions that need to be resolved.[14]
Article 124 merits quotation in full:[15]
Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may 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 own territory. A Declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1 (emphasis added).
Here, it will be noted, the Statute refers to the Review Conference and the invocation of article 123 paragraph 1 makes it clear that this is a reference to the first Review Conference at which article 124 ‘shall be reviewed’. There is no implication here that any particular result should be achieved although there should, no doubt, be a reasonable time allocated for discussion. I must confess that when I first read the provision on the last day of the Rome Conference, I thought it meant that the provision would be repealed at the first possible opportunity. Its ‘transitional’ effect would have been spent once there had been an opportunity to train national military on the implications of article 8 of the Statute. The leading commentator on it is more circumspect:[16]
The last sentence of article 124 underlines that the regular review procedure, as provided for in article 123, will also apply with regard to article 124. Accordingly, given the strict requirements for such a review, it seems to be quite unlikely that in the future substantive changes with a view to enlarging its scope of application will take place. It will therefore (hopefully) over time lose more and more of its importance.
I add that I do not understand the reference here to ‘the strict requirements for such a review’. About the only thing that strikes me as strict is that article 124 should be on the 2009 Agenda.
The head of the United States delegation in Rome, Ambassador Scheffer, writes:[17]
In addition to the crime of aggression, crimes of terrorism and drug crimes are expected to be seriously considered for amendment to the ICC Statute at the 2009 Review Conference. While these initiatives may be all the Review Conference can absorb regarding the ICC’s subject-matter jurisdiction, effort should be made to consider using the ICC to investigate and prosecute officials charged with the most egregious types of corruption, fraud and sexual abuse within the U.N. system, including its specialized agencies, related organizations, and peacekeeping operations. In light of the recent investigation into the Oil-for-Food Program for Iraq and sexual abuse investigations of the U.N. peacekeeping operation in the Democratic Republic of the Congo, there is a strong case to be made that the United Nations needs access to an independent criminal court before which to bring U.N. administrators charged with corruption or fraud and U.N. peacekeeping personnel charged with sexual assault.
Ambassador Scheffer notes that it would be necessary to think through the gravity and importance issues in relation to these offences so that the Court would not be overwhelmed with petty cases. ‘But if this could be undertaken, the United States might find such subject matter jurisdiction a very attractive feature of the ICC and worth cooperating with and perhaps participating in’.[18]
A significant structural matter is whether articles should be added to the Statute dealing with defence counsel. Professor Gallant comments: ‘As Elise Groulx, now the Executive President of the International Criminal Bar, has stated, the Rome Statute lacks the “Third Pillar” of defence institutions to go along with the Judicial and Prosecution Pillars’.[19] I have certainly heard Gallant and others advocating an amendment to include such a ‘Pillar’ and I understand that some specific text will appear shortly. Article 43 paragraph 1 of the Rome Statute tasks the Registrar with ‘the non-judicial aspects of the administration and servicing of the Court.’ Relying on this general power, the Court’s Rules of Procedure and Evidence contain three Rules (Rules 20-22) dealing with the responsibilities of the Registrar in relation to the rights of the defence and to assignment of counsel for those who cannot afford it.[20] Many parties to the Statute are comfortable with a Rule-based solution which leaves room for pragmatic development. Given the crucial role of defence counsel in achieving a fair trial, though, it is a reasonable question whether this should be further elaborated in the Statute itself. Some of the existing provisions in the Rules deal also with counsel for victims and that matter would need attention.
Another issue involving the defence has recently emerged. Article 17, the complementarity provision of the Rome Statute, deals clearly with the situation where a State’s performance in prosecuting is inadequate and fits the categories of inability or unwillingness. What of the situation, however, where the State is all too willing to convict, but violates basic standards of human rights in the process? Could the defence make a ‘self-referral’ to the Court, pre-empting a show trial aimed at unjust conviction? A recent study very carefully examines the text and preparatory work of article 17.[21] It notes that ‘the ICC is a model of due process,’ but that ‘most national criminal-justice systems, by contrast, are far less even-handed – particularly those in States that have experienced atrocities serious enough to draw the Court’s interest’.[22] The author continues:
The Specialised Courts in which Sudan intends to prosecute those responsible for the genocide in Darfur, for example, routinely sentence unrepresented defendants to death after secret trials involving confessions obtained through torture. Complementarity is thus a double-edged sword. On the one hand, ICC deferrals will reflect the willingness of States to take the lead in bringing the perpetrators of serious international crimes to justice. On the other hand, those deferrals will expose perpetrators to national judicial systems that are far less likely than the ICC to provide them with due process.
International criminal law scholars have generally failed to appreciate the magnitude of this problem. Indeed, the prevailing scholarly consensus is that the problem doesn’t exist, because a State’s failure to guarantee a defendant due process makes a case admissible under article 17. In this view, the solution to the Sudan dilemma – and others like it – is self-evident: the Court can simply investigate and prosecute the persons responsible for the Darfur atrocities itself, on the ground that the procedural failings of the Specialised Courts make Sudan ‘unwilling or unable’ to do so. After all, the Court has the final say regarding admissibility.
Although this interpretation of complementarity – what I will call the ‘due process thesis’ – is seductive, it is also incorrect. Properly understood, article 17 permits the Court to find a State ‘unwilling or unable’ only if its legal proceedings are designed to make a defendant more difficult to convict. If its legal proceedings make the defendant easier to convict, the article requires the Court to defer to the State no matter how unfair those proceedings may be.[23]
Professor Heller suggests the following solution:[24]
We are left, then, with amending Article 17 to recognize the due process thesis. At least two changes would be necessary. Most obviously, the criteria in Article 17(2)(c) should be made disjunctive instead of conjunctive, along the lines of ICTY Rule 9. The subparagraph would then allow the Court to find unwillingness if “[t]he proceedings were not or are not being conducted independently or impartially, or they were or are being conducted in a manner which… is inconsistent with an intent to bring the person concerned to justice”.
Equally important, however, article 14 should be amended to permit a defendant to refer his case to the Court on the ground that the national proceeding will not provide him with due process. In the absence of such a provision, defendants would be at the mercy of the Prosecutor to investigate their cases proprio motu[25] – which would be unlikely in all but the most notorious cases, given the limited resources of the OTP.
Finally, there is the difficult question of article 20(3). An argument can be made that the paragraph should be amended to specifically authorize the Court to vacate a national conviction that resulted from a trial that was ‘not conducted independently or impartially in accordance with the norms of due process’. Doing so, however, would literally turn the ICC into a court of appeal – something many delegations went to great lengths to avoid. Fortunately, such a radical change isn’t necessary: if article 14 were amended in the manner suggested above, it would give a defendant the right to ask the Court to intervene in his case before a State invested the time and resources in trying him – and he could justly be held to have waived his right of referral if he did not.
Another possible anomaly with article 17 arises where a State runs a perfectly fair trial which results in conviction, followed immediately by an amnesty or pardon which prevents application of the sentence. There does not appear to be any way for the ICC to act in such a case. Should there be an appropriate amendment?
Conspiracy to commit genocide as an inchoate offence (that is, even if the genocide does not in fact occur) is criminalized by the Genocide Convention, article III(b).[26] The Convention’s provision found its way into the Statutes of the Tribunals for Former Yugoslavia and Rwanda,[27] but not into the Rome Statute. I do not recall any coherent discussion during the drafting of why it does not appear in article 25 of the Rome Statute. The best explanation I have heard is that some of the drafters thought that the matter was adequately dealt with in the ‘common purpose’ mode of complicity liability contained in article 25(3)(d) of the Statute. But that provision, to the extent that it is a variation on conspiracy, is not a variation on the inchoate doctrine of conspiracy. It is an example of the kind of conspiracy familiar in United Sates law that makes a conspirator responsible for substantive crimes carried out by other co-conspirators. It is, in short, a complicity doctrine, not an inchoate crime doctrine. Some domestic efforts to give legislative effect to the Rome Statute have gone beyond the requirements of article 25 and, consistent with the Genocide Convention, have made criminal an inchoate conspiracy, even if an actual genocide does not occur.[28] If the omission of the Genocide Convention provision from the Rome Statute was not deliberate, then perhaps a case can be made for putting it in by amendment.
Serious efforts were made during the negotiations to have the jurisdiction of the Court ratione personae extend to juridical as well as natural persons. Some Governments and NGOs particularly concerned with reparation to victims thought that a criminal conviction of a corporation (a media outlet spewing out genocidal propaganda, for example) could facilitate reparation. Ultimately at Rome, a proposal espoused by France and Solomon Islands did not command a consensus and was abandoned.[29] Corporate criminal responsibility has been gaining currency and finds a place, for example, in several recent multilateral criminal suppression treaties such as those dealing with transnational organized crime and with corruption. One author, advocating reconsideration in 2009, comments:[30]
First and most importantly, sufficient time could be allowed for all state parties to consider the issue of including legal persons in the jurisdiction of the ICC. Second, to ensure that extension of jurisdiction to legal persons, the statute’s definition of “legal persons” should pertain only to profit-making organizations and exclude states, state agencies, non-governmental organizations, or any organizations with predominantly political aims. Broadening the focus of “legal persons” to include organizations other than those with a primary aim towards profits will probably not pass the muster of many states due to concerns over their sovereignty and their trepidation about unintentionally including the acts of territories that are struggling for self-determination. Furthermore, the possibility of states becoming more familiar with the concept of corporate criminal responsibility as a whole by 2009 seems reasonable given the multitude of actions targeting transnational corporate abuses promulgated by alleged victims in a variety of different fora.
Under article 12, unless the Security Council makes a referral to the Court, either the territorial State or the State of nationality must either be a party to the Statute or make an appropriate declaration pursuant to article 12(3) of the Statute. In the negotiations, some States favoured a requirement that both the territorial State and the State of nationality be a party; others argued for what would be in essence universal jurisdiction; a ‘compromise’ based on consent of the ‘custodial’ State was also put forward (it being in essence the universal approach). The position arrived at has its critics who have advocated amendments from both ends. One writer, sympathetic to expanding the net of the Court suggests:[31]
It seems fairly clear that the jurisdictional regime provided for in the ICC Statute will severely limit the Court’s ability to react to most situations of serious crimes unless proceedings are triggered by the Security Council. There are two possible ways of overcoming this structural weakness. The first is by ensuring universal ratification of the treaty, because ratification of the ICC Statute confers automatic jurisdiction on the ICC. The second is to strive for amendments to the Rome Statute that would enable the custodial state or the state of nationality of the victim to serve as additional jurisdictional links allowing the Court to proceed.
On the other side is literature sympathetic to the United States’ position. Consider this statement, for example (written before the US ‘unsigning’):[32]
This Article concludes that although the Rome Statute remains a flawed document with serious constitutional inadequacies and violations, the United States should remain signatory, working diligently to remedy those flaws by proposing amendments which include safeguards sought by the United States. Specifically, the Rome Statute should be amended to include the following provisions: implementing safeguards for peacekeeping troop deployment; restricting the jurisdiction of the ICC to State Parties only; and, limiting the jurisdiction of the Court over State Party nationals to only those nationals who commit crimes abroad unless an agreement is entered into by the State Party and the ICC allowing the ICC to exercise jurisdiction over the State Party’s nationals committing crimes on its own territory.
Another author has suggested some rather different amendments to article 12 (coupled with article 11).[33] Paragraph 3 of article 12 provides:
If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting States shall cooperate with the Court without any delay or exception in accordance with Part 9.
In short, this permits an ad hoc acceptance of the Court’s jurisdiction by a non-party to the Statute in certain circumstances. Article 11(2), moreover, permits a ‘new’ State party (that is, one other than the original States who were parties when the treaty came into force on 1 July 2002) to backdate the effectiveness of its acceptance.[34] It provides:
If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless the State has made a declaration under article 12, paragraph 3.
In suggesting that the Review Conference might abolish this ‘supplementary mechanism for non-party States and new States parties to extend ex post facto and ad hoc the Court’s dormant jurisdiction over pre-existing crisis situations’, one author comments:[35]
In this regard, one should not forget that even if one considers that articles 11(2) and 12(3) of the Rome Statute comply with the requirements derived from the fundamental right to a tribunal pre-established by law, it seems, at the very least, paradoxical that the very Rome Statute enshrines mechanisms for the ex post facto and ad hoc attribution of jurisdictional powers to the Court when one of its core goals is to overcome the deficiencies of these ex post facto and ad hoc mechanisms or, as some have referred to them, “pitfalls of ad hoc justice”.
There can be little doubt that a major part of the first Review Conference will be devoted to the crime of aggression and to article 124. Beyond that, it is too soon to tell what might emerge over the next couple of years, but I have tried to survey other possibilities.
[*] Board of Governors Professor, Rutgers University School of Law, Camden, New Jersey; Adviser on the ICC to the Mission of Samoa to the UN. Any views expressed herein should not be attributed to the Government of Samoa.
[1] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (‘Rome Statute’ or ‘the Statute’).
[2] See Austrian Federal Ministry for Foreign Affairs/Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights law (eds), ‘The Future of the International Criminal Court: Salzburg Retreat, 25-27 May 2006’, online: <http://www.sbg.ac.at/ salzburglawschool/Retreat.pdf> (last accessed on 9 February 2007). An earlier version of the present paper was presented at that meeting. See also Rolf Einar Fife, ‘Preliminary paper, Review Conference: scenarios and options’, Doc ICC-ASP/5/INF.2 (21 November 2006) available at <http://www.icc-cpi.int/library/asp/ICC-ASP-5-INF2_English.pdf> (last visited 18 February 2007). Mr Fife suggested setting up a Working Group of the ASP to ‘effectively ensure success’. For the moment, the initial preparations lie with the Bureau of the ASP. See Assembly of States Parties, Annotated List of Items Included in the Provisional Agenda, 5th sess, Resolution ICC-ASP/5/Res.3 (1 December 2006) para 47, in which the ASP ‘[t]akes note of the preliminary report by the focal point on the issue of the Review Conference, under article 123 of the Rome Statute, and requests the Bureau to start preparation of the Review Conference, in particular on the issues of the rules of procedure applicable to the Review Conference and on practical and organizational issues, especially as regards dates and venue of the Review Conference, and to report to the next regular session of the Assembly of States Parties on the status of such preparations’. Mr Fife’s paper also includes some interesting examples of the practice of review conferences, albeit under different treaty regimes.
[3] For the most part, whatever a Review Conference can do, the Assembly of States Parties can also do and vice versa. One exception to this is article 9, which deals with Elements of Crimes. On its face at least, it contemplates that only the Assembly may adopt and amend the Elements. Another is article 36 which empowers the Assembly to approve an increase in the number of judges and also makes no reference to a Review Conference.
[4] At first blush, the specific reference to article 5 is superfluous since the general ‘any’ includes it. Psychologically, though, many delegations in Rome wanted to make the point that the question of substantive crimes would be given prominence. The Rules of Procedure of the Assembly of States Parties do not currently deal with preparations for a Review Conference. Perhaps the ASP should consider rules for the review that would include an adequate time-frame for advance notice of proposed amendments to be considered. See, for example, United Nations Office on Drugs and Crime, Provisional Rules of Procedure for United Nations Congresses on Crime Prevention and Criminal Justice, Eleventh Crime Congress, UN Doc A/CONF.203/2 (2004) (Rule 28 requires draft resolutions on items of the provisional agenda for a Congress to be submitted to the Secretary-General of the Congress four months prior to the Congress and distributed to member States no later than two months prior to the Congress).
[5] Article 122 contemplates functional amendments to certain provisions of the Statute that are not constrained by the seven year ban on amendments but can be done at any time by either the Assembly of States Parties or a Review Conference. These amendments, once adopted by the Assembly or a Review Conference do not need further ratification or acceptance.
[6] A commentator, speaking of the possibility of amendment to add something on terrorism, opines: “The necessity for such an amendment to the Statute will depend on whether, once the Court is fully operational, it has been able to successfully prosecute terrorists [presumably for the other crimes within the Statute]; and, further, on whether terrorists are nonetheless being brought to justice in national criminal tribunals. If the international community concludes that terrorist acts do not fall under the definitions of genocide, crimes against humanity or war crimes, and/or that the obstacles to any exercise of jurisdiction discussed above are impeding the due administration of justice, then it is submitted that the Statute should be amended to overcome these problems.” Lucy Martinez, ‘Prosecuting Terrorists at the International Criminal Court: Possibilities and Problems’ (2002) 34 Rutgers Law Journal 1, 61. See generally, Patrick Robinson, ‘The Missing Crimes’ in Antonio Cassese et al (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002) 497; George S Yacoubian, ‘The Most International of Crimes: Toward the Incorporation of Drug Trafficking into the Subject Matter Jurisdiction of the International Criminal Court’ (forthcoming in readings in criminology to be published by Nova Publishers, on file with Author). In a presentation to a Workshop at the Eleventh UN Crime Congress in Bangkok, 18-25 April 2005, a Norwegian judge, Stein Schjolberg, recommended that the 2009 Review Conference ‘consider the crimes of cyberterrorism and cybercrimes with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court’: CyberCrime Law, ‘Law Comes to Cyberspace’, online: <http://www.cybercrimelaw.net/> (last accessed on 7 February 2007).
[7] Resolution F spoke initially to the Preparatory Commission for the Court, instructing it to ‘prepare proposals for a provision on aggression, including the definition and Elements of Crimes of aggression and the conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this crime’. Now the work falls to the Special Working Group on the Crime of Aggression, created by ICC-ASP/1/Res.1 (2002), which is open to all States.
[8] Ibid.
[9] Article 5(2) provides that: ‘The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to the crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations’. On the work done at the Preparatory Commission, see ‘Discussion paper proposed by the Coordinator’, UN Doc PCNICC/2002/WGCA/RT.1/Rev.2 (11 July 2002) and the comments of the Coordinator, Silvia A Fernandez de Gurmendi, ‘An Insider’s View’, and the other contributions in Mauro Politi and Giuseppe Nesi (eds), The International Criminal Court and the Crime of Aggression (Ashgate/Dartmouth, 2004). On the work since, see ‘Report of the inter-sessional meeting of the Special Working Group on the Crime of Aggression, 21-23 June 2004’, Doc ICC-ASP/3/25 (2004); Informal inter-sessional meeting of the Special Working Group on the Crime of Aggression, 13-15 June 2005, Doc ICC-ASP/4/SWGCA/INF.1 (2005); Informal inter-sessional meeting of the Special Working Group on the Crime of Aggression, 8-11 June 2006, Doc ICC-ASP/5/SWGCA/INF.1 (2006); Discussion paper proposed by Chairman, Doc ICC-ASP/5/SWGCA/2 (2007); Report of the Special Working Group on the Crime of Aggression, Doc ICC-ASP/5/SWGCA/3 (2007). The Special Working Group aims at finishing its work in 2008, in ample time for the meeting of the Review Conference.
[10] See the words of Resolution E quoted in the text accompanying above n 6, and the following sentence in Resolution F: ‘The [Preparatory] Commission shall submit such proposals 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 this Statute’ (emphasis added). The timing for the proposals was always a little strange since the PrepCom was set to expire (and did expire) almost seven years before the first Review Conference will take place.
[11] See Philippe Kirsch and John T Holmes, ‘The Rome Conference on an International Criminal Court: The Negotiating Process’ (1999) 93 American Journal of International Law 2, 11 n 32; Roger 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 John Carey, William V Dunlap and R John Pritchard (eds), International Humanitarian Law: Challenges (Transnational Publishers, 2004) 259.
[12] Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction, opened for signature 3 December 1997, 36 ILM 1507 (entered into force 1 March 1999). Information from the Depositary indicated 152 parties as of 31 December 2006 – more than the parties to the Genocide Convention (140), and the Torture Convention (144), and only a few behind the Covenants on Human Rights and the 1977 Geneva Protocols. On the other hand, there are some major States, including three Permanent Members of the Security Council, that have not become parties.
[13] Article 8(b)(xx) does not say how it is to be established that there is a ‘comprehensive prohibition’. It must be the case, though, that the Assembly of States Parties or a Review Conference would decide that for itself, either explicitly (by so determining) or implicitly (by agreeing on adding something to the, now empty, Annex). See also Michael Cottier, ‘Article 8 (2)(b)(xx)’ in Otto Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Nomos Verlagsgesellschaft, 1999) 242, 243: “It may therefore be argued that a comprehensive prohibition may firstly exist under customary international law as evidenced by the opinio juris and practice of States. Secondly, a comprehensive prohibition may exist under conventional international law, in particular when a treaty prohibiting the employment of a weapon has widely been ratified. In both cases, nearly universally accepted treaties will generally be clear evidence of a comprehensive prohibition, while it is not necessary that the treaty prohibiting this weapon be universally ratified or that all States with no exception are bound by the prohibition. Lastly, the determination of which weapons are subject to a comprehensive prohibition will be up to the qualified majority of States Parties when considering the inclusion of weapons in the annex to the Statute at an Assembly of States Parties or a Review Conference.” [Cottier adds a puzzling sentence here: ‘Of course, nothing prevents the States Parties to amend the requirements stipulated in article 8 para 2(b) by amending article 8 para 2(b)(xx) according to the normal amendment procedures’.] What is ‘normal’ is not so obvious. Nor is the nature of the requisite ‘qualified majority’ mentioned by Cottier.
[14] I have explored the issues in more detail (including the relevant preparatory work of the article) in the Rutgers Law School Occasional Paper No 4: Roger S Clark, ‘Possible Amendments for the First ICC Review Conference in 2009’, online: <http://camlaw.rutgers. edu/site/faculty/pdf/clark4.pdf> (last accessed on 7 February 2007).
[15] France and Colombia are the only two States parties to have made an article 124 declaration. Article 120 of the Statute contains a general prohibition of reservations. Article 124 is thus an ‘opt-out’ clause that permits the functional equivalent of a reservation to article 8 for the seven year period. Article 124 mandates its own ‘review’ at the first Review Conference; this does not, of course, preclude subsequent re-examination by either the ASP or a Review Conference.
[16] Andreas Zimmerman, ‘Article 124' in Triffterer (ed), above n 13 at 1281, 1285.
[17] David Scheffer, ‘Symposium Remarks “The United States and International Law: Confronting Global Challenges”; October 27, 2004: Blueprint for Legal Reforms at the United Nations and the International Criminal Court’ (2005) 36 Georgetown Journal of International Law 683, 700.
[18] Ibid.
[19] Kenneth S Gallant, ‘Politics, Theory and Institutions: Three Reasons Why International Criminal Defence is Hard, and What Might Be Done About One of Them’ (2003) 14(3) Criminal Law Forum 317, 327. Arturo Laurent also has some important thoughts about the need to emphasize defence rights and has some long-term suggestions for strengthening the Statute’s provisions on complementarity and ne bis in idem. See Arturo Laurent González, The Defendant, the State and the International Criminal Court, PhD thesis submitted to The University of Hull, 2004.
[20] See also the Assembly of States Parties, Code of Professional Conduct for Counsel, ICC-ASP/4/Res.1 (2005).
[21] Kevin Jon Heller, ‘The Shadow Side of Complementarity: The Effect of Article 17 on National Due Process’ (2006) 17(3) Criminal Law Forum 255.
[22] Ibid, 256.
[23] Ibid, 256-257 (footnotes omitted).
[24] Ibid, 279-280 (footnotes omitted).
[25] Proprio motu meaning by one's own volition; on one's own initiative.
[26] Article III of the Genocide Convention requires that the following be punishable: genocide, conspiracy to commit genocide, direct and public incitement to commit genocide (another inchoate offence), attempt to commit genocide and complicity in genocide. Direct and public incitement (applicable only to genocide and not to the other offences within the jurisdiction of the Court), attempt and complicity all find a home in article 25 of the Rome Statute, but not conspiracy to commit genocide.
[27] ICTY Statute, art 4; Rwanda Statute, art 2.
[28] See, e.g., International Crimes and International Criminal Court Act 2000, § 9 (1) (b) (New Zealand). See also § 5 of the draft Implementing Legislation contained in Report of the Commonwealth Expert Group on Implementing Legislation for the Rome Statute of the International Criminal Court, 7-9 July 2004, Marlborough House, London (‘conspires or agrees with any person to commit genocide, whether that genocide is to be committed in .......[name of country] or elsewhere’). The UK International Criminal Court Act 2000, § 55 (definition of ‘ancillary offence’) and the Crimes Against Humanity and War Crimes Act, 2000 (Canada), § 4 (2), both appear to criminalize conspiracies to commit crimes against humanity and war crimes as well as genocide. Perhaps these are just examples of legitimate margins of appreciation in domestic legislation giving effect to international obligations. The US, for example, often adds a conspiracy provision to its legislation on terrorism and other transnational crime, going beyond what is literally required by the treaties in question.
[29] See generally Andrew Clapham, ‘The Question of Jurisdiction Under International Criminal Law over Legal Persons: Lessons from the Rome Conference on an International Criminal Court’ in Menno T Kamminga and Saman Zia-Zarifi (eds), Liability of Multinational Corporations under International Law (Kluwer Law International, 2000) 146. See also proposal by several States on ‘penalties applicable to juridical persons’, UN Doc A/CONF.183/C.1/WGP/L.12 (2 July 1998) (emphasizing fines and ‘forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties’).
[30] Barnali Choudhury, ‘Beyond the Alien Tort Claims Act: Alternative Approaches to Attributing Liability to Corporations for Extraterritorial Abuses’ (2005) 26 Northwestern Journal of International Law and Business 43, 59-60.
[31] Jelena Pejic, ‘The International Criminal Court: An Appraisal of the Rome Package’ (2000) 34 International Lawyer 65, 75. The author goes on to discuss the Pinochet case. With Chile not a party to the Statute (still the situation in November 2006), in such a case (even if the violations which were alleged occurred after the entry into force of the Statute) it would not be possible to surrender someone in the position of Pinochet to the ICC. The UK, as a custodial State, would be in a different position, as would Spain in respect of depredations against Spanish citizens, if alternative custodial-State and nationality-of-the-victims preconditions were added to the Statute.
[32] A Diane Holcombe, ‘The United States Becomes a Signatory to the Rome Statute Establishing the International Criminal Court: Why Are So Many Concerned by This Action?’ (2001) 62 Montana Law Review 301, 303. See also Michael L Smidt, ‘The International Criminal Court: An Effective Means of Deterrence?’ (2001) 167 Military Law Review 156 (recommending that either aggression should be removed from the jurisdiction of the Court or that a Security Council referral be required and that a strong threshold for war crimes should be introduced into article 8); Giovanni Conso, ‘The Basic Reasons for US Hostility to the ICC in Light of the Negotiating History’ (2005) 3 Journal of International Criminal Justice 314 (in the course of asking whether it is worthwhile considering amending the Statute to overcome US opposition, Professor Conso, President of the Rome Conference, discusses retaining immunity for certain leaders and removing the proprio motu power of the Prosecutor; he seems to be espousing the former but not the latter). Compare Ron Sievert, ‘A New Perspective on the International Criminal Court: Why the Right Should Embrace the ICC and How America Can Use It’ forthcoming in University of Pittsburgh Law Review (2006) (suggesting that the US can live with the Statute so long as terrorism is added to the crimes and a satisfactory provision on aggression is achieved). (There was considerable debate within the US Government pre-Rome on including terrorism and ultimately it was strongly opposed. Whether that opposition continues is unclear). Professor Hafner suggests, very tentatively, that some of the difficulties that the United States has with jurisdiction of the ICC over its armed forces might by relieved by an agreement between the US and the Prosecutor, rather than formal amendment of the Statute. See Gerhard Hafner, ‘An Attempt to Explain the Position of the USA towards the ICC’ (2005) 3 Journal of International Criminal Justice 323, 329-331. I doubt that his intriguing proposal is intra vires the Prosecutor (or indeed the Court as a whole). Coming perilously close to an effort to amend the Statute, it is probably beyond any implied powers that might be extracted from the Statute.
[33] Héctor Olásolo, ‘Reflections on the International Criminal Court’s Jurisdictional Reach’ (2006) 16 Criminal Law Forum 279, 300-301.
[34] The backdating must be effective only back to 1 July 2002, since Article 11(1) is an absolute limit of the Court’s jurisdiction ratione temporis to events occurring after the entry into force of the Statute.
[35] Olásolo, above n33, notes at 295 note 36 the ambiguity of the use of the term ‘crime’ in Article 12(3) (and ‘crimes’ in Article 11(3)) and argues that a government can not escape scrutiny of the totality of the situation once it makes such a declaration.
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