ICC member states can propose amendments to the Rome Statute to add or delete provisions and crimes. They can also amend the ICC’s Rules of Procedure and Evidence.
The Rome Statute of the ICC covers war crimes, crimes against humanity, genocide and the crime of aggression. The latter was included without a definition, which was to be decided upon at the 2010 review conference. This is the first time that individual criminal responsibility will exist for the crime of aggression.Aside from the Crime of Aggression, the statute also contains several other new (elements of) crimes, which were previously not explicitly defined in international law, mostly related to sexual and gender-based violence.
There are also discussions amongst some parties (NGOs, states) about expanding the statute to include jurisdiction over other crimes, such as international terrorism, and environmental crimes such as ‘ecocide’.
The Assembly of States Parties considers all proposed amendments in the Working Group on amendments.
The Crime of Aggression
The ICC currently only has jurisdiction over war crimes, crimes against humanity and genocide, as provided for by Article 5 of the statute, and as defined in articles 6 to 8 and in the elements of crimes document as provided for in Article 9.
The Crime of Aggression is also included in the statute under Article 5. It cannot, however, be investigated yet. In the original un-amended 2002 version of the Rome Statute, Article 5 included Sub-article 2 which stated: “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 this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.” Therefore, before the court could exercise jurisdiction over the Crime of Aggression certain steps, such as agreeing to a definition and relevant procedures, had to be taken.
2010 Kampala Review Conference
During the 2010 Review Conference, which took place in Kampala, Uganda, the States Parties to the Rome Statute agreed, amongst other decisions, on the definition of the crime of aggression to be included in the statute as Article 8 bis.
The definition of the crime of aggression agreed upon in Kampala, contained in Article 8 bis (1) is as follows: “For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” In Article 8 bis (2) the definition of an act of aggression is provided.
They also agreed that the Court may exercise jurisdiction over the crime of aggression only after 1 January 2017 and only if a minimum of thirty States Parties have ratified the amendments. This is further still subject to confirmation of the decision by the Assembly of States Parties to activate that jurisdiction with a 2/3 majority vote.
These provisions on jurisdiction over the crime of aggression are contained in articles 15 bis and ter. There is a distinction between whether the investigation is instigated by a referral from the UN Security Council (Article 15 ter), or if it is a referral by a state or proprio motu investigation (Article 15 bis). These elaborate provisions mean that jurisdiction over the crime of aggression will not be as straight forward as for war crimes, crimes against humanity and genocide. Several conditions have to be met before the court can exercise jurisdiction and even then the situation is complicated until all States Parties have ratified the amendment. The conditions under which the court will have jurisdiction over this crime are simplified in a table by the campaign for the ratification of the crime of aggression.
30 ratifications reached in 2016
As of the 2010 Kampala Review conference, the amendments agreed upon (the amendment on the Crime of Aggression, as well as an amendment to the war crimes provision) were open for ratification.
Liechtenstein was the first state to complete ratification of the amendment in May 2012. In June 2016, Palestine became the 30th state to ratify the amendment to the Rome Statute on the crime of aggression.
The Palestinian ratification paves the way for the next step in the process towards allowing the ICC to exercise its jurisdiction over the crime of aggression. After January 2017, the Assembly of States Parties will have to vote on a decision to allow entry into force of the amendment. This decision must be adopted with a two-thirds majority.
Click here for an up to date overview
Click here for an up to date overview of all states that have ratified the amendments and the status of ratification around the world.
Deletion of Rome Statute article 124 on war crimes opt-out
In a historic move anticipated and long-called for by civil society, states also agreed to delete article 124 from the Rome Statute. According to article 124, a state, on becoming a state party to the Rome Statute, may declare that for a period of seven years after ratification, it does not accept the Court’s jurisdiction with regard to war crimes allegedly committed by that state’s nationals or on its territory.
“The deletion of article 124 from the Rome Statute is a positive development for international justice as it was inconsistent with the object and purpose of the Rome Statute “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,” said Jonathan O’Donohue, legal adviser for Amnesty International. “The Rome Statute must not enable opt outs that permit impunity for the most serious crimes of concern to the international community.
Other New Crimes
Although the crime of aggression is the most well-known ‘new crime’ in the Rome Statute, there are other crimes which have been included in the statute or elements of crimes document which were not explicitly a crime under international law before.
This includes mostly sexual and gender based crimes, which were previously prosecuted in other international tribunals under ‘other inhumane acts’ such as; sexual slavery, forced pregnancy and enforced sterilization.
ICC case law and judicial decisions have also opened the possibility for the prosecution of forced marriage as a crime separate from sexual slavery, under ‘other inhumane acts’ which may in time lead to an amendment to the statute to include an explicit reference to forced marriage.
Aside from these new crimes already included in the statute, there are also discussions on amending the statute to allow the ICC further jurisdiction over other international crimes, such as terrorism and environmental crimes. These discussions have however not yet led to any concrete action.