Amendments to the Rome Statute of the International Criminal Court

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Amendments to the Rome Statute of the International Criminal Court must be proposed, adopted, and ratified in accordance with articles 121 and 122 of the Statute. Any state party to the Statute can propose an amendment. The proposed amendment can be adopted by a two-thirds majority vote in either a meeting of the Assembly of States Parties or a review conference called by the Assembly. An amendment comes into force for all states parties one year after it is ratified by seven-eighths of the states parties.[1] However, any amendment to articles 5, 6, 7, or 8 of the Statute only enters into force for states parties that have ratified the amendment. A state party which ratifies an amendment to articles 5, 6, 7, or 8 is subject to that amendment one year after ratifying it, regardless of how many other states parties have also ratified it.[2] For an article 5, 6, 7, or 8 amendment, the Statute itself is amended after the amendment comes into force for the first state party to ratify it. Amendments of a purely institutional nature enter into force six months after they are approved by a two-thirds majority vote in either a meeting of the Assembly of States Parties or a review conference.[3]

Summary of adopted amendments to the Rome Statute[edit]

In June 2010, two amendments to the Rome Statute of the International Criminal Court were adopted by the Review Conference in Kampala, Uganda. The first amendment criminalizes the use of certain kinds of weapons in non-international conflicts whose use was already forbidden in international conflicts.[4] The second amendment defines the crime of aggression.[5] Per the language of that amendment, the Court will only have jurisdiction over the crime of aggression after two additional conditions are met: (1) the amendment has entered into force for 30 states parties and (2) on a date after 1 January 2017, the Assembly of States Parties has voted in favour of allowing the Court to exercise jurisdiction.[5] In November 2015, an additional amendment to remove article 124 from the Statute was adopted during the 14th meeting of the Assembly of States Parties in The Hague in the Netherlands.[6] In December 2017, three amendments to article 8 were adopted at the 12th meeting of the Assembly of States Parties in New York City.

Name Adopted at Adopted on Ratified by In force on In force in[A] Ref.
Amendment to article 8 Kampala 10 June 2010 36 26 September 2012 34 [7]
Amendments on the crime of aggression Kampala 11 June 2010 35 8 May 2013 34 [8]
Amendment to article 124 The Hague 26 November 2015 10 0 [9]
Amendment to article 8 (Weapons which use microbial or other biological agents, or toxins) New York 14 December 2017 [10]
Amendment to article 8 (Weapons the primary effect of which is to injure by fragments undetectable by x-rays in the human body) New York 14 December 2017 [11]
Amendment to article 8 (Blinding laser weapons) New York 14 December 2017 [12]

Amendment to article 8 (2010)[edit]

Summary[edit]

An amendment to article 8 was adopted on 10 June 2010 at the Review Conference of the Rome Statute in Kampala, Uganda.[4] The amendment had originally been proposed by Belgium and it was forwarded to the Review Conference by the eighth session of the Assembly of States Parties.[13]

The amendment adds to article 8(2)(e) three clauses which make it a war crime to employ poison, "asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices," or expanding bullets in an armed conflict not of an international character.[4] The Rome Statute already makes the use of such means of warfare a war crime in international armed conflicts.

States parties to the amendment[edit]

Because the amendment is to article 8, it will come into force only for those states parties which have ratified it, one year after doing so. As of January 2018, 36 states parties have ratified the document.[7] However, the Rome Statute itself was amended on 26 September 2012 after the amendment came into force for the first state party to ratify it. Since 26 September 2012, the amendment has been part of the Statute and any state that becomes a party to the Statute can choose to also be a party to the amendment.

State[7] Ratified Entry into force
 Andorra 26 September 2013 26 September 2014
 Argentina 28 April 2017 28 April 2018
 Austria 17 July 2014 17 July 2015
 Belgium 26 November 2013 26 November 2014
 Botswana 4 June 2013 4 June 2014
 Chile 23 September 2016 23 September 2017
 Costa Rica 5 February 2015 5 February 2016
 Croatia 20 December 2013 20 December 2014
 Cyprus 25 September 2013 25 September 2014
 Czech Republic 12 March 2015 12 March 2016
 El Salvador 3 March 2016 3 March 2017
 Estonia 27 March 2013 27 March 2014
 Finland 30 December 2015 30 December 2016
 Georgia 3 November 2015 3 November 2016
 Germany 3 June 2013 3 June 2014
 Latvia 25 September 2014 25 September 2015
 Liechtenstein 8 May 2012 8 May 2013
 Lithuania 7 December 2015 7 December 2016
 Luxembourg 15 January 2013 15 January 2014
 Macedonia, Republic of 1 March 2016 1 March 2017
 Malta 30 January 2015 30 January 2016
 Mauritius 5 September 2013 5 September 2014
 Netherlands[B] 23 September 2016 23 September 2017
 Norway 10 June 2013 10 June 2014
 Panama 6 December 2017 6 December 2018
 Palestine 29 December 2017 29 December 2018
 Poland 25 September 2014 25 September 2015
 Portugal 11 April 2017 11 April 2018
 Samoa 25 September 2012 25 September 2013
 San Marino 26 September 2011 26 September 2012
 Slovakia 28 April 2014 28 April 2015
 Slovenia 25 September 2013 25 September 2014
 Spain 25 September 2014 25 September 2015
  Switzerland 10 September 2015 10 September 2016
 Trinidad and Tobago 13 November 2012 13 November 2013
 Uruguay 26 September 2013 26 September 2014

Amendments on the crime of aggression (2010)[edit]

Summary[edit]

Amendments on the crime of aggression were adopted on 11 June 2010 at the Review Conference of the Rome Statute in Kampala, Uganda.[5] The amendments were proposed by Liechtenstein, which chaired the Special Working Group on the Crime of Aggression, the committee directed by the Assembly of States Parties to form a definition for the crime of aggression, which was originally absent from the Statute.[14]

The amendments define the crime of aggression in accordance with United Nations General Assembly Resolution 3314. Acts of aggression are: invading another state; bombing another state; blockading the ports or coastlines of another state; attacking the land, sea, or air forces, or marine or sea fleets of another state; violating a status of forces agreement; using armed bands, groups, irregulars or mercenaries against another state; allowing territory to be used by another state to perpetrate an act of aggression against a third state.[5]

While the amendments will come into force one year after being ratified, the amended text says that only crimes of aggression committed one year or more after the thirtieth ratification are within the jurisdiction of the Court. Furthermore, a decision is to be taken by the Assembly of States Parties with a two-thirds majority vote after 1 January 2017 to actually exercise jurisdiction.[5]

While upon a United Nations Security Council referral the Prosecutor can open an investigation against the national of any state, this is not the case with state referral and proprio motu investigations by the Prosecutor. A state party can opt out of these amendments, and nationals of non-states parties are not subject to the Court's jurisdiction. Additionally, the Prosecutor must wait for a determination of the Security Council regarding an act of aggression. If the Security Council determines an act of aggression has taken place, the Prosecutor may proceed. If the Security Council does not act within six months, the Prosecutor can proceed provided that a Pre-Trial Chamber approves that move. The Security Council keeps its right to defer investigations for a period of one year.[5]

States parties to the amendment[edit]

As of December 2017, 35 states parties have ratified the amendment.[8] Per the amendments, the jurisdiction of the International Criminal Court may begin one year after the 30th ratification of the amendment but not before the Assembly of States Parties has approved the commencement of jurisdiction after 1 January 2017.

State[8] Ratified Entry into force
 Andorra 26 September 2013 26 September 2014
 Argentina 28 April 2017 28 April 2018
 Austria 17 July 2014 17 July 2015
 Belgium 26 November 2013 26 November 2014
 Botswana 4 June 2013 4 June 2014
 Chile 23 September 2016 23 September 2017
 Costa Rica 5 February 2015 5 February 2016
 Croatia 20 December 2013 20 December 2014
 Cyprus 25 September 2013 25 September 2014
 Czech Republic 12 March 2015 12 March 2016
 El Salvador 3 March 2016 3 March 2017
 Estonia 27 March 2013 27 March 2014
 Finland 30 December 2015 30 December 2016
 Georgia 5 December 2014 5 December 2015
 Germany 3 June 2013 3 June 2014
 Iceland 17 June 2016 17 June 2017
 Latvia 25 September 2014 25 September 2015
 Liechtenstein 8 May 2012 8 May 2013
 Lithuania 7 December 2015 7 December 2016
 Luxembourg 15 January 2013 15 January 2014
 Macedonia, Republic of 1 March 2016 1 March 2017
 Malta 30 January 2015 30 January 2016
 Netherlands[C] 23 September 2016 23 September 2017
 Palestine 26 June 2016 26 June 2017
 Panama 6 December 2017 6 December 2018
 Poland 25 September 2014 25 September 2015
 Portugal 11 April 2017 11 April 2018
 Samoa 25 September 2012 25 September 2013
 San Marino 14 November 2014 14 November 2015
 Slovakia 28 April 2014 28 April 2015
 Slovenia 25 September 2013 25 September 2014
 Spain 25 September 2014 25 September 2015
  Switzerland 10 September 2015 10 September 2016
 Trinidad and Tobago 13 November 2012 13 November 2013
 Uruguay 26 September 2013 26 September 2014

Amendment to article 124 (2015)[edit]

On 26 November 2015 during their 14th meeting, the Assembly of States Parties adopted the amendment to article 124 in The Hague in the Netherlands.[6] The amendment deletes article 124 from the Rome Statute.[6] Article 124 is a transitional provision, which allows a state, upon becoming party to the Statute, to declare that it does not accept the jurisdiction of the Court over war crimes committed in its territory or by its nationals for a period of seven years.[15]

States parties to the amendment[edit]

As of June 2018, ten state parties have ratified the amendment.[9] Per article 121(4) of the Rome Statute, this amendment will enter into force for all state parties to the Rome Statute one year after seven-eighths of states parties (currently 108 states parties) have ratified it.

State[9] Ratified Entry into force
 Austria 22 September 2017 TBD
 Croatia 27 April 2018 TBD
 France 19 March 2018 TBD
 Finland 23 September 2016 TBD
 Italy 13 April 2018 TBD
 Netherlands[D] 20 March 2017 TBD
 Norway 1 July 2016 TBD
 Portugal 11 April 2017 TBD
 Romania 14 June 2018 TBD
 Slovakia 28 October 2016 TBD

Proposed amendments[edit]

A number of amendments have been proposed by states parties, but have either not been considered or adopted by the Assembly:

  • African Union states parties have proposed allowing a state party that has jurisdiction over a situation before the Court to ask the United Nations Security Council to defer the matter, or alternatively, if the Security Council fails to make a decision the state party can ask the United Nations General Assembly to defer the matter.[16]
  • Kenya proposed several amendments, including making sitting heads of state immune from prosecution, subjecting ICC authorities to prosecution for crimes against the administration of justice, and granting the Independent Oversight Mechanism more authority.[17]
  • Mexico has proposed making the use or threat of use of nuclear weapons a war crime.[16]
  • The Netherlands has proposed adding terrorism as a prosecutable crime.[16]
  • Norway has proposed establishing a mechanism for allowing international or regional organizations to play a role in the enforcement of sentences.[18]
  • Trinidad and Tobago and Belize have proposed adding international drug trafficking as a prosecutable crime.[16]

Notes[edit]

  1. ^ An amendment to articles 5, 6, 7, or 8 of the Statute only enters into force for states parties that have ratified the amendment.
  2. ^ The amendment to article 8 (2010) entered into force for Aruba on 21 December 2017.
  3. ^ The amendments on the crime of aggression (2010) entered into force for Aruba on 21 December 2017.
  4. ^ The Netherlands' acceptance of the amendment to article 124 (2015) has not been extended to Aruba or Sint Maarten.

References[edit]

  1. ^ Articles 121(3), (4), and (6) of the Rome Statute of the International Criminal Court.
  2. ^ Article 121(5) of the Rome Statute of the International Criminal Court.
  3. ^ Article 122(2) of the Rome Statute of the International Criminal Court.
  4. ^ a b c "Resolution RC/Res.5: Amendments to article 8 of the Rome Statute" (PDF). International Criminal Court. 2010-06-10. Retrieved 2011-03-13. 
  5. ^ a b c d e f "Resolution RC/Res.6: The crime of aggression" (PDF). International Criminal Court. 2010-06-10. Archived from the original (PDF) on 2011-06-16. Retrieved 2011-03-13. 
  6. ^ a b c "Resolution ICC-ASP/14/Res.2: Amendment to article 124 of the Rome Statute" (PDF). International Criminal Court. 2015-11-26. Retrieved 2015-12-08. 
  7. ^ a b c "Chapter XVIII, Penal Matters 10.a: Amendment to article 8 of the Rome Statute of the International Criminal Court". United Nations Treaty Collections. 2017-12-09. Retrieved 2018-01-02. 
  8. ^ a b c "Chapter XVIII, Penal Matters 10.b: Amendments on the crime of aggression to the Rome Statute of the International Criminal Court". United Nations Treaty Collection. 2017-12-07. Retrieved 2017-12-22. 
  9. ^ a b c "Chapter XVIII, Penal Matters 10.c: Amendment to article 124 of the Rome Statute of the International Criminal Court". United Nations Treaty Collection. 2017-04-12. Retrieved 2017-12-22. 
  10. ^ "C.N.116.2018.TREATIES-XVIII.10 (Depositary Notification): Amendment to article 8 (Weapons which use microbial or other biological agents, or toxins)" (PDF). United Nations Treaty Collection. 2018-03-08. Retrieved 2018-03-10. 
  11. ^ "C.N.125.2018.TREATIES-XVIII.10 (Depositary Notification): Amendment to article 8 (Weapons the primary effect of which is to injure by fragments undetectable by x-rays in the human body)" (PDF). United Nations Treaty Collection. 2018-03-08. Retrieved 2018-03-10. 
  12. ^ "C.N.126.2018.TREATIES-XVIII.10 (Depositary Notification): Amendment to article 8 (Blinding laser weapons)" (PDF). United Nations Treaty Collection. 2018-03-08. Retrieved 2018-03-10. 
  13. ^ "Annex VIII: Elements of crimes corresponding to the proposed amendment contained in annex III to resolution ICC-ASP/8/Res.6" (PDF). International Criminal Court. Retrieved 2011-03-13. 
  14. ^ "ICC-ASP/8/20: Annex II – Liechtenstein: Proposals for a provision on aggression" (PDF). International Criminal Court. Retrieved 2011-03-13. 
  15. ^ Article 124 of the Rome Statute of the International Criminal Court.
  16. ^ a b c d "ICC-ASP-NL-03/10-En: ASP Special Edition Newsletter #3" (PDF). International Criminal Court. 2010-01-19. Retrieved 2011-03-16. 
  17. ^ Masau, Nzau and Gideon Keter (2013-11-18). "9 AU countries threaten bid to amend ICC regulations". The Star. Nairobi. Retrieved 2013-11-29. 
  18. ^ "ICC-ASP-NL-02.b/09-En: ASP Special Edition Newsletter #2" (PDF). International Criminal Court. 2000-12-17. Retrieved 2011-03-16.