Amended Most Serious Crimes A New Category of Core Crimes in The Jurisdiction of The ICC

Leiden Journal of International Law, 21 (2008), pp.
699–718

C Foundation of the Leiden Journal of International Law Printed in the United Kingdom doi:10.1017/S0922156508005268
‘Amended Most Serious Crimes’: A New

Category of Core Crimes within the
Jurisdiction but out of the Reach of the
International Criminal Court?
AST R I D R E I S I N G E R C O R AC I N I ∗
Abstract
Article 121(5) Rome Statute provides for a specific regime for amendments to Articles 5–8 of the
Statute. Its final clause precludes the exercise of the jurisdiction of the International Criminal
Court over a crime covered by an amendment when committed by a national or on the territory
of a state party which has not accepted the amendment. This provision has been understood
as derogating from the Statute’s general rules on jurisdiction. The present article argues that
a stringent reading of the clause as well as a systematic and teleological approach warrant an
alternative interpretation in conformity with the jurisdictional system of the Statute.
Key words
aggression; amendments; first review conference; International Criminal Court; jurisdiction
1. I NTRODUCTION
While the International Criminal Court (ICC or the Court) gradually proceeds to
test the Rome Statute1 in practice, the Assembly of States Parties (ASP) is launching
preparations for the 2010 review conference. The agenda of this meeting has not yet
been decided. Although there is no legal obligation to deal with ‘the list of crimes
contained in article 5’ at the first review conference,2 discussions relating to the
Court’s jurisdiction ratione materiae have not abated since Rome3 – good reason to
take a closer look at the rules applicable to ‘amendments to articles 5, 6, 7 and 8’.4
∗
Lecturer, Institute of International Law and International Relations, University of Graz; Executive Director,
Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law.
1 Rome Statute of the International Criminal Court, A/CONF.183/9 of 17 July 1998 as corrected by procès-
verbaux (hereinafter Rome Statute or the Statute). Articles given without further reference are those of the
Rome Statute.
2 Art. 123(1).
3 For an overview see e.g. R. S. Clark, ‘Possible Amendments for the First ICC Review Conference in 2009’, (2007)
4 New Zealand Yearbook of International Law 103, at 106 ff.; C. Wenaweser, ‘Crimes within the Jurisdiction of the
Court – Going beyond the Core Crimes?’, in Austrian Federal Ministry for Foreign Affairs and Salzburg Law
School on International Criminal Law (eds.), The Future of the International Criminal Court – Salzburg Retreat,
25–27 May 2006 (2006), available at http://www.sbg.ac.at/salzburglawschool/Retreat (hereinafter Salzburg
Retreat), 20.
4 Art. 121(5).
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700 AST R I D R E I S I N G E R C O R AC I N I
Article 121(5) contains a particular amendment regime for changes regarding the
definitions of crimes and categories of crimes falling within the jurisdiction of the
Court. The provision sets out that such amendments only enter into force for states
parties which have accepted them. Furthermore, it provides that ‘[i]n respect to 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 national or on its territory’. The latter clause has been understood
as derogating from the Statute’s jurisdictional system laid down in Articles 12 and
13. Notwithstanding the establishment of a jurisdictional link, crimes covered by
an amendment allegedly committed by nationals of a state party which has not
accepted the amendment or on its territory would be categorically exempt from the
jurisdiction of the Court; a ‘privilege’ not granted to third states5 .
This paper will challenge the above interpretation, by scrutinizing the inter-
relation between the Court’s competence ratione materiae and the (pre)conditions
under which it may exercise its jurisdiction. At the outset, the analysis will therefore
deal with relevant aspects of the ICC’s jurisdictional regime (section 2) and give a
brief overview of the Statute’s provisions on amendment and review (section 3).
It will then discuss in detail the rule on amendments to Articles 5–8, its relation
to other provisions in the Rome Statute, and its implications regarding third states
(section 4). Finally, the relevance of Article 121(5) for the first review conference will
be examined (section 5).
2. T HE ROME STATUTE ’ S JURISDICTIONAL REGIME

2.1. Inherent jurisdiction over core crimes
On becoming a party to the Rome Statute, states accept the Court’s jurisdiction over
crimes referred to in Article 5.6 This inherent or automatic competence, independent
of the particular consent of any state, was vigorously discussed during the prepara-
tory process. The 1994 Draft Statute drawn up by the International Law Commission
(ILC) had foreseen a strict system of state consent (or opt-in) for crimes within the
jurisdiction of an ICC.7 Accordingly, states ratifying the treaty were merely deemed
to support the establishment of an ICC, but not per se committed to accept its
jurisdiction. The Court would have been able to exercise jurisdiction only if the
‘State which has custody of the suspect with respect to the crime’ and the ‘State on
the territory of which the act or omission in question occurred’ had particularly
5 For details see infra section 4.

6 Art. 12(1). See generally S. Bourgon, ‘Jurisdiction ratione temporis’, in A. Cassese, P. Gaeta, and J. R. W. D. Jones
(eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), I, 543, at 549; S. A. Williams,
‘Article 12’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, Observers’
Notes, Article by Article (1999), margin no. 13.
7 Report of the International Law Commission on the work of its forty-sixth session, 2 May to 22 July 1994
(A/49/10) (hereinafter 1994 ILC Draft), 43, at 82–4. By contrast, the 1993 ILC Draft optionally provided for
a general assumption of acceptance of jurisdiction for states parties with the possibility of opting out for
specific crimes (alternatives B and C, draft Art. 23, Report of the International Law Commission on the work
of its forty-fifth session, 3 May to 23 July 1993 (A/48/10), Annex). For details see M. E. Corrão, ‘Jurisdiction
of the International Criminal Court and State Consent’, in F. Lattanzi (ed.), The International Criminal Court,
Comments on the Draft Statute (1998), 79, at 82 ff.
A N EW C AT E G O RY O F C O R E C R I M E S OU T O F T H E R E AC H O F T H E I C C ? 701
consented thereto.8 Such state consent was irrelevant only for situations referred
to the Court by the UN Security Council under Chapter VII of the UN Charter and
cases involving the crime of genocide.9
On this basis several proposals, ranging from automatic jurisdiction for all crimes
to a procedure whereby up to five states should consent cumulatively to activate the
Court’s competence in every individual case, were tabled during the negotiations.10
Eventually it became clear that the acknowledgement of automatic jurisdiction
was closely linked to the question of which crimes would fall within the Court’s
jurisdiction. With the evolving concentration on crimes under international law,
delegations showed more flexibility as to establishing a strong Court with inherent
jurisdiction over those crimes.11 The finally agreed formula, ‘the most serious crimes
of concern to the international community as a whole’,12 makes it clear that only
those particularly serious crimes, which violate fundamental values of the inter-
national community as a whole – that is, ‘the peace, security and well-being of the
world’ – fall under the jurisdiction of the ICC.13 This generic definition of the ICC’s
ratione materiae competence is concretized by a conclusive list of categories of crimes
which at the time of the Rome Conference were generally deemed to fulfil that con-
dition:14 genocide, crimes against humanity, war crimes, and the crime of aggression.
The term ‘core crimes’ emerged during the negotiations as referring to crimes
which a growing majority of states considered as most serious and of concern to the
international community as a whole. It was consequently used to distinguish these
crimes from others which were deemed to fall short of the established threshold.
The term ‘treaty crimes’, which is sometimes used for the latter category, is some-
what confusing, since quite a number of core crimes have previously also been
defined by international treaties.15 However, the distinction reveals the concept
underlying the Court’s jurisdiction. It was generally understood that the Statute
should merely codify customary crimes, those which are acknowledged as directly
punishable under international law.16 Therefore the generic definition of crimes
falling within the Court’s jurisdiction can be linked to the concept of crimes under
8 1994 ILC Draft, supra note 7, Art. 22.

9 Ibid., Arts. 23(1), 21(1)(a). For details see e.g. S. A. Williams, ‘Article 13’, in Triffterer, supra note 6, margin
no. 3.
10 See, e.g., Art. 9, further option, and Art. 7, option 2, Report of the Preparatory Committee on the Establishment
of an International Criminal Court, Draft Statute for the International Criminal Court, A/CONF.183/2/Add.1,
14 April 1998 (hereinafter Consolidated Draft); Art. 34 in A/AC.249/L.3 of 6 August 1996 (France).
11 E. Wilmshurst, ‘Jurisdiction of the Court’, in R. S. Lee (ed.), The International Criminal Court (1999), 127, at 130,
134.
12 Preamble, paras. 4 and 9, Art. 1, Art. 5(1).
13 Preamble, para. 3. For details see M. Bergsmo and O. Triffterer, ‘Preamble’, in Triffterer, supra note 6, margin
nos. 9, 12, 21.
14 E.g. D. N. Nsereko, ‘The International Criminal Court: Jurisdictional and Related Issues’, (1999) 10 Criminal
Law Forum 87, at 93–4.
15 See also 1994 ILC Draft, supra note 7, Art. 20 and annex, at 30 listing among others grave breaches of the Geneva
Conventions and Additional Protocol I, apartheid, and torture as treaty crimes. Generally, on difficulties in
distinguishing between crimes under customary law and treaty crimes, see e.g. G. M. Danilenko, ‘The Statute
of the International Criminal Court and Third States’, (2000) 21 Michigan Journal of International Law 445, at
462.
16 For many see O. Triffterer, ‘Preliminary Remarks: The Permanent International Criminal Court – Ideal and
Reality’, in Triffterer, supra note 6, margin no. 72.
international law. An evolution of the scope of this notion is not impossible. How-
ever, respecting the framework of the Statute, any crime to be included within the
Court’s jurisdiction must cross the particular threshold, in that it endangers funda-
mental values of the international community as a whole. Other internationalized
crimes, which endanger primarily values of the national legal order, are better dealt
with domestically, relying on enhanced international co-operation.17
2.2. Jurisdiction ratione loci

The Rome Statute does not contain a particular provision defining the Court’s
jurisdiction ratione loci; it is potentially unlimited. If a situation is referred to the
Court by the UN Security Council, the ICC may exercise jurisdiction over any person
allegedly committing crimes within its jurisdiction on any territory.18 If a situation
is referred to the ICC by a state party or the Prosecutor initiates investigations
proprio motu, a jurisdictional link enabling the ICC to exercise its jurisdiction needs
to be established as a precondition for the exercise of its competence.19 The Court
may base its jurisdiction alternatively on the principle of territoriality or on the
nationality of the accused. It therefore may exercise its jurisdiction over core crimes
which are committed on the territory of a state party, independent of whether
or not the perpetrator is a national of a state party. It may equally exercise its
jurisdiction over core crimes perpetrated by nationals of states parties, independent
of whether or not the crimes were committed on the territory of a state party.20 The
same preconditions for the exercise of jurisdiction apply with regard to those non-
states parties which have accepted the jurisdiction of the ICC ad hoc, for a certain
situation.21
This disjunctive regime was at the core of the final package deal of the Bureau
of the ASP leading to the adoption of the Statute in Rome.22 It constitutes a major
concession by a majority of states which supported a broader jurisdictional regime.23
When consensus on the principle of the Court’s automatic jurisdiction over states
parties was emerging, the debate on requirements of state consent was transposed
17 O. Triffterer, ‘Concluding Remarks’, in Salzburg Retreat, supra note 3, 26, at 30–1; see also H. van Hebel, ‘Crimes
within the Jurisdiction of the Court’, in Lee, supra note 11, 79, at 81. On general difficulties concerning the
prosecution of transnational crimes see Wenaweser, supra note 3, at 22.
18 Art. 13(b).
19 Arts. 13(a) and (c), and 12(2). For a recent analysis of the Court’s two jurisdictional regimes, see G. P. Fletcher
and J. D. Ohlin, ‘The ICC: Two Courts in One?’, (2006) 4 Journal of International Criminal Justice 428, at 433; see
also H.-P. Kaul and C. Kreß, ‘Jurisdiction and Cooperation in the Statute of the International Criminal Court:
Principles and Compromises’, (1999) 2 Yearbook of International Humanitarian Law 143, at 172.
20 For the prevailing opinion see S. Bourgon, ‘Jurisdiction ratione loci’, in Cassese, Gaeta, and Jones, supra note 6,
559, at 564–6; Williams, supra note 6, margin no. 15.
21 The reference to ‘the crime in question’ (emphasis added) in Art. 12(3) was identified as a drafting error by
the Chairman of the Drafting Committee; it should read ‘situation’ in accordance with the structure of the
Statute. M. C. Bassiouni, ‘Negotiating the Treaty of Rome on the Establishment of the International Criminal
Court’, (1999) 32 Cornell International Law Journal 443, at 453–4. This misleading reference was corrected by
Rule 44 ICC Rules of Procedure and Evidence, PCNICC/2000/1/Add.1, 2 November 2000.
22 See generally Bassiouni, supra note 21, at 453; P. Kirsch and J. T. Holmes, ‘The Rome Conference on an
International Criminal Court: The Negotiating Process’, (1999) 93 AJIL 2, at 10–11; T. N. Slade and R. S. Clark,
‘Preamble and Final Clauses’, in Lee, supra note 11, at 424.
23 G. Hafner, K. Boon, A. Rübesame, and J. Huston, ‘A Response to the American View as Presented by Ruth
Wedgwood’, (1999) 10 EJIL 108, at 116; Nsereko, supra note 14, at 107.
into the context of non-states parties. On the one hand, Germany, relying on the right
of states to enforce crimes under international law through universal jurisdiction
and their ability to do jointly what they can do alone, sought a Court with universal
jurisdiction independent of any further consent.24 On the other hand, a majority
of states supported the need for a certain link of the ICC’s jurisdiction to states
parties to the Statute.25 The insistence of some states on consent by the state of
nationality of the accused and a proposal tabled by the US delegation requiring
the cumulative acceptance of the territorial state and the state of nationality of the
accused26 eventually led to the final compromise of alternative jurisdictional links
enshrined in Article 12(2).
The reach of the ICC over nationals of non-states parties thereby established
continues to be subject to strong criticism.27 Capturing all the details of the on-
going debate would exceed the scope of this paper;28 suffice it to say that the
prevailing majority holds the opinion that the Statute does not violate the cus-
tomary law rule pacta tertiis nec nocent nec prosunt also codified in Article 34 of
the Vienna Convention on the Law of Treaties (VCLT).29 By setting up a mech-
anism to enforce international criminal law, the Statute does not impose any
obligations or create duties for third states, but reflects existing rights to prosec-
ute individuals, independent of their national or territorial state, for most serious
crimes prohibited under international law.30 Furthermore, the Statute’s comple-
mentarity system accepts the priority of any domestic procedure. As long as a state
party or non-state party genuinely exercises the ius puniendi of the international
24 A/AC.249/1998/DP.2 of 23 March 1998. For details see Kaul and Kreß, supra note 19, at 145 ff.
25 For the various options see Bureau discussion paper regarding part 2, A/CONF.183/C.1/L.53 of 6 July 1998
incorporating A/CONF.183/C.1/L.6 of 18 June 1998 (Korea), UK statement of 19 June 1998, amending
A/AC.249/1998/WG.3/DP.1 of 25 March 1998. For details see e.g. Kaul and Kreß, supra note 19, at 152–3;
F. Lattanzi, ‘The Rome Statute and State Sovereignty: ICC Competence, Jurisdictional Links, Trigger Mechan-
isms’, in F. Lattanzi and W. Schabas, Essays on the Rome Statute of the International Criminal Court, Vol. 1 (1999),
51, at 55–8; Williams, supra note 6, margin nos. 5–12.
26 A/CONF.183/C.1/L.70 (USA). For details see D. J. Scheffer, ‘The United States and the International Criminal
Court’, (1999) 93 AJIL 12, at 20; Williams, supra note 6, margin no. 10. The main US objective was described
as shielding US citizens from the Court’s jurisdiction; see R. B. Philips, ‘The International Criminal Court
Statute: Jurisdiction and Admissibility’, (1999) 19 Criminal Law Forum 61, section 4; J. D. van der Vyver,
‘Personal and Territorial Jurisdiction of the International Criminal Court’, (2000) 14 Emory International Law
Review 1, at 18.
27 For views expressed by US writers in particular see, e.g., M. Morris, ‘High Crimes and Misconceptions: The
International Criminal Court and Non-Party States’, (2000) 64 Law & Contemporary Problems 15; Scheffer,
supra note 26; R. Wedgwood, ‘The International Criminal Court: An American View’, (1999) 10 EJIL 93. For
a different voice see e.g. M. Scharf, ‘The ICC’s Jurisdiction over the Nationals of Non-party States: A Critique
of the US Position’, (2001) 64 Law & Contemporary Problems 67.
28 For a recent analysis see D. Akande, ‘The Jurisdiction of the International Criminal Court over Nationals of
Non-parties: Legal Basis and Limits, (2003) 1 Journal of International Criminal Justice 618.
29 For many see A. Pellet, ‘Entry into Force and Amendment of the Statute’, in Cassese, Gaeta, and Jones, supra
note 6, 145, at 163.
30 B. S. Brown, ‘US Objections to the Statute of the International Criminal Court: A Brief Response’, (1999) 31
New York University Journal of International Law and Politics 855, at 869–70; Danilenko, supra note 15, at 458–64;
Hafner et al., supra note 23, at 117–18; Kaul and Kreß, supra note 19, at 150. See also E. La Haye, ‘The Jurisdiction
of the International Criminal Court: Controversies over the Preconditions for Exercising Jurisdiction’, (1999)
46 Netherlands International Law Review 1, at 19; G. Palmisano, ‘The ICC and Third States’, in Lattanzi and
Schabas, supra note 25, 391, at 396–7; J. J. Paust, ‘The Reach of ICC Jurisdiction over Non-signatory Nationals’,
(2000) 33 Vanderbilt Journal of Transnational Law 1, at 3 ff.; Scharf, supra note 27, at 98.
community as a whole,31 a case falling within the jurisdiction of the Court will not be
admissible.32
3. A MENDMENTS TO AND REVIEW OF THE STATUTE

The Rome Statute empowers different institutional fora to consider amendments: a
review conference convened by the ASP, the ASP during one of its sessions (Art. 121),
and a review conference convened by the UN Secretary-General (Art. 123). While
states parties may decide to convene or request the UN Secretary-General to convene
such a conference,33 Article 123(1) provides for the automatic convening of a review
conference ‘seven years after the entry into force of the Statute’.34 The Statute does
not substantially differentiate between amendments and review.35 Although the
term ‘review’ might suggest the discussion of substantive amendments affecting
the treaty as a whole,36 nothing precludes the ASP from considering the same
amendments at a regular session.
Procedurally, three different amendment mechanisms can be distinguished. Art-
icle 121(4) contains the general rule. Specific provisions on ‘amendments to articles
5, 6, 7 and 8’ of the Statute and ‘amendments to provisions of an institutional nature’
are to be found in Articles 121(5) and 122. The rules for adoption of an amendment
are the same for all of these three types. If consensus cannot be reached, a qualified
majority of two-thirds of states parties is required.37 However, the provisions differ
concerning the entry into force of the respective amendment.
According to the general rule, amendments enter into force for all states parties
one year after seven-eighths of them have deposited an instrument of ratification or
acceptance with the UN Secretary-General.38 Until the deposit of the last required
instrument the amendment is not effective. After entry into force it is applicable
to all states parties. This provision reflects the need for a uniform application of
31 Triffterer, supra note 17, at 32.

32 Preamble, para. 10, Arts. 1, 17. On procedural safeguards for states, including non-states parties, see Arts. 18
and 19; for details see Danilenko, supra note 15, at 476; Nsereko, supra note 14, at 116; Scheffer, supra note 26,
at 15.
33 While the Secretary-General shall convene a review conference at the request of a state party ‘upon approval
by a majority of States Parties’ (Art. 123(2)), the voting requirement for the ASP is considerably lower
(Art. 121(2)).
34 This provision aimed at securing the automatic convening of a review conference, in spite of possible
resistance by states who are sceptical towards any enlargement of the Court’s jurisdiction; see e.g. S. J. Gerber,
‘Commentary on Parts 10 and 11 of the Zutphen Intersessional Draft: Enforcement and Final Clauses’, (1998)
13bis Nouvelles études pénales 103, at 111. Seven years seemed an appropriate time in Rome, ensuring that some
significant practice would have developed; see R. S. Clark, ‘Article 123’, in Triffterer, supra note 6, margin no.
2. Today this assumption appears rather optimistic. With the first trial to start some time in 2008, the Statute
will have been tested only partly in practice.
35 R. S. Clark, ‘Article 121’, in Triffterer, supra note 6, margin no. 8; Pellet, supra note 29, at 177.
36 See e.g. United Nations (ed.), Final Clauses of Multilateral Treaties (2003), at 96. Art. 111, option 2, para. 1
Consolidated Draft had originally foreseen dedicating a review exclusively to ‘the list of crimes within the
jurisdiction of the Court contained in article 5, in order to consider additions to the list’. Today Article 121(2)
continues to empower the ASP to convene a review conference ‘if the issue so warrants’. But see Clark, supra
note 35, margin no. 8.
37 Art. 121(3). The two-thirds majority is counted from the totality of states parties, not from those present and
voting as stipulated, e.g., in Art. 121(2). This voting requirement is more stringent than the ASP’s default rule
on matters of substance, Art. 112(7)(a).
38 Art. 121(4).
organizational structures when treaties establishing international organizations are

concerned. The erga omnes effect, however, was obtained at a high price,39 the number
of necessary ratifications (seven-eighths) significantly exceeding the requirements
for adoption (two-thirds).40 For a state party which has not accepted such an amend-
ment, Article 121(6) offers the possibility of opting out: it may withdraw from the
Statute with immediate effect.41
Any amendment to Articles 5, 6, 7, and 8 of the Statute enters into force only
for those states parties which have accepted it (opt-in), one year after the deposit
of the respective instrument of ratification or acceptance.42 This provision relates
on the one hand to any extension of the list of crimes contained in Article 5. On
the other hand, it is also constituent for adding, deleting, or changing definitions
of crimes contained in Articles 6–8.43 Contrary to the general rule, this provision
does not foresee the possibility for states parties not accepting the amendment to
withdraw from the Statute with immediate effect. This is due to the fact that ‘their
legal position is in no way modified’.44
A simplified procedure is applicable for amendments to provisions of an institu-
tional nature, which are exclusively listed in Article 122. These may be proposed by
any state party at any time, notwithstanding the time frame set out in Articles 121
and 123.45 They enter into force for all states parties six months after their adoption
by the ASP or a review conference.46
4. A NALYSIS OF A RTICLE 121(5)

4.1. Entry into force of amendments to Articles 5–8
Two particularities can be identified regarding the entry into force of amendments to
Articles 5–8. First, no specific number of ratifications is requested. Such a procedure
has been justified by the ‘non-reciprocal nature’ of the provisions regulating the
39 Slade and Clark, supra note 22, at 434; Pellet, supra note 29, at 180.
40 Since the Rome Statute is silent regarding the basis on which the seven-eighths have to be calculated, the
depositary will refer to the number of states parties at the time a relevant instrument of ratification or
acceptance was deposited, United Nations, supra note 36, at 75. According to this practice, states ratifying
the Statute after the adoption but before the entry into force of an amendment also play a significant role in
reaching the necessary seven-eighths.
41 For particularities on the time frame see Clark, supra note 35, margin no. 13.
42 Art. 121(5).
43 When the Rome Statute was adopted on 17 July 1998 the paragraph still referred to ‘[a]ny amendment to
article 5’ only (see UN Doc. A/CONF.183/9). The wording was subsequently altered by way of a procès-verbal.
The chairman of the Committee of the Whole clarified that since at the time Art. 121(5) was finalized Art.
5 contained both the list of crimes and their definitions, the missing reference to what is now contained in
Arts. 6–8 was an ‘inadvertent technical error’. The intention of the Bureau when negotiating a compromise
regarding Art. 121(5) had not been to suggest different rules applicable for Art. 5 on the one hand and Arts.
6–8 on the other hand. For details see Clark, supra note 35, margin no. 11; Pellet, supra note 29, at 181; Slade
and Clark, supra note 22, at 435–7.
44 Pellet, supra note 29, at 182. For details see infra section 4.
45 The provision prescribes further procedural particularities. Proposals may be directed not only to the
Secretary-General (as is the case for amendments according to Art. 121(1)) but also to ‘such other person
designated by the assembly of states parties’. Proposals shall be circulated to states parties (as also foreseen
in Art. 121(1)) as well as to others participating in the Assembly.
46 Art. 122(2).
jurisdiction of the ICC, which are related to norms protecting human rights.47
Second, the amendment enters into force only with regard to the accepting state.
This mechanism reflects a general tendency in treaty practice: the reluctance of
states to be bound by amendments they have not accepted.48 It might be regarded
as positive in that it opens the possibility for further commitments of some states
parties. However, it is unfortunate when applied to a treaty that is the founding
instrument of an international organization, and may create ‘significant problems
of interpretation and implementation’.49
These two issues are interrelated and ought to be evaluated against the back-
ground of the jurisdictional regime of the ICC. Any amendment to Articles 5–8 will
ipso facto enlarge50 the inherent jurisdiction of the Court according to Article 12(1),
which refers to the groups of crimes listed in Article 5.51 States parties which ac-
cept an amendment do not thereby alter any reciprocal relationship to other states
parties but furnish the Court with further competences to adjudicate crimes un-
der international law. In relations between states parties which have accepted an
amendment and those which have not accepted it, the unamended treaty will be
applicable.52 Nevertheless, the Court, by way of entry into force of an amendment,
is equipped with extended competences which may affect any state. This view is
backed by the formulation ‘shall not exercise its jurisdiction’ (Art. 121(5), emphasis
added), which acknowledges that the Court has jurisdiction over a crime covered by
an amendment. As a consequence Article 13, which similarly refers to crimes listed
in Article 5, applies fully with regard to situations including crimes covered by an
amendment. States parties53 as well as the Security Council may refer situations in
which such crimes have allegedly been committed; and the prosecutor may initiate
proprio motu investigations.
4.2. The Court’s exercise of jurisdiction over crimes covered by an amend-

ment
If the Court’s jurisdiction over crimes covered by an amendment is accepted, it
remains to be discussed in what ways its exercise of jurisdiction may be confined by
Article 121(5). In this regard, the formulation of the last clause of Article 121(5) –
‘the Court shall not exercise’ – is in conflict with Article 12(2) – ‘the Court may
exercise’ – upon which a state party which has accepted an amendment may rely.
A literal reading of the provision’s last clause suggests that the Court will not be
able to exercise jurisdiction in distinct cases. But should that mean in any case, even
involving a state party, which has accepted an amendment? Has the provision to be
47 Pellet, supra note 29, at 181–2; in this regard see also e.g. Kaul and Kreß, supra note 19, at 174.
48 For details see United Nations, supra note 36, at 70.
49 Ibid.
50 Or reduce, as the case may be, although the latter seems rather unlikely.
51 Although Arts. 6, 7, and 8 are not expressly mentioned, they are incorporated insofar as they only constitute
a refinement of what is laid down in Art. 5.
52 Arts. 40(4), 30(4)(b) VCLT.
53 General application of Art. 13 leads to the unusual opportunity for states parties which have not accepted
an amendment to refer to the Court a situation in which crimes covered by the amendment appear to have
been committed.
read in accordance with the framework established by Part 2 of the Statute? Or is it

to be seen as an additional precondition to the exercise of the Court’s jurisdiction
over ‘amended crimes’? Both interpretations seem to be covered by the wording,
although leading to opposing solutions.
The majority view reads the final clause of Article 121(5) as a complete ban
on the Court’s exercise of jurisdiction when a crime covered by an amendment is
allegedly committed by a national or on the territory of a state party which has not
accepted the amendment.54 According to this view, Article 121(5) sets up a specific
jurisdictional regime for crimes covered by an amendment, which requires the
cumulative establishment of two jurisdictional links. Only if the crime in question
was committed by a national of a state party which has accepted the amendment as
well as on the territory of the same or another state party, which has equally accepted
the amendment, would the Court be able to exercise its jurisdiction. To this extent,
Article 121(5) would derogate from Article 12(2) with a view to preconditions to
the exercise of jurisdiction in the case of a state party referral or a proprio motu
investigation. But unlike Article 12(2), Article 121(5) does not distinguish between
different ‘trigger mechanisms’. Therefore the same preconditions arguably need to
be established, even upon a referral by the UN Security Council. As a consequence,
states parties would to a large extent be able to shield their nationals from the Court’s
jurisdiction over crimes covered by an amendment.55
However, in line with the ordinary meaning of its words, the provision can equally
be interpreted in a narrow way. In the context of the final clauses, Article 121(5) has
been identified as a specific norm with regard to the general rule of amendments as
contained in Article 121(4). It should not be understood as a more specific rule with
regard to other provisions of the Statute, which are furthermore subject to a different
amendment regime. Article 121(5), therefore, needs to be interpreted in accordance
with the Statute, in particular its Part 2. Its last clause clarifies the position of a state
party which has not accepted an amendment; it does not give any further indication
with regard to the status of other states. It simply makes it clear that although the
state in question is a party to the Statute, the Court shall not exercise its (potential)
jurisdiction as long as this state has not ratified the amendment. This state party
takes the position of a third state with respect to a crime covered by an amendment.
Consequently, the Court would not be able to exercise its jurisdiction over crimes
committed by a national of that state party or on its territory unless a situation was
submitted by the UN Security Council, or a jurisdictional link to a state party which
had accepted the amendment could be established according to Article 12(2).56 As
Professor Pellet confirms,
54 In this sense see e.g. Brown, supra note 30, at 887; Danilenko, supra note 15, at 494; Hafner et al., supra note 23,
at 118; M. Morris, ‘Terrorism and Unilateralism: Criminal Jurisdiction and International Relations’, (2004) 36
Cornell International Law Journal 473, at 487; Scheffer, supra note 26, at 20; Wedgwood, supra note 27, at 104;
van der Vyver, supra note 26, at 36.
55 Hafner et al., supra note 23, at 118; Nsereko, supra note 14, at 104; accordingly also Paust, supra note 30, at 8.
For details see infra section 4.3.
56 See e.g. Pellet, supra note 29, at 180, 182; N. Strapatsas, ‘Analysis of the Amendment Rules Applicable to
the Inclusion of the “Crime of Aggression” into the ICC Statute’, paper available at http://www.coeicl.de, at
paras. 27–28, comes to a similar conclusion although partly based on a jus cogens argument in the particular
circumstances of the crime of aggression.
Entry into force of an amendment to Articles 5 to 8 leaves both third States and those
who, though parties to the Statute, have not ratified the amendment in an exactly
identical position: each are unaffected by the amendment. The fact that the amendment
may apply not to them as States, but, should the case arise, to their nationals . . . has
absolutely nothing to do with the amending procedure; it is the normal consequence
of the territoriality of penal competence.57
This interpretation also gives due respect to the fact that the will of a state party
not to be bound by an amendment may not be given more weight than the will of
another state party to submit its territory and nationals to the jurisdiction of the
Court. It seems in line with the aforementioned considerations that the following
wording has not found its way into the Rules of Procedure and Evidence:
[W]ith respect to a crime added by amendment to the Statute pursuant to article 121,
paragraph 5, the Court may exercise jurisdiction only if the amendment has entered
into force for both the State of nationality of the alleged perpetrator and the State in
whose territory the crime was committed.58
What has been elaborated with an emphasis on amendments to Article 5 is

equally applicable to amendments covering Articles 6–8 when new acts, respect-
ively definitions of crimes, are to be included in a category of crime.59 Certainly the
consequences of a broad interpretation with respect to shielding an alleged perpet-
rator from international criminal jurisdiction are less far-reaching. Any limitations
to the Court’s exercise of jurisdiction would concern only specific acts and not a
whole category of crimes.
The harmful effects of the impunity gap also seem less severe where amend-
ments to existing definitions of crimes are concerned. Even if states parties were
able to shield their nationals from the Court’s reach over a criminal act as amended,
they would nevertheless be bound to co-operate by the original definition of the
crime in question. But a broad understanding of Article 121(5) might lead to un-
satisfactory consequences with a view to an alleged perpetrator. One may think of
a situation where criminal conduct involves a particular crime against humanity
whose definition has been changed by an amendment. A suspect, the national of a
state party which has accepted the amendment, allegedly perpetrated the amended
crime against humanity on the territory of another state party which has not ac-
cepted the amendment. The Court will be faced with two definitions of a crime,
both seemingly applicable to the same conduct. Could the Court simply apply the
57 Pellet, supra note 29, at 182, footnotes omitted.

58 Proposal Submitted by the United States of America Concerning Rules of Evidence and Procedure Relating
to Part 13 of the Statute (Final Clauses) 2, UN Doc. PCNICC/2000/WGRPE(13)/DP.1 (2000).
59 See supra note 43. The proposition to apply the same amendment rule for all provisions concerning the
Court’s subject-matter jurisdiction is convincing. However, it should not be forgotten that even reference
to Articles 5–8 may not capture all relevant provisions. Some types of criminal conduct, which are covered
only in the general part (e.g. the crime of incitement to genocide), still fall under the general amendment
regime according to Article 121(4). Hence it has also been argued that Art. 121(5) was ‘intended to apply to
the inclusion of new crimes’ only, see Report of the Informal Inter-Sessional Meeting of the Special Working
Group on the Crime of Aggression of the Assembly of States Parties of the International Criminal Court,
Liechtenstein Institute for Self Determination, Woodrow Wilson School, at Princeton University, 13–15 June
2005, ICC-ASP/4/SWGCA/INF.1 (hereinafter 2005 Princeton Report), para. 12.
definition more favourable to the accused?60 Would reference to the VCLT suggest
the application of the unamended definition of crime as contained in the treaty to
which both states are a party?61 Or is this provision not applicable, because the last
clause of 121(5) is evidence that states have decided to ‘provide otherwise’ in the
Rome Statute?62 A further elaboration of these questions would exceed the scope of
this paper. However, it should be kept in mind that the Rome Statute as a criminal
code should be precise and foreseeable for potential perpetrators.
4.3. Guidelines deriving from Article 124?

Article 124 permits a state, on becoming a party to the Statute, to 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 territory’. This ‘transitional provision’ is a further element of the
final compromise accepted at Rome, a concession to a minority of states insisting on
a state consent system.63 It is ‘the narrow exception from article 120’.64
The Statute is silent with regard to the provision’s interaction with Articles 12 and
13. As in the context of Article 121(5), two readings seem possible. The predominant
view understands Article 124 as a ‘de facto opt-out regime for war crimes’, which
negates the Court’s inherent jurisdiction over all core crimes according to Article
12(1) and excludes war crimes from its subject-matter jurisdiction for a period of
seven years with respect to the declaring state.65 Accordingly, the ICC would have
no jurisdiction over any war crime committed on the territory of the declaring
state (independent of the alleged perpetrator’s nationality) or over nationals of the
declaring state committing war crimes abroad (including on the territory of another
state party). The territory and nationals of a state party invoking Article 124 would be
out of the reach of the ICC’s jurisdiction. Such an understanding has been justified
by the fact that states parties, which prescribe the subject-matter jurisdiction of
60 Art. 24(2) covers cases of changes in the law applicable to a specific case prior to a final judgment, but does
not seem to relate strictly to the simultaneous existence of two deviating definitions of a crime.
61 Arts. 40(4), 30(4)(b) VCLT.
62 Art. 40(1) VCLT.
63 Art. 124 was not negotiated in the context of the final clauses but directly by the Bureau during the last week
of the Rome Conference, Slade and Clark, supra note 22, at 443. France originally sought exemption from
the Court’s jurisdiction over war crimes and crimes against humanity, the United States for the possibility of
shielding their nationals from prosecution for these crimes. A first proposal by the five permanent members
of the Security Council (P5) including an opt-out possibility for both crimes for a period of ten years, with
non-states parties being able to prevent ICC action over their nationals when committed on an official
mission (A/CONF.183/C.1/L.90), was eventually watered down. For details see Kaul and Kreß, supra note 19,
at 155–6; Wilmshurst, supra note 11, at 137–8; van der Vyver, supra note 26, at 30.
64 O. Triffterer, ‘Introductory Remarks’, in Salzburg Retreat, supra note 3, 17, at 18; generally G. Hafner, ‘Article
120’, in Triffterer, supra note 6, margin nos. 10, 23, understanding Art. 124 as the sole admissible reservation
under the Rome Statute; Amnesty International, ‘International Criminal Court: Declarations Amounting to
Prohibited Reservations to the Rome Statute’ (2005), AI Index: IOR 40/032/2005.
65 La Haye, supra note 30, at 17; see also Bourgon, supra note 20, at 564, interpreting Art. 124 as a ‘stand-
alone provision adopted as a compromise which affects the economy of the complete Statute’ (ibid., 565);
Danilenko, supra note 15, at 453, 493; Hafner et al., supra note 23, at 118; Kaul and Kreß, supra note 19, at
171; Lattanzi, supra note 25, at 54–5; Wilmshurst, supra note 11, at 140; van der Vyver, supra note 26, at 29; A.
Zimmermann, ‘Article 124’, in Triffterer, supra note 6, margin no. 7.
the Court, are also in a position to limit it.66 However, even if this argumentation
were followed, it is still not understandable why, by opting out, the declaring state
should gain priority over other states parties which enable the ICC to establish
a necessary jurisdictional link in the event of a state party referral or a proprio
motu investigation.67 It is questionable whether the consensus of Rome includes a
privilege of state parties to shield their nationals from the jurisdiction of the Court,
even if this very effect was aimed at, at least by some delegations.68
Despite their understanding of Article 124 as a substantive opt-out of the Court’s
inherent jurisdiction over war crimes, a number of authors suggest that this would
not affect situations referred to the Court by the UN Security Council.69 This argu-
mentation is inconsistent and not reflected in the Statute’s provisions. If the Court’s
jurisdiction over a certain category of crimes with regard to a declaring state is
categorically denied, why should a Security Council referral make a difference? The
Court’s jurisdiction, or rather its lack of jurisdiction, for war crimes over a declar-
ing state is independent of the trigger mechanisms invoked. The Security Council’s
power to refer a situation is a procedure to initiate Court action; it is no source of
the ICC’s jurisdiction ratione materiae.70 Certainly, the result is unsatisfactory given
the competence of the Security Council to establish ad hoc tribunals under Chapter
VII of the UN Charter and the reason behind Article 13(b), which was to enable the
Security Council to use the institution of the permanent ICC as an alternative for
such tribunals.71
It has therefore also been argued that the wording of Article 124 allows the
interpretation that a declaring state is to be considered as holding the same position
as a third state for the period of seven years with regard to war crimes.72 Consequently
an Article 124 declaration would be irrelevant with regard to a Security Council
referral. Concerning a state party referral or proprio motu investigation, the Court
could not base its jurisdiction on the alleged perpetration of war crimes on the
territory or by nationals of a declaring state. Nonetheless, Article 12(2) would allow
for the prosecution of war crimes, for example of nationals of the declaring state when
committed on the territory of a state party or of nationals of a state party committing
war crimes on the territory of the declaring state. The necessary preconditions for
the exercise of jurisdiction would be established by way of the non-declaring state.
66 Hafner et al., supra note 23, at 119.

67 See in this regard also H. Olasolo, The Triggering Procedure of the International Criminal Court (2005), at 133;
Pellet, supra note 29, at 170–1.
68 Wilmshurst, supra note 11, at 140; van der Vyver, supra note 26, at 18. See also Scheffer, supra note 26, at
19–20.
69 See e.g. van der Vyver, supra note 26, at 35; Zimmermann, supra note 65, margin no. 8; see also Scheffer, supra
note 26, at 19–20, who, referring to a P5 proposal, argues in favour of a Security Council right to decide
whether or not to overrule a reservation according to Art. 124.
70 See in this regard L. Condorelli and S. Villalpando, ‘Can the Security Council Extend the ICC’s Jurisdiction?’,
in Cassese, Gaeta, and Jones, supra note 6, 571, at 580; Bourgon, supra note 6, at 556; Bourgon, supra note 20,
at 565, 568, arguing that the Security Council cannot override the opt-out mechanism, since any extension
of the Court’s jurisdiction would be ultra vires.
71 E.g. Nsereko, supra note 14, at 111; Palmisano, supra note 30, at 417.
72 Brown, supra note 30, at 876; Olasolo, supra note 67, at 133; Palmisano, supra note 30, at 394; Pellet, supra note
29, at 170; Zimmermann, supra note 65, margin nos. 5–6, takes note of this option.
The latter interpretation would support a narrow reading of Article 121(5). But
even if Article 124 required an interpretation in the sense of a categorical exemption
of the Court’s jurisdiction, it would not justify a broad reading of Article 121(5).
Certainly, from the wording it might be argued that Article 124 goes further than
Article 121(5). Article 124 is based on the assumption that a state does not accept
the jurisdiction, whereas Article 121(5), on the other hand, respects the Court’s
jurisdiction for the crime in question since the ICC will not exercise its jurisdiction
over the crime concerned. Nonetheless, Article 124 represents a relatively smaller
infringement of Article 12 and the basic structure of the Statute than Article 121(5).
Article 124 is expressly formulated as an exception to Article 12 and is subject to
various restrictions. The regulation is a ‘transitional provision’, which necessarily
needs to be reviewed at the first review conference.73 The declaration can only be
made once, upon ratification or accession to the Statute, it can be withdrawn at
any time,74 and its effect is limited for a period of seven years after the entry into
force of the Statute for the respective state. Furthermore, it has been argued that
Article 124 does not create impunity for war crimes, since large-scale crimes may
be captured by the definition of crimes against humanity and the obligations under
the Geneva Conventions remain applicable.75 It has even been suggested that war
crimes committed during the seven-year period might be prosecuted before the ICC
after the expiration of the transitional period for the state concerned.76
4.4. Unjustified discrimination against third states?

With a view to the commission of a crime covered by an amendment on the territory
of a state party that has accepted the amendment, it has been argued that nationals
of a state party which has not accepted the amendment are in a ‘privileged position’
as compared with perpetrators from a third state. While states parties may shield
their nationals from the jurisdiction of the Court, non-states parties may not.77
Such ‘asymmetric immunity for treaty parties’ has been criticized as ‘unfair and
parochial’.78 This critique, though acknowledged as politically uncomfortable,79
has been countered by the absence of a rule of international law that would forbid
states to conclude treaties to accord each other privileges which they do not grant
to third states. Furthermore, the expectation to ‘acquire rights under Articles 121(5)
and 124’ by becoming party to the treaty was deemed an incentive to become a state
party before the adoption of amendments.80
That may be an accurate account, but is such a self-privilege acceptable under the
object and purpose of the Statute? Does it not nourish a false impression of states
73 Art. 124 is the only obligatory agenda idem for the first review conference.
74 Bourgon, supra note 6, at 555–6.
75 States were ready to accept Art. 124 as a compromise solution also because it was deemed unlikely that
many states would invoke it. See P. Kirsch and D. Robinson, ‘Reaching Agreement at the Rome Conference’,
in Cassese, Gaeta, and Jones, supra note 6, 67, at 85, n. 62. Indeed, only Colombia and France have submitted
a declaration according to Art. 124 so far.
76 Bourgon, supra note 6, at 556; differently e.g. Wilmshurst, supra note 11, at 141.
77 Hafner et al., supra note 23, at 118; Scheffer, supra note 26, at 20.
78 Wedgwood, supra note 27, at 104.
79 E.g. Hafner et al., supra note 23, at 118.
80 Ibid., at 119; Brown, supra note 30, at 887; Wedgwood, supra note 27, at 104.
parties promoting the goals of international justice but at the same time intending
to shield their nationals from international prosecution? The complementary juris-
diction of the ICC was established particularly to counter such risks. The Statute’s
express purpose is to put an end to impunity for the perpetrators of the most serious
crimes of concern to the international community as a whole and thus to contribute
to the prevention of these crimes.81
However, the claim of a different treatment of state-party and third-state nationals
is only legitimate if an analysis of Article 121(5) was based on a broad interpretation.
Beyond that, no asymmetric immunity for treaty parties of any sort may be traced.82
According to a narrow reading of the provision, a state party that has not accepted
an amendment would be simply in the same position as a third state in relation to a
state party that has accepted the amendment.83
If an imbalance between states parties and third states exists, it may only relate
to a third state being able to become a party only to the amended Statute.84 The
Rome Statute does not expressly tackle the issue of states acceding to the Statute
after an amendment to Articles 5–8 has entered into force. The issue, however,
was discussed by the special working group on the crime of aggression.85 While the
crime of aggression is profoundly distinct from any other crime or category of crimes
potentially covered by an amendment, since it already falls under the jurisdiction
of the ICC, the question also merits attention in a more general context.
The default rule on amendments of multilateral treaties foresees that ‘[a]ny State
which becomes a party to the treaty after the entry into force of the amending
agreement shall, failing an expression of a different intention by that State: (a) be
considered as a party to the treaty as amended; and (b) be considered as a party to the
unamended treaty in relation to any party to the treaty not bound by the amending
agreement’. The default rule is, however, only applicable ‘unless the treaty otherwise
provides’.86
At the outset, it should be recalled that since no reservations may be made to the
Statute (Art. 120), any ‘expression of a different intention’ according to Article 40
VCLT can only be lawfully invoked if expressly provided for. Article 121(5) obviously
leaves states parties the free choice whether or not to accept an amendment.87 But
it is silent with regard to states acceding to the Statute. In this context it has been
suggested that the term ‘state party’ might be understood not only in terms of a state
that is a party to the Statute at the time of the entry into force of an amendment.
81 Preamble paras. 4 and 5 Rome Statute. As has been summarized, ‘[a] State has no right, under international law,
to shield its nationals from criminal responsibility for serious international crimes. It is both irresponsible
and counterproductive to endorse misleading legal arguments to the contrary’, Brown, supra note 30, at 890.
82 Pellet, supra note 29, at 182.
83 Ibid.
84 Ibid., at 182.
85 Report of the Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression of the
Assembly of States Parties of the International Criminal Court, Liechtenstein Institute for Self Determination,
Woodrow Wilson School, at Princeton University, 21–23 June 2004, ICC-ASP/3/SWGCA/INF.1 (hereinafter
2004 Princeton Report), para. 16.
86 Art. 40(1) and (5) VCLT.
87 The term ‘acceptance’ in this context does not relate to the amendment’s adoption according to Art. 121(3),
but to its acceptance or ratification according to domestic law.
Under a wider reading, it may refer also to states acceding to the Statute after that
point in time.88 The latter interpretation is certainly disputable. But the possibility
of granting states acceding to the Statute after the entry into force of an amendment
the same choice as states parties has also been endorsed by scholars.89
4.5. Travaux préparatoires

According to practice, the ILC had not produced language on final clauses for its Draft
Statute.90 For the March–April Preparatory Committee, the Secretariat introduced a
draft which provided for a general and a simplified amendment procedure as well as
a review of the Statute by the ASP.91 All amendments, not underlying the simplified
procedure, were proposed to enter into force uniformly ‘for all States Parties [60] days
after instruments of acceptance have been deposited with the Secretary-General of
the United Nations by [2/3] [3/4] of [all the States Parties] [those present and voting]’.92
The draft articles were consequently incorporated into the Zuthphen Draft without
changes.93 First discussions are reflected in the Consolidated Draft, which included
options regarding the requirements for adoption of an amendment as well as review
of the Statute.94 Its Article 111 option 2 introduced the depositary’s competence to
convene a meeting of the ASP exclusively ‘in order to consider additions to the list
of crimes within the jurisdiction of the Court’ as well as the automatic convening
of a first meeting, ‘[five]’ years after the entry into force of the Statute’, ‘to review the
list of crimes within the jurisdiction of the Court contained in Article 5, in order to
consider additions to the list.’ The option further suggested that
‘[a]ny amendment . . . shall enter into force with regard to those States Parties which
have deposited their instrument of acceptance on the [thirteenth] day following the
deposit of the [tenth] instrument of acceptance . . . If an amendment has not entered
into force for a State, the Court shall not exercise its jurisdiction with respect to a crime
covered by the amendment when committed on the territory of that State or by its
nationals.95
The main discussions on the final clauses took place at the Rome Conference,96
where further proposals were also tabled.97 The views on introducing a special
88 J. Bertram-Nothnagel, ‘Some Thoughts about the Question if a State which Is Becoming a Party to the Rome
Statute of the International Criminal Court after the Adoption of the Provision on the Crime of Aggression
May Choose Not to Be Bound by that Provision’ (2005, informal paper distributed during the 2005 Princeton
meeting, on file with the author), section III, option 2. It may be noted that the Statute when referring to
‘states parties’ in other circumstances may be directed at third states as well, e.g. to non-states parties which
accepted the exercise of jurisdiction by the Court with respect to a situation, or states that concluded an
agreement of co-operation with the ICC according to Art. 87(5).
89 R. S. Clark, ‘The Crime of Aggression and the International Criminal Court’, in J. Doria, H.-P. Gasser and M.Ch.
Bassiouni (eds.), The Legal Regime of the International Criminal Court: Essays in Honor of Professor Igor Pavlovich
Blishchenko (2008 forthcoming), at n. 57; Pellet, supra note 29, at 182.
90 1994 ILC Draft, supra note 7, at 147.
91 Arts. C, D, E, A/AC.249/1998/L.11, 20 December 1997.
92 Art. C(5).
93 Part 11, Arts. 91[A]–99[I] Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The
Netherlands (A/AC.249/1998/L.13, 1998).
94 Arts. 110(3), 111 Consolidated Draft.
95 Art. 111, option 2, para. 1, Consolidated Draft.
96 For details see Slade and Clark, supra note 22, at 432–8.
97 A/CONF.183/C.1/L.24 of 29 June 1998 (Switzerland); A/CONF.183/C.1/L.29 of 29 June 1998 (Denmark).
mechanism for amendments to the Court’s substance-matter jurisdiction were di-

vided, with a majority being against.98 However, given firm minority resistance in
the informal consultations, the Co-ordinator on the Final Clauses could not finally
clarify the issue. Therefore the Co-ordinator’s recommendation to the Committee
of the Whole reproduced the whole of Article 110(5) in brackets:
[5. Any amendment to article 5 of the Statute shall enter into force for those State Parties
which have accepted the amendment one year after the deposit of their instruments
of ratification or acceptance [, unless the Assembly or the Conference has decided that
the amendment shall enter into force for all States Parties once it has been accepted by
[5/6] [7/8] of them].]99
A second set of brackets provided for the possibility of the ASP equipping amend-
ments with an erga omnes effect, which was opposed by a firm minority.100 Further
brackets concerned the majority requirement for this decision. The provision con-
firmed that amendments to Article 5 should enter into force only for states parties
which had accepted the amendment. It is noteworthy that no reference at all to a
limited exercise of jurisdiction regarding the territory or nationals of a state party
which had not accepted the amendment was maintained. Such a reference was
introduced, however, as part of the final compromise package.101
Given the considerations in the previous sections, a good-faith interpretation of
Article 121(5) in accordance with the ordinary meaning of the terms in their context
and in the light of the treaty’s object and purpose clearly supports a narrow reading of
the provision’s last clause.102 The preparatory works are of little help in confirming
any particular meaning.103 The final tangible document before the adoption of the
Statute does not contain the critical language on the Court’s exercise of jurisdiction.
What followed were merely unpublished oral debates and informal consultations,
which renders recourse to the travaux préparatoires particularly questionable.104
5. R ELEVANCE FOR THE FIRST REVIEW CONFERENCE

Notwithstanding the mandatory language of Article 123(1), practical considerations
have led to the postponement of the review conference to the first half of 2010.105
98 See Clark, supra note 89, text after n. 52 and n. 53. See in this context the proposal to merge draft Arts. 110
and 111 Consolidated Draft, ibid., at 165, n. 3.
99 A/CONF.183/C.1/L.61 and Corr. 1 of 11 July 1998.
100 Slade and Clark, supra note 22, at 436. This would have opened an option for the ASP to unify the amendment
procedure even if a dual system was established by the Statute.
101 Art. 121(5).
102 Art. 31 VCLT; see supra sections 4.1–4.4.
103 Art. 32 VCLT.
104 Pellet, supra note 29, at 171.
105 See Progress Report by the Focal Point, Mr. Rolf Einar Fife, ICC-ASP/6/INF.3 of 4 December 2007, para
11; ICC-ASP/6/Res.2 of 14 December 2007, para. 53. Legal arguments to that effect, based on a reading of
the term ‘convene’ not in the sense that the review conference should be taking place ‘seven years after
the entry into force of the Statute’ but as mandating the Secretary-General to issue invitations in July
2009, or based on an incorporation of the amendment mechanism according to Art. 121 are not convin-
cing. See in this regard Report of the Informal Inter-Sessional Meeting of the Special Working Group on
the Crime of Aggression of the Assembly of States Parties of the International Criminal Court, Liechten-
stein Institute for Self Determination, Woodrow Wilson School, at Princeton University, 11–14 June 2007,
Since the Statute is silent regarding the procedure to propose amendments for
a review conference according to Article 123, the ASP resorted to Article 121(1).106
Article 123 suggests that the first review conference shall ‘consider any amendments’
and ‘[s]uch review may include, but is not limited to, the list of crimes contained in
article 5’. Accordingly, it is not obligatory for amendments regarding the groups of
crimes falling under the jurisdiction of the Court to be dealt with during the first
review conference or any other review conference. This result somewhat contradicts
the expectations of many delegations in Rome that the first review conference should
deal in particular with the subject-matter jurisdiction of the Court.107 Nevertheless,
a number of potential ratione materiae issues for review have been discussed at the
political as well as the academic level since Rome and might play a role in 2010.
The most evident loophole in the Statute relates to the crime of aggression.
Although this category of crime was included in the jurisdiction of the Court in
Rome, the ICC will not be able to exercise this jurisdiction until ‘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’.108 Failing to reach a decision, the Rome conference secured the continuation
of negotiations on a provision on aggression.109 Despite the lack of a legal obligation
to consider the crime of aggression at the first review conference, there is a strong
political momentum behind putting it on the agenda, ideally leading to the adoption
of a provision on aggression.110
Aggression differs from any other crime that might be of relevance during the
first review conference, in that it is listed as one of the groups of crimes over which
states parties have accepted the Court’s inherent jurisdiction. Therefore the view
has been expressed that Article 5 needs to be ‘applied’ rather than ‘amended’,111 with
the effect that the Statute’s amendment mechanisms may only partly apply. The
special working group on the crime of aggression has discussed several possibilities
for adopting a provision on aggression ‘in accordance with articles 121 and 123’.112
Relying on the terminology that ‘a provision’ has to be ‘adopted’,113 it was argued that
ICC-ASP/6/SWGCA/INF.1, para. 61; R. E. Fife, ‘Scenarios and Options for the Review’, in Salzburg Retreat,
supra note 3, at 33.
106 Rule 49(1), Draft rules of procedure of the Review Conferences (ICC-ASP/6/20, Annex IV), provides that ‘[t]he
Conference may only consider amendments to the Statute presented in accordance with Articles 121 and
122 of the Statute’. This provision is rather startling, since Art. 123 seems to exclude the application of
Art. 121(1) and (2) (see also supra note 105). By incorporating Art. 121(1), the ASP has clarified that only
states parties may propose amendments at a review conference according to Art. 123. While Arts. 121(1) and
122(1) clearly suggest that ‘any state party’ may propose amendments, Art. 123(1), providing that the review
conference may consider ‘any amendment’, is not explicit in this regard. Undoubtedly, the Statute does not
entitle non-states parties to vote (see Arts. 121(3) and 123(3)).
107 E.g. Slade and Clark, supra note 22, at 440–1; see also Art. 111, option 2, para. 1, Consolidated Draft.
108 Art. 5(2).
109 Resolution F para. 7 of the Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court, done at Rome on 17 July 1998, A/CONF.183/10 (hereinafter
Final Act); see also ICC-ASP/1/Res.1(2).
110 Slade and Clark, supra note 22, at 441; Wenaweser, supra note 3, at 20, 22.
111 2004 Princeton Report, supra note 85, para. 14; R. S. Clark, ‘Article 121’, in O. Triffterer (ed.), Commentary on the
Rome Statute of the International Criminal Court, Observers’ Notes, Article by Article (2008, forthcoming) margin
no. 6.
112 2005 Princeton Report, supra note 59, paras. 6 ff.
113 Arts. 5(2), 121(3).
the ASP or a review conference simply needs to take a decision by consensus or by a

two-thirds majority to complete the Statute.114 The Court’s jurisdiction would thereby
be made functional without any need for further procedure. If a full amendment
procedure had to be applied, the question would arise whether the future provision
on aggression should enter into force according to Article 121(4) or (5). Given the fact
that the crime of aggression is already enshrined in Article 5(1), the provision can
hardly be considered an amendment to Article 5, even less an amendment to Articles
6, 7, or 8.115 If one excludes that option, Article 121(4) remains as a catch-clause. The
only teleological argument for the applicability of Article 121(5) would be to assume
that any change of a provision that affects the subject-matter jurisdiction of the ICC
necessarily needs to be covered by Article 121(5).116 From a policy perspective, the
application of Article 121(5), if interpreted as suggested in this paper, could be an
incentive for states to accept the amendment. The provision could serve as a deterrent
and protect a state from outside attacks amounting to aggression. However, given
the difficulties in applying the existing amendment mechanisms, it is also arguable
that the provision on aggression should contain and follow its own entry-into-force
mechanism.117
The Statute’s provision on war crimes also contains a lacuna that could not be
finally regulated in Rome. Article 8(2)(b)(xx) refers to an annex to the Statute which
shall be adopted as an amendment in accordance with Articles 121 and 123. Its
purpose will be to describe those
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 . . .118
The exclusion of employment of all weapons of mass destruction from the Statute
was the only possible solution after failing to reach a consensus in Rome. Although
reference to biological and chemical weapons was largely supported, delegations
refused to accept a provision omitting the employment of nuclear weapons, which
had been set out as a precondition by others.119 Including an annex of weapons of
114 2005 Princeton Report, supra note 59, para. 14; see also R. S. Clark, ‘Possible Issues for the 2009 Review
Conference’, in Salzburg Retreat, supra note 3, 23, at 24; Clark, supra note 89, text around n. 39.
115 See e.g. 2005 Princeton Report, supra note 59, para.12.
116 See also the view that Art. 121(5) was drafted with aggression in mind, considering the fact that aggression
was included in the list of crimes under Art. 5 only at a very late stage of the Rome Conference, ibid., para 5.
When the proposal of the non-aligned countries reintroduced aggression as a crime within the jurisdiction
of the Court on 14 July 1998 (A/CONF.183/C.1/L.59 and Corr. 1), the co-ordinator for the Preamble and Final
Clauses had already forwarded his final version of the text to the committee as a whole (A/CONF.183/C.1/L.61
and Corr. 1 of 11 July 1998). See Clark, supra note 89, text around nn. 50–3. For a possible compromise solution,
combining the two procedures laid down in paras. 4 and 5, see 2005 Princeton Report, supra note 59, paras.
11, 13.
117 Compare e.g. Art. 3 of the Amendment to the 1987 Montreal Protocol on Substances that Deplete the Ozone
Layer (1999).
118 See generally R. 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 J. Carey,
W. V. Dunlap, and R. J. Prichard (eds.), International Humanitarian Law: Challenges (2004), 259.
119 For the discussions at Rome, see e.g. van Hebel, supra note 17, at 114–16.
mass destruction could be seen, like aggression, as a completion of what had not
been achieved in Rome.120 Article 8(2)(b)(xx) expressly refers to ‘an amendment’,
but it might be argued that Article 121(4), not 121(5), would be the appropriate
mechanism to deal with such an annex.121 No discussions on the issue have taken
place so far at the ASP.
Crimes of terrorism and international trafficking of illicit drugs were discussed
during the Rome Conference, but finally were not included in the Statute.122 Reso-
lution E of the Final Act therefore recommends that a review conference pursuant to
Article 123 consider the crimes of terrorism and drug crimes.123 The inclusion of such
new categories of crimes would undoubtedly invoke the amendment mechanism
of Article 121(5). However, unlike the preparation of proposals for a provision on
aggression, no comparable mechanism has been established by the Rome Conference
for crimes of terrorism and drug crimes. Crimes of terrorism are being discussed
outside the framework of the ASP with a view to elaborating a comprehensive
convention on terrorism. No comparable discussions are taking place regarding
drug crimes. Further crimes referred to by publicists include trafficking in human
beings or other forms of organized crimes,124 corruption and sexual abuse within
the UN system,125 or adding conspiracy to commit genocide as an inchoate offence
under Article 25.126
The interest of states regarding amendments seems rather cautious so far.127
Suggestions have been voiced that the scope of the first review conference on ratione
materiae issues be limited to the recommendations contained in the Final Act,128
or even that other topics besides Article 124 and the crime of aggression should be
discussed at the review conference only if they have broad support among states.129
With an additional focus on a ‘stocktaking’ of the achievements of international
criminal justice and the political aim of a successful review conference,130 it remains
to be seen whether controversial proposals will come up. However, formal debates
on the agenda of the first review conference have not yet started, and proposals for
amendments are not to be expected before the expiry of ‘seven years after the entry
into force’ of the Statute.131
120 Clark, supra note 89, at 25; also Triffterer, supra note 17, at 26, understands aggression and the war crimes
annex as distinct from any other crime possibly discussed for inclusion in the Statute.
121 Clark, supra note 89, at 25.
122 See supra text before note 17.
123 Final Act, Resolution E, para. 8. A proposal to treat terrorism and drug crimes similarly to the crime of
aggression, including them in the list of crimes while postponing the Court’s exercise of jurisdiction, did not
find much support, van Hebel, supra note 17, at 86. For the current academic discussion see e.g. P. Robinson,
‘The Missing Crimes’, in Cassese, Gaeta, and Jones, supra note 6, 497.
124 See in this regard e.g. Wenaweser, supra note 3, at 23.
125 D. Scheffer, ‘The Future US Relationship with the International Criminal Court’, (2005) 17 Pace International
Law Review 161, at 175.
126 See Clark, supra note 89, at 24, summing up the current discussion. According to the systematic of the Statute,
the latter act would probably be added in Part 3 of the Statute and therefore again not fall within the scope
of Art. 121(5); see e.g. Art. 25(3)(e).
127 Fife, supra note 105, at 35.
128 See e.g. Wenaweser, supra note 3, at 23.
129 Progress Report, supra note 105, para 27.
130 Ibid., paras. 28 ff.
131 Arts. 123(1), 121(1); see supra note 106.
6. C ONCLUSION
Article 121(5) relates to provisions at the core of the Rome Statute: the ICC’s compet-
ence ratione materiae and its exercise of jurisdiction. When considering amendments
to Articles 5–8, the specificity of the Court’s subject-matter jurisdiction needs to be
underlined. According to Article 5, each amendment can only concern a crime or a
category of crimes that is considered a ‘most serious crime of concern to the inter-
national community as a whole’, arguably constituting a crime under international
law. If a crime were considered to meet this high threshold and included within the
inherent jurisdiction of the Court, it is not understandable why such a new core
crime should be subordinated to a different legal regime.
Article 121(5) is a specific rule on amendments derogating from the general rule
on amendments contained in Article 121(4) when Articles 5–8 are concerned. Article
121(5) is not to be considered a more specific norm with regard to any other provision
of the Statute. As a consequence, it has to be read and interpreted in conformity with
all the other articles of the Statute. In so far as it may have a limiting effect on
other provisions, Article 121(5) shall be construed narrowly in order to respect the
integrity of the Statute. The provision, therefore, should be interpreted as treating a
state party that has not accepted an amendment in the same way as a non-state party
with regard to a crime covered by an amendment. It should neither be understood as
reintroducing a system of state consent which was rejected at Rome, nor be used as
a tool to shield alleged perpetrators from individual criminal responsibility or as a
pretext for states to derive rights contrary to the object and purpose of international
criminal justice. Such a stringent reading of Article 121(5) is covered by its wording. It
is also warranted to safeguard a coherent enforcement of crimes as well as the rights
of states parties under the Statute. It would also reinforce the Statute’s deterrent
function for crimes covered by an amendment and prevent further fragmentation
of international criminal law.
The relevance of the Statute’s provision on amendments to Articles 5–8 for the
first review conference cannot be evaluated conclusively at this point. Preparations
for the conference are still at an early stage and have not yet tackled concrete
substantive issues. Certainly the crime of aggression is assumed to be on the agenda
of the first review conference, but its submission to a particular amendment regime
has not been resolved thus far. Further issues concerning the Court’s jurisdiction
ratione materiae which would require application of Article 121(5) seem currently
not to be an issue but are not precluded from coming up with the commencement
of formal debates.

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Leiden Journal of International Law, 21 (2008), pp.

‘Amended Most Serious Crimes’: A New

2. T HE ROME STATUTE ’ S JURISDICTIONAL REGIME

5 For details see infra section 4.

8 1994 ILC Draft, supra note 7, Art. 22.

2.2. Jurisdiction ratione loci

3. A MENDMENTS TO AND REVIEW OF THE STATUTE

31 Triffterer, supra note 17, at 32.

organizational structures when treaties establishing international organizations are

4. A NALYSIS OF A RTICLE 121(5)

4.2. The Court’s exercise of jurisdiction over crimes covered by an amend-

read in accordance with the framework established by Part 2 of the Statute? Or is it

What has been elaborated with an emphasis on amendments to Article 5 is

57 Pellet, supra note 29, at 182, footnotes omitted.

4.3. Guidelines deriving from Article 124?

66 Hafner et al., supra note 23, at 119.

4.4. Unjustiﬁed discrimination against third states?

4.5. Travaux préparatoires

mechanism for amendments to the Court’s substance-matter jurisdiction were di-

5. R ELEVANCE FOR THE FIRST REVIEW CONFERENCE

the ASP or a review conference simply needs to take a decision by consensus or by a

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