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Amended Most Serious Crimes’: A New Category of Core Crimes within the Jurisdiction but out of the Reach of the International Criminal Court?

  • ASTRID REISINGER CORACINI

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.

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References

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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. Clark, R. S., ‘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).

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.

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. Nsereko, D. N., ‘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. Danilenko, G. M., ‘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.

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 Fletcher, G. P. and Ohlin, J. D., ‘The ICC: Two Courts in One?’, (2006) 4 Journal of International Criminal Justice 428, at 433; see also Kaul, H.-P. and Kreß, C., ‘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. Bassiouni, M. C., ‘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.

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 Mechanisms’, 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 Philips, R. B., ‘The International Criminal Court Statute: Jurisdiction and Admissibility’, (1999) 19 Criminal Law Forum 61, section 4; van der Vyver, J. D., ‘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., Morris, M., ‘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. Scharf, M., ‘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 Akande, D., ‘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 Brown, B. S., ‘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 La Haye, E., ‘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; Paust, J. J., ‘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.

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).

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).

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.

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.

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; Morris, M., ‘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.

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.

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.

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.

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.

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.

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.

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).

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 4.14.4.

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 convincing. 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, Liechtenstein Institute for Self Determination, Woodrow Wilson School, at Princeton University, 11–14 June 2007, 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).

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.

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 Scheffer, D., ‘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.

* 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.

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