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However, it is clear that Article 15 of the Kampala Amendments, dealing with State referrals and proprio motu investigations with respect aggression, makes one change to the normal jurisdictional rules of the ICC in that it excludes the jurisdiction of the Court with respect to aggression committed by a national of a non-party state or committed on its territory.
Whether the normal jurisdictional rules of the ICC Statute applies to the crime of aggression depends ultimately on how the Kampala aggression amendments entered into force. Basically there were four possibilities regarding entry into force of those amendments.
The first possibility is that the amendments could enter into force and become effective simply on adoption at the Kampala Review conference, without any need for ratification or acceptance by states. The argument that this was possible was based on Article 5 2 of the Rome Statute which provided that: This is what was provided for in Article 4 of the Rome Statute.
The second sentence of that provision then goes to state that: A fourth possibility, is that a special and previously unprovided for amendment procedure could be designed for the crime of aggression based on a mandate given to states parties in Article 5 2 to negotiate a provision regarding the definition of the crime and the conditions for the exercise of jurisdiction by the Court over the crime.
However, though some of the negotiators of the Kampala Amendments seemed to think that this fourth possibility was an option open to them, and that this was what they actually did, such a possibility is neither in accordance with the text of the Rome Statute, nor with more basic principles of international law.
The argument that Article 5 2 would have enabled the aggression amendments to enter into force, in principle, merely on adoption or without having to go through the amendment procedures stipulated in the Rome Statute is not a plausible reading of that provision.
That reference is not just to the parts of that article that deals with adoption of the texts but a reference to the whole of Article Article 5 2 of the Rome Statute ought to be interpreted in the light of the ordinarily applicable rules relating to the entry into force of treaty provisions.
Adoption of a treaty simply signifies agreement on a text with that text remaining non-binding until it is brought into force. There is nothing in Article 5 2 that speaks to a special procedure for the aggression amendments.
Instead that provision refers to the normal amendment procedures contained in Article It is important to recall that the provisions of the Rome Statute, including Article 5 2 which prevents the Court from exercising jurisdiction over the crime of aggression and Article setting out how amendments come into force, are legally binding on the parties, unless they are amended through the amendment procedures provided for in the Statute, or through some other legally binding instrument.
More importantly, the Rome Statuteincluding the amendment procedure is binding on the Court, which, in considering whether a particular provision is or not in force and binding under the Statute, has no authority to look beyond the Rome Statute and otherwise applicable rules of international law.
The best position under international law is that the aggression amendments come into force under Article 5. First, this provision deals with amendments to substantive crimes within the jurisdiction of the Court.
It is true that the aggression amendments go beyond amendments to those particular provisions. The negotiators in Kampala could have included all the conditions for the exercise of jurisdiction over aggression within Article 8 bis and it ought to make no difference that they chose to put some of the package in a differently numbered paragraph.
Not only was that decision reached by consensus it remains the case that it has not been objected to several years later by any party to the Rome Statutewhether present in Kampala or not.
The conclusion that the amendment enters into force under Article 5 is of great significance. It means that the effects provided for in the second sentence of that article are to follow for any amendments.
The attempt by some to separate out the entry into force of an amendment under the first sentence of Article 5 from the consequences of such entry into force under the second sentence is unpersuasive. That attempted division is part of the argument that parties to the Rome Statute could negotiate a new amendment procedure for the crime of aggression which would somehow become binding and somehow supercede and replace the amendment procedures provided in the Rome Statute without respecting the binding procedures in the Statute as to who the Statute was to be amended.
The second sentence of Article 5 is a provision that is binding for all states parties and the Court and the law of treaties provides and indeed logic suggests that what is set out in this binding provision cannot be changed by an amendment except for those states that ratify or accept the amendment.
Security Council Referrals In the case of referrals of situations by the Security Council, the Court will have jurisdiction over persons within the situation referred to the Court.
They may be nationals of states that have ratified the Kampala amendment; nationals of states parties that have not ratified those amendments; or indeed nationals of non-states parties.
These points are made clear by the Understandings regarding the aggression amendments which are annexed to the resolution which adopted the Kampala aggression amendments.
In this regard, the jurisdictional regime provided for with respect to Security Council referrals is the same that which already exists in the Rome Statute for the other crimes.
On its face, the second sentence of Article 5 of the Rome State would exclude jurisdiction of the ICC over crimes committed by nationals of states that do not ratify an amendment containing that amendment, even in cases of Security Council referrals.Ah, but super-human AI is not the only way Moloch can bring our demise.
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