by Kevin Jon Heller
Although aggression received most of the attention at the Assembly of States Parties (ASP) last month, the ASP also adopted a series of amendments to Art. 8 of the Rome Statute, the war-crimes provision, prohibiting the use of three kinds of weapons in both international armed conflict (IAC) and non-international armed conflict (NIAC):
[W]eapons, which use microbial or other biological agents, or toxins, whatever their origin or method of production. [W]eapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays. [L]aser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices.
Because the weapons amendments were adopted pursuant to Art. 121(5) of the Rome Statute, they will only apply to state parties that ratify the amendments. This is, of course, the effect of the second sentence of Art. 121(5), which caused so much controversy in the context of aggression: “In respect of 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 nationals or on its territory.”
Art. 121(5), however, applies only to states parties. It does not apply to states that have not ratified the Rome Statute. In the context of aggression, that limitation raised the possibility of the Court prosecuting an act of aggression committed by a non-state party on the territory of a state party — something the Court’s normal jurisdictional regime permits for war crimes, crimes against humanity, and genocide. To avoid that possibility, the ASP amended the Rome Statute to include a new provision, Art. 15bis(5), that specifically (and also controversially) completely excludes non-states parties from the crime of aggression:
In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.
I had assumed that no such jurisdictional limitation applied to the new weapons amendments. As Patryk Labuda recently pointed out on twitter, however, the ASP appears to believe otherwise. Here is the second preambular paragraph to the amendments (emphasis mine):
Noting also article 121, paragraph 5, of the Statute which states that any amendment to articles 5, 6, 7 and 8 of the Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance and that in respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party’s nationals or on its territory, and confirming its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted this amendment applies also in respect of States that are not parties to the Statute.
The bolded language is intended to exempt non-states parties from the normal jurisdictional regime of the Court. Clause 2 states that if a state party does not ratify the weapons amendments, the Court cannot prosecute the use of a prohibited weapon either when committed by a national of that state or on the territory of that state. Clause 3 then puts non-states parties in the same position as a state party who has not ratified the amendments.
This limitation regarding non-states parties is very odd, because the ASP had every right to make the new weapons amendments applicable to non-states parties. Non-states parties are currently prohibited from using certain weapons on the territory of a state party — those that are criminalized by the Rome Statute as adopted in 1998. The new weapons amendments thus fragment the Court’s jurisdiction over non-states parties: although they cannot use poisoned weapons, asphyxiating gases, and expanding/flattening bullets on the territory of a state party, they are still permitted to use biological, fragmentation, and blinding laser weapons — even on the territory of a state party that has ratified the new weapons amendments.
I see no persuasive rationale for this asymmetry. Exempting non-states parties from the crime of aggression is one thing: aggression is a sui generis crime and was not previously within the Court’s (active) jurisdiction. But the drafters of the Rome Statute had no problem making non-states parties subject to the original war crimes involving prohibited weapons, nor did the 124 states who ratified the Rome Statute have a problem accepting the potential criminal liability of non-states parties. So why should things be any different for the new war crimes? If Russia cannot use napalm (an asphyxiating gas) on Georgian territory, why should it be able to use ricin (a biological weapon) on it?
To be sure, the same exclusion of non-states parties was included in the war-crimes amendments adopted at Kampala in 2010, which criminalized the use of poisoned weapons, asphyxiating gases, and expanding or flattening bullets in NIAC. But that limitation was largely superfluous regarding non-states parties, because the Rome Statute already criminalized the use of those weapons in IAC, the primary type of conflict in which a non-state party can be subject to the Court’s war-crimes jurisdiction. (Transnational NIACs aside.) The limitation is anything but superfluous for the new weapons amendments, because they are specifically designed, inter alia, to criminalize the use of certain weapons in IAC.
I also believe — and this is the reason I have written this post — that the exclusion for non-states parties included in the preamble to the new weapons amendments has no legal effect. The argument is a complicated one, and I have made aspects of it at length in a JICJ article on the legal status of the aggression “Understandings” that were adopted at Kampala in 2010. The basic problem is this: nothing in the amended Rome Statute excludes non-states parties from the new war crimes. That limitation exists solely in the preamble. So it is difficult to see why or even how the judges could enforce it, given that Art. 21(1)(a) of the Rome Statute specifically provides that “[t]he Court shall apply… [i]n the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence.” If the judges simply apply the Rome Statute, the Court has jurisdiction over every war crime in Art. 8 that is committed by a non-state party on the territory of a state party — including the new ones.
To be sure, one could fashion a fancy argument for applying the limitation based on Art. 31 of the VCLT, which provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” and deems a preamble to be part of a treaty’s context. I would be sympathetic to such an argument, because I think the point of treaty interpretation is to give effect to the intent of the drafters. But that is by no means the dominant approach to treaty interpretation. Most international-law scholars favour a “plain meaning” approach — and the Court seems to, as well. (At least when doing so expands the ambit of criminal responsibility. When it doesn’t, object and purpose tend to take over.)
Moreover, all of the other parts of the Rome Statute also qualify as “context” under Art. 31. And here the aggression amendments are, in my view, not only relevant but dispositive: if non-states parties could be excluded from the normal jurisdictional regime of the Court simply by saying as much in a preamble to an amendment, why did the ASP specifically amend the Rome Statute to exclude non-states parties from the crime of aggression? Perhaps the ASP was just being overly cautious, but that seems unlikely given how carefully almost every word of the aggression amendments was negotiated and drafted. It seems far more likely that the ASP realized — correctly, in my view — that the exclusion had to be included in the text of the Rome Statute to be given force by the judges.
In short, despite what the preamble to the new weapons amendments says, I believe that the OTP now has have every right to charge a national of a non-state party who uses (say) a biological weapon on the territory of a state party that has ratified the amendments — and the judges would have every right to convict the perpetrator of the relevant war crime. The ASP exclusion of non-states parties from the amendments has no legal effect.
NOTE: Dapo Akande has posted at EJIL: Talk! an excellent analysis of the relationship between the new war crimes and customary international law. I completely agree with him — including with his statement that, in practice, excluding non-states parties from the crimes will solve some tricky immunity problems.