Why and when to ratify the amendments

There are many reasons why current  and future States Parties to the Rome Statute should ratify the Kampala amendments. We have tried to capture these in a succinct, one-page document. By ratifying, States…

Promote peace and the rule of law at the international level, by helping to establish a system of international criminal accountability aimed at enforcing the most fundamental rule governing the peaceful coexistence of nations: the prohibition of the illegal use of force. Activating the Court’s jurisdiction over the crime of aggression will help prevent illegal uses of force, as leaders will have to take the Court’s jurisdiction into account when taking relevant decisions. Ratifying States will do their part to help fulfil the promise of Nuremberg that never again would those who dare to commit the crime of aggression do so with impunity.

Protect human rights and prevent suffering, since acts of aggression typically bring with them countless violations of human rights and international humanitarian law, affecting in particular the most vulnerable individuals during conflict, such as women and children. The effective criminalization of aggression will contribute to the prevention of such acts by targeting the very behaviour that stands at the beginning of the causal chain – the behaviour of the decision-makers who unleash the illegal use of force.

Close a loophole in the Rome Statute, since currently the Rome Statute does not protect the life of combatants who are unlawfully sent to war, nor the right to life of the soldiers of the attacked State; they are deemed to be legitimate targets who may be killed at will, provided the relevant rules pertaining to the conduct of hostilities are followed. This is a serious loophole in international law that needs to be closed.

Protect themselves against aggression by another State, because only by ratifying the amendments does a State increase the likelihood of being able to count on the Court’s protection against an act of aggression by another State. By ratifying, a State sends a clear message that it supports the right of all people to live in peace and dignity, under the rule of law.

Publicly commit not to commit aggression, as its government leaders might otherwise themselves be subject to investigation and prosecution by the Court. Ratifying States also help to protect themselves against the commission of acts of aggression by their future governments and from the repercussions of such acts.

Support the Rome Statute System, since the Kampala amendments on the crime of aggression emanated from a mandate given by the Rome Statute; they effectively “complete” the Statute. By ratifying, States Parties show their support for the Court and for the integrity and full effect of the Rome Statute.

Safeguard their legitimate security interests in conformity with the UN Charter. The definition of the crime of aggression in Article 8 bis leaves no doubt that the use of force in proper self-defence, as well as the use of force authorized by the Security Council cannot qualify as an act of aggression. The definition covers only the most serious forms of the illegal use of force, namely those that manifestly violate the UN Charter by their “character, gravity and scale”. States Parties to the Rome Statute took great care to ensure that the amendments would not adversely affect the legitimate security interests of States.

When to ratify the amendments?

The answer in short: as soon as possible. There is no reason to wait. At the 2010 Review Conference, States Parties expressed their resolve to “activate the Court’s jurisdiction over the crime of aggression as early as possible” (Resolution RC/Res.6). The earliest moment in time for such activation is “after 1 January 2017”, when States Parties will have to take a one-time decision to allow the Court to exercise jurisdiction over the crime of aggression. This decision will however only take effect once the amendments have entered into force for 30 States Parties. Since the amendments only enter into force for any ratifying State one year after the deposit of the instrument of ratification, the threshold of 30 ratifications should ideally already be reached by 1 January 2016 (or practically speaking, by the end of 2015). Given how long the domestic process for ratification of international instruments can take in many countries, those wishing to support the activation of the Court’s jurisdiction over the crime of aggression should start the process as soon as possible.