[854] Article 119 Settlement of disputes
General remarks
Multilateral conventions often contain a dispute settlement clause with agreement that disputes are submitted to a third party, a common arbiter is the International Court of Justice (ICJ). Article 119 is different in the sense that it contains an intermediary stage where the Assembly of States may intervene in disputes (Schabas, p. 1161).

Preparatory works
The ILC stated in its 1994 Report that "[t]he court will of course have to determine its own jurisdiction [...], and will accordingly have to deal with any issues of interpretation and application of the statute which arise in the exercise of that jurisdiction" (Report of the International Law Commission, Forty-sixth session, 2 May 1994-22 July 1994, Official Records of the General Assembly, Forty-ninth session, p. 70).
   There was a clear will during the negotiations that the Court needed to have the competence to determine the limits of its jurisdiction. It is important the independence of the court. Some States expressed during the negotiations the belief that any disagreement or difference of opinion of any kind concerning the Court was for it alone to decide. Other States took the view that there might be different classes of disagreements where if for some would more appropriate with modes of settlement than other than the Court  (Slade and Clark, p. 429; Clark, p. 1727).
   The final draft report of the Preparatory committee contained four options in Article 108 on how to settle disputes: 1) disputes should be settled by the decision of the Court; 2) disputes on the interpretation or application of the Statute which is not resolved through negotiations should be referred to the Assembly of States Parties which shall make recommendations on further means of settlement of the dispute; disputes concerning the judicial functions of the Court shall be settled by the decision of the Court; and 4) no provision on dispute settlement (Report of the Preparatory Committee on the Establishment of an International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Rome, Italy 15 June - 17 July 1998, A/CONF.183/2).
   Article 119 is a compromise and contains two distinct approaches to settlement of dispute depending on the nature of the dispute. While the first paragraph concerns disputes "concerning the judicial functions", the second paragraph deals with "[a]ny other dispute".

Author: Mark Klamberg

Updated: 30 June 2016

[855] 1. Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.
Both paragraphs 1 and 2 use the word "dispute". Disputes can involve disagreement on points of law as well as facts.
   The term "judicial function" also appears in Articles 39(2)(a) and 40(2) where it seems to have the meaning proceedings or trials. This includes more than merely procedural decisions but all rulings of the Court concerning Rome Statute (Schabas, pp. 1162-1163).
   Clark suggests a non-exhaustive list the following areas of of disagreement that fall within "judicial functions" (pp. 1729-1730):
1. questions of jurisdiction and interpretation of the definitions of crimes within the jurisdiction of the Court (Articles 5-8, 11 and 19);
2. whether the preconditions to the exercise of jurisdiction have been met (Article 12);
3. issues of admissibility (Articles 17 and 19);
4. whether the case is one of ne bis in idem (Article 20);
5. questions involving what law applies (Article 21);
6. issues involving the judges, excusing of judges and disqualifying them (Articles 40 and 41);
7. disqualification of the Prosecutor or a Deputy prosecutor (Article 42);
8. some issues involving the Registry (Article 43 overlapping with the Assembly of States Parties);
9. removal of the Registrar or Deputy Registrar from office (Articles 46(1) and (3));
10. discipline of a judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar (Article 47 and rule 30);
11. some questions involving privileges and immunities (Article 48);
12. questions involving the Rules of Procedure and Evidence (Article 51);
13. adoption of the Regulations of the Court (Article 52);
14. review of a Prosecutor not to proceed (Article 53(3));
15. rulings on various pre-trial situations (Articles 56-61);
16. making ruling on contentious issue during a trial (Articles 62-75), at sentencing (Articles 76-78), and in proceedings for appeal or revision (Articles 81-85);
17. questions concerning cooperation with and judicial assistance to the Court (Articles 86-101); and
18. questions of the modalities of enforcement of sentences (Articles 103-111).

Author: Mark Klamberg

Updated: 30 June 2016

[856] 2. Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court.
Paragraph 2 resembles dispute resolution clauses familiar to multilateral treaties. At first disputes should be settled through negotiations where a time limit of three months is set. After that time, the disputes shall in case of failure to reach a settlement "be referred to the Assembly of States Parties". The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice. However, Article 119(2) cannot be compared to Article IX of the Genocide Convention. Parties to the dispute still have to consent to the jurisdiction of the ICJ.

Doctrine:

1. Roger S. Clark, "Article 119 - Settlement of Disputes", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1727-1735.
2. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1159-1165.
3. Tuiloma Neroni Slade/Roger S. Clark, "Preamble and Final Clauses", in Roy S. Lee (Ed.), The International Criminal Court: The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 421-450.

Author: Mark Klamberg

Updated: 30 June 2016

[857] Reservations
No reservations may be made to this Statute.
General remarks
Article 120 briefly stipulates that States acceding to the Statute may not make reservations. The provision appears to be concise, clear and easy to apply, but it contains a number of difficulties, which has, despite the provision in Article 120, resulted in cumbersome decisions whether declarations lodged by States acceding to the Statute would be permitted.
   The possibility for a State to make use of reservations whereby it purports to exclude or to modify the legal effect of certain provisions of treaties when signing, ratifying, accepting, approving or acceding to a treaty, is governed by Articles 19 to 23 VCLT. During the beginning of the last century the unanimity principle prevailed. A reservation required the acceptance of all State parties to be valid. If one State objected to the reservation, the unanimity principle resulted in the reserving State being prevented from becoming a party to the treaty. A change in doctrine occurred in mid-2000s following the ICJ advisory opinion in the Genocide Case (Genocide Case, Advisory Opinion of 28 May 1951, I.C.J Reports 1951, p. 15). A greater emphasis was put on the principle of universality, under which a larger number of state parties to treaties is highly valued.
   This shift from unanimity to universality meant that it is sufficient that a single State party accepts the reservation by the acceding State, for the latter State to become a party to the treaty. The universality principle is considered to enable a larger number of States to accede to treaties; even if the text of the treaty contains regulations acceding states may have difficulty in accepting. A flexible system for reservations to treaties was introduced and was later codified in the 1969 VCLT. In other words, a State can accede to treaties on the precondition of a reservation that modifies or excludes treaty provisions, provided that at least one State party to the treaty accepts the reservation. However, this would only be possible unless the reservation is prohibited by the treaty; the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or in other cases, the reservation is incompatible with the object and purpose of the treaty, Article 19 VCLT.
   The increasing number of Human Rights treaties since the mid-2000s, and the doctrine shift in terms of possibilities to formulate reservations has resulted in a growing number of accessions to international treaties. However, the possibility to formulate reservations has in many cases been misused in that obviously impermissible reservations have been formulated. Since objections to reservations must come from the other treaty parties, there might be several different reactions towards the same reservation. This has been especially frequent regarding treaties on human rights and has resulted in it being unclear to what rules treaty parties are bound, which off course is very unsatisfying (Spiliopoulou Åkermak and Mårsäter, pp. 384-385). The accelerating problem of impermissible reservations led to the issue being considered by the International Law Commission (Report of the International Law Commission, A/66/10/Add.1).
   One way to overcome the above mentioned misuse of the possibility of formulating reservations is the possibility for States to object to the reservations under Article 20 VCLT. This has been done extensively under various treaties, but this could be a cumbersome way to address the problem, even if it achieves the effect that the reserving State withdraws its reservation. There is also a risk of remaining disputes regarding issues of admissibility of the reservation. Should there exist an established monitoring mechanism under the treaty, the question regarding the permissibility of the reservation can be settled by this system, provided it is an international court or another supervisory organ competent to decide on these questions. In the case of statutes where an international tribunal is established and given the task to monitor the implementation of a treaty, the tribunal may adjudicate on questions of jurisdictions, and thus also indirectly decide on the permissibility of a potentially unauthorized reservation. The latter has occurred in the Strasbourg Court, inter alia, when the court ruled regarding the admissibility of an interpretative declaration formulated by Switzerland, and declared that it had a modifying effect on the treaty (Belilos v. Switzerland, (Application No. 10328/83), ECtHR, Judgment, 18 April 1988).

Preparatory works
In order to avoid the problems of assessing reservations, and safeguarding the integrity of treaties, it could, during the development of treaties, be considered to restrict the possibility to formulate reservations by clearly specifying which reservations may be made, or stipulating that no reservations may be formulated (c.f Article 19 VCLT).
   At the Rome Conference, the latter solution was finally chosen and in order to preserve the integrity of the Statute, Article 120 stipulates, very concisely, that reservations under the treaty are impermissible.

Analysis
By clearly formulating a prohibition to make reservations, it can be concluded that reservations per se have no legal effect under the Statute. States can nevertheless formulate interpretative and other declarations. These kinds of statements are not that easy to define, but an e contrario reading, of the definition of reservations in Article 2(1)(d) VCLT can be used in order to distinguish them from reservations. If the declaration does not purport to exclude or to modify the legal effect of certain provisions in the treaty in relation to the declaring State, it does not constitute a reservation; hence the declaration is not covered by the prohibition in Article 120 and is allowed. This interpretation of the declaration should be done with due observance of rules regarding interpretation of treaties, c.f Article 31-32 VCLT. In other words, a properly worded declaration lacks the qualifying legal effects attached to reservations. The problematic aspect of declarations in this context is that it is not too unusual that states seek to indirectly modify the content of treaties by seeking a legal effect in formulating an improper declaration.
   If the declaration has the legal effect to exclude or modify provisions of the treaty, it constitutes a disguised reservation. States are usually not required to comment on or object to declarations, and this has not been done against most of the approximately 80 declarations submitted under the Statute (see Status of Multilateral Treaties Deposited with the Secretary-General).
   However, there may be reason to treat all declarations as potential reservations, and, where necessary, object to them. Uruguay formulated, when ratifying the Statute on 28 June 2002, a declaration with the wording “as a State Party to the Rome Statute, the Eastern Republic of Uruguay shall ensure its application to the full extent of the powers of the State insofar as it is competent in that respect and in strict accordance with the Constitutional provisions of the Republic”. This declaration received, in contrast to other declarations under the Statute, objections from other States. Finland, Germany, the Netherlands, Sweden, Ireland, United Kingdom, Denmark and Norway objected in various ways against Uruguay's declaration, either through outright objections under the VCLT or by communication to the Secretary-General, to the effect that Uruguay's declaration in fact constituted a reservation. The objections formulated in response to Uruguay’s declaration resulted in a decision by the country to withdraw the declaration on 26 February 2008 (see Status of Multilateral Treaties Deposited with the Secretary-General). 
   A relevant question is whether states must object to these types of impermissible reservations. One view is that such reservations are invalid, another is that the validity of reservations is dependent on the acceptance of the reservation by other states (Shaw, p. 667; Spiliopoulou Åkermak and Mårsäter, pp. 385-387). The view is divided, but a reasonable argument is that regarding reservations under treaties which explicitly does not allow formulation of reservations, it is not necessary to object in accordance with Articles 20 and 21 VCLT, since these reservations per se are to be seen as impermissible and the act of formulating the reservation would be an incorrect action by the reserving State that cannot be cured by other State Parties acceptance of the reservation. It is admitted that the question is more complicated when the treaty in question explicitly allows for the formulation of reservations. State practice regarding objections differs, which is also shown in the above mentioned case of Uruguay's declaration under the Statute. Finland, the Netherlands, Sweden and Ireland concluded in their respective objections that the impermissible reservation was severable, a legal effect of objections not envisaged in Article 21 VCLT, while the other objecting States seemingly followed the rules stipulated in Articles 20-21 VCLT without any conclusion regarding the severability of the reservation (see Status of Multilateral Treaties Deposited with the Secretary-General).
   Whether Article 120 will have the effect of preventing States from seeking to modify or exclude regulations under the Statute, depends on how the rules regarding reservations will be developed and interpreted in the future. This applies in particular to their customary development.

Doctrine:

1. Gerhard Hafhner, "Article 120 - Reservations", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1737-1750.
2. William A. Schabas, The International Criminal Court, A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010.
3. Malcolm N. Shaw, International Law, Seventh Edition, Cambridge University Press, Cambridge, 2014.
4. Sia Spiliopoulou Åkermark/Olle Mårsäter, Otillåtna reservationer – Maldivernas reservation mot kvinnodiskrimineringskonventionen, Mennesker og rettigheter, vol. 13, no. 4, 1995, pp. 382-399.

Author: Olle Mårsäter

Updated: 30 June 2016

[858] Amendments
General remarks
During the negotiations of the Rome Statute some states wanted to amend the Statute as soon as the Statute came into force. This was important for states that wanted to include additional crimes such as terrorism, drug trafficking and the use of weapons of mass destruction. Other states wanted to go more slowly. The compromise was no amendments could be considered until seven years after the entry into force of the Statute.
  There was also discussion on the required majority for making amendments. Most delegations accepted that a qualified majority would suffice. The ultimate resolution in paragraphs 3-6 of Article 121 will make amendments very difficult (Slade and Clark, pp. 433-434).

Author: Mark Klamberg

Updated: 30 June 2016

[859] 1. After the expiry of seven years from the entry into force of this Statute, any State Party may propose amendments thereto. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations, who shall promptly circulate it to all States Parties.
This provision prevents any amendments until seven years after the entry into force of the Statute, that means 1 July 2009. The text of any proposed amendment is be submitted to the Secretary-General of the United Nations as the depositary of the treaty and who will notify all States Parties.

Author: Mark Klamberg

Updated: 30 June 2016

[860] 2. No sooner than three months from the date of notification, the Assembly of States Parties, at its next meeting, shall, by a majority of those present and voting, decide whether to take up the proposal. The Assembly may deal with the proposal directly or convene a Review Conference if the issue involved so warrants.
This provision provides that a majority of members of the Assembly of States Parties present and voting shall decide whether to take up the proposal. Article 121(3) expresses a preference adoption by consensus, if this cannot be reached an amendment shall require the support of a two-thirds majority of States Parties.  

Author: Mark Klamberg

Updated: 30 June 2016

[861] 3. The adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties.
The States Parties should endeavor to adopt amendment by consensus. If this cannot be reached a two-thirds majority of States Parties is required. This higher than what is generally required for decisions on matters of substance, where it is enough with a two-thirds majority of those States Parties present and voting (Article 112(7)(a)) whereas the requirement for amendment of the Rome Statute requires the affirmative support of all States Parties. This means that amendments can be blocked by a combination of States Parties voting no, abstaining or by not being present during the vote together making up one-third plus one state.

Author: Mark Klamberg

Updated: 30 June 2016

[862] 4. Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them.
If the States Parties adopts an amendment under paragraph 3, paragraph 4 provides that an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them. Other rules apply when dealing amendments of the substantive crimes of the Court (to which sub-paragraph 5 applies) and certain minor institutional changes (to which Article 122 applies).

Author: Mark Klamberg

Updated: 30 June 2016

[863] 5. Any amendment to Articles 5, 6, 7 and 8 of this 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. 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.
The general rule on the entry into force of amendments is set out in Article 121(4). Article 121(5) is an exception and applies to amendment to Articles 5, 6, 7 and 8 with consequence that amendments concerning crimes within the jurisdiction of the Court only applies to states that have accepted amendments to this Articles. This is also consistent with sub-paragraph 6 which allows withdrawals in relation to amendments under sub-paragraph 4 but not under sub-paragraph 5 
   During the adoption of the provision there was a "technical error" which was corrected after the Rome conference. Initially, this provision only had a reference to Article 5 but later during the negotiations there was intent to clarify that this provision would apply also to Articles 6-8. If the provision would only apply to Article 5, the effect would be that rules of entry into force in sub-paragraph 5 would only apply to new crimes (for example adding terrorism or drug offences) meaning that amendments would apply only to accepting States-Parties while as sub-paragraph 4 would apply to changes in Articles 6-8 meaning that such changes would apply to all States Parties. The provision was corrected with the effect that sub-paragraph 5 applies to Articles 5-8 with no objections from the States Parties. (Clark, pp. 1755-1756; Schabas, pp. 1179-1180).
   The matter of state consent in relation to amendments became a major issue when inclusion of the crime of aggression was negotiated, there were four different interpretations of how Article 5(2) should be interpreted in conjunction with Article 121:
   1) Under the ‘Adoption Model’, the Court can exercise its jurisdiction over the crime of aggression in accordance with Article 12 of the ICC Statute once the new provisions have been adopted at an Assembly of States Parties meeting or at a Review Conference.
   2) The "Article 121(5) Model with a Negative Understanding" is situated at the other end of the spectrum. This interpretation precludes the ICC from exercising its jurisdiction over the crime of aggression when either the State Party of nationality of the alleged offenders or the State Party on whose territory the crime is alleged to have been committed, has not accepted the provision(s) on the crime of aggression.
   3) According to the ‘Article 121(5) Model with a Positive Understanding’, the second sentence of Article 121(5) of the ICC Statute only has the limited effect of placing non-accepting States Parties on precisely the same footing as non-States Parties for the purpose of the application of Article 12(2) of the ICC Statute. It avoids the problem of an unfair discrimination between non-accepting States Parties and non-States Parties.
   4) The "Article 121(4) Model" treats the provision(s) on the crime of aggression as an amendment to the ICC Statute, but for at least one of the reasons set out above, not as an "amendment to Articles 5, 6, 7 and 8 of this Statute" within the meaning of Article 121(5) of the ICC Statute.
   In order to resolve the matter, there was agreement before the Kampala conference to formulate a "special entry-into-force mechanism". The solution is to be found in Article 15 bis and can be described as "softly" consent based compared to the "strictly" consent based "Article 121(5) Model with a Negative Understanding" Article 15(4) bis by adding an opt-out option. (Kreß and Holtzendorf, pp. 1196-1199, 1214)

Author: Mark Klamberg

Updated: 30 June 2016

[864] 6. If an amendment has been accepted by seven-eighths of States Parties in accordance with paragraph 4, any State Party which has not accepted the amendment may withdraw from this Statute with immediate effect, notwithstanding Article 127, paragraph 1, but subject to Article 127, paragraph 2, by giving notice no later than one year after the entry into force of such amendment.
A state which does not accept an amendment that has been adopted under Article 121(4) may withdraw from the Statute at any time within one year after entry force of such amendment. This provision is an exception from the general right to withdraw under Article 127(1) which takes effect only after one year of the notification. Withdrawals under Article 121(6) take effect immediately.

Author: Mark Klamberg

Updated: 30 June 2016

[865] 7. The Secretary-General of the United Nations shall circulate to all States Parties any amendment adopted at a meeting of the Assembly of States Parties or at a Review Conference.
The Secretary-General of the United Nations shall as depositary of the treaty circulate to all States Parties any amendment adopted at a meeting of the Assembly of States Parties or at a Review Conference.

Cross-reference:
Article 127

Doctrine:

1. Roger S. Clark, "Article 121 - Amendments", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1751-1757. 
2. Claus Kreß/Leonievon Holtzendorff, "The Kampala Compromise on the Crime of Aggression", Journal of International Criminal Justice, vol. 8, 2010, pp. 1179-1217.
3. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1155-1156.
4. Tuiloma Neorni Slade/Roger S. Clark, "Preamble and Final Clauses", in Roy S. Lee (Ed.), The International Criminal Court: The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 421-450. 

Author: Mark Klamberg

Updated: 30 June 2016

[866] Amendments to provisions of an institutional nature
General remarks
While Article 121 provides for amendments in general, Article 122 provides for a simplified procedure in relation to an amendments of an institutional nature. With Article 122 it is enough that two thirds of the members of the Assembly of States Parties approves - there is no requirement that the States Parties need to ratify amendments. Moreover, there is nothing in Article 122 similar to that in Article 121 prohibiting changes during the first seven years of the life of the Court.

Preparatory works
There was initial resistance during the negotiations to introduce a simplified amendment procedure in the final clauses. However, when negotiating Article 36 there was agreement that a simplified procedure was needed when increase the number of judges. Hence, Article 36(2) provides for such a procedure - it is enough that two thirds of the members of the Assembly of States Parties approves an increase of judges and there is no need for the States Parties to ratify changes in this regard. The idea to have a simplified amendment procedure in the final clauses was reintroduced and Article 122 applies for such a procedure to a number of other instances (Slade and Clark, pp. 438-440; Schabas, pp. 1183-1184; Clark. p. 1759)

Author: Mark Klamberg

Updated: 30 June 2016

[867] 1. Amendments to provisions of this Statute which are of an exclusively institutional nature, namely, Article 35, Article 36, paragraphs 8 and 9, Article 37, Article 38, Article 39, paragraphs 1 (first two sentences), 2 and 4, Article 42, paragraphs 4 to 9, Article 43, paragraphs 2 and 3, and Articles 44, 46, 47 and 49, may be proposed at any time, notwithstanding Article 121, paragraph 1, by any State Party. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations or such other person designated by the Assembly of States Parties who shall promptly circulate it to all States Parties and to others participating in the Assembly.
Article 122(1) contains an exhaustive list on the provisions of the Rome Statute that may be amended by the simplified procedure. It is:

- Article 35, service of judges,
- Article 36, paras. 8 and 9, criteria for selecting judges and term of office,
- Article 37, judicial vacancies,
- Article 38, the Presidency of the Court,
- Article 39, para. 1 (first two sentences), the Court shall organize itself into Appeals Division, Trial Division and Pre-Trial Division with a certain number of judges in each division,
- Article 39, para. 2, the Appeals Chamber shall be composed of all the judges of the Appeals Division; the functions of the Trial Chamber shall be carried out by three judges of the Trial Division; the functions of the Pre-Trial Chamber shall be carried out either by three judges of the Pre-Trial Division or by a single judge,
- Article 39, para. 4, Judges assigned to the Appeals Division shall serve only in that division. However, judges may be temporary attached from the Trial Division to the Pre-Trial Division or vice versa,
- Article 42, paras. 4 to 9, election, excuse and disqualification of the Prosecutor and Deputy Prosecutors,
- Article 43, paras. 2 and 3, the Registry shall be headed by the Registrar
- Article 44, staff of Prosecutor and Registrar
- Article 46, removal of judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the Deputy Registrar from office,
- Article 47, disciplinary measures for judges, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar
- Article 49, salaries, allowances and expenses

The provision provides that changes to provisions may be proposed at any time under the simplified procedure in contrast to the seven-year time limit in Article 121(1). However, no amendments under the simplified procedure were submitted during the first seven years of the Court which makes this difference irrelevant.

Author: Mark Klamberg

Updated: 30 June 2016

[868] 2. Amendments under this Article on which consensus cannot be reached shall be adopted by the Assembly of States Parties or by a Review Conference, by a two-thirds majority of States Parties. Such amendments shall enter into force for all States Parties six months after their adoption by the Assembly or, as the case may be, by the Conference.
Amendments under Article 122 are done with a two-thirds majority of States Parties. The amendment is either adopted by the Assembly of States Parties or by a Review Conference. Once the amendments are adopted, there is no need for ratification or accession. There is no requirement corresponding to Article 121(7) that the Secretary-General of the United Nations shall circulate to all States Parties any amendment adopted at a meeting of the Assembly of States Parties or at a Review Conference. The amendment enters into force for all States Parties six months after their adoption by the Assembly of Review Conference.

Doctrine:

1. Roger S. Clark, "Article 122 - Amendments to Provisions of an Institutional Nature", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1759-1761.
2. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1183-1186.
3. Tuiloma Neorni Slade/Roger S. Clark, "Preamble and Final Clauses", in Roy S. Lee (Ed.), The International Criminal Court: The Making of the Rome Statute, Kluwer Law International, the Hague, 1999, pp. 421-450. 

Author: Mark Klamberg

Updated: 30 June 2016

[869] Review of the Statute
General remarks
In addition to the amendment procedure under Article 121, Article 123 sets up a review procedure which has a set time when a first meeting must take place. Article 123 also seeks to ensure that adequate attention would be given to re-examine the crimes under the jurisdiction of the Court.

Preparatory works
Article 21 of the 1993 draft Statute of the ILC Working group provided that "[a] Review Conference shall be held , at the request of at least [...] States Parties after this Statute has been in force for at least five years". (Report of the Working Group of the International Law Commission, Annex to the Yearbook of the International Law Commission, report of the Commission to the General Assembly on the work of its forty-fifth session, 1995, Volume II Part Two, A/CN.4/SER.A/1993/Add.l (Part 2)).
   There was no similar provision in the ILC draft Statute of 1994. Article 111 of the 1998 Preparatory Committee Draft Statute provided that after the expiry of certain number of years to be decided from the entry into force of the Statute, the meeting of the Assembly of States Parties may decide, by a two-thirds majority to convene a special meeting of the Assembly of States Parties to review the Statute.
   At the Rome Conference the idea of a Review ConferenCe was used to postpone debates on contentious issues.

Author: Mark Klamberg

Updated: 30 June 2016

[870] 1. Seven years after the entry into force of this Statute the Secretary-General of the United Nations shall convene a Review Conference to consider any amendments to this Statute. Such review may include, but is not limited to, the list of crimes contained in Article 5. The Conference shall be open to those participating in the Assembly of States Parties and on the same conditions.
The first paragraph provides that the first review is to include, but is not be limited to, the list of crimes in Article 5. The reference to Article 5 expresses the intent to expand the subject-matter jurisdiction of the Court, more specifically to cover the crime of aggression. Article 5(2) provides that "[t]he Court shall exercise jurisdiction over the crime of aggression once 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".
    The reason for the limit of seven years before amendments are possible, was presumably to test how reliably the ICC functions.   
    The review conference is the same as for the Assembly of States Parties. Article 112 provides that each State Party shall have one representative in the Assembly. 
   The word "convenes" suggests that the Review Conference need to be held seven years after the entry into force of the Statute, only that it is convened by the UN Secretary General at that time and that the conference is held within a reasonable deadline thereafter (Schabas, p. 1188). The Secretary General sent a letter 7 August 2009 where he convened the conference in Kampala, Uganda. The first Review Conference was held in Kampala 31 Maj-11 June 2010.
   The Review Conference adopted resolution 5 which added three war crimes to Article 8, paragraph 2 (e), namely the following:
(xiii) Employing poison or poisoned weapons;
(xiv) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
(xv) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions (Resolution RC/Res.5, adopted at the 12th plenary meeting, on 10 June 2010).
   The Conference also adopted resolution 6 which defines the crimes of aggression in the new provision Article 8 bis and new Articles 15 bis and 15 ter that sets out the conditions under which the Court shall exercise jurisdiction with respect to the crime of aggression. The resolution also amended the elements of crime accordingly. New sub-paragraph 25(3) bis clarifies that in respect of the crime of aggression, the provisions of Article 25 shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State. There were some minor changes to Article 9(1) and 20(3), Resolution RC/Res.5, adopted at the 12th plenary meeting, on 11 June 2010.

Author: Mark Klamberg

Updated: 30 June 2016

[871] 2. At any time thereafter, at the request of a State Party and for the purposes set out in paragraph 1, the Secretary-General of the United Nations shall, upon approval by a majority of States Parties, convene a Review Conference.
After the first Review Conference, the UN Secretary-General shall at the request of a State Party and upon approval by a majority of States Parties, convene a subsequent Review Conference.

Author: Mark Klamberg

Updated: 30 June 2016

[872] 3. The provisions of Article 121, paragraphs 3 to 7, shall apply to the adoption and entry into force of any amendment to the Statute considered at a Review Conference.
Paragraph provides that the same rules that apply for amendments done through the Assembly of States Parties shall apply to the adoption and entry into force of any amendment done through the Review Conference.

Doctrine:

1. Roger S. Clark, "Article 123 - Review of the Statute", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1763-1765.
2. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1186-1191.
3. Tuiloma Neorni Slade/Roger S. Clark, "Preamble and Final Clauses", in Roy S. Lee (Ed.), The International Criminal Court: The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 421-450.

Author: Mark Klamberg

Updated: 30 June 2016

[873] Transitional Provision
Notwithstanding Article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may 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. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with Article 123, paragraph 1.
General remarks
Article 124 stipulates that a State may formulate a declaration declaring that it does not accept the jurisdiction of the Court with respect of war crimes alleged to have been committed by its nationals or on its territory over a period of seven years after the entry into force of the Statute for the State concerned. A declaration under Article 124 may be withdrawn at any time.

Analysis
According to Article 120 it is not possible for states to modify or exclude any content in the Statute by using reservations. The disadvantage of taking a rigid stance towards State's desire to modify their obligations may have an effect of excluding the possibility for states to undertake obligations under the Statute. By allowing time limited declarations relating to the Jurisdiction of the Court an opt out model was introduced in the Statute, resulting in a compromise between a unanimity and a universality view. The use of opt out clauses can facilitate both the negotiating process and attract hesitant future State parties. The treaty basis for opt out clauses can be found in Article 17 VCLT. Article 17 (1) VCLT stipulates that “Without prejudice to Articles 19 to 23, the consent of a State to be bound by part of the treaty is effective only if the treaty so permits or the other contacting States so agree”. As can be seen, this partial acceptance has strong similarities with reservations. (Spilioupoulou Åkermak, S, Mårsäter O, Treaties and the Limits of Flexibility, p. 523-527).
   Article 124 can be seen as an exception to the rigid stance taken under Article 120. The regulation was criticized during the Rome Conference resulting in the decision that the provision should be reviewed at the first Review Conference in 2010. Two States, Colombia and France have made use of the possibility of formulating a declaration under Article 124. Upon ratification France declared that “[the French Republic] 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”. The French declaration was withdrawn on 13 August 2008 (see Status of Multilateral Treaties Deposited with the Secretary-General).

Cross-references:
Articles 8, 11 and 120

Doctrine:

1. Sia Spilioupoulou Åkermark/Olle Mårsäter, "Treaties and the Limits of Flexibility", Nordic Journal of International Law, vol. 74, 2005, PP. 509-540.
2. Gerhard Hafner, "Article 120 - Reservations", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008. pp. 1737-1750.

Author: Olle Mårsäter

Updated: 30 June 2016

[874] Signature, ratification, acceptance, approval or accession
General remarks
This Article is a standard-form final clause that received little discussion during the negotiations of the Statute.

Preparatory works
A text corresponding to the final version of Article 125 was circulated at the final session of Preparatory Committee (see Article 112 of the Draft Statute , Report of the Preparatory Committee on the Establishment of an International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Rome, Italy 15 June - 17 July 1998, A/CONF.183/2.

Author: Mark Klamberg

Updated: 30 June 2016

[875] 1. This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and Agriculture Organization of the United Nations, on 17 July 1998. Thereafter, it shall remain open for signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October 1998. After that date, the Statute shall remain open for signature in New York, at United Nations Headquarters, until 31 December 2000.
Signature signifies the adoption and authentication of the text. Signature of the Rome Statute is subject to ratification, acceptance or approval, which means that signature alone does establish consent to be bound. However, signature expresses the intent to ratify and creates an obligation of good faith "to refrain from acts which would defeat the object and purpose of a treaty" (Article 18 of the Vienna Convention on the Law of Treaties). The Statute was open for signature until 31 December 2000.
   Two states, USA and Israel, have signed the Statute but later (6 May 2002 and 28 August 2002) declared their intent not to ratify the Statute. These declarations have been referred to as "unsigning" the Rome Statute. However, signature is an act that cannot be revoked. The effect of signature can be altered by declarations such as those formulated by USA and Israel (Schabas, p. 1198).

Author: Mark Klamberg

Updated: 30 June 2016

[876] 2. This Statute is subject to ratification, acceptance or approval by signatory States. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations.
Ratification involves two distinct procedural steps: the first the act of the appropriate organ of the State; the second is the international procedure which brings a treaty - in this case the Rome Statute - into force by a deposit of ratification with the Secretary-General of the United Nations. All three terms "ratification", "acceptance" and "approval" are colloquially referred to as "ratification". States use different terms for constitutional and historical reasons (Brownlie, pp. 582-583, Schabas, p. 1198).

Author: Mark Klamberg

Updated: 30 June 2016

[877] 3. This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations.
Ratification is not the only way to become a State Party. States which did not sign the Rome Statute may accede the Statute and become a State Party.

Doctrine:

1. Ian Brownlie, Principles of Public International Law, Seventh Edition, Oxford University Press, Oxford, 2008, pp. 581-583.
2. Roger S. Clark, "Article 125 - Signature, Ratification, Acceptance, Approval or Accession", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, p. 1773.
3. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1195-1200.
4. Tuiloma Neorni Slade/Roger S. Clark, "Preamble and Final Clauses", in Roy S. Lee (Ed.), The International Criminal Court: The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 421-450.

Author: Mark Klamberg

Updated: 30 June 2016

[878] Entry into force
General remarks
Although this article is a standard-form final clause, it did contain the difficult issue on the number of parties needed to bring the Statute into force.

Preparatory works
The 1994 ILC Draft Statute stated that "The statute of the court is intended to reflect and represent the interests of the international community as a whole in relation to the prosecution of certain most serious crimes of international concern. In consequence, the statute and its covering treaty should require a substantial number of States parties before it enters into force" (Report of the International Law Commission, Forty-sixth session, 2 May 1994-22 July 1994, Official Records of the General Assembly, Forty-ninth session, p. 69)
   The number of sixty first appeared in the Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, 1995, Official Records of the General Assembly, Fiftieth Session, Supplement No. 22 (A/50/22) (1995), para. 15.
   Article 114 of the Preparatory Committee Draft Statute followed with the same number, Report of the Preparatory Committee on the Establishment of an International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Rome, Italy 15 June - 17 July 1998, A/CONF.183/2.
   Some states favored during the negotiations in Rome a lower number. Other states argued that for the institution have legitimacy it should have a decent number of parties. This is even more logical considering that the Court with the consent of the territorial State would have jurisdiction over crimes committed on that territory by nationals of non-State Parties (Slade and Clark, p. 444).

Author: Mark Klamberg

Updated: 30 June 2016

[879] 1. This Statute shall enter into force on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations.
The Statute shall enter into force on sixty days after the deposit of the 60th instrument of ratification, acceptance, approval or accession. Sixty days is fairly standard waiting period in modern treaty practice for the entry into force of the Statute (Slade and Clark, p. 445).
   The number of ratifications reached sixty on 13 April 2002 and thus the Statute entered into force of 1 July 2002. The entry into force is relevant for several other provisions. Article 11(1) provides that the Court has jurisdiction only with respect to crimes committed after the entry into force. Upholding the principle of legality and non-retroactivity, Article 24(1) states that no person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. Further, pursuant to Article 121(1) amendments are only possible after the expiry of seven years from the entry into force of the Statute. The date of the first Review Conferens is also set in relation to the entry into force of the Statue according to Article 123 (Schabas, p. 1203).

Author: Mark Klamberg

Updated: 30 June 2016

[880] 2. For each State ratifying, accepting, approving or acceding to this Statute after the deposit of the 60th instrument of ratification, acceptance, approval or accession, the Statute shall enter into force on the first day of the month after the 60th day following the deposit by such State of its instrument of ratification, acceptance, approval or accession.
For a State ratifying, accepting, approving or acceding to the Statute after the deposit of the sixtieth instrument of ratification - that is the 13 April 2002 - the entry into force for that State occurs on the first day of the month after the sixtieth day following the deposit by such State.
   This date is relevant for Article 11(2) which provides that if a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State. There are two exceptions where the Court may exercise jurisdiction for crimes committed before the ratification of that State - but still limited to acts committed after 1 July 2002: 1) if that State has made a declaration under Article 12(3); 2) jurisdiction has been established by the UN Security Council under Article 13(b).
   A State may also upon ratification of the Rome Statute make a declaration in accordance with Article 124 and opt out for a period of seven years from the jurisdiction of the Court in relation to war crimes.

Cross-references:
Articles 11(1), 24(1), 121(1) and 123

Doctrine:

1. Roger S. Clark, "Article 126 - Entry Into Force", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1775-1776.
2. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1201-1204.
3. Tuiloma Neorni Slade/Roger S. Clark, "Preamble and Final Clauses", in Roy S. Lee (Ed.), The International Criminal Court: The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 421-450 .

Author: Mark Klamberg

Updated: 30 June 2016

[881] Withdrawal
General remarks
Article 127 deals with withdrawal. It differs from the right to withdraw under Article 121(6). While Article 121(6) allows withdrawal under a narrow set of circumstances when the Statute has been amended, Article 127 is entirely open-ended. There is no limitation on what grounds a State may withdraw under Article 127. The benefit for withdrawing under Article 121(6) is the immediate effect while withdrawal under Article 127 takes a year from the date of notification of withdrawal.

Preparatory works
There was no dispute during the negotiations that States would have the right to withdraw. Article 98 of the Draft Statute contained in the Zutphen Report was very concise (Report of the Intersessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands A/AC.249/1998/L.13, 4 February 1998).
    The discussion focused on paragraph 2 which concerns past obligation, that is obligations that arose from the Statute while the State was a Party to the Statute. Article 115 of the Draft Statute adopted by Preparatory Committee (1998) contained a draft provision of withdrawal almost identical to the adopted provision (Report of the Preparatory Committee on the Establishment of an International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Rome, Italy 15 June - 17 July 1998, A/CONF.183/2).

Author: Mark Klamberg

Updated: 30 June 2016

[882] 1. A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.
Paragraph 1 provides that a withdrawal takes effect one year after the date of receipt of the notification of withdrawal. However, States are allow to specify a later date in its notification.
   The Secretary-General of the United Nations exercises the depositary function in receiving notifications of withdrawal.

Author: Mark Klamberg

Updated: 30 June 2016

[883] 2. A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.
The first sentence of the second paragraph captures the principle of Article 70 of the Vienna Convention on the Law of Treaties that past obligations survive withdrawal from the treaty regime: "the termination of a treaty [...] does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination".
   The second sentence deals with an example of this principle, namely cooperation in connection with investigations and prosecution.
   The last part of the second sentence "nor shall it prejudice" makes it clear by the words "any matter which was already under consideration by the Court" that a State which nationals have been put under the jurisdiction of the Court by a State referral or by a Prosecutor acting propriu motu cannot terminate suchs proceedings by withdrawing from the Statute. Thus, when a State finds it, or its leaders targeted by investigations or prosecution, the Rome Statute seeks to prevent that withdrawal is used as a means of avoiding its jurisdiction.

Cross-references:
Article 121

Doctrine:

1. Roger S. Clark, "Article 127 – Withdrawal", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1777-1779.
2. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1205-1207.
3. Tuiloma Neorni Slade/Roger S. Clark, Preamble and Final Clauses, in Roy S. Lee (Ed.), The International Criminal Court: The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 421-450.

Author: Mark Klamberg

Updated: 30 June 2016

[884] Authentic texts
The original of this Statute, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States.
General remarks
Article 128 reiterates the equal authenticity principle concerning multilateral treaties stated in the Vienna Convention on the Law of Treaties (VCLT). Article 33(4) of the VCLT states when the principle is applied "the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted".

Preparatory works
This provision causes no controversy whatsoever and was adopted exactly on the basis of the Secretariat's draft (Slade, p. 448).

Analysis
The languages listed are the official United Nations languages. The Secretary-General of the United Nations shall as a depositary send certified copies of the Statute to "all States", a formula that also includes states that that are not United Nations members.

Doctrine:

1. Roger S. Clark, "Article 126 - Entry Into Force", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, p. 1781.
2. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1208-1210.
3. Tuiloma Neorni Slade/Roger S. Clark, "Preamble and Final Clauses", in Roy S. Lee (Ed.), The International Criminal Court: The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 421-450.  

Author: Mark Klamberg

Updated: 30 June 2016