The Special Session of the Assembly of States Parties on the review of the amendments on the crime of aggression is approaching (it is scheduled for 7-9 July 2025 in New York, despite the attempts to postpone it and move to the Hague for various reasons, incl. potential problems of delegates with the entry to the USA). The proposal of the amendment to the Kampala amendments on the crime of aggression was tabled by Costa Rica, Germany, Sierra Leone, Slovenia and Vanuatu. It aims to change the current rules concerning the exercise of the Court’s jurisdiction over the crime of aggression in the case of state referral or proprio motu, by harmonizing them with the rules which are applied to other core crimes (genocide, crime against humanity and war crimes). Therefore, if the amendment is adopted, the Court would be able to prosecute the crime of aggression if at least one state involved (as a state aggressor or as a state victim of aggression) were a party to the amendments on crime of aggression.
In the run-up to the special session it is worth cracking down on certain myths propagated by opponents of the harmonization of the jurisdiction of the International Criminal Court. These myths distract from the main purposes of the review process, i.e. harmonisation of the jurisdiction and strengthening of the legal order and security.
Myth 1. Too few ratifications of the Kampala Amendments
So far (as of 22 May 2025) there are 47 ratifications of Kampala amendments on the crime of aggression adopted in 2010. Allegedly this should be interpreted as a lack of interest among the states in criminalizing the crime of aggression, at least by means of the Rome Statute. Nothing could be further from the truth. The Kampala amendments are the most ratified amendments to the Rome Statute – and this applies both to the Kampala amendments on the crime of aggression and to the amendments on war crimes, also adopted in Kampala (criminalization of employing poison or poisoned weapons; employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; 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.)
All other amendments to the Rome Statute adopted in subsequent years have achieved a much lower number of ratifications: e.g. the amendment of 2015 to delete Article 124 of the Rome Statute has gained 24 ratifications so far, and the amendment of 2017 to Article 8 to criminalize employing weapons which use microbial or other biological agents, or toxins, has gained 23 ratifications. Therefore, it can be safely assumed that the slow pace of the ratification process is simply the reality of any amendments to the Rome Statute.
It has to be also taken into account that many states do not oppose specific amendments as such, but they do not initiate the internal ratification process either, as this is not a priority in their daily work where more urgent tasks must be dealt with (unfortunately, international law related legislation often loses in urgency with e.g. national social law, usually more important for the local public opinion) or when the ratification of the treaty requires building a political coalition in the parliament.
Nevertheless, it must be noticed that in terms of regional groups, the amendments on aggression have been ratified by 72% states parties from Western Europe (Andorra, Austria, Belgium, Denmark, Finland, Germany, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Netherlands, Portugal, San Marino, Spain, Sweden, Switzerland – thus 18 out of 25); 55% states parties from Eastern Europe (Croatia, Czechia, Estonia, Georgia, Latvia, Lithuania, North Macedonia, Poland, Slovakia, Slovenia, Ukraine – so 11 out of 20); 43 % of states partiesfrom Latin America and the Caribbean (Argentina, Bolivia, Chile, Costa Rica, Ecuador, El Salvador, Guyana, Panama, Paraguay, Peru, Trinidad and Tobago, Uruguay – so 12 out of 28) and only by 6% of states parties from Africa (Botswana, Niger – 2 out of 33) and 26% from Asia and Pacific (Cyprus, Mongolia, Palestine, Samoa and Timor Leste – so 5 out of 19). There is then the question of why states from some regions are being more cautious than others to jump on the ratification wagon. The answer does not have to lay in any general scepticism related to the Kampala amendments, but rather to the fact that Kampala was just too little for some states to be worth ratifying.
The current version of the Kampala amendments requires that both states – aggressor and victim – are parties to the amendments in order to allow the ICC to exercise its jurisdiction. In consequence, if a state decides to ratify the amendments on crime of aggression, this state does not gain protection in the form of jurisdiction of the ICC over perpetrators of crime of aggression committed against the state party to amendments. The ratification of Kampala amendments is then merely a (valuable!) ‘Good Citizen Badge’, a statement of the state that it accepts that its nationals could be prosecuted if the state engages in aggression against another state party to amendments. In other words, a state ratifying the amendments opens itself to the possibility of having its officials judged for its own state’s aggression, but not necessarily for aggression against their state. So currently, the incentive for the ratification is minimal, as it does not enhance the level of protection against aggression.
Myth 2. Harmonization is against particular state(s)
As most of Western and Eastern European states have ratified the Kampala amendments and many of them support harmonization, some argue that review is done only because of Russia’s aggression against Ukraine, and because those states are engaged in the painful process of the establishment of the Special Tribunal for the Crime of Aggression against Ukraine. Those states did not bother with aggressions committed in other regions, the argument goes, and therefore the harmonization attempt is another example of Western/Northern double standards.
In truther, however, the review process was already scheduled with the adoption of Kampala amendments (RC/Res.6, para. 4) and activation of the jurisdiction during the 2017 ASP (ICC-ASP/16/Res.5). The review process was scheduled at the time completely independently from any world events.
Moreover, harmonization is the answer to the double standard claim, as it will help to judge the crime of aggression committed not only against state parties but also committed by state parties against non-state parties. In addition, the whole purpose of the criminalization of aggression is to secure peace and avoid all evils related to war. In consequence, harmonization is not against any state, it is in favour of all people, including those who would be enlisted to the army and then treated as lawful targets. Only prevention of aggression allows for avoiding deaths on both sides of the conflict – the aggressor’s and its victim’s.
Myth 3. Amendments will deepen the fragmentation of the Rome Statute
Further amending of the Kampala amendments will allegedly create another subregime within the Rome Statute. However, this is exactly how the system of amendments works within the ICC Statute. Any amendment to the core crimes creates subregimes, and yet we make the effort to criminalize new war crimes, because we see the value of strengthening the legal order and human security by criminalizing violations of international humanitarian law.
There are, indeed, justified fears different categories of states parties would emerge in result of the review process, as indeed we would have to distinguish between: (1) states which are not parties to the Kampala amendments; (2) states which are parties to the Kampala amendments and are willing to ratify the new amendments; (3) states which are parties to the Kampala amendments but are not willing to ratify the new amendments; (4) states which are parties to the Kampala amendments but have submitted an opt-out declaration. Nevertheless, having in mind the benefits of the ratification of potential new amendments, we can expect that the number of states which are parties only to the old Kampala amendments will drop very quickly, as every state should be interested in ensuring better protection against aggression, which might be secured only by the harmonization of the ICC jurisdiction. Even if the number of categories of state parties increases for the moment, this will be only a temporary situation, or in any case worth the struggle.
Myth 4. Amendments will impose obligations on third states
From the very beginning of the Rome Statute, it was raised that by giving the Court jurisdiction to prosecute nationals of third states (non-state parties), the basic principles of treaty law to not impose obligations on third states are violated (Articles 34-35 of the Vienna Convention on the Law of Treaties of 1969). In consequence, expanding the jurisdiction over the crime of aggression only increases the inherent defect of the Rome Statute. Those arguing along this line forget that every state has a right to prosecute crimes committed on its territory (territorial jurisdiction), or committed by its nationals or against its nationals (personal jurisdiction), or against its interests (protective jurisdiction), not mentioning the universal jurisdiction option. Therefore, the solution according to which the ICC can derive its jurisdiction only based on its states parties territorial jurisdiction and active personal jurisdiction is a very modest one. If the state has a right to execute jurisdiction in particular circumstances, it has also the sovereign right to authorize an international court to execute its jurisdiction on behalf of this state. Moreover, if we agree with the International Law Commission that aggression should not be prosecuted in national courts but in an international one (see Code of Crimes against Peace and Security of Mankind – Article 8 in conjunction with Article 16; cf. Understandings to the Kampala amendments on domestic jurisdiction over crime of aggression), then the expansion of the ICC jurisdiction is the answer to the concerns expressed by the ILC or in the Understandings adopted in Kampala.
It has to be clearly stressed that no state that is the victim of aggression resigns from seeking justice for the aggression. To give jurisdiction over the crime of aggression to the international court is a compromise solution to address the needs of the victim state and the international community’s concerns about the respect of the equality of sovereign states (so the principle par in parem non habet imperium is not violated as national courts of one state do not assess the conduct of another state, but this task is assigned to an international court instead).
Myth 5. ICC will be overwhelmed with aggression cases
It is also argued that the Court struggles with current investigations, so we need to be cautious about expanding its jurisdiction to avoid involving the Court in other complicated, political proceedings. However, and this must be clearly stated, the harmonization of the jurisdiction does not open a Pandora’s box. There is no reason to expect a flood of investigations concerning crime of aggression, as there will continue to be serious limitations of the jurisdiction over crime of aggression, i.e. (1) leadership clause limiting the personal scope of responsibility for crime of aggression; (2) gravity clause, which requires that aggression by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations; (3) assessment of the situation by the Security Council; (4) authorisation by Pre-Trial Division for the investigation initiated by state’s referral or proprio motu; (5) possibility of an opt-out. In consequence, even with the harmonization, the jurisdiction of the ICC over the crime of aggression will be extremely limited.
Myth 6. This is not a good moment
Having in mind the already-imposed sanctions against the Court, and further threats addressed towards the Court and its officials; allegations against the main prosecutor – Karim Khan; non-compliance with arrest warrants especially in case of sitting heads of states and prime ministers (Mongolia), but not only (Italy), perhaps opening a new controversial topic is not the best option for the fragile Court. However, we have never had a good, calm moment in the history of the ICC. The crusade against the Court from its inception with the expansion of the scope of Article 98 agreements, threat of mass withdrawal of African states under the pretext of racist approach to the selection of situation, sanctions against ICC officials imposed by the USA under the first Trump administration… it was always a tough time for the Court. The current problems are serious, but we can be sure that if those problems are solved, we need to be ready and prepared for the next ones on the horizon. Therefore, there is never a good time and there are always some problems threatening the credibility and even the very existence of the Court. That is why the review process was scheduled in advance: not in response to current events, but in order to move forward with the change, no matter the events.
Myth 7. It is too complicated
As the adoption of the Kampala amendment and the activation decision raised so many doubts concerning the execution of the jurisdiction by the ICC (the famous dilemma whether the second sentence of Article 121(5) should be applied or not); and having in mind that now we have a division of opinions which procedure we should apply – as some states (e.g. Belgium, France) are in favour of the application of Article 121(4) while the majority prefers to use Article 121(5); some legal advisers present the whole review process as too complicated and incomprehensible. Well, yes, indeed: it is complicated, Yet the Rome Statute on the whole is a complicated, complex document. International criminal law is full of interpretation traps, but does it mean that we need to give up on its development? It must be clearly stated that if there is a political will, legal solutions will be found. It is the job of lawyers to propose appropriate solutions to the needs expressed by politicians. If politicians representing the people are convinced that aggression is worth criminalizing in practice, and not only in theory, then the review process is a tool to respond to the call for the safer world for everyone.
Myths around the review process of the Kampala amendments on the crime of aggression
Written by Patrycja GrzebykThe Special Session of the Assembly of States Parties on the review of the amendments on the crime of aggression is approaching (it is scheduled for 7-9 July 2025 in New York, despite the attempts to postpone it and move to the Hague for various reasons, incl. potential problems of delegates with the entry to the USA). The proposal of the amendment to the Kampala amendments on the crime of aggression was tabled by Costa Rica, Germany, Sierra Leone, Slovenia and Vanuatu. It aims to change the current rules concerning the exercise of the Court’s jurisdiction over the crime of aggression in the case of state referral or proprio motu, by harmonizing them with the rules which are applied to other core crimes (genocide, crime against humanity and war crimes). Therefore, if the amendment is adopted, the Court would be able to prosecute the crime of aggression if at least one state involved (as a state aggressor or as a state victim of aggression) were a party to the amendments on crime of aggression.
In the run-up to the special session it is worth cracking down on certain myths propagated by opponents of the harmonization of the jurisdiction of the International Criminal Court. These myths distract from the main purposes of the review process, i.e. harmonisation of the jurisdiction and strengthening of the legal order and security.
Myth 1. Too few ratifications of the Kampala Amendments
So far (as of 22 May 2025) there are 47 ratifications of Kampala amendments on the crime of aggression adopted in 2010. Allegedly this should be interpreted as a lack of interest among the states in criminalizing the crime of aggression, at least by means of the Rome Statute. Nothing could be further from the truth. The Kampala amendments are the most ratified amendments to the Rome Statute – and this applies both to the Kampala amendments on the crime of aggression and to the amendments on war crimes, also adopted in Kampala (criminalization of employing poison or poisoned weapons; employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; 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.)
All other amendments to the Rome Statute adopted in subsequent years have achieved a much lower number of ratifications: e.g. the amendment of 2015 to delete Article 124 of the Rome Statute has gained 24 ratifications so far, and the amendment of 2017 to Article 8 to criminalize employing weapons which use microbial or other biological agents, or toxins, has gained 23 ratifications. Therefore, it can be safely assumed that the slow pace of the ratification process is simply the reality of any amendments to the Rome Statute.
It has to be also taken into account that many states do not oppose specific amendments as such, but they do not initiate the internal ratification process either, as this is not a priority in their daily work where more urgent tasks must be dealt with (unfortunately, international law related legislation often loses in urgency with e.g. national social law, usually more important for the local public opinion) or when the ratification of the treaty requires building a political coalition in the parliament.
Nevertheless, it must be noticed that in terms of regional groups, the amendments on aggression have been ratified by 72% states parties from Western Europe (Andorra, Austria, Belgium, Denmark, Finland, Germany, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Netherlands, Portugal, San Marino, Spain, Sweden, Switzerland – thus 18 out of 25); 55% states parties from Eastern Europe (Croatia, Czechia, Estonia, Georgia, Latvia, Lithuania, North Macedonia, Poland, Slovakia, Slovenia, Ukraine – so 11 out of 20); 43 % of states parties from Latin America and the Caribbean (Argentina, Bolivia, Chile, Costa Rica, Ecuador, El Salvador, Guyana, Panama, Paraguay, Peru, Trinidad and Tobago, Uruguay – so 12 out of 28) and only by 6% of states parties from Africa (Botswana, Niger – 2 out of 33) and 26% from Asia and Pacific (Cyprus, Mongolia, Palestine, Samoa and Timor Leste – so 5 out of 19). There is then the question of why states from some regions are being more cautious than others to jump on the ratification wagon. The answer does not have to lay in any general scepticism related to the Kampala amendments, but rather to the fact that Kampala was just too little for some states to be worth ratifying.
The current version of the Kampala amendments requires that both states – aggressor and victim – are parties to the amendments in order to allow the ICC to exercise its jurisdiction. In consequence, if a state decides to ratify the amendments on crime of aggression, this state does not gain protection in the form of jurisdiction of the ICC over perpetrators of crime of aggression committed against the state party to amendments. The ratification of Kampala amendments is then merely a (valuable!) ‘Good Citizen Badge’, a statement of the state that it accepts that its nationals could be prosecuted if the state engages in aggression against another state party to amendments. In other words, a state ratifying the amendments opens itself to the possibility of having its officials judged for its own state’s aggression, but not necessarily for aggression against their state. So currently, the incentive for the ratification is minimal, as it does not enhance the level of protection against aggression.
Myth 2. Harmonization is against particular state(s)
As most of Western and Eastern European states have ratified the Kampala amendments and many of them support harmonization, some argue that review is done only because of Russia’s aggression against Ukraine, and because those states are engaged in the painful process of the establishment of the Special Tribunal for the Crime of Aggression against Ukraine. Those states did not bother with aggressions committed in other regions, the argument goes, and therefore the harmonization attempt is another example of Western/Northern double standards.
In truther, however, the review process was already scheduled with the adoption of Kampala amendments (RC/Res.6, para. 4) and activation of the jurisdiction during the 2017 ASP (ICC-ASP/16/Res.5). The review process was scheduled at the time completely independently from any world events.
Moreover, harmonization is the answer to the double standard claim, as it will help to judge the crime of aggression committed not only against state parties but also committed by state parties against non-state parties. In addition, the whole purpose of the criminalization of aggression is to secure peace and avoid all evils related to war. In consequence, harmonization is not against any state, it is in favour of all people, including those who would be enlisted to the army and then treated as lawful targets. Only prevention of aggression allows for avoiding deaths on both sides of the conflict – the aggressor’s and its victim’s.
Myth 3. Amendments will deepen the fragmentation of the Rome Statute
Further amending of the Kampala amendments will allegedly create another subregime within the Rome Statute. However, this is exactly how the system of amendments works within the ICC Statute. Any amendment to the core crimes creates subregimes, and yet we make the effort to criminalize new war crimes, because we see the value of strengthening the legal order and human security by criminalizing violations of international humanitarian law.
There are, indeed, justified fears different categories of states parties would emerge in result of the review process, as indeed we would have to distinguish between: (1) states which are not parties to the Kampala amendments; (2) states which are parties to the Kampala amendments and are willing to ratify the new amendments; (3) states which are parties to the Kampala amendments but are not willing to ratify the new amendments; (4) states which are parties to the Kampala amendments but have submitted an opt-out declaration. Nevertheless, having in mind the benefits of the ratification of potential new amendments, we can expect that the number of states which are parties only to the old Kampala amendments will drop very quickly, as every state should be interested in ensuring better protection against aggression, which might be secured only by the harmonization of the ICC jurisdiction. Even if the number of categories of state parties increases for the moment, this will be only a temporary situation, or in any case worth the struggle.
Myth 4. Amendments will impose obligations on third states
From the very beginning of the Rome Statute, it was raised that by giving the Court jurisdiction to prosecute nationals of third states (non-state parties), the basic principles of treaty law to not impose obligations on third states are violated (Articles 34-35 of the Vienna Convention on the Law of Treaties of 1969). In consequence, expanding the jurisdiction over the crime of aggression only increases the inherent defect of the Rome Statute. Those arguing along this line forget that every state has a right to prosecute crimes committed on its territory (territorial jurisdiction), or committed by its nationals or against its nationals (personal jurisdiction), or against its interests (protective jurisdiction), not mentioning the universal jurisdiction option. Therefore, the solution according to which the ICC can derive its jurisdiction only based on its states parties territorial jurisdiction and active personal jurisdiction is a very modest one. If the state has a right to execute jurisdiction in particular circumstances, it has also the sovereign right to authorize an international court to execute its jurisdiction on behalf of this state. Moreover, if we agree with the International Law Commission that aggression should not be prosecuted in national courts but in an international one (see Code of Crimes against Peace and Security of Mankind – Article 8 in conjunction with Article 16; cf. Understandings to the Kampala amendments on domestic jurisdiction over crime of aggression), then the expansion of the ICC jurisdiction is the answer to the concerns expressed by the ILC or in the Understandings adopted in Kampala.
It has to be clearly stressed that no state that is the victim of aggression resigns from seeking justice for the aggression. To give jurisdiction over the crime of aggression to the international court is a compromise solution to address the needs of the victim state and the international community’s concerns about the respect of the equality of sovereign states (so the principle par in parem non habet imperium is not violated as national courts of one state do not assess the conduct of another state, but this task is assigned to an international court instead).
Myth 5. ICC will be overwhelmed with aggression cases
It is also argued that the Court struggles with current investigations, so we need to be cautious about expanding its jurisdiction to avoid involving the Court in other complicated, political proceedings. However, and this must be clearly stated, the harmonization of the jurisdiction does not open a Pandora’s box. There is no reason to expect a flood of investigations concerning crime of aggression, as there will continue to be serious limitations of the jurisdiction over crime of aggression, i.e. (1) leadership clause limiting the personal scope of responsibility for crime of aggression; (2) gravity clause, which requires that aggression by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations; (3) assessment of the situation by the Security Council; (4) authorisation by Pre-Trial Division for the investigation initiated by state’s referral or proprio motu; (5) possibility of an opt-out. In consequence, even with the harmonization, the jurisdiction of the ICC over the crime of aggression will be extremely limited.
Myth 6. This is not a good moment
Having in mind the already-imposed sanctions against the Court, and further threats addressed towards the Court and its officials; allegations against the main prosecutor – Karim Khan; non-compliance with arrest warrants especially in case of sitting heads of states and prime ministers (Mongolia), but not only (Italy), perhaps opening a new controversial topic is not the best option for the fragile Court. However, we have never had a good, calm moment in the history of the ICC. The crusade against the Court from its inception with the expansion of the scope of Article 98 agreements, threat of mass withdrawal of African states under the pretext of racist approach to the selection of situation, sanctions against ICC officials imposed by the USA under the first Trump administration… it was always a tough time for the Court. The current problems are serious, but we can be sure that if those problems are solved, we need to be ready and prepared for the next ones on the horizon. Therefore, there is never a good time and there are always some problems threatening the credibility and even the very existence of the Court. That is why the review process was scheduled in advance: not in response to current events, but in order to move forward with the change, no matter the events.
Myth 7. It is too complicated
As the adoption of the Kampala amendment and the activation decision raised so many doubts concerning the execution of the jurisdiction by the ICC (the famous dilemma whether the second sentence of Article 121(5) should be applied or not); and having in mind that now we have a division of opinions which procedure we should apply – as some states (e.g. Belgium, France) are in favour of the application of Article 121(4) while the majority prefers to use Article 121(5); some legal advisers present the whole review process as too complicated and incomprehensible. Well, yes, indeed: it is complicated, Yet the Rome Statute on the whole is a complicated, complex document. International criminal law is full of interpretation traps, but does it mean that we need to give up on its development? It must be clearly stated that if there is a political will, legal solutions will be found. It is the job of lawyers to propose appropriate solutions to the needs expressed by politicians. If politicians representing the people are convinced that aggression is worth criminalizing in practice, and not only in theory, then the review process is a tool to respond to the call for the safer world for everyone.
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