Body
International Criminal Court
Assembly of States Parties
ICC-ASP/21/22
Distr.: General
1 December 2022
Original: English
Twenty-first session
The Hague, 5-10 December 2022
Report of the Working Group on Amendments
Contents
I.
Introduction ................................................................................................................. 2
II.
Consideration of proposals to amend the Rome Statute .............................................. 3
A.
Belgium............................................................................................................ 3
B.
Mexico ............................................................................................................. 3
C.
Sierra Leone ..................................................................................................... 3
D.
Trinidad and Tobago........................................................................................ 3
E.
South Africa ..................................................................................................... 4
F.
Kenya ............................................................................................................... 4
III.
Consideration of the procedure for amending the Rules of Procedure and Evidence .......... 4
IV.
Information on the status of ratifications of the Kampala amendments to the Rome Statute
as well as on the amendments adopted at the fourteenth, sixteenth and eighteenth sessions
of the Assembly ........................................................................................................... 5
V.
Decisions and recommendations.................................................................................. 5
Annex I ................................................................................................................................... 6
Annex II ................................................................................................................................. 6
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I.
Introduction
1.
The present report is submitted pursuant to the mandate given by the Assembly of State
Parties (“Assembly”) to the Working Group on Amendments (“Working Group”). The
Working Group was established by Assembly resolution ICC-ASP/8/Res.6 for the purpose of
considering amendments to the Rome Statute proposed in accordance with article 121,
paragraph 1 of the Statute as well as any other possible amendments to the Rome Statute and
to the Rules of Procedure and Evidence, with a view to identifying amendments to be adopted
in accordance with the Rome Statute and the Rules of Procedure of the Assembly.1
2.
The Working Group’s consideration of amendment proposals to the Rome Statute and
to the Rules of Procedure and Evidence is governed by the Terms of Reference set out in
Assembly resolution ICC-ASP/11/Res.8, annex II.2 The amendment procedure for the Rules
of Procedure and Evidence is also governed by the “Roadmap on reviewing the criminal
procedures of the International Criminal Court”, the main purpose of which is to facilitate a
structured dialogue between key stakeholders on proposed amendments to the Rules of
Procedure and Evidence.3 In endorsing the Roadmap by resolutions ICC-ASP/11/Res.8 and
ICC-ASP/12/Res.8, the Assembly has reaffirmed the role of the Working Group in receiving
and considering recommendations to the Assembly on proposals of amendments to the Rules
of Procedure and Evidence.
3.
At its twentieth session, the Assembly invited the Working Group to continue its
consideration of all amendment proposals in accordance with the Terms of Reference of the
Working Group, and requested the Working Group to submit a report for the consideration
of the Assembly at its twenty-first session.4
4.
During the reporting period, the Working Group also conducted the assessment of the
relevant recommendations of the Independent Expert Review (IER) pursuant to resolution
ICC-ASP/19/Res.7, which had been included in the final report of the “Independent Expert
Review of the International Criminal Court and the Rome Statute System”, dated 30
September 2020, and allocated to the Working Group under the “Comprehensive action plan
for the assessment of the recommendations of the Group of Independent Experts, including
requirements for possible future action”, submitted by the Review Mechanism on 30 June
2021 and adopted by the Bureau on 28 July.
5.
The Bureau reappointed Ambassador Juan Manuel Gómez Robledo Verduzco
(Mexico) as Chairperson of the Working Group at its second meeting held on 9 March 2022.5
6.
The Working Group met on 22 and 29 June 2022 to conduct its business as mandated
by the Assembly, the first meeting was held in person and the second virtually. During its
meetings the Working Group agreed to spare no effort for efficient discussions as well as
openness and flexibility in the Group’s deliberations.
7.
The Working Group also held a joint meeting with the Study Group on Governance on
21 March 2022. During that meeting, the Chef de Cabinet of the Presidency of the Court
briefed the delegations on the history of discussions and facts in relation to rule 140bis of the
Rules of Evidence and Procedure of the Court.
1
Resolution ICC-ASP/8/Res.6, paragraph 4, available at https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/ICCASP-8-Res.6-ENG.pdf.
2
Resolution ICC-ASP/11/Res.8, annex II: Terms of Reference of the Working Group on Amendments, available at
https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/ASP11/ICC-ASP-11-Res8-ENG.pdf#page=11.
3
The Roadmap is contained in the Report of the Bureau on the Study Group on Governance to the eleventh session
of the Assembly (ICC-ASP/11/31, annex I). The Revised Roadmap is contained in the Report of the Bureau on the
Study Group on Governance to the twelfth session of the Assembly (ICC-ASP/12/37, annex I). The Roadmaps are
available respectively at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP11/ICC-ASP-11-31-ENG.pdf and at
https://asp.icc-cpi.int/iccdocs/asp_docs/ASP12/ICC-ASP-12-37-ENG.pdf.
4
Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court,
Twentieth session, The Hague, 6-11 December 2021 (ICC-ASP/20/20), vol. I, part III, ICC-ASP/20/Res.5, annex I,
paras. 18(a) and (b), available at https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP20/ICC-ASP-20-20-vol-IENG.pdf.
5
Decision of the second meeting of the Bureau of the Assembly of States Parties, 9 March 2022, available at
https://asp.icc-cpi.int/sites/asp/files/2022-09/2022-Bureau-2-Agenda-Decisions.pdf.
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II. Consideration of proposals to amend the Rome Statute
8.
The Working Group had before it those amendment proposals previously referred to
it by the Assembly at its eighth session, as well as those transmitted by the Depositary of the
Rome Statute on 14 March 2014 and 15 August 2017. 6
9.
As in the past, proponents were given the opportunity, at each meeting of the Working
Group, to provide updates on their proposals. All delegations were invited to comment on the
different proposals before the Working Group.
A.
Belgium
10.
At its first meeting held on 22 June 2022, Belgium reminded that three out of four
proposals of amendments to article 8 of the Rome Statute which it had proposed in 2009 in
relation to war crimes were adopted at the sixteenth session of the Assembly in 2017, recalled
that amendments 1 and 2 were adopted in the Kampala Review Conference in 2010 and
amendment 3 was adopted by the Assembly at its fourteenth session in 2015. Belgium
informed the Working Group that the process for Belgium’s ratification of these
amendments, together with the last adopted amendment to article 8 to include starvation as a
war crime in non-international armed conflict was still ongoing, and emphasized that the
Belgian domestic legislation is in conformity with these amendments. Belgium took the
opportunity to encourage States Parties to consider ratifying all war crimes amendments, and
all proposed amendments adopted so far.
11.
Concerning the fourth amendment proposed, Belgium indicated that they had decided
in the course of negotiations and in the spirit of compromise, to postpone the consideration
of the proposal regarding the use of anti-personnel mines, and that it intended to continue
working on the criminalization of anti-personnel mines since it presents clear added value to
Belgium and the co-sponsoring States, while requesting that this proposal remain on the table
and that Belgium continues to favor the adoption of the amendments by consensus. Belgium
noted that at this stage it was preferable to continue bilateral discussions on the matter before
resuming discussions in the Working Group, although this analysis may evolve and if it does,
it would ask the Working Group to reexamine the proposal after the twenty-first session of
the Assembly.
B.
Mexico
12.
At its first meeting held on 22 June 2022, Mexico indicated that it intended to maintain
on the agenda of the Working Group the proposal of amendment to article 8(2)(b) of the
Rome Statute on the use of nuclear weapons. Mexico further stated that in this context, it
would like to discuss its amendment proposal at a later stage in the Working Group.
C.
Sierra Leone
13.
No further updates were provided by Sierra Leone concerning its intention to present
and amendment proposal during the intersessional period.
D.
Trinidad and Tobago
14.
No further updates were provided by Trinidad and Tobago concerning its proposal
during the intersessional period.
6
These amendment proposals are contained in the Report of the Working Group on Amendments to the thirteenth
session of the Assembly (ICC-ASP/13/31) and the Report of the Working Group to the sixteenth session
(ICC-ASP/16/22), available respectively at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP13/ICC-ASP-13-31ENG.pdf and https://asp.icc-cpi.int/iccdocs/asp_docs/ASP16/ICC-ASP-16-22-ENG.pdf.
Having been notified to the Depositary, they are also found at the United Nations Treaty Collection, available at
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&clang=_en.
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E.
South Africa
15.
No further updates were provided by South Africa concerning its proposal during the
intersessional period.
F.
Kenya
16.
No further updates were provided by Kenya concerning its proposal during the
intersessional period.
III. Consideration of the procedure for amending the Rules of
Procedure and Evidence
17.
At its first meeting held on 22 June, the Chair of the Working Group reviewed the work
done in 2021, and further explained that the outcome of discussions of the Study Group on
Governance had not included amendment proposals at that stage, and therefore there was no
need for the Working Group to review them during this session.
18.
The Chair also outlined the preliminary programme of work for 2022, stressing that
there were ten recommendations allocated to the Working Group in the “Comprehensive
action plan”. Three recommendations allocated for 2021, namely R214 about amendments
on the assignment of substitute Judge, and R381 and R384 on the possibility on improving
the procedure for amending the Rules of Procedure and Evidence, were co-assigned to the
Study Group on Governance and the Working Group. Therefore, the Working Group would
need to wait for the discussions within the Study Group to continue and to receive their
outcome in the form of amendment proposals. The Chair then recalled the recommendations
allocated to it for the second half of 2022 (R202, R203, R215, R218 and R344).
19.
The Chair recalled that the review of R206 was allocated to the Working Group under
the Comprehensive Action Plan, and presented to the Working Group the text proposed by
the Study Group on Governance to be introduced as rule 140bis. The Chair recalled the joint
meeting of the Working Group and the Study Group on Governance held on 21 March 2022
on this matter, where the Chef de Cabinet to the President of the Court briefed both Groups
on the history of the discussions and facts in relation to rule 140bis. The Chair also recalled
the discussions of the delegations during this joint meeting. The Chair highlighted that the
consideration of R206 belongs to this year’s programme of work, with the Working Group’s
actions on this matter to be presented to the Assembly.
20.
After assessing the views of the delegations, the Chair noted that delegations may
need additional time to continue their consultations on the proposed article 140bis.
21.
Following the consultations held by the Chair with the Chair of the Study Group on
Governance and the Chef de Cabinet of the President of the Court, at its second meeting held
on 29 June 2022, the Chair invited the Chef de Cabinet to the President of the Court to brief
the Working Group on the background on the process and history of the drafting of proposed
rule 140bis, and on the considerations of the judges at the time of drafting the proposed rule.
Delegations expressed their support to proposed rule 140bis as drafted.
22.
The Chair further proposed that the Working Group inform the Assembly of States
Parties of its agreement to put forth for its consideration and decision rule 140bis as found in
the Report of the Bureau on Study Group on Governance in relation to the amendment
proposals to the Rules of Procedure and Evidence put forward by the Court (ICC-ASP/13/28,
Annex I).
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IV. Information on the status of ratifications of the Kampala
amendments to the Rome Statute as well as on the
amendments adopted at the fourteenth, sixteenth and
eighteenth sessions of the Assembly
23.
The Working Group was kept regularly informed of any ratifications of the
amendments to the Rome Statute adopted at the 2010 Review Conference, the fourteenth
session, the sixteenth session and the eighteenth session of the Assembly. Since the
submission of its last report, Italy, Peru, Romania and Sweden had ratified the Kampala
amendment to article 8; Italy, Peru and Sweden had ratified the Kampala amendments on the
crime of aggression; Liechtenstein, Romania and Sweden had ratified the three amendments
to article 8, paragraph 2(b) and to article 8, paragraph 2(e), of the Rome Statute relating
respectively to weapons which use microbial or other biological agents, or toxins, weapons
the primary effect of which is to injure by fragments which in the human body escape
detection by X-rays and 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; and Liechtenstein, Luxembourg,
Romania and Switzerland had ratified the amendment to article 8, paragraph 2(e) relating to
intentionally using starvation of civilians as a method of warfare by depriving them of objects
indispensable to their survival, including willfully impeding relief supplies.7
24.
As of 25 October 2022, the Kampala amendment to article 8 had been ratified by 44
States Parties;8 the Kampala amendments on the crime of aggression had been ratified by 44
States Parties;9 the amendment to article 124 had been ratified by 18 States Parties;10 the three
amendments to article 8, paragraph 2(b) and to article 8, paragraph 2(e) relating respectively
to weapons which use microbial or other biological agents, or toxins, weapons the primary
effect of which is to injure by fragments which in the human body escape detection by Xrays and 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 has been ratified by 10 States Parties;11 and
the amendment to article 8, paragraph 2(e) relating to intentionally using starvation of
civilians as a method of warfare by depriving them of objects indispensable to their survival,
including willfully impeding relief supplies had been ratified by 10 States Parties.12
V.
Decisions and recommendations
25.
The Working Group recommends to the Assembly the adoption of a draft resolution
on rule 140bis as contained in the report of the Bureau on Study Group on Governance in
relation to the amendment proposals to the Rules of Procedure and Evidence put forward by
the Court (ICC-ASP/13/28, Annex I) (annex I).
26.
The Working Group recommends that regular meetings be held throughout 2023,
including, if necessary, in expert meetings format.
27.
The Working Group concludes its intersessional work by recommending to the
Assembly the inclusion in the omnibus resolution of six paragraphs (annex II).
7
The list of the States that ratified relevant amendments is available at the United Nations Treaty Collection,
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&clang=_en.
8
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-a&chapter=18&clang=_en.
9
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-b&chapter=18&clang=_en.
10
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-c&chapter=18&clang=_en.
11
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-d&chapter=18&clang=_en;
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-e&chapter=18&clang=_en;
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-f&chapter=18&clang=_en.
12
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-g&chapter=18&clang=_en.
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Annex I
Amendment to the Rules of Procedure and Evidence of the
International Criminal Court
The Assembly of States Parties,
Recalling the need to conduct a structured dialogue between States Parties and the
Court with a view to strengthening the institutional framework of the Rome Statute system
and enhancing the efficiency and effectiveness of the Court while fully preserving its judicial
independence, and inviting the organs of the Court to continue to engage in such a dialogue
with States Parties,
Recognizing that enhancing the efficiency and effectiveness of the Court is of common
interest both for the Assembly of States Parties and the Court,
Recalling operative paragraphs 1 and 2 of resolution ICC-ASP/9/Res.2 and article 51
of the Rome Statute,
Further recalling paragraph 9 of annex I to resolution ICC-ASP/20/Res.5,
Taking note with appreciation of the consultations undertaken within the Study Group
on Governance and the Working Group on Amendments,
Noting the report of the Working Group on Amendments13 and the report of the
Bureau on the Study Group on Governance,14
1.
Decides that the following rule 140 bis be inserted after rule 140 of the Rules of
Procedure and Evidence:
“Rule 140 bis
Continuation of proceedings in the temporary absence of a judge for illness or other
unforeseen urgent personal reasons
If a judge is, for illness or other unforeseen urgent personal reasons, unable to be
present at any hearing, the remaining judges of the Chamber may exceptionally order that the
hearing of the case continues in the absence of that judge for completion of a specific matter
which has already commenced and can be concluded within a short timeframe, provided that:
(a) The Chamber is satisfied or, if it is not practicable to consult the absent judge,
the remaining judges of the Chamber are satisfied that this arrangement is in the interests of
justice; and
(b) The parties consent to this arrangement.
Annex II
Draft text for the omnibus resolution
1.
Paragraph 164 of the 2021 omnibus resolution (ICC-ASP/20/Res.5) remains
unchanged, reading:
“Welcomes the report of the Working Group on Amendments;”
2.
Paragraph 165 of the 2021 omnibus resolution (ICC-ASP/20/Res.5) remains
unchanged, reading:
“Calls upon all States Parties to ratify or accept the amendment to article 124;”
3.
13
14
6
Paragraph 166 of the 2021
omnibus
resolution
(ICC-ASP/20/Res.5) remains
ICC-ASP/21/22.
ICC-ASP/21/18.
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unchanged, reading:
“Also calls upon all States Parties to ratify or accept the amendments to article
8 adopted at the sixteenth and eighteenth sessions of the Assembly;”
4.
Paragraph 18 of annex I (mandates) of the 2021 omnibus resolution
(ICC-ASP/20/Res.5) is replaced by the following:
“a) invites the Working Group to continue its consideration of all amendment
proposals, in accordance with the Terms of Reference of the Working Group; and
b) requests the Working Group to submit a report for the consideration of the
Assembly at its twenty-second session”.
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