Rome Statute Of The International Criminal Court, Article-By-Article Commentary (Fourth Edition)
What is there to review about a book that some of the most influential practitioners in the field call an “indispensable companion” (Khan, Introductions, XVIII), “the Bible” (Haynes, Introductions, XX), and “one of the leading academic texts” (O-Gon Kwon, Introductions, XIV), which “will always be on [their] desk” (Hofmański, Introductions, XIII) and whose importance “one cannot underestimate” (Schmitt, Introductions, XV)? Is there anything to add to such exuberant praise from a group of people who can evaluate the quality of a book on international criminal law like few others can?
Maybe some basic facts: In this fourth edition of the most important article-by-article commentary on the Rome Statute, Kai Ambos appears as the only editor. He dedicates the work to its founder, Otto Triffterer, who passed away in 2015. Unsurprisingly, given that the commentary stood the test of time, or rather three editions spanning 20 years, Ambos kept its basic layout and structure: Each article of the Rome Statute receives a more or less detailed commentary. A table of contents and a bibliography precede each text. A list of general literature at the beginning complements the more specialized resource guides. For the fourth edition, Ambos added a table of cases from all international, hybrid, and selected domestic courts and the points at which the commentary cites them. This addition is not only an excellent point of reference but also provides a useful new angle from which to approach the commentary.
To fulfill the colossal task of comprising the entirety of international criminal law into one book, the editor assembled a team of authors representing the who’s who of the field. Ambos struck a good balance between academia and practice, including experienced practitioners from the International Criminal Court (ICC), persons involved in the negotiations of the Rome Statute, as well as newer voices. The only drop of bitterness in this list of excellence is that few voices from the Global South received their chance to contribute. Of course, this gap is nothing peculiar to this commentary, but a structural failing of the field. Still, it is a missed opportunity, especially given the ICC’s perilous relationship with many states from the Global South and the growing thought-provoking and critical input from Third World Approaches to International Law (TWAIL) and decolonial international criminal law scholarship. Far from being only about fairness, the output reflects this gap. Several parts of the commentary could have benefitted from more critical voices, reflecting on the politics of international criminal justice instead of rigidly sticking to the letter of the Rome Statute (see below). The table of cases does not include important mechanisms and decisions from the Global South, e.g. the Colombian Special Jurisdiction for Peace, or Congolese judgments on crimes against humanity and war crimes. They do not seem to have entered the commentary.
Notwithstanding, generally, the authors produced excellent summaries of the most important debates, problems, and developments surrounding the articles of the Rome Statute. They give the reader a quick overview of each article’s role in the system and main points of contention, as well as connections to other mechanisms and legal regimes. The literature lists and the (usually) extensive body of references easily allow the reader to dive deeper into specific subjects. This makes the commentary the perfect “first point of reference” (Khan, Introductions, XVIII). Given that international criminal case law is growing exponentially, such a work is of the utmost importance for academics and practitioners alike, as it helps them keep track of ever-widening and multiplying debates. And indeed, the authors had a lot of catching up to do since the last edition was published in 2016.
To give some examples, in 2017 the Assembly of States Parties activated the crime of aggression. While that did not change the wording of Art. 8bis, 15bis, and 15ter, the resolution “fundamentally reversed the understanding of who is eventually subject to the court’s jurisdiction.” (Zimmermann/Freiburg-Braun, Art. 15bis, para. 3). Zimmermann and Freiburg-Braun trace this reversal in their amended commentary on the abovementioned articles. As expected, they treat this somewhat odd result of hard negotiations with scholarly rigor. Their commentary will be of great value for lawyers that might someday bring the crime of aggression before the court.
The past five years also taught the field a lot about who gets to be investigated and prosecuted. The Office of the Prosecutor (OTP) made sometimes controversial use of its prosecutorial discretion. It determined no less than three times that Israel’s raid of the Mari Marmara was not grave enough to warrant an investigation. Its clash with the Comoros Islands in this matter gave us several decisions exploring the fine line between prosecutorial discretion and judicial oversight. The OTP’s decision not to investigate potential criminal conduct of soldiers from the United Kingdom in Iraq remained unchallenged, but not uncontroversial. In contrast, Fatou Bensouda was keen on investigating potential crimes in Afghanistan. Pre-Trial Chamber (PTC) II almost stopped her in her path until the Appeals Chamber produced a collective sigh of relief from international criminal lawyers. These decisions bolstered decolonial critique against the ICC. Many questioned their legitimacy, if not that of the ICC itself. Unfortunately, the commentary by Bergsmo/Zhu and Bergsmo/Bekou of Art. 15, 42, and 53 do not reflect this decisive aspect of the debate. While many authors adhered to Ambos’ demand that the commentary should be critical of the court to help it improve (Editor’s Preface, VII), at this decisive juncture Bergsmo, Zhu, and Bekou missed this opportunity.
Whereas the OTP and PTC lacked enthusiasm in the abovementioned cases, they showed double of it in a situation that took center stage in international justice shortly after the commentary’s last edition came out: Myanmar. Notwithstanding the state’s non-ratification of the Rome Statute, PTC I followed the OTP’s argument that the court has jurisdiction over deportation from Myanmar because part of the crime occurred in Bangladesh. Schabas and Pecorella devote roughly a page of their commentary to this bombshell judgment and its potential effects on other crimes (Art. 12, para. 19). As instructive as their commentary is, given the judgment’s significance one would wish for an even deeper analysis of its potential to shape the future path of the court and the critique it was subject to.
Since 2016, the court decided on substantive issues too numerous to review. Suffice it to pick out two especially important ones, which received outstanding commentary. First, the confirmation of charges against Al Hassan included gender-based persecution pursuant to Art. 7(1)(h) for the first time in the court’s history. Hayes and Powderley discuss the crime in great depth. They provide a dense and informative survey of national and international cases, their importance for the ICC, as well as possible scenarios on the future of gender-based persecution at the court (Art. 7, paras. 166 ff.). Second, the acquittal of Bemba demonstrated the limits of command responsibility in Art. 28. Formerly commented on by Triffterer himself, his co-author Arnold now partnered with Jackson to continue their work. They made the bold decision to rewrite the text and must be commended for this risky move. The authors significantly shortened the introduction and the previous version’s long section on the historic development of superior responsibility. They structured the text more closely along the lines of the article. With that, the authors made the text easier to handle and aligned it closer with the purpose of the commentary. On the substantive side, they analyze the Bemba-saga to its last bit and provide the reader with rich but well-digestible insight on the complex elements of Art. 28, its legal character, and its relation to customary international law.
Same as with substantive issues, the court produced too many important procedural decisions in the past five years to comprehensively recount. To arbitrarily pick out two, it is unfortunate that the controversy surrounding witness proofing/preparation receives only cursory treatment in the commentaries on Art. 61 and 64. Given that this issue goes to the core of the sometimes uneasy collaboration between different legal cultures at the ICC, a stronger focus on the topic could have been of great academic and practical value. In contrast, Guariglia and Hochmayr delve into the depths of the guilty plea, Art. 65. Al Mahdi first used this procedure shortly after the publication of the book’s last edition. Aside from their excellent commentary on the single elements of the provision, the authors deserve praise for looking beyond technicalities, inter alia, asking how a guilty plea influences survivors’ perception of justice and the court.
To turn to an often-forgotten part of ICC proceedings, the reparation stage was at its infancy when Donat Cattin last commented on it in 2016. Being the last stage of proceedings, only Lubanga had made it that far. Now, the court ordered reparation in the Lubanga, Katanga, Al Mahdi, and Ntaganda cases and the Trust Fund for Victims gained experience with implementing the first reparation programs. The four reparation orders and many accompanying decisions give greater clarity to Art. 75 and display the first evolving lines of jurisprudence. Lamentably, Donat Cattin’s commentary did not grow at the same pace. Even though it is an instructive introduction to the ICC reparation regime, it does not mention some potentially groundbreaking legal developments that could influence reparation efforts well beyond international criminal law. To name but two, the Al Mahdi reparation order boldly designated all people of the international community as survivors of the destruction of cultural heritage. The Ntaganda reparation order recognized victimhood based on transgenerational trauma, greatly widening the circle of potential survivors.
On a related note, the commentary treats very lightly the core critique that ICC reparation procedures are highly selective. It is certainly true “that it is not the role of the ICC to create equal opportunities on access to reparations for all victims in a given situation” (Art. 75, para. 19). But this does not do away with the fact that the highly selective and arbitrary recognition of survivors often threatens to delegitimize reparation procedures and the ICC itself. In especially grave cases, it can even renew tensions in post-conflict societies. The ICC cannot ignore these consequences of its procedure and neither should the most important commentary on the Rome Statute.
Last but not least, in 2016 few would have thought that the coming five years could bring prospects for healing the ICC’s long-injured Achilles’ heel: Al Bashir traveling the world, being little impressed by international warrants. Even before he was toppled, Jordan’s ignorance of its cooperation obligations led the Appeals Chamber to make far-reaching pronouncements on immunities before the court. Kress devotes almost a book within a book to a comprehensive overview of national and international practice on immunities since 1919 (Art. 98, para. 15 ff.). Going far beyond what one would expect in a commentary, his thoughtful analysis is a must-read for anyone working on the topic. Showing excellent timing, it has the potential to exert great influence on the heated debate on immunities in the International Law Commission and elsewhere.
Like its predecessors, the commentary’s fourth edition will guide academics and practitioners with great clarity through the exceedingly complicated maze of international criminal law. Ambos deserves praise for keeping the features that make the book the “leading commentary on the Rome Statute” (Schmitt, Introductions, XVII) while carefully giving it greater clarity, structure, and adding useful new features. With 79 authors contributing to almost 3000 pages of commentary on 128 articles, the highly subjective reviewer will always be able to lament some missing aspects or issues treated too cursorily. But at the end of the day, when international criminal lawyers turn to the red and gold opus on their desk(top), they can be reassured that Ambos and his pristine team of authors provide answers or at least starting points for research on any question this field throws at them.
Fin-Jasper Langmack is a Ph.D. candidate at the Institute for International Peace and Security Law, University of Cologne, and a trainee lawyer at the Higher Regional Court Berlin. He worked inter alia as Mercator Fellow at the Office of the Prosecutor at the International Criminal Court and Amnesty International Germany.