The role of state parties in the interpretation of the Rome Statute : an evaluation of past practice and future prospects

Abstract

The study aimed to assess the role, if any, of States Parties, acting individually or collectively, in interpreting the Rome Statute of the International Criminal Court (Rome Statute) when the Statute has granted the express role of its interpretation to the International Criminal Court (ICC). It sought to determine the extent to which any such role might cause tension and, if so, how such tension might be eased. It was noted that while the Rome Statute expressly provides for the judicial interpretive role of the ICC, it does not explicitly provide for the States Parties to the Rome Statute (States Parties) role in the judicial interpretation of the Statute.

The study argues that the Vienna Convention on the Law of Treaties (VCLT) interpretation rules in Article 31(3)(a) and (b), which provide for the taking into account of States parties’ subsequent agreements and practice in the treaty’s interpretation, provide the legal foundation for the continued participation of State parties in interpreting their treaties. Based on the customary nature of the VCLT interpretation rules and the Rome Statute being a treaty, it was concluded that the rules also apply to the Statute’s interpretation. On this basis, it is noted that the States Parties also have a role in the Rome Statute’s interpretation based on their subsequent agreements and practice, which include adopted amendments or resolutions relating to the interpretation and application of the Statute. This forms the study’s original contribution to knowledge and research.

Based on this shared interpretive authority and the lack of clear demarcation in the interpretive roles, it is argued that some overlap may arise. The overlap may especially arise when States Parties, through their legislative body, the Assembly of States Parties (ASP), adopt amendments or resolutions directly related to ongoing cases in the ICC. It was illustrated in two instances that such ASP action may be construed as an attempt by the ASP to influence the ICC’s decision with consequent possible violation of the Court’s judicial independence. On the other hand, it is noted that States Parties have the mandate to adopt amendments or resolutions clarifying ambiguous provisions or correct what they deem an incorrect ICC interpretation as treaty owners. Construed as subsequent agreements, the ICC has to decide whether to incorporate the ASP resolutions or amendments as binding or discretionary subsequent agreements in its decisions.

The study concludes that the ASP has the authority to adopt amendments or resolutions clarifying ambiguous provisions or correcting erroneous ICC interpretations. Nevertheless, to achieve balance and ease any current or potential tension based on the shared interpretive role, it is proposed that the ASP should adopt amendments and resolutions before any related case is filed in Court or after the conclusion of relevant cases. It is argued that this context and time-based amendments and resolutions would protect the ICC’s judicial independence.

On the other hand, it is further recommended that the ICC treat the ASP’s resolutions and amendments as binding subsequent agreements in the Rome Statute’s interpretation when adopted by consensus. This is on the basis that when adopted by consensus, the amendments or resolutions represent the States Parties clear intentions regarding the Statute’s interpretation. These discussions form an original contribution to the research and knowledge in an attempt to balance the ICC’s and States Parties shared interpretive roles in fulfilling the Rome Statute’s objectives of fighting impunity.