If the required majority agrees to take it up, it may be considered directly at the Assembly of States Parties or submitted to a Review Conference if the issue involved so warrants (article 121 (2)).
Adoption of an amendment to the Statute requires a two-thirds majority of States Parties (article 121 (3)). Note that this article repeats the emphasis on adoption of measures by consensus first enunciated in article 112 (7) and provides for the two-thirds majority of all members only where consensus cannot be reached.
The next step in amending the Statute consists of a ratification or acceptance process outlined in paragraph 4 of article 121, entailing the approval of seven-eighths of the States Parties. These amendments enter into effect for all States Parties at that point. However, as mentioned above, amendments have the potential to effect a major change in a State Party's relationship to the Court, thus any State Party not in agreement with a given amendment of this type has a right to a withdrawal with immediate effect from the Statute (article 121 (6)).
Amendments to crimes within the Court's jurisdiction
A special case of amendments which is an exception to the general rule is set out in article 121 (5), where an amendment concerns the crimes within the jurisdiction of the Court. For these amendments the same requirement of a majority of two-thirds of States Parties is required. However, the amendments become effective only for States that ratify or accept them. This is an important provision, in terms of the future effectiveness of the Court. It is especially significant in the case of the crime of aggression, as the definition that is yet to be determined will constitute an amendment to article 5 and therefore the Court will not be able to exercise its jurisdiction in respect to that crime if it is committed by the nationals or on the territory of a State Party that does not accept the amendment. Therefore it is particularly important for States Parties to achieve a consensus on any amendments to articles 5 - 8 of the Statute.
Amendments of an exclusively institutional nature
State Parties will be able to propose certain amendments to the Statute at any time after its entry into force. Enumerated in article 122, these amendments concern matters which are of an exclusively institutional nature.
There is no change to the majority of States Parties required to adopt an amendment, but the date for entry into force of amendments in this category is six months after adoption by the required majority of States Parties rather than one year after ratification or acceptance as is the case in article 121. Amendments to these articles apply to all States Parties. There is no need for post-adoption ratification by a State Party for this kind of amendment.
Article 122 identifies the specific amendments considered to be of an exclusively institutional nature under the Statute as follows: the service of judges; some of the provisions concerning the qualifications, nomination and election of judges; judicial vacancies; the presidency; the organisation of chambers; some of the provisions concerning the Office of the Prosecutor, the registry, the staff of the Prosecutor and Registrar's Offices; removal of judges, the Prosecutor, a Deputy Prosecutor, the Registrar or the Deputy Registrar from office; disciplinary measures; and salaries, allowances and expenses.
Amendments to the Rules of Procedure and Evidence
and to the Elements of Crimes
Amendments to the Rules of Procedure and Evidence and amendments to the Elements of Crimes may be proposed by other entities as well as by States Parties, and need only be adopted by a two-thirds majority of States Parties (articles 9 (2) & 51 (2)). They are similar in that respect to amendments of an exclusively institutional nat
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