26 May 2010

New documents on the crime of aggression

Two new documents on the crime of aggression have been issued by the Chair of the Working Group on the Crime of Aggression, Prince Zeid Ra’ad Zeid Al-Hussein of Jordan. The first, entitled Conference Room Paper on the Crime of Aggression, based on existing elements, is a summary of existing proposals. The second, entitled Non-Paper, proposes solutions to three specific issues that have arisen in the course of the negotiations. The first is the entry into force of the amendments concerning the crime of aggression. Prince Zaid proposes a provision that would declare the law concerning aggression to enter into force a specified number of years following the entry into force of the relevant amendments. The second provides for a review of the provisions on aggression after a specified number of years. Under article 123(2), a future Review Conference may be held at the request of a State party, but only if a majority of States parties concurs. The proposed amendment would constitute an exception to this general rule. The third addresses concerns that in amending the Statute to provide for prosecution of the crime of aggression, obligations would be imposed upon States to prosecute aggression in their domestic legislation. Although the Rome Statute encourages States to prosecute the crimes contained therein, it doesn't seem to impose an obligation, because the Prosecutor and judges seem happy enough when a State fails to prosecute. They have added a new concept to article 17 that they describe as 'inactivity'. There doesn't seem to be any reason why a State could not also be inactive with regard to the crime of aggression.
These proposals may help to resolve some of the details. There is nothing to indicate any progress on the big issue, however, which concerns the powers of the Security Council. A number of alternatives are now on the table. At one extreme, the Security Council has a monopoly on prosecution for aggression, which it must authorize before the Court can proceed. Five States - three of them non-parties to the Statute - seem to favour this option. At the other, the Court may proceed as it would with any other crime within its jurisdiction. Some options offer possibilities for compromise. But the permanent members of the Security Council have not shown any willingness to find some middle ground. Theoretically, the Review Conference could simply put the matter to a vote. It would seem unlikely that the views of the two permanent members of the Security Council who are parties to the Statute could prevail over those of the other 109 States parties. But that would mean a direct confrontation between the Court and the Security Council, that many will think it preferable to avoid.

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