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11 June 2010

Kampala Diary 10/6/10

This is the penultimate day of the Conference. There is great confusion, much excitement, and the rumours are intense. We all gathered at 11 AM in the main conference room for an informal plenary session. The document that was being shown around yesterday evening in the restaurant, and that I posted in yesterday’s blog, is now widely available. Christian Weneweser, who now chairs all of the proceedings, says that he has prepared a new ‘non-paper’, which is being circulated in the room as he speaks. I think we had expected that it would incorporate yesterday evening’s document, but it does not really do this. Christian says we will not discuss this now, but will resume in Plenary at 5 PM when we will be in a position to hear reactions to his paper.
Then the Working Group on Other Amendments, which has been dealing with the fate of article 124 and the additions to article 8 on prohibited weapons, convenes to adopt its report. The NGOs are angry because we will retain article 124. As I have written elsewhere, article 124 is an innocuous provision that allows a State to join but opt out of jurisdiction over war crimes. It remains subject to genocide and crimes against humanity. Two States, France and Colombia, have used it, and it provided a way to ease them into the Court. We won’t ever know if, without article 124, they would not have joined at all.
Several NGOs take the floor to protest the retention of article 124. Amnesty International recalls its earlier statements, noting that article 124 has only been used by two states and says that therefore it is of no real importance in terms of promoting ratification. It also says that no State now contemplating ratification has suggested it would invoke article 124. Then Amnesty says the provision is a ‘licence to kill’.
I find Amnesty’s position to be internally contradictory. If the provision has made an insignificant contribution to universal ratification, then how can it also have done so much harm? If no States are intending to invoke it in the future, as Amnesty claims, then who exactly is being licensed to kill by article 124? Amnesty International has been indifferent, and in a sense negative, about incorporating the crime of aggression in the Statute. I would have thought that failing to address the crime of aggression is a more serious ‘license to kill’, as Ben Ferencz put it the other day, than article 124.
There is a lot of chatting about yesterday’s session, when the Americans had to ‘recede’ from Understanding X. At least that was what I had thought took place. But after the session, the focal point had some discussions with the Iranians and the Americans, and they apparently agreed on a text which will not be included in the Understandings.
How amazing that it is the US and Iran that take authorship of this text. I ask Djamjid Momtaz, who heads the delegation of Iran, for an explanation. He says: ‘We got everything we wanted. There is a reference to the Charter in the Understanding.’
We resume late in the afternoon in a formal Plenary session. The first item of business is the report of the credentials committee. Apparently there are 84 States parties represented at the Conference with the right to vote. This may become important if we have to vote for the aggression resolution tomorrow. If a vote is required, then a 2/3rds majority of all of the State Parties is required: 74 votes. There are rumours that several delegations have instructions not to vote. Apparently two of them have not paid their assessments to the Court, which means that while they can attend the Conference, they cannot vote. It might get very, very close.
Then we discuss the Report of the Working Group on Other Amendments (R/6). A sentence has been added to the part on prohibited weapons: ‘It was also stressed that law enforcement situations are excluded from the Court’s jurisdiction.’
The United Kingdom says it has an issue with paragraph 4 of the report, and proposes replacing it with this: ‘It was stressed that the crimes that were proposed for inclusion in article 8, paragraph 2(e), were already crimes within the jurisdiction of the Court if committed in an international armed conflict, and that the amendment extended the jurisdiction of the Court to such crimes if committed in a non-international armed conflict.’ There is no opposition
Then we adopt the resolution on article 124, by consensus. There are no statements.
Christian gives an update on the crime of aggression. He has prepared yet another non-paper, ‘my best attempt to capture those elements resulting from the very rich discussion we have had over the last few days’ We suspend now, and will reconvene at 1030 PM. It is about 6PM.

David Scheffer, Bianca Jagger and Andrew Clapham

I retire to the terrace of the hotel with David Scheffer, Andrew Clapham and Bianca Jagger. We have a little dinner and chat about the developments. At around 8 PM, the US Ambassador for War Crimes, Steve Rapp, and his wife Dolly, come and join us. They’ve just come from Kampala where they were watching the Nuremberg film whose showing had been prevented by the Ugandan police the previous Friday. They sit with us and have drinks and dinner, and we reminisce about Sierra Leone, where Steve was the Prosecutor and I was on the Truth and Reconciliation Commission. I can’t figure out what is going on. It makes sense for David, Andrew and Bianca and I to sit around, because we don’t represent any countries. But I would have thought Steve Rapp would be frantically twisting arms, quibbling about language, and so on. Some say the Americans are relaxed because they have got what they want, and because they are confident in the outcome.


The late night session. Top left: Christian Weneweser, left, with the head of the Secretariat, Renan Velacsis. Top right: the Irish delegation. Lower left: Prince Zeid, left, negotiating with the Japanese delegation. Lower right: the Italian delegation.

We all return to the Plenary at 1030. There is a sense of great anticipation. When you ask delegates what is happening, they shrug their shoulders and indicate they have no idea. We mill around in the hall for about 30 minutes before Christian convenes the Plenary. The first item of business is adoption of the Resolution on article 8, dealing with prohibited weapons. The text is approved by consensus. Then France makes a statement confirming its interpretation of the language on dumdum bullets that refers to the intent of the user, and its statement is endorsed by Canada, the US and Israel. Christian declares that we have now amended the Rome Statute for the first time.
He has a revised version of the document he circulated in the morning to distribute. But it is not ready, so we suspend for 15 minutes. The paper is distributed, and Christian says he is available to discuss it at any time. But there will be no debate in the Plenary. The meeting concludes at midnight.
So where are we? With the latest proposals, the battle lines have shifted. They appear to represent a consensus of the various regions, because the square brackets and footnotes have been disappearing in the successive versions. There is now really only one unresolved issue in the draft, and that is whether an investigation in proceed in the absence of a Security Council determination that there has been an act of aggression.
What that means is that the battle lines at the Conference have now shifted. The dispute is with the permanent members of the Security Council. For them to accept that an investigation could proceed in the absence of a Security Council determination represents a tectonic shift in the powers of the Council. It does not change article 39 of the Charter of the United Nations. But for the permanent members to recognize such an interpretation of article 39 is a huge development. Will they do it? We’ll know tomorrow.
People at the Conference speak of the P-2 and the P-3. The P-2 are Britain and France, and they are States Parties. In some ways, the situation is even more precarious for them than it is for Russia, China and the US.
If the consensus proposal works tomorrow, what we will have is a Court with jurisdiction over an accepted definition of aggression. It should be able to exercise jurisdiction over the crime once thirty States have accepted the amendment and five years have elapsed. But it will only be able to exercise jurisdiction with respect to the nationals of a State that has accepted the amendment. The consensus proposal insulates all non-party States and their nationals from the crime of aggression, and it also insulates all States Parties that do not accept the amendment. It seems this is as much as we can get agreement on at this point in history.

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