Kampala Diary 1/6/10

I began the day having breakfast with Ben Ferencz, the former Nuremberg prosecutor who has been one of the most insistent and compelling voices for the full incorporation of the crime of aggression in the Statute. Ben’s son Don was also with us. Prince Zaid came over and joined us for a chat, and I snapped a photo of Ben and Zaid.

The general sense is that yesterday went rather well. As I mentioned on my entry for yesterday, no state came out and argued against completing the work on aggression. Well, that changed today. This is the second and final day of what is called the ‘general debate’. It is the occasion for States to set out their positions on the various issues confronting the Review Conference in short speeches to the plenary session. At the end of the day, there was a one-hour session on the crime of aggression. Prince Zaid, who presides over the negotiations on aggression, presented the two documents he has drafted, and which are described in an earlier post on this blog. He said that over the next couple of days he will hold ‘informal consultations’ with delegations. He told delegates to ‘brace yourself’ for intense negotiations early next week, noting that a period of work by the drafting committee later in the week will be required. It is beginning to look again like the Rome Conference, with a day or two of suspense at the end, and then a final presentation of a document gambling on the fact that there will be consensus.

The first to stake out its position was France. According to the French statement, ‘Inseparable from the United Nations system, the Court must base itself upon the competent organs and, in particular, the Security Council which has primary responsibility for the maintenance of international peace and security. It alone has the authority to determine the existence of an act of aggression. This position results both from the Charter of the United Nations and the Rome Statute.’
Late in the afternoon, Ambassador Steve Rapp of the United States went to the podium. He referred to developments in Northern Uganda, noting that last week President Obama had signed into law an act aimed at disarming the Lord’s Resistance Army and to help Northern Uganda recover. Here’s what he said on aggression:

…as my government has noted before, we have deep respect for the work on this issue undertaken by the Special Working Group on the Crime of Aggression. At the same time, in recent months we have repeatedly been reminded that many issues concerning the crime of aggression remain to be resolved, including core questions that the Special Working Group identified when it concluded its work last year. These issues are not of marginal significance, they are elemental: What conditions must be satisfied before the ICC can exercise jurisdiction over the crime of aggression, for example? How will any aggression amendments that might be adopted enter into force?
One year after the Special Working Group finished its work, the Eighth Session of the Assembly of States Parties ended without bringing its members close to resolving those questions. Instead, the session ended on a note that highlighted wide divisions, and this is not surprising.

Steve Rapp went on to state that ‘key aspects of the definition are still uncertain. He referred to the use of force ‘undertaken to end the very crimes the ICC is now charged with prosecuting’. He said there remained divergent interpretations, that some have said could be resolved by the Court itself. ‘Yet a fundamental principle of legality is that individuals must know whether conduct crosses the line into that which is forbidden before they act…’
He referred to a letter signed by ‘leading civil society organizations’ calling upon States parties to postpone the issue of aggression. Steve Rapp concluded by saying tat ‘moving forward now on the crime of aggression without genuine consensus could undermine the Court’.
That is an idea that has come from other delegations too. Canada, for example, insisted upon consensus if provisions on aggression were to be adopted. It is hard to see that this is possible. Although the Special Working Groups has come up with a range of options, reflecting the willingness of many States to explore a range of alternatives, the permanent members of the Security Council have given no indication that they are prepared to compromise one iota. So the battle lines are being drawn here. On the other amendment issues there seems to be no controversy at all.
The day continued with brief presentations on the other amendment issues, namely the future of article 124 (which allows a State to opt out of jurisdiction over war crimes) and amendments to article 8 so as to criminalize the use of certain weapons in non-international armed conflict, given that they are already prohibited in international armed conflict.

During today’s session, there was a special ceremony at which States presented their pledges to the Court. There were 112 such pledges, from 37 States and international organizations, including some non-party States. One of them was the United States. The pledges concern such issues as contributions to the Trust Fund for Victims, sentencing agreements with the Court, ratification of the immunities agreement, and the relocation of witnesses.