05 June 2010

Kampala Diary 4/6/10

With the ‘stocktaking’ exercise completed, we spent Friday looking in greater depth at the three items on the agenda of the Conference that may require amendment of the Rome Statute: prohibited weapons; article 124; and aggression. Here are some notes on the discussions.

Prohibited weapons

The Belgian proposal on prohibited weapons, by which three new paragraphs are added to the provisions on war crimes in non-international armed conflict, was adopted by the Working Group this afternoon, together with the accompanying resolution (that I discussed in a post yesterday).
One paragraph remains in square paragraphs. It concerns the effects of article 121(5), which governs the amendment to article 8. Agreement on this paragraph is contingent upon discussion concerning the crime of aggression. Presumably, agreement will be reached on the article 121(5) issue by next Friday. Then, the square brackets may be removed from the resolution, or the paragraph in question will be deleted entirely, or it will be replaced with something else.
The Working Group adopted the article 8 report and amendment by consensus. Subject to the outstanding paragraph, this is a done deal. Adoption next Friday, at the conclusion of the Review Conference, is a foregone conclusion.
Following adoption by the Review Group, the Philippines took the floor to express its understanding that ‘in certain special situations there is a need for specialized ammunition’. It said such special situations might encompass hostage-taking, counter-terrorism and similar cases, and that such weapons might be used precisely in order to avoid collateral damage to civilians.
Article 124

I’ve discussed the issues concerning article 124 in an earlier post. The Working Group had a public discussion of the issue this afternoon. The coordinator noted that there were two main opinions, one to delete, the other to retain. She said that ‘very many states’ wanted to delete, while ‘a few number of states but with very strong states’ made up the group that wanted to retain. And she noted that the Assembly of States Parties in November 2009, had recommended the deletion of the provision.
Venezuela made a proposal to amend article 124, including a ‘sunset clause’ by which it would remain in force for a period of time and then expire. Mexico, the Netherlands and Argentina spoke in favour of the idea, prompting the coordinator to speak of an ‘emerging consensus’.
But then Japan spoke in favour of retention. Japan noted that the clause had prompted a small number of ratifications, but said that was still useful. Reatining the provision had not done any harm, said Japan. Japan insisted that the views of non-party States be given special attention on this matter, especially those from Asia, which is underrepresented. Japan noted that in the general debate on Monday Egypt had spoken on behalf of the Non-Aligned Movement and had supported retention of article 124. Other States took the floor in today’s session to support Japan, including Colombia, China, the Philippines, Laos and Malaysia.
Amnesty International took the floor to recall that it had described the clause as a ‘licence to kill’. It said that ‘retention of this impunity provision does cause harm to thousands of victims of war crimes’.
I’m not sure what Amnesty International is referring to. I’m not aware that French soldiers have committed war crimes in the 2002-2008 period, which was when the provision was in force for France. As for Colombia, where the argument that war crimes have been committed may be stronger, it is not clear why article 124 may have contributed to this. War crimes committed in Colombia would be punishable under Colombian law in any event. If they are not, then we might have a situation for the International Criminal Court. Although the Prosecutor periodically makes reference to investigations in Colombia, we have no evidence that acts have been perpetrated that will go unpunished by the Court because they can only be characterized as war crimes rather than as crimes against humanity.
It has been pointed out that Colombia’s implementing legislation for the Rome Statute does not include war crimes. That seems logical, given the fact that it invoked article 124. It might be argued that this has sheltered perpetrators who may have committed war crimes that are not also crimes against humanity. But the arguments works in the other direction too. If article 124 had not existed, Colombia might not have ratified the Rome Statute at all. And then there would have been no implementing legislation for the Rome Statute at all. Would that have been better?
I think the Japanese position makes sense, and I hope that they don’t compromise.
In any case, whatever amendment to article 124 they adopt, if any, it will be governed by article 121(4) and will require specific ratification by seven-eighths of the States Parties. This will take some time. Japan, and other states who favour the retention of article 124, may simply fail to ratify. That means the provision will remain in force for many years in any event. And if they adopt an amendment with a sunset clause of, say, ten years, then it could be a couple of decades before the amendment enters into force, if it ever enters into force.
So I suspect that article 124 will be with us for many years in any case, and that it will be available to newly ratifying States.
There is one final issue here, raised by a few of the delegations. It concerns the role of article 40(5) of the Vienna Convention on the Law of Treaties. Article 40 is entitled ‘Amendment of multilateral treaties’. It says:
5. Any State which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a different intention by that State:
(a) be considered as a party to the treaty as amended; and
(b) be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement.
Perhaps there will be some reference to this provision in the accompanying resolution.


Much of the time today was devoted to the crime of aggression. There is a new proposal, from Brazil, Switzerland and Argentina. It is called the ‘two-stage approach’. The first stage consists of the ratification of the aggression amendment by a number of States, still to be specified. Once that threshold is reached, the definition of aggression enters into force, but only the Security Council is empowered to trigger the jurisdiction. In effect, then, this is simply allowing the Security Council to do via the International Criminal Court what it is already able to do through an ad hoc tribunal, if it chooses to create one. The second stage begins once 7/8ths of the States Parties have ratified the aggression amendment. Then, the two other modalities of triggering that are already in the Statute – that is, State Party referral and proprio motu referral by the Prosecutor – become operational. This is a great proposal, because it will result in a Court that can exercise jurisdiction without any control by the Security Council (except what already exists, in article 16).

The discussions today indicated that there is no movement so far by the permanent members of the Security Council. France made a rather blunt declaration to the effect that anything that did not involve Security Council authorization was incompatible with the Charter. The Russians said about the same thing, but without the Gallic elegance. Harold Koh, the legal advisor to the US Department of State, provided a very extensive list of arguments in favour of deferring any discussion of aggression. He spoke about lack of consensus, and the need for clarity in the definition, and so on, and listed many other difficulties. Harold and the other key US spokesman, Steve Rapp, are very effective. They are well-liked and articulate, and they speak with greater subtlety than the French and the Russians. I couldn’t find an electronic version of the US speech, but I’ll keep looking and try to post it.
With the exception of the Americans, the definition of aggression that was finalized in the proposal from Liechtenstein, seems generally acceptable.
There is a big debate about what may be called ‘double consent’. Some States favour an approach whereby jurisdiction over aggression is treated in a manner similar to that of the International Court of Justice. In other words, both States, the applicant and the respondent, have to consent to jurisdiction. This means that for the Court to exercise jurisdiction over the crime of aggression, it will not be enough for the State that is the victim of aggression to have consented to the jurisdiction of the Court. In addition, the consent of the aggressor will be necessary. States that feel threatened by aggression will have an incentive to ratify the Statute, because it will protect them. But this will be much weaker if the consent of those who threaten them is also a prerequisite. I don’t see much future for this amendment.
Several States have spoken about an ‘historic moment’ or an ‘historic opportunity’, With a bit of levity, South Africa said we are in the final countdown for aggression… and the final countdown for the world cup.
Both Germany and Japan spoke eloquently in favour of including the crime of aggression, noting the fact that their nationals had already been prosecuted for it by international tribunals. The German delegate said that the German people would not understand if we left Kampala without an outcome on aggression.

No comments:

Post a Comment