Kampala Diary 7/6/10

We spent most of today in what are called ‘informals’. That means we are in the big conference room, but that no record is taken of the discussions and they are not incorporated in the final report of the Working Group on Aggression. It also means that we can continue to talk – exclusively in English - even when the interpreters sign off.
For two brief parts of the day, we went into formal session of the Working Group. In the first of these short formal sessions, Prince Zeid explained his draft report as well as the Conference Room Paper that had been circulated on the weekend.  He explained a slight change that he had made to the draft text of article 15bis (the provision concerning triggering of the jurisdiction) that had resulted from the discussions prompted by his earlier non-paper. A footnote had been added to incorporate the idea of a delayed entry into force for the amendments:

The suggestion has been made to add a paragraph delaying the exercise of jurisdiction, e.g. “The Court may exercise jurisdiction only with respect to crimes of aggression committed after a period of [x] years following the entry into force of the amendments on the crime of aggression.” Such a paragraph would only be relevant in case article 121, paragraph 5, of the Statute were to be applied.

He also drew our attention to a new paragraph in the ‘Understandings’ dealing with domestic jurisdiction. Zeid said these had been greeted ‘warmly’.

Domestic jurisdiction over the crime of aggression
4 bis. It is understood that the amendments address the definition of the crime of aggression and the conditions under which the Court shall exercise jurisdiction with respect to this crime for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. The amendments shall therefore not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.

He also noted that there had been a suggestion to do more work on the draft Elements, the possibility of an understanding on the word ‘manifest’ in the definition of the crime, and a mandatory review clause (also proposed in his earlier non-paper.)
At the beginning of the ‘informal’ session, Switzerland made a lengthy presentation of the ‘non-paper’ it had prepared along with Argentina and Brazil. Soon, it was being called the ABS proposal. This is a more developed form of the two-stage approach that had been floated by these countries late last week. The first stage begins once a single state has ratified the amendment on aggression. Once that occurs, the Security Council may refer the situation concerning that State to the Court in the same way that it refers any other situation (that is, pursuant to article 13(b)). As the Swiss representative explained, under this scenario the Security Council is merely doing through the Court what it can do anyway, namely, establish an ad hoc jurisdiction to prosecute the crime of aggression.
The second stage begins once 7/8ths of the States parties have ratified the amendment. Then, the Court may act on the crime of aggression without a Security Council referral.
The ABS proposal gets to the heart of one of our big difficulties, namely, the actual amendment procedure to be followed. Amendments are governed by article 121 of the Statute. There are two relevant provisions, a general rule set out in article 121(4) by which an amendment enters into force once 7/8ths of the States have ratified it, and an exception applicable to articles 5 to 8 (that is, the subject-matter jurisdiction provisions). It reads as follows:

5. Any amendment to article 5 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals or on its territory.

Paragraph 5 is a bit of a puzzle. On the one hand, the amendment enters into force once it has been accepted or ratified by a single state, but it applies only to that State. It means that the Court can prosecute crimes committed on the territory of that State or by its nationals (pursuant to article 12(2)). Thus, it can prosecute crimes committed on the territory of that State by the nationals of any country, including those of non-party States. This is normal enough, and it is the way the Statute functions generally. But there is a weird exception, by which the nationals of States Parties that have not ratified the amendment cannot be prosecuted. This flows from the last words of article 121(5).
If a literal approach is taken to article 121(5), there is a perverse result by which a State Party is in a superior position to a non-party State, in that it can shelter its nationals from jurisdiction over the crime in the amendment by failing to ratify, something that the non-party State cannot do. There are attempts to try and fix this with 'understandings', although there are two schools of thought on the way in which it is to be fixed, known as the 'postivie understanding' and the 'negative understanding'. One or the other is likely to find its way into the 'understandings' adopted by the Conference. Here is how they are described in the current draft:

[Alternative 1 – “positive” understanding: jurisdiction without acceptance by the aggressor State] It is understood that article 121, paragraph 5, second sentence, of the Statute does not prevent the Court from exercising jurisdiction in respect of an act of aggression committed against a State Party that has accepted the amendment.
[Alternative 2 – “negative” understanding: no jurisdiction without acceptance by aggressor State] It is understood that article 121, paragraph 5, second sentence, of the Statute prevents the Court from exercising jurisdiction in respect of an act of aggression committed by any State that has not accepted the amendment.

Roger Clark, who represents Samoa at the Conference, described article 121 as ‘dysfunctional’. By dealing with aggression exclusively under article 121(4), the ABS proposal seems to amount to an amendment of article 121. Theoretically, there is nothing wrong with that, but in their comments today some States objected strongly to this.
So with the ABS proposal on the table, we have two rather different approaches as to how to solve the issue of triggering the jurisdiction.
The definition itself is now pretty well accepted. Late last week, the Americans said they had some problems with it, but they seem to have retreated from that position. One never knows whether they raise issues, like their alleged problems with the definition, so that they can later retract them so that it appears they are making concessions. It’s a good negotiating technique, I suppose. Bill Lietzau, a veteran of the Rome Conference who arrived in Kampala to join the American delegation on the weekend, took the floor to acknowledge that the US had not been part of the Special Working Group process at which the consensus definition of aggression was adopted. ‘We chose not to be part of that process, and we have to live with the consequences’, he said. He explained that the US has several ‘modest’ proposals for ‘understandings’ to accompany the definition. Later in the day, these were circulated. One of them reads:

It is understood that, for the purposes of the Statute, an act cannot be considered to be a manifest violation of the United Nations Charter unless it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith, and thus an act undertaken in connection with an effort to prevent the commission of any of the crimes contained in Articles 6, 7 or 8 of the Statute would not constitute an act of aggression.

How might this apply to the invasion of Iraq? I suppose the US and the UK would claim they were trying to prevent crimes against humanity by the Saddam regime.
The US would also like an understanding that says the amendment ‘shall not be interpreted as constituting a statement of the definition of “crime of aggression” or “act of aggression” under customary international law’.
But this was small stuff. The big development in Lietzau’s speech was in the final sentence, where he said the United States was open to a ‘sequential approach’ concerning the exercise of jurisdiction. This is an allusion to the ABS scheme. He seemed to be implying that the United States could accept the possibility of the Court exercising jurisdiction over the crime of aggression without prior authorization from the Security Council. The United States would, of course, insist upon the amendment being adopted in accordance with the ‘negative understanding’ of article 121(5). Thus, the Court would not be able to exercise jurisdiction over nationals of the United States until such point as it joins the Court and ratifies the amendment.
Did the United States blink? Perhaps this is the first sign of any flexibility at all from the permanent members of the Security Council. I think it will become clearer tomorrow whether there is a genuine willingness by the permanent members, including the United States, to work towards such a compromise.
Late in the afternoon, we returned to the formal session so that paragraphs 2 to 29 of the draft report could be adopted. Basically, these paragraphs explain the drafting process up to the point where we are now. There were a few corrections or quibbles about a sentence here and there, but basically the paragraphs were agreed to be a fair reflection of the debates. Two paragraphs remained a bit contentious, so Zaid said we should return to them later in the week.

Left: Chile Eboe-Osuji of the Office of the High Commissioner for Human Rights and Prof. Michael Scharf of Case Western Reserve University. Right: Prof. Göran Sluiter of the University of Amsterdam and Prof. Elies van Sliedregt of the Free University of Amsterdam.