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09 June 2010

Kampala Diary 8/6/10

The day began with a short plenary at which the resolutions, declarations and reports from the stocktaking exercise were adopted without incident. Similarly, a Norwegian resolution on cooperation in the enforcement of sentences was adopted. This is a much diminished version of an amendment that Norway had proposed to article 103 last year.
Prince Zeid explained the new document he had circulated earlier, a revised version of the Conference Room Paper. He took pains to explain that he had been scrupulously neutral in terms of the orientation of the paper. Clearly, though, the paper had incorporated aspects of the proposal discussed Monday that had been circulated on the weekend by Argentina, Brazil and Switzerland, known as the ABS draft. The Canadians also circulated a proposal, really no more than a paragraph or so, to be incorporated in the draft article 15 bis. Article 15 bis is central to the debate here, because it concerns the triggering of the jurisdiction and what is being called the ‘jurisdictional filter’.
Once these documents were presented, we adjourned without further debate in order to conduct what diplomats call ‘informal informals’. These are meetings between delegations (‘bilaterals’, when two are involved), and often involve groups of delegations. For example, in the afternoon, the African group held a meeting. Also, the NAM or ‘non-aligned’ apparently met as well. It was fascinating to watch this little ballet being carried out for several hours during the late morning and afternoon.

Informal informals.
We resumed in the ‘informal’ session of the Working Group late in the afternoon. Many delegations took the floor to set out their positions. Although Prince Zeid’s revised Conference Room Paper was really the starting point for the discussions, the debate was framed by the Canadian proposal of the morning, and by the Argentina, Brazil and Switzerland proposal (ABS draft) of a few days earlier. At the beginning of the afternoon session Slovenia presented a proposal too, which complements the Canadian one.
What are the differences between the Canadian and the ABS proposals? Probably the most important one is the issue of consent for the exercise of jurisdiction over the crime of aggression. The Canadian draft makes exercise of jurisdiction explicitly conditional upon the acceptance of the amendment not only by the ‘victim’ state, but also by the ‘aggressor’ state. This takes the amendment even further than what is set out textually in article 121(5) by insulating not only a State Party that does not accept the amendment but also a non-party State. It is a way of incorporating the so-called ‘negative understanding’ of article 121(5). I can appreciate the fact that some States may doubt whether judges of the Court will consider themselves bound by an ‘understanding’. I note that there is no reference to ‘understandings’ in article 21 of the Rome Statute, which sets out the applicable law. The ABS draft does not require the consent of the ‘aggressor’ state.
In the debate, the position on this issue basically divided along geographic lines. The global north, with a few exceptions (Switzerland and Greece, for example), favours the requirement that the aggressor State accept the amendment. The global south, essentially Africa, Latin America and the Caribbean, considers a requirement of consent by the aggressor State to be unacceptable. In 15 years of following the International Criminal Court, I don’t think that I have ever seen such a clear division of positions corresponding to the regions of the globe. At the Rome Conference, the debate was largely driven by the ‘like-minded group’, which brought together all of the regions, and included such prominent players as Argentina, South Africa, Germany and Canada. We have no such thing here in Kampala.
I hope that this enormous gulf can be resolved, but I am not sure where the middle ground lies. Everybody keeps talking about the need for compromise in order to obtain a consensus. At the invitation of the chair, the great Ben Ferencz concluded today’s session with a passionate plea that we reach a result.
By insisting upon the consent of the ‘aggressor’ state, I think that the Europeans (and Canada) have actually conceded very little. By endorsing the ABS proposal, the States of the global South have made a huge concession, in that they acknowledge the primary role of the Security Council.
Where do the P-5 sit in all of this? The Americans, Chinese and French were silent in today’s debate. The Russian delegate made some short remarks, encouraging consensus but conceding nothing. The representative of the United Kingdom made a rather long intervention explaining that there were serious difficulties with the Canadian proposal. He said that ‘if all we sought to do was to protect the UK, we would have no difficulty with it. But we have to act on principle.’ He challenged the idea underpinning the Canadian proposal of consent of both victim and aggressor State, but unlike the Africans and others, this was not because he thought that only the consent of the victim State should be required. He said that ‘the crime of aggression is not simply a matter of concern to the two states concerned. It goes to the heart of the post-war system and what the UN was intended to prevent. It needs the attention of the international community and the institutions set up for that.’
The UK delegate said that reciprocity and consent, which were the ideas driving the Canadian proposal, are principles for inter-state disputes that do not apply in the same way to international criminal law. ‘We should not import into the ICC an inter-state dispute settlement mechanism.’ He warned that States might try to litigate disputes before the ICC rather than the International Court of Justice, and spoke of the danger of abuse and even ‘fraudulent cases’.
Thus, to the extent that the Canadian proposal is an attempt to find some middle ground, it doesn’t seem to come close to what Britain (and presumably the rest of the P5) want. At no point in his remarks did the UK representative mention the Security Council. He didn’t have to.
Mexico asked what was happening with the American ‘understandings’, which had been circulated informally on Monday. These affect the definition of the crime. The Americans seem to be the only ones still bothered about the definition. Prince Zeid said that these will be discussed informally with Germany as the focal point. We heard no more about them during today’s session.
I have thought some more about the proposal, cited in my diary entry yesterday, by which so-called ‘humanitarian intervention’ is protected. It would be a very, very negative development to make any concession to the Americans here because the clear implication is that it would be possible for a State, acting in good faith, to exercise force against another State in the absence of a Security Council resolution. The requirement of United Nations authorization in the case of such intervention, under the responsibility to protect doctrine, is confirmed in the famous paragraph 139 of the Outcome Document of the Summit of Heads of State and Government of September 2005. In other words, there should be no ‘understanding’ that action taken on humanitarian grounds be excluded from the scope of aggression because any State contemplating such action, in good faith, must know that there is only one way to proceed: through the Security Council.
We ended today’s session quite late, and for the first time since I’ve been in Kampala I did not have the energy to go to the hotel restaurant, where lots of ‘bilaterals’ and ‘informal informals’ take place. Instead, Don Ferencz, Dave Scheffer and Astrid Reisinger came to my room, and we made a big dent in Don’s whiskey bottle. Others were surely working through the night to try and find some imaginative solution. I can’t help thinking of the famous lines, from Shakespeare’s Othello: ‘This is the night/ That either makes me, or foredoes me quite.’
The Bureau has issued a new Journal, setting out the schedule for the remaining three days. Here is what is in store.
Wednesday, 9 June 2010

3rd Bureau meeting
9 a.m.–9:30 a.m..............................................................................................Sapphire (MCR B)

Drafting Committee
10 a.m.–noon……............................................................................Speke Ball Room (MCR A)

Working group on the crime of aggression
Noon–1 p.m......................................................................................Speke Ball Room (MCR A)

Drafting Committee
3 p.m.–6 p.m.....................................................................................Speke Ball Room (MCR A)


Thursday, 10 June 2010

Credentials Committee
10 a.m.–10:30 a.m............................................................................Speke Ball Room (MCR A)

Reserved
10:30 a.m.–noon...............................................................................Speke Ball Room (MCR A)

Working group on other amendments - Review of article 124
Noon–1 p.m......................................................................................Speke Ball Room (MCR A)

Reserved
3 p.m.–5 p.m.....................................................................................Speke Ball Room (MCR A)

Tenth plenary
Report of the Working group on other amendments
5 p.m–6 p.m......................................................................................Speke Ball Room (MCR A)

Friday, 11 June 2010

Reserved
10 a.m.–1 p.m...................................................................................Speke Ball Room (MCR A)

Eleventh plenary
- Report of the Credentials Committee
- Other matters
- Consideration of the reports of the Working groups
- Oral report of the Rapporteur
- Adoption of the report of the Conference
- Closure of the Conference
3 p.m.–6 p.m.....................................................................................Speke Ball Room (MCR A)
So, it will come down to a session on Friday afternoon when we will know if we have accomplished anything. Prince Zeid warned delegates not to plan on taking planes Friday night. Many, apparently, were hoping to leave then. I played it safe, and have a reservation for Sunday night.

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