10 June 2010

Kampala Diary 9/6/10

Many of us began the day in a rather discouraged mood. Yesterday’s discussions had shown great regional divisions within the Conference, and no obvious middle ground. The Permanent 5 had been able to sit back and watch the rest of the Conference quarrel. With time running short, can we find a way forward?
The first session of the morning was the Drafting Committee. The Drafting Committee is a feature of international treaty conferences. Once a Working Group has adopted the text, it goes to the Drafting Committee where the language is reviewed and polished. In particular, there is an attempt to make sure that the versions in the six official languages are consistent. Today, they worked on the report of the Working Group on the amendments to article 8, which concern prohibited weapons. To begin with, agreement was reached that the English version was suitable. Then they turned to the French. There was only one little typo in the French. As we got to Arabic, Russian and Chinese, there seemed to be many more small problems. And it was all a bit strange, because when we were discussing the French and the Spanish there were many bilingual people in the room. But for the Chinese, we really had only one person there who knew the language.
At noon, Prince Zeid convened the final meeting of the Working Group on the Crime of Aggression. He sought adoption of the final paragraphs of his report to the Plenary session. This was done without incident. As he explained, the Working Group is now finished its work. In the next few days, we will continue with the discussions of aggression in the Plenary of the Conference, which is chaired by Christian Weneweser. The Plenary will meet in informal session tomorrow, Thursday, at 11 AM. Before the session ended Japan announced that it intended to propose the inclusion of an understanding in the report of the Conference:
It is understood that upon the commencement of the exercise of jurisdiction over the crime of aggression by the Court all States Parties have an obligation to cooperate fully with the Court in accordance with article 86 of the Statute irrespective of whether they have accepted or ratified the amendments.
At the lunch break, I went down to the People’s Space. This is a huge tent down by the lake, where many NGOs have set up booths to distribute literature and to meet and talk with visitors. There was a moot court, simulating a confirmation hearing at the International Criminal Court. It was organized by the Office of Public Counsel for the Defence of the Court and by the International Bar Association. Unfortunately, I could only stay there for the beginning, as I had to get back to the meetings of the Conference itself.

From left, Lorraine Smith of the International Bar Association, Justice Elizabeth Ibanda Nahamya of the War Crimes Division of the High Court of Uganda, and Bruce Kyerere, president of the Law Society of Uganda.

The first meeting of the afternoon was an informal session convened by Professor Claus Kress, who is designated as the focal point for discussions on the American understandings that were proposed earlier in the week. Claus began by circulating a draft that contained three understandings. The document that the Americans had circulated on Monday contained six understandings. Claus explained that he had taken a ‘minimalist’ approach, and that he did not include those proposed understandings that had met with ‘significant reluctance’ in his informal consultations. I was very pleased to see that the understanding dealing with the use of force to prevent violations of articles 6, 7, and 8, which might be called the ‘responsibility to protect’ understanding, had been dropped. I explained my problems with this one in yesterday’s blog entry.
The representative of Spain expressed some irritation that we were even discussing the American understandings at such a late stage. He suggested this could be deferred to a future meeting of the Assembly of States Parties. Bill Lietzau, who was representing the United States, said: ‘We have been asked, and we have agreed, not to reopen the definition. But we ask you to consider our understandings. Doing this at an Assembly of States Parties undermines the point, which is to do it before it becomes operational.’
The first of the three proposed understandings that Claus submitted was actually a revised version of understanding 4bis in the Conference Room Paper. It was not controversial. From what I could see, the only significant change was addition of the words ‘act of aggression’ to a phrase referring to ‘crime of aggression’. The object of this understanding is to make it clear that the definition of act and crime of aggression applies only to the Statute.
The second and third understandings were more troublesome.
Claus explained that the second understanding, labeled Understanding X, was derived from General Assembly Resolution 3314, which was adopted in 1974 and which defines aggression. Iran challenged the second understanding, because it contained the idea that in determining an act of aggression it said account could be taken of ‘the purposes for which force was used’. What does this mean? Iran asked the Americans. Lietzau answered that it would cover a technical violation, like an accidental violation of airspace or ‘humanitarian action’. ‘We will leave the identification of the purposes to the judges’ says Lietzau, who seemed visibly uncomfortable with the question. It was a strange answer, given that the Americans are always so insistent on precision, and invoke the principle of legality at the drop of a hat.
The Iranian delegate also had a problem with the phrase ‘only the most serious and dangerous forms of illegal use of force constitute aggression’. He conceded that the terms were inspired by Resolution 3314, but he said it wasn’t worded the same way. Preambular paragraph 5 of Resolution 3314 says ‘since aggression is the most serious and dangerous form of the illegal use of force’. The Iranian representative said: ‘I am not a native English speaker, but it seems that this is a bit different.’ Iran warned of ‘cherry-picking’ phrases from Resolution 3314. Lietzau answered, to general amusement: ‘I wish I could say that I am not a native English speaker.’ The Americans gracefully conceded the point to Iran, and it was agreed to reformulate the understanding so as to better reflect the text of Resolution 3314.
We returned to the issue of the ‘purposes’, and other delegations expressed their difficulties with the idea. I quickly reviewed the text of Resolution 3314, and there is nothing about ‘purposes’. Was this idea being smuggled into the understanding, concealed within language that made it look as if it was an innocent reflection of the General Assembly Resolution? China joined in questioning the reference to purpose, as did Equador. It was entertaining to see this battle being waged between non-State Parties. Suddenly, another member of the American delegation said that they would remove the words ‘the purposes for which force was used’ from the understanding.
Then Chile proposed addition of the phrase ‘including the conformity with international law of the purposes for which…’ Iran followed, with the requrest that the words ‘in accordance with the UN Charter’ be included. At this point, Harold Koh, the legal advisor to the Department of State, entered the room. He conferred briefly with the other members of the American delegation, and then said that the United States would ‘recede’ from the ‘reservation’. It was a Freudian slip, and Harold quickly corrected himself. But he did it again a minute later, again referring to ‘reservation’ instead of understandings. Perhaps, with the references to international law and the UN Charter, the understanding had become a bit too toxic for the United States.
The third understanding, known as Understanding Y, was aimed at the word ‘manifest’, which is in the chapeau of the definition of aggression. Canada asked that the words ‘each of’ and ‘independently’ be removed, but Bill Lietzau said that would defeat the whole purpose of the understanding. It was agreed that the Canadian proposal would be adopted, as long as a second sentence was added, stating: ‘No one component can be significant enough to satisfy the manifest standard by itself.’ Canada was happy with the change. It seems to me that as changed, the understanding now requires that two of the three conditions (character, gravity and scale) must be satisfied, but not all three, which was what the American proposal said.
The final meeting of the day concerned article 124. A draft resolution was circulated that provided for the retention of article 124, but its review at the fourteenth session of the Assembly of States Parties, which will take place in 2015. Austria said it welcomed the compromise, and referred to the views of non-party States. Japan, too, was happy, as it was actually one of the few States Parties to insist upon retention. Japan proposed changing preambular paragraph 2, which read ‘Mindful of the possible contribution of article 124 to the universality of the founding instrument of the International Criminal Court’ by replacing the words possible contribution of article 124 to with ‘importance of’. This seemed to soothe the concerns of some States that had wanted the removal of article 124. Several States reiterated their view that the provision should be removed. Costa Rica suggested that the final paragraph might contain the words ‘with a view to its deletion’ be added after the reference to the 2005 Assembly of States Parties, but this was rejected. The draft resolution, adopted at this informal session of the Working Group, now goes to the Working Group itself tomorrow, and then Drafting Committee and on to the Plenary.
Late in the day, a revised version of Understanding X, which had been ‘receded’ by the Americans in the afternoon session, was circulated..
It is understood that aggression is the most serious and dangerous form of the illegal use of force; and that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations.
The accompanying note, from Claus Kress, said: ‘Please find attached a revised text for the second understanding (X), as contained in the aforementioned non-paper. It reflects the latest amendment suggested by the delegation of the Islamic Republic of Iran. Please note that this version has met with the approval of the delegation of the United States . I therefore intend to submit this understanding to the President, unless I receive reactions to the contrary from you before 9 am Thursday 10 June.’ So, we will have an understanding on aggression that is the result of efforts by the United States and Iran!
In the evening, I went down for dinner and joined a table with Ben and Don Ferencz, Prince Zeid and Miriam Blaak, who is the Ugandan ambassador in The Hague. There was general excitement about a new proposal being circulated. Zeid pulled a folded piece of paper from his pocket and showed it to me. The new draft had been the result of intensive consultations that appear to have brought partisans of the ABS proposal and the Canadian proposal, discussed in yesterday’s blog. It introduces a new idea: States Parties have five years to make a declaration rejecting jurisdiction over aggression. If they don’t, then the Court has jurisdiction over their territory and their nationals. Nationals of non-party States are insulated from prosecution. There is a sense that this may emerge as an acceptable compromise. If it works – we will know late tomorrow morning – the battle lines will shift. It will then be up the five permanent members of the Security Council to react.

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