It is 230 in the afternoon here in Kampala. The planned morning session on yesterday's proposals was postponed until 200, and has now been postponed until 430. The President just circulated two new draft amendments, one of them essentially postponing the exercise of jurisdiction for seven years, the other providing that the opt-out declarations expire after seven years, although they can be removed.
There is great anxiety about risking a vote, because we need 74 votes for the amendment to pass, and there are only about 80 that are eligible to vote. Of them, perhaps a few have left, and some may also have instructions not to vote.
Earlier today, I was told that some delegations have left the Conference. Chad was given as an example. chad's head of delegation died earlier this week. But the Chadian delegate sat at my table at lunch today, and told me that after taking his colleague's remains back home the delegation has returned. I don't know if anybody here really knows whether we have the votes or not.
But what would be the worst that could happen if it were put to a vote and the required votes were not there? If there is a genuine consensus of the States Parties, with the exception of the P-2 (France and the UK), we might get a result of 65 to 2. Perhaps a few very close friends of the Security Council would swell the numbers by a few votes. But if a roll-call vote is demanded, they may be ashamed to be so publicly associated with the P-2 and so isolated from all the others. A result of 65 to 2 would not be enough to adopt the amendment, in accordance with article 121(3) of the Statute, but it would be a very compelling political marker that would compel the Assembly of States Parties to return to the issue at its next session, in December, when the requisite votes would be there. The Assembly of States Parties is, at a practical level, identical to the Review Conference in terms of its power to adopt amendments.
The best course would be to put the draft to a vote. When I say 'the draft', I mean resolve the issue of what is known here as 'Alternative 2'. Under Alternative 2, the Court can proceed with an investigation in the absence of a Security Council determination.
There is some traction for the idea of adopting the definition only, putting it in 'the bank', but this merely perpetuates the illusion created by article 5(2). There is also support for the idea of adopting the definition with Alternative 1, which only allows investigations to proceed if the Security Council gives the green light. This would be worse than nothing, in that it not only confirms but arguably enhances the powers of the Security Council.