In blog entries yesterday, I explained the mounting tension, and the steady progress as the drafting evolved. We saw only a glimpse of it. Most of the action went on in private with ‘interested States’ and ‘stakeholders’. Most States – like observers such as myself – sat in the meeting hall, returning periodically for updates. On several occasions during the day, we were convened only to be told by Ambassador Wenaweser that negotiations were proceeding and that ‘I am encouraged by the ongoing efforts’.
There was much discussion about postponement to the December session of the Assembly of States Parties. But this might result in a loss of momentum, and the revival of debate about elements that had already been resolved. Another popular idea was to adopt the definition, and then leave the rest for future consideration.
The final session of the Plenary was to assemble at 830 PM. But at 830, everything was postponed for a few hours. We finally reassembled at about 1030. Christian Wenaweser entered the room, but then went to a few delegations for brief discussions. While we all watched, he and Prince Zeid had an animated discussion with Bill Lietzau of the American delegation. It seemed that Bill was not very happy although, to be fair, nobody lost their cool at any point during the evening.
Christian Wenaweser told us that he had a final addition to the draft he had presented late in the afternoon, which had left a ‘placeholder’ for a provision on delayed entry into force. The final version contains two parallel provisions, articles 15bis and 15ter. The former concerns exercise of jurisdiction as a result of triggering by a State Party or by the Prosecutor, and the latter concerns exercise of jurisdiction when triggered by the Security Council. Christian explained that he had decided to propose two parallel, identical texts for each of these articles:
The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute…He suspended the meeting again, but for only 15 minutes, so that delegations could consider this new element. The 15 minutes ended up being more like 45, or even more – with the tension and excitement I lost track of exactly how long it all took. Ben Ferencz, with whom I was sitting, was upset by this new proposal, which would delay the entry into force for seven years and perhaps longer, if the decision taken seven years hence were negative. Claus Kress came by to encourage him, followed by Prince Zeid, who explained how difficult the negotiations had been and how unsure we still were as to whether the entire package might actually succeed.
We continued to speculate on what might happen if there was no consensus. Rumours circulated that the French would insist upon a vote. Nobody really knew how many delegations were in the room, and whether we would be able to get the required 74 votes, which is mandatory under article 121(3) of the Statute, But it seemed unlikely the proposal could withstand a vote, and be adopted successfully if one was requested. Any State Party would have the right to demand that a vote be taken.
The chair concludes there is a consensus.
Christian Weneweser brought the meeting back to order at about midnight. He explained that his goal had always been to obtain agreement by consensus. He briefly reminded delegates of the content of the amendments, then said: ‘Do I take it there is consensus on the adoption of this text.’ We all held our breaths. Japan asked to take the floor. ‘The delegation of Japan has serious doubts about the legal integrity of the amendment’, said the head of delegation in his eloquent English. He spoke harshly about what he described as the legal confusion in the texts, saying it undermined the credibility of the Statute and the Court. ‘It is with a heavy heart…’ he began, and we all thought that we were headed for a train wreck. But he concluded that Japan would not stand in the way of a consensus.
Christian noted that there were no other requests for the floor. ‘I declare the amendments adopted’, he said. And that was it. There was cheering and applause. Several States insisted upon making statements.
Norway said that while it accepted the amendments on aggression, it said the Court should exercise its jurisdiction ‘as a matter of priority’ over genocide, crimes against humanity and war crimes.
Japan took the floor again to review its objections. The head of delegation said that the ‘dubious legal foundation’ of the amendments would have to be addressed in the future by the Assembly of States Parties, and he said ‘the future cooperation of Japan will hinge on addressing this’.
Brazil, which spoke on behalf of the GRULAC (‘Group of Latin American and Caribbean States’), referred to the final paragraph that had been inserted on delayed entry into force. It said its understanding was that the conditions for exercise of jurisdiction were now an integral part of the Statute, and that all that is required is to activate the jurisdiction.
France, the United Kingdom, China, Russia and the United States all made the point, in one way or another, that they thought the amendments were not compatible with the Charter of the United Nations and the monopoly that the Security Council is given to determine the existence of an act of aggression. They used terms like ‘the primacy of the Security Council’ and ‘prerogative of the Security Council’. But the British delegate, in particular, spoke with charm and grace, and he concluded on a note of humour: ‘the draft resolution has the most boring preamble…’ The Americans were notably subdued.
Iran expressed its disappointment with the result, noting that a stronger amendment would have done much to encourage States to ratify the Statute. It noted the Understanding that began ‘It is understood that aggression is the most serous and dangerous form of the illegal use of force…’, noting that the reference to the Charter of the United Nations had been included at its request. Iran insisted that ‘any act of aggression is by necessity serious’, and it recalled that article 2(4) of the Charter had only two exceptions.
Cuba would have liked a broader definition of aggression, so as to cover acts other than the use of force. And Israel insisted that the ‘Understandings’ adopted in conjunction with the definition are an integral part of the definition itself.
We strolled down the hill back to the hotel, where the bar was still open. I left at about 3, and have no idea when the last celebrants went to bed.
For many months now, I have been regularly asked: ‘What are the chances of the amendments being adopted.’ My response was always that anything was possible but that it was unlikely, given the intransigence of the Security Council. I think that sometime late in Friday evening, perhaps around 9 PM, I changed my mind. Much of the success for this is due to Christian Wenaweser, Stefan Barriga and Prince Zeid, who have worked tirelessly for many years on this issue. Adoption of the aggression amendments, despite their many shortcomings, is a huge step towards the promotion of the human right to peace.