The ICC Review Conference: Kampala 2010

Aftermath of Kampala

2010-06-22T19:19:00.000+03:00

Here are two short essays assessing the results of Kampala by two observers, Robbie Manson and Jennifer Trahan.

An Assessment of Kampala: the Final Blog

2010-06-17T10:09:00.000+03:00

With this comment, I bring the blog on the Kampala Conference to a close, and return to my regular blog, PhD Studies in Human Rights. Au revoir.

The Kampala Review Conference of the Rome Statute provides a much-needed shot of legal adrenaline to the International Criminal Court. Several of the achievements at Kampala were relatively minor and inconsequential. Fortunately, they are dwarfed by the stunning accomplishment of the amendments of aggression, adopted in extremis early Saturday morning. Until about 1030 PM Friday night, I could not find anybody prepared to wager a significant sum of money on the likelihood of a positive outcome.

While much credit is due to the impressive diplomatic skills, and determination, of Christian Wenaweser, Prince Zeid and Stefan Barriga, who were the architects of the negotiations, personalities alone do not account for the result. At the Rome Conference, and for some years afterwards, I used to say that the Court was protected by a guardian angel. But this was just a metaphor for the fact that the Court, and international criminal justice, is – to paraphrase Victor Hugo – ‘an idea whose time has come’. And nothing can stop it. For some years, with the Court’s activity in the doldrums, I had lost sight of the guardian angel. But he/she was certainly in evidence last Friday and Saturday.

This time, though, the idea is a narrow one, and it is built around the crime of aggression. One striking difference with the Rome Conference was the relative absence of the NGOs at Kampala. They were there in a formal sense, especially at the beginning of the Conference, when the proceedings looked more like an academic seminar or a political meeting than a treaty negotiation. But many of them were quite indifferent to the incorporation of aggression into the Statute. I am struck by the resemblance of their attitude to the American position, which treats aggression as a bit tangential from the core mission of the Court, which is to promote human rights through the prosecution of the other core crimes, namely genocide, crimes against humanity and war crimes. Even the High Commissioner for Human Rights, who actually attended part of the Kampala Conference, has yet to issue a statement signaling the achievement of incorporating the crime of aggression in the Rome Statute.

Nothing could be more mistaken, however. The wise judges at Nuremberg described aggressive war as the supreme crime, encompassing the evil of all the others. What Kampala does is refocus our attention onto the importance of the prohibition of war – on the jus ad bellum. This is an important and helpful correction, and it is to be hoped that the message of Kampala will slowly percolate through the human rights discourse.

Those who are keen on the aggression issue are very troubled by the seven-year delayed entry into force. It would be a mistake to exaggerate the significance of this. Entry into force of amendments to treaties always takes time. The amending procedure is quite arcane, and even without the seven-year rule this would take a long time in any case. Although the amendment requires thirty ratifications and a positive decision by the States parties, this should not pose a serious problem, and both conditions should be fulfilled by 1 January 2017 or shortly thereafter.

Then, the result will be much better than had the Conference to what many thought was the appropriate amending process. Because the amendment will apply to all States parties, and not just those who have ratified it, provided of course they have not made an opt-out declaration. There may be some of these, but there is no cause for pessimism here. There will be a high political price to pay for any government that considers making an opt-out declaration. It is a price that many will prefer not to pay.

Nor should we lose sight of the incentive that the amendments create for States that have not joined the Court. According to article 15bis, a non-party State is immune from the Court’s jurisdiction over the crime of aggression. The Court cannot punish crimes committed by its nationals or on its territory. Some States will welcome this because it will insulate their nationals, but many will realize that they are being deprived of the deterrent power of the Rome Statute, in that aggression committed on their territory and against them totally escapes the jurisdiction. Hopefully, some of them will appreciate the interest in joining the Court because of this added layer of protection.

I am reminded of the importance that the first President of the Court, Philippe Kirsch, attached to the work on the crime of aggression. My recollection is that he felt it was important not only to show to States that the reference to aggression in article 5(1) had some substance behind it. He also explained that incorporating aggression in the Statute would help convince some States to join the institution. He was right at the time, and his vision has now borne fruit.

Those who are unhappy with the Court’s new mandate will try to pick holes in the legality of the amendments. It is true that they reflect some creative approaches, but everything passes what Roger Clark calls the ‘straight face test of advocacy’. Legal academics who support the Court, and the amendments, can assist judges in the future with reassurances that the amendments actually work. The Statute as adopted in Rome had its share of ambiguities. The Kampala Conference was able to find a workable way forward.

Beyond the adoption of the aggression amendments, there is really not much else to say about the Kampala Conference. It is of course positive to have repaired an oversight in the war crimes provisions. However, the amendment to article 8 is symbolic, and it is doubtful that it will ever lead to prosecutions. There have, to date, never been any international prosecutions for the use of such weapons. It is occasionally pointed out that Saddam Hussein used poison gas at Halabja, but it is absurd to suggest that the failure to recognize the use of such weapons as an international crime means that there is an impunity gap for such atrocities. They can be prosecuted as crimes against humanity and even genocide. Years from now, people will point the prohibited weapons issue at Kampala with irony, noting that the States Parties were able to address the prohibition of relatively archaic weapons that are rarely if ever used in modern combat, but that they could not deal with the important issues: anti-personnel mines, cluster munitions, depleted uranium weapons and, of course, nuclear weapons.

The Conference agreed to leave article 124 alone. The importance of this provision was always exaggerated, especially by the human rights NGOs. Amnesty International called it a ‘licence to kill’, but never attempted to provide evidence that could back up such a hyperbolic claim. Arguably, article 124 helped smooth the ratification of two States parties. If it can do this trick again over the next five years, then it will be worth leaving it in the Statute. And if it cannot prompt further ratifications, then how can it be claimed that any harm was done?

What the Conference failed to do was talk about the Court and its performance. There may have been good policy reasons for doing so. Perhaps Kampala was not the right place for a stocktaking on the activities, results and operations of the Court. But this subject cannot be avoided forever.

US Officials Speak About Review Conference

2010-06-17T09:26:00.000+03:00

The leaders of the US delegation, Harold Koh and Steve Rapp, have provided a special briefing on their assessment of the Kampala Review Conference. Harold Koh is the legal advisor to the Department of State. 'We have reset the default on the U.S. relationship with the court from hostility to positive engagement', he said.

Official version of Aggression amendment

2010-06-15T08:26:00.000+03:00

I have now received an official version of the aggression amendment, adopted early Saturday morning at the Review Conference in Kampala. Here are the English and French versions.

Final version of the amendments

2010-06-14T07:08:00.000+03:00

Readers of the blog have asked if I have the final version. Late Friday evening, an official document, catalogued RC/10, was distributed. But it was never circulated electronically, to my knowledge. The only thing missing in that document was paragraph 4 of the two articles on triggering, 15bis and 15ter. I've prepared my own informal version of the amendments on aggression, based upon the earlier non-paper from the President (which is the same as RC/10) with the additional paragraphs, which were also circulated as a non-paper at 11PM Friday. So, while awaiting publication of the official version, here is the text.

David Scheffer's Analysis of the Amendments

2010-06-14T07:04:00.000+03:00

I've just arrived in Amsterdam, and am back on line. There were some gremlins in the internet at the Munyonyo Conference Centre on the weekend, and I was unable to receive or send e-mail. David Scheffer sent me his text for posting on the blog on Saturday, and apologise for not being able to get it up earlier. Here it is.

The Result: Prosecuting Aggression at the International Criminal Court

2010-06-12T09:17:00.000+03:00

Definition of aggression (art. 8 bis). The definition of aggression that emerged more than a year ago as a result of the work of the Special Working Group on the Crime of Aggression is adopted, together with two understandings (understandings 6 and 7) and Elements of Crimes. The definition is comprised of two paragraphs, the first establishing that the crime of aggression ‘means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’, the second providing a detailed seven-paragraph enumeration of acts that qualify as an act of aggression.

Entry into force. The resolution accompanying the amendments specifies that they ‘shall enter into force in accordance with article 121, paragraph 5’. This means that the amendments enter into force for a State one year after it has ratified or accepted them. The paragraphs added at the end of the final session are referred to colloquially as ‘delayed entry into force’, but in fact they are actually addressed to the exercise of jurisdiction rather than the actual entry into force. Nevertheless, because a State must exclude itself from the jurisdiction over aggression by making a declaration, a State that does nothing is in effect bound by the amendment. Moreover, ratification by thirty States is necessary before the Court can exercise jurisdiction. So, despite the words of article 121(5), the regime of entry into force is really sui generis.

Exercise of jurisdiction. There are several limits on the exercise of jurisdiction by the Court. Two of them apply regardless of whether the situation is referred by the Security Council, by a State Party or on the initiative of the Prosecutor.
A decision must be taken, at some point after 1 January 2017, authorizing the exercise of jurisdiction. The decision will require a two-thirds majority of the States Parties. The reference to the majority is meant to indicate that consensus will not be necessary, or even desirable. In practice, this should be virtually automatic.
Moreover, the amendment must have been ratified or accepted by at least thirty States Parties. This is presented in the amendment as a condition for 'exercise of jurisdiction' but it is really more like a condition for entry into force.

Exercise of jurisdiction pursuant to a Security Council referral (art. 15 ter). The Court may exercise jurisdiction in accordance with article 13(b) of the Statute irrespective of whether the State concerned has accepted the Court’s jurisdiction. The Security Council may refer a situation involving a State that is not a State Party.

Exercise of jurisdiction pursuant to referral by a State Party or on the Prosecutor’s own initiative (art. 15 bis). The Court may exercise jurisdiction over an act of aggression committed by a State Party unless it has previously made a formal declaration that it does not accept such jurisdiction. The Court may not exercise jurisdiction over aggression committed by the nationals of a State that is not a party to the Statute. The Prosecutor can only proceed when this has been authorized by the Pre-Trial Division of the Court.

Legal academics like myself will be eternally grateful to the Review Conference for providing us with such complicated and at times incoherent provisions. They will provide us with fodder for journal articles, books and conferences for many years to come.

Success!!!

2010-06-12T09:11:00.000+03:00

At 0019 on the morning of 12 June 2009, the amendments to the Rome Statute concerning the definition and the exercise of jurisdiction over the crime of aggression were adopted by consensus at the first Review Conference. The ending to the Conference was dramatic, and the outcome remained uncertain until the very end.
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 still had to adopt the Report of the Conference, which took several minutes. There were some speeches, and Christian went the rounds thanking those who had made particular contributions, such as Stefan Barriga, Prince Zeid and Miriam Blaak. Uganda’s minister of justice thanked all participants, concluding by noting that it was almost 130 in the morning. Christian called upon some NGOs that had asked to make short statements. And then it was over. Don Ferencz piped a tune for us, and there was much embracing and hand-shaking.
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.

High Drama: Moving Closer to a Result

2010-06-11T18:10:00.000+03:00

At 430 this afternoon, the Plenary reconvened. Ambassador Wenaweser presented us with his latest draft.
The big change in this most recent version is that he has finally eliminated the 'Alternative 1' from article 15 bis. Alternative 1 meant that if the Security Council did not determine an act of aggression had taken place, then the Court could not proceed with an investigation.
Now, the P5 have always indicated that this issue was a red line for them. At the same time, Alternative 1 was absolutely toxic for most countries from the South. They would not agree to a provision that would actually confirm and possibly even enhance the authority of the Security Council.
We reconvene at 830 this evening for the final session.

David Scheffer on the state of play at 4 PM

2010-06-11T18:07:00.000+03:00

David Scheffer, who has just left for the airport, penned a final comment on developments at the Review Conference. Click here.

Put it to a Vote!

2010-06-11T14:38:00.000+03:00

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.

David Scheffer on the latest developments

2010-06-11T08:20:00.001+03:00

Early this morning, David Scheffer finished a blog commentary on the latest developments and the most recent proposals. Click here.

Kampala Diary 10/6/10

2010-06-11T08:19:00.001+03:00

This is the penultimate day of the Conference. There is great confusion, much excitement, and the rumours are intense. We all gathered at 11 AM in the main conference room for an informal plenary session. The document that was being shown around yesterday evening in the restaurant, and that I posted in yesterday’s blog, is now widely available. Christian Weneweser, who now chairs all of the proceedings, says that he has prepared a new ‘non-paper’, which is being circulated in the room as he speaks. I think we had expected that it would incorporate yesterday evening’s document, but it does not really do this. Christian says we will not discuss this now, but will resume in Plenary at 5 PM when we will be in a position to hear reactions to his paper.
Then the Working Group on Other Amendments, which has been dealing with the fate of article 124 and the additions to article 8 on prohibited weapons, convenes to adopt its report. The NGOs are angry because we will retain article 124. As I have written elsewhere, article 124 is an innocuous provision that allows a State to join but opt out of jurisdiction over war crimes. It remains subject to genocide and crimes against humanity. Two States, France and Colombia, have used it, and it provided a way to ease them into the Court. We won’t ever know if, without article 124, they would not have joined at all.
Several NGOs take the floor to protest the retention of article 124. Amnesty International recalls its earlier statements, noting that article 124 has only been used by two states and says that therefore it is of no real importance in terms of promoting ratification. It also says that no State now contemplating ratification has suggested it would invoke article 124. Then Amnesty says the provision is a ‘licence to kill’.
I find Amnesty’s position to be internally contradictory. If the provision has made an insignificant contribution to universal ratification, then how can it also have done so much harm? If no States are intending to invoke it in the future, as Amnesty claims, then who exactly is being licensed to kill by article 124? Amnesty International has been indifferent, and in a sense negative, about incorporating the crime of aggression in the Statute. I would have thought that failing to address the crime of aggression is a more serious ‘license to kill’, as Ben Ferencz put it the other day, than article 124.
There is a lot of chatting about yesterday’s session, when the Americans had to ‘recede’ from Understanding X. At least that was what I had thought took place. But after the session, the focal point had some discussions with the Iranians and the Americans, and they apparently agreed on a text which will not be included in the Understandings.
How amazing that it is the US and Iran that take authorship of this text. I ask Djamjid Momtaz, who heads the delegation of Iran, for an explanation. He says: ‘We got everything we wanted. There is a reference to the Charter in the Understanding.’
We resume late in the afternoon in a formal Plenary session. The first item of business is the report of the credentials committee. Apparently there are 84 States parties represented at the Conference with the right to vote. This may become important if we have to vote for the aggression resolution tomorrow. If a vote is required, then a 2/3rds majority of all of the State Parties is required: 74 votes. There are rumours that several delegations have instructions not to vote. Apparently two of them have not paid their assessments to the Court, which means that while they can attend the Conference, they cannot vote. It might get very, very close.
Then we discuss the Report of the Working Group on Other Amendments (R/6). A sentence has been added to the part on prohibited weapons: ‘It was also stressed that law enforcement situations are excluded from the Court’s jurisdiction.’
The United Kingdom says it has an issue with paragraph 4 of the report, and proposes replacing it with this: ‘It was stressed that the crimes that were proposed for inclusion in article 8, paragraph 2(e), were already crimes within the jurisdiction of the Court if committed in an international armed conflict, and that the amendment extended the jurisdiction of the Court to such crimes if committed in a non-international armed conflict.’ There is no opposition
Then we adopt the resolution on article 124, by consensus. There are no statements.
Christian gives an update on the crime of aggression. He has prepared yet another non-paper, ‘my best attempt to capture those elements resulting from the very rich discussion we have had over the last few days’ We suspend now, and will reconvene at 1030 PM. It is about 6PM.

David Scheffer, Bianca Jagger and Andrew Clapham

I retire to the terrace of the hotel with David Scheffer, Andrew Clapham and Bianca Jagger. We have a little dinner and chat about the developments. At around 8 PM, the US Ambassador for War Crimes, Steve Rapp, and his wife Dolly, come and join us. They’ve just come from Kampala where they were watching the Nuremberg film whose showing had been prevented by the Ugandan police the previous Friday. They sit with us and have drinks and dinner, and we reminisce about Sierra Leone, where Steve was the Prosecutor and I was on the Truth and Reconciliation Commission. I can’t figure out what is going on. It makes sense for David, Andrew and Bianca and I to sit around, because we don’t represent any countries. But I would have thought Steve Rapp would be frantically twisting arms, quibbling about language, and so on. Some say the Americans are relaxed because they have got what they want, and because they are confident in the outcome.

The late night session. Top left: Christian Weneweser, left, with the head of the Secretariat, Renan Velacsis. Top right: the Irish delegation. Lower left: Prince Zeid, left, negotiating with the Japanese delegation. Lower right: the Italian delegation.

We all return to the Plenary at 1030. There is a sense of great anticipation. When you ask delegates what is happening, they shrug their shoulders and indicate they have no idea. We mill around in the hall for about 30 minutes before Christian convenes the Plenary. The first item of business is adoption of the Resolution on article 8, dealing with prohibited weapons. The text is approved by consensus. Then France makes a statement confirming its interpretation of the language on dumdum bullets that refers to the intent of the user, and its statement is endorsed by Canada, the US and Israel. Christian declares that we have now amended the Rome Statute for the first time.
He has a revised version of the document he circulated in the morning to distribute. But it is not ready, so we suspend for 15 minutes. The paper is distributed, and Christian says he is available to discuss it at any time. But there will be no debate in the Plenary. The meeting concludes at midnight.
So where are we? With the latest proposals, the battle lines have shifted. They appear to represent a consensus of the various regions, because the square brackets and footnotes have been disappearing in the successive versions. There is now really only one unresolved issue in the draft, and that is whether an investigation in proceed in the absence of a Security Council determination that there has been an act of aggression.
What that means is that the battle lines at the Conference have now shifted. The dispute is with the permanent members of the Security Council. For them to accept that an investigation could proceed in the absence of a Security Council determination represents a tectonic shift in the powers of the Council. It does not change article 39 of the Charter of the United Nations. But for the permanent members to recognize such an interpretation of article 39 is a huge development. Will they do it? We’ll know tomorrow.
People at the Conference speak of the P-2 and the P-3. The P-2 are Britain and France, and they are States Parties. In some ways, the situation is even more precarious for them than it is for Russia, China and the US.
If the consensus proposal works tomorrow, what we will have is a Court with jurisdiction over an accepted definition of aggression. It should be able to exercise jurisdiction over the crime once thirty States have accepted the amendment and five years have elapsed. But it will only be able to exercise jurisdiction with respect to the nationals of a State that has accepted the amendment. The consensus proposal insulates all non-party States and their nationals from the crime of aggression, and it also insulates all States Parties that do not accept the amendment. It seems this is as much as we can get agreement on at this point in history.

White Water Rafting

2010-06-10T15:19:00.000+03:00

Here are photos from the white water rafting trip that several of us from the Conference did Saturday on the Nile River.

New 'Non-Paper' Advances Search for Consensus on Aggression

2010-06-10T15:02:00.002+03:00

The President of the Conference, Christian Weneweser, this morning issued a new 'non-paper', to be read in conjunction with Rev.2 of the Conference Room Paper issued earlier in the week by Prince Zaid for the Working Group on Aggression. It constitutes yet another step towards the search for consensus.

Kampala Diary 9/6/10

2010-06-10T07:46:00.000+03:00

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.

David Scheffer: On the Cusp of a Final Draft Text for the Crime of Aggression

2010-06-09T23:03:00.001+03:00

David Scheffer, who was the head of the American delegation at the Rome Conference, and who served for many years as US Ambassador at Large for War Crimes Issues, has just written this fascinating analysis of the developments at the Review Conference. Click here.

New documents

2010-06-09T23:01:00.001+03:00

Several new documents have appeared, of which perhaps the most interesting is an informal draft being circulated this evening with a view to bridging the gap between the APS proposal and the Canadian proposal.
An informal session of the Working Group on article 124 has agreed upon a draft resolution.
An informal session examining the various proposals on understandings from the United States has agreed upon this text. The focal point has proposed a third understanding which we might call the joint Iran-US text. It has yet to be adopted, however.
Finally, the Working Group on the Crime of Aggression adopted the final paragraphs of its report, and has concluded its work. The ball now passes to the Plenary.

Kampala Diary 8/6/10

2010-06-09T07:23:00.000+03:00

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.

Slovenian proposal

2010-06-09T07:21:00.000+03:00

In the afternoon session on Tuesday, Slovenia made the following proposal:

Art. 15 bis

…

4. Where no such determination is made within [6] months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression provided that

i. the Pre-Trial Chamber has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15;

and

ii. all States parties concerned with the alleged crime of aggression have deposited instruments of ratification or acceptance of the amendment on the crime of aggression.

4 bis. If not all States Parties concerned with the alleged crime of aggression have deposited instruments of ratification or acceptance of the amendment on the crime of aggression under paragraph 4 of this article, the Prosecutor shall readdress the possibility of the Security Council referral in accordance with article 13(b) with the Secretary-General of the United Nations.

4 ter. After instruments of ratification or acceptance of the amendment on the crime of aggression have been deposited with the Secretary-General of the United Nations by seven-eighths of States Parties, the Secretary-General of the United Nations shall convene a Review conference to consider the applicability of the amendment on the crime of aggression to all States Parties.

Understandings regarding the amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression

Referrals by the Security Council – it is understood that the Court may exercise jurisdiction over the crime of aggression on the basis of a Security Council referral in accordance with article 13(b) of the Statute once the amendment on aggression is adopted by the Review Conference.

Seven-eighths of States Parties – it is understood that the number of deposits of instruments of ratification or acceptance of the amendment on the crime of aggression by the seven-eighths of States Parties is calculated by the time of the adoption of the amendment on aggression by the Review Conference.

Future States Parties – it is understood that future States parties need to deposited instrument of ratification or acceptance of the amendment on the crime of aggression (as stipulated in the VCLT).

Paragraph 4 is very similar to the Canadian proposal. Paragraph 4bis doesn't seem to add very much, because it merely authorizes the Prosecutor to 'readdress' the Security Council. Big deal. If it didn't act the first time around, is it going to change its mind because the Prosecutor asks it? Paragraph 4ter calls for a Review Conference. But a Review Conference is already included in the Statute, and we don't need article 4 ter to convene one. What article 4 ter seems to do is invite an amendment to article 121 of the Statute, permitting an amendment to the subject-matter jurisdiction to enter into force with respect to a State Party that has not accepted the amendment.

Canadian proposal

2010-06-08T14:53:00.000+03:00

This morning, Canada issued a proposal that it described as 'intended as contributing towards an eventual compromise package. As such it is compatible with other proposals that may assist in a consensus resolution, such as a porential provision allowing for a delay in the ability of the court to exercise its jurisdictional competence'.

Article 15 bis
....
3. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression.
4. Where the Security Council has not made such a determination with six (6) months after the date of notification and where a State Party has declared its acceptance of this Paragraph, at the time of deposit of its instrument of ratification or acceptance or at any time thereafter, the Prosecutor may proceed with an investigation of a crime of aggression provided that
(i) the Pre-trial Chamber has authorized the commencement of the invstigation in respect of a crime of aggression in accordance with the procedure contained in Article 15;
and
(ii) [all state(s) concerned with the alleged crime of aggression] [the state on whose territory the alleged offence occurred and the state(s) of nationality of the persons accused of the crime] have declared their acceptance of this Paragraph.

New Documents

2010-06-08T07:58:00.001+03:00

The Coordinator of the Working Group on the Crime of Aggression, Prince Zeid, has prepared a revised Conference Room Paper (Rev.2). There is a structural change to draft article 15 bis, although the substance is the same. So there are now two articles to follow article 15. Article 15bis governs prosecutions for aggression triggered by the Prosecutor or by a State Party. Article 15ter governs prosecutions for aggression triggered by the Security Council.
In addition, the first operative paragraph of the resolution is changed as follows:

1. Decides to adopt the amendments to the Rome Statute of the International Criminal Court (hereinafter: “the Statute”) contained in annex I of the present resolution, which are subject to ratification or acceptance and shall enter into force in accordance with article 121, paragraph [4 / 5] of the Statute [except for amendment 3, which shall enter into force in accordance with article 121, paragraph 4, of the Statute];2

2 The suggestion has been made that all amendments could enter into force for the Court immediately upon adoption by the Review Conference, in accordance with article 5, paragraph 2 of the Statute, while entering into force for States Parties one year after their respective ratification in accordance with article 121, paragraph 5, of the Statute. Consequently, the Court could receive Security Council referrals in principle immediately after adoption, while proprio motu investigations and State referrals would depend on the necessary ratifications.

These changes, which seem to flow from ideas in the ABS draft that we discussed yesterday, will be explained to us by Zeid later this morning.
Later today, we are also to adopt the various documents that emerged from the 'stocktaking' exercise of last week. Yesterday, we were given three draft documents. The 'peace and justice' session has been summarized in summary by the chair. For the 'cooperation' session, there are two documents: a summary and a declaration. As for the other two sessions, we already have draft resolutions that were agreed to at the March meeting of the Assembly of States Parties on complementarity and on victims.

Kampala Diary 7/6/10

2010-06-08T07:44:00.002+03:00

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.

Monkeys

2010-06-08T07:35:00.000+03:00

Every day at the Conference, the Ugandan government provides us with a buffet lunch. While we were having lunch yesterday, a group of monkeys was spotted playing in the trees nearby. Here are some photos, including a video,

Kampala Diary 6/6/10

2010-06-07T06:26:00.000+03:00

I had a quiet day at the hotel, swimming in the pool in the morning and working in my room. There were no meetings to attend, although a couple of new documents were issued (see earlier posts) and there was a lot of scheming going on. Everyone asks you: ‘What do you think will happen?’ Some say: ‘I think the Americans are going to be more flexible.’ But I’m still waiting for signs of that. On Monday, we have a full day of meetings, and we’ll see if a pattern starts to emerge.

Sandra Schulberg, left, with Ben Ferencz, Andrew Clapham, and three Ugandan NGO activists at yesterday's screening of Nuremberg: Its :Lessons for Today.

In the afternoon, I attended a screening of ‘Nuremberg: Its :Lessons for Today’. This was a film prepared by the American government in the late 1940s about the Nuremberg trial. It was shown in Germany, but never released in the United States. Sandra Schulberg, who is the daughter of one of the producers of the original film, Stuart Schulberg, has revived the old film and prepared a modern version that will soon be available on DVD. She has organized several screenings of the film, in conjunction with the Review Conference. Sandra explains how the film was made and shown, and why the US authorities decided not to release it to the American public. One of the explanations is that there was opposition from some senior military figures who were unhappy because Nuremberg had convicted four general and admirals who were (they said), ‘only following orders’. The whole story is on her website.

On Friday, Sandra had scheduled a showing at a church in Kampala. But just before it was to begin, Ugandan police arrived and seized the film. The story is covered in yesterday's Sunday Vision newspaper. They came to see Sandra on Sunday morning to apologize. When they asked her if she would accept their apology, she said: ‘Only if you organize a showing of the film for the police.’ She hasn’t had an answer yet.
In the evening, the Ugandan government hosted an ‘African Gala Night’. A huge stage (like the ones at rock concerts) was erected, and there was music, dancing and lots of food and drink. I even managed to get a Guinness. The advance programme said there would be ‘remarks by the chief guest’, and there was speculation that President Museveni might come and speak. But in the end, there were no speeches.

Top left, the African Gala Night stage. Top right, Don Ferencz chatting with Michael Tate of the Australian delegation. Below, Harold Koh and Meg de Guzman.

Draft Report of the Working Group on the Crime of Aggression.

2010-06-06T17:46:00.002+03:00

A draft report of the Working Group on the crime of aggression is now available. Momentum is building here in Kampala. But we are waiting for the P-5 to blink.

Dapo Akende on Consent Principle in International Law

2010-06-06T12:22:00.000+03:00

Dapo Akande, of the University of Oxford, has prepared a paper on the 'consent principle' in international law as this relates to the aggression amendments to the Rome Statute. Basing himself on earlier precedent, such as the Monetary Gold opinion of the International Court of Justice, Dr Akande argues that the consent of the aggressor State as well as the victim State will be required, unless the Review Conference is prepared to depart from a well-established principle of international law.

New Paper on Aggression

2010-06-06T10:38:00.000+03:00

The Coordinator of the negotiations on the crime of aggression has just issued a new Conference Room Paper. This is an attempt to the focus discussion and gradually narrow the options in the search for consensus. The proposal is noteworthy in that it has eliminated some of the options concerning triggering (some are calling this 'jurisdictional filter') of the jurisdiction of the Court over the crime of aggression. Basically, what now remains is that there are two options:
1. The Security Council must make a determination of an act of aggression. Failing that, the Prosecutor may not proceed with an investigation (alternative 1)
2. If six months go by without the Security Council making a determination, the Prosecutor may proceed with an investigation (alternative 2).
Of note, also, is the appendix with its list of understandings, and particularly the last understanding which concerns the amendment procedure. It is noted that this understanding is 'only relevant in case the amendments are adopted in accordance with the amendment procedure set out in article 121, paragraph 5, of the Rome Statute'. In other words, by implication debate continues as to whether the applicable amendment procedure is article 121(4) or article 121(5).

Acceptance of the amendment on the crime of aggression

5. [Acceptance by the victim State not required where the aggressor State has accepted jurisdiction] 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 by a State Party that has accepted the amendment on aggression.

6. [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.

These two options reflect the issue of whether the aggressor State must also ratify the amendment in order for a case to proceed. Note that under the so-called 'negative understanding', the Court cannot exercise jurisdiction where aggression is committed by 'any State' that has not accepted the amendment. In other words, if the 'negative understanding' is adopted, the Court could not proceed in a situation where aggression was committed by a non-party State - such as the United States, Russia, Israel, India, Pakistan, and the list goes on.

Kampala Diary 5/6/10

2010-06-06T08:01:00.002+03:00

From left: Fannie Lafontaine, Noah Wiebord, myself, Meg de Guzman, Robert Petit, David Scheffer, Michael Scharf and Marieke De Hoon.

Today we went rafting on the Nile. There was a bit of chit-chat among the group about article 124 and aggression, but bascially we took the day off and enjoyed the thrill of white-water rafting on what is the longest and may be the greatest of the world's reviers. The photo shows some of our group, including Robert Petit, former Prosecutor of the Extraordinary Chambers of the Courts of Cambodia (centre, with the Canadiens t-shirt), Prof. Mike Scharf of Case Western Reserve in the organge shrit (who organized the whole thing), and David Scheffer, in the blue shorts, who led the US delegation in 1998 and is now a professor at Northwestern University in Chicago . Others in the group include Fannie Lafontaine, Meg de Guzman and Noah Weisbord. When the photo was taken, we were at the end of the trip, soaking wet, but exhilerated.
The white-water rafting is one of the hot tourist attractions in Uganda. It involves a day trip from Kampala, starting with a two-hour drive along the north shore of Lake Victoria until you get to the point where the Nile leaves the lake. Some describe this as the source of the Nile, but other rivers in Burundi and Rwanda, may actually be the place where it all starts. Be that as it may, there are fabulous rapids and waterfalls. We did several hard ones, known as 'grade 5', whatever that means.
The rapids all have names, like Big Brother, Sibling Rivalry, Novocaine and so on. There are about seven or eight people in a raft, with a guide, who is both competent and entertaining. You wear a helmet and life jacket. Over the day, you cover more than 30 km of river. The rapids punctuate rather long stretches of paddling, and often we would jump out of the boat and swim in the river. The final rapid was so dangerous that we actually got out of the raft and portaged for a bit.
The greatest excitement was indeed on the final rapid, when we got sucked into a big vortex, a wall of water came crashing over the raft, and we capsized. Some hung on to the raft, as we were told, but I wasn't able to. I followed instructions, putting my feet downstream and lifting them up in the air. It was actually very relaxing and I was thrilled. I'm a strong swimmer and was always confident that I would simply ride my way out of the rapid, without real concern because of the protective equipment. But some members of our team were more traumatized by this dramatic end to the day. In what seemed like minutes later, I was picked up downstream by one of the many kayaks that accompanied the rafts.
We beached the raft, then walked up a long trail to a bluff over the river, where cold bear and barbequed brochettes were waiting for us. That's what you see in the photo. It is is forbidden to take cameras and things like that on the river, but the organizers take photos for you which they will sell you. But it will be many weeks before we get them.

Kampala Diary 4/6/10

2010-06-05T22:28:00.000+03:00

With the ‘stocktaking’ exercise completed, we spent Friday looking in greater depth at the three items on the agenda of the Conference that may require amendment of the Rome Statute: prohibited weapons; article 124; and aggression. Here are some notes on the discussions.

Prohibited weapons

The Belgian proposal on prohibited weapons http://www.mediafire.com/?bjmtidlknzi, by which three new paragraphs are added to the provisions on war crimes in non-international armed conflict, was adopted by the Working Group this afternoon, together with the accompanying resolution (that I discussed in a post yesterday).
One paragraph remains in square paragraphs. It concerns the effects of article 121(5), which governs the amendment to article 8. Agreement on this paragraph is contingent upon discussion concerning the crime of aggression. Presumably, agreement will be reached on the article 121(5) issue by next Friday. Then, the square brackets may be removed from the resolution, or the paragraph in question will be deleted entirely, or it will be replaced with something else.
The Working Group adopted the article 8 report and amendment by consensus. Subject to the outstanding paragraph, this is a done deal. Adoption next Friday, at the conclusion of the Review Conference, is a foregone conclusion.
Following adoption by the Review Group, the Philippines took the floor to express its understanding that ‘in certain special situations there is a need for specialized ammunition’. It said such special situations might encompass hostage-taking, counter-terrorism and similar cases, and that such weapons might be used precisely in order to avoid collateral damage to civilians.
Article 124

I’ve discussed the issues concerning article 124 in an earlier post. The Working Group had a public discussion of the issue this afternoon. The coordinator noted that there were two main opinions, one to delete, the other to retain. She said that ‘very many states’ wanted to delete, while ‘a few number of states but with very strong states’ made up the group that wanted to retain. And she noted that the Assembly of States Parties in November 2009, had recommended the deletion of the provision.
Venezuela made a proposal to amend article 124, including a ‘sunset clause’ by which it would remain in force for a period of time and then expire. Mexico, the Netherlands and Argentina spoke in favour of the idea, prompting the coordinator to speak of an ‘emerging consensus’.
But then Japan spoke in favour of retention. Japan noted that the clause had prompted a small number of ratifications, but said that was still useful. Reatining the provision had not done any harm, said Japan. Japan insisted that the views of non-party States be given special attention on this matter, especially those from Asia, which is underrepresented. Japan noted that in the general debate on Monday Egypt had spoken on behalf of the Non-Aligned Movement and had supported retention of article 124. Other States took the floor in today’s session to support Japan, including Colombia, China, the Philippines, Laos and Malaysia.
Amnesty International took the floor to recall that it had described the clause as a ‘licence to kill’. It said that ‘retention of this impunity provision does cause harm to thousands of victims of war crimes’.
I’m not sure what Amnesty International is referring to. I’m not aware that French soldiers have committed war crimes in the 2002-2008 period, which was when the provision was in force for France. As for Colombia, where the argument that war crimes have been committed may be stronger, it is not clear why article 124 may have contributed to this. War crimes committed in Colombia would be punishable under Colombian law in any event. If they are not, then we might have a situation for the International Criminal Court. Although the Prosecutor periodically makes reference to investigations in Colombia, we have no evidence that acts have been perpetrated that will go unpunished by the Court because they can only be characterized as war crimes rather than as crimes against humanity.
It has been pointed out that Colombia’s implementing legislation for the Rome Statute does not include war crimes. That seems logical, given the fact that it invoked article 124. It might be argued that this has sheltered perpetrators who may have committed war crimes that are not also crimes against humanity. But the arguments works in the other direction too. If article 124 had not existed, Colombia might not have ratified the Rome Statute at all. And then there would have been no implementing legislation for the Rome Statute at all. Would that have been better?
I think the Japanese position makes sense, and I hope that they don’t compromise.
In any case, whatever amendment to article 124 they adopt, if any, it will be governed by article 121(4) and will require specific ratification by seven-eighths of the States Parties. This will take some time. Japan, and other states who favour the retention of article 124, may simply fail to ratify. That means the provision will remain in force for many years in any event. And if they adopt an amendment with a sunset clause of, say, ten years, then it could be a couple of decades before the amendment enters into force, if it ever enters into force.
So I suspect that article 124 will be with us for many years in any case, and that it will be available to newly ratifying States.
There is one final issue here, raised by a few of the delegations. It concerns the role of article 40(5) of the Vienna Convention on the Law of Treaties. Article 40 is entitled ‘Amendment of multilateral treaties’. It says:

5. Any State which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a different intention by that State:
(a) be considered as a party to the treaty as amended; and
(b) be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement.

Perhaps there will be some reference to this provision in the accompanying resolution.

Aggression

Much of the time today was devoted to the crime of aggression. There is a new proposal, from Brazil, Switzerland and Argentina. It is called the ‘two-stage approach’. The first stage consists of the ratification of the aggression amendment by a number of States, still to be specified. Once that threshold is reached, the definition of aggression enters into force, but only the Security Council is empowered to trigger the jurisdiction. In effect, then, this is simply allowing the Security Council to do via the International Criminal Court what it is already able to do through an ad hoc tribunal, if it chooses to create one. The second stage begins once 7/8ths of the States Parties have ratified the aggression amendment. Then, the two other modalities of triggering that are already in the Statute – that is, State Party referral and proprio motu referral by the Prosecutor – become operational. This is a great proposal, because it will result in a Court that can exercise jurisdiction without any control by the Security Council (except what already exists, in article 16).

The discussions today indicated that there is no movement so far by the permanent members of the Security Council. France made a rather blunt declaration to the effect that anything that did not involve Security Council authorization was incompatible with the Charter. The Russians said about the same thing, but without the Gallic elegance. Harold Koh, the legal advisor to the US Department of State, provided a very extensive list of arguments in favour of deferring any discussion of aggression. He spoke about lack of consensus, and the need for clarity in the definition, and so on, and listed many other difficulties. Harold and the other key US spokesman, Steve Rapp, are very effective. They are well-liked and articulate, and they speak with greater subtlety than the French and the Russians. I couldn’t find an electronic version of the US speech, but I’ll keep looking and try to post it.
With the exception of the Americans, the definition of aggression that was finalized in the proposal from Liechtenstein, seems generally acceptable.
There is a big debate about what may be called ‘double consent’. Some States favour an approach whereby jurisdiction over aggression is treated in a manner similar to that of the International Court of Justice. In other words, both States, the applicant and the respondent, have to consent to jurisdiction. This means that for the Court to exercise jurisdiction over the crime of aggression, it will not be enough for the State that is the victim of aggression to have consented to the jurisdiction of the Court. In addition, the consent of the aggressor will be necessary. States that feel threatened by aggression will have an incentive to ratify the Statute, because it will protect them. But this will be much weaker if the consent of those who threaten them is also a prerequisite. I don’t see much future for this amendment.
Several States have spoken about an ‘historic moment’ or an ‘historic opportunity’, With a bit of levity, South Africa said we are in the final countdown for aggression… and the final countdown for the world cup.
Both Germany and Japan spoke eloquently in favour of including the crime of aggression, noting the fact that their nationals had already been prosecuted for it by international tribunals. The German delegate said that the German people would not understand if we left Kampala without an outcome on aggression.

Some new materials on the Review Conference

2010-06-05T22:20:00.000+03:00

Max du Plessis, a South African academic, presented a paper at the Conference on the contribution of African civil society organizations to supporting the Court. See it here.
And Fannie Lafontaine, a Canadian academic who has been attending the Confererence, published an article in the leading québécois newspaper Le Devoir.

Kampala Diary 3/6/10

2010-06-04T08:03:00.011+03:00

The panel at the stocktaking session on complementarity.

Today there were the final two panels of the stocktaking part of the conference.
The first, in the morning, was on complementarity. There were six panelists, including the High Commissioner for Human Rights, Navi Pillay, the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, judges from the Democratic Republic of the Congo and Uganda, and senior officials from the European Union and the United Nations Development Programme. I had the honour of chairing the proceedings, which were organized by what are called the ‘focal points’, South Africa and Denmark. After about an hour of remarks from the panelists, the floor was opened, and there was a huge list of speakers. We finally had to cut it short, leaving about 15 angry delegations. Nothing could be done, I’m afraid, because of time constraints. They should have blamed the Spanish delegate, who was first to speak, and who consumed about 10 minutes, when I had made it clear nobody should speak for more than 3 minutes.
At the end, Judge Song and Prosecutor Moreno-Ocampo made some comments.
As the discussion showed, the understanding of ‘complementarity’ continues to evolve. In the preparations for the session, there were references to ‘positive complementarity’, an idea that first emerged in the Office of the Prosecutor. There seem to be different understandings of what the term is supposed to mean, although a lot of the discussion seems to be hairsplitting semantics. There is general agreement – and the session confirmed this – that we need to insist upon States themselves having the primary responsibility for prosecuting atrocity crimes. That was why the national judges were there. And in developing countries, various forms of assistance are important, which is why the representatives of the international agencies were there.
The explanations from the two national judges were interesting because they conveyed the dynamism of justice systems in both Uganda and the DRC that seems to have been encouraged by the International Criminal Court. Uganda has its own War Crimes Division in the High Court, something that results from the peace negotiations. Judge Akiiza said that they were prosecuting high-ranking officials in the Lord’s Resistance Army. When I asked him why they couldn’t prosecute the highest ranking officials, he said that they could. But, he said, we have a friendly relationship with the International Criminal Court and they have decided to go after the top three (the other two persons charged by the Court are now dead). There doesn’t seem to be a good explanation as to why the Ugandan courts can prosecute number 4 in the Lord’s Resistance Army but not number 3.
What positive complementarity seems to lead to is a rather benign division of labour between the International Criminal Court and the national justice systems. It is said that the International Criminal Court takes ‘those who bear the greatest responsibility’, leaving the others for national justice systems. That logic works for the international tribunal, but it doesn’t seem to operate in the same way at the national level. If the national courts are good enough to try a colonel, why aren’t they good enough to try a general?
Of course, that is a bit what happens at the ad hoc tribunals. High Commissioner Pillay and Prosecutor Bramertz spoke to that part of the issue. I was particularly taken by Navi Pillay’s remarks about the importance that respect be shown for the national justice systems. She alluded to the transfer decisions by the International Criminal Tribunal for Rwanda, which have refused to send cases to the national courts of Rwanda on the grounds that the justice system is inadequate. As I understood her remarks, she thinks the judges of the International Criminal Tribunal are being too harsh with respect to the Rwandan justice system. Those are compelling words coming not only from someone who is now High Commissioner for Human Rights but also the former President of the International Criminal Tribunal for Rwanda.
The afternoon session was on cooperation, and was presided by Philippe Kirsch, the former President of the International Criminal Court. A highlight of that session was a speech by Patricia O’Brien, the most senior lawyer in the United Nations, about the debacle concerning disclosure of evidence in the Lubanga case at the International Criminal Court. Hopefully we’ll get a copy of her written remarks, which make a great addition to what we know about those tense days in 2008 when it looked as if the Lubanga trial might never take place.

Ambassador Mary Whelen and Ambassador Kevin Kelly of Ireland, Judge Philippe Kirsch and myself at the launch.

James Kingston introducing the book.

In the evening, Ireland hosted a reception to launch my new book, the Commentary on the Rome Statute. The main speaker was Philippe Kirsch. James Kingston, legal advisor to the Department of Foreign Affairs of Ireland also spoke. Ambassador Kevin Kelly of Ireland presided. We had a huge crowd, somewhere over 100 people, and many copies of the book were sold. One of the great pleasures for an author is signing books, and I had many opportunities to do this. The representative of Oxford University Press must have been disappointed, because he sold out of copies, and probably could have sold many more. Here is the ordering information. It was a fine social event, with good food and wine. There were many prominent personalities in attendance, including the President of the entire conference, Christian Weneweser, Michael Bothe and Flavia Lattanzia of the International Fact Finding Commission, Bill Pace of the Coalition for the International Criminal Court, Yves Sandoz who is vice-president of the International Committee of the Red Cross, Ben Ferencz, Robert Petit (former prosecutor at the Extraordinary Chambers in Cambodia), Ron Slye of the Kenyan Truth and Reconciliation Commission, ambassadors and senior diplomats from many countries, Richard Dicker of Human Rights Watch, Chile Eboe-Osuji and Katherine Liao of the Office of the High Commissioner for Human Rights, and many friends and colleagues from the academic community, including Roger Clark, Andrew Clapham, Mike Scharf, Wang Xiumei, Ben Van Schaak, Claus Kress, Ken Gallant, Raul Pangalangan, and many old friends and colleagues from Canada, like John Currie, Joanna Harrington, Darryl Robinson and Valerie Oosterveld. My doctoral students were also out in force - I have had to revise my count: there are six of them here. My assistant, Elaine Jepsen, helped me in many ways, including taking pictures with my new iphone, and I am posting the best of them here. Special thanks to Claire McCarthy and Justine Katebalirwe of the Irish Embassy, to Gus of Oxford in Kampala, and to Elaine. And to John Louth and Jenifer Payne of Oxford University Press for making it all possible. Finally, to Renan Velacsis, of the Secretariat of the Assembly of States Parties, for encouraging me to do this.

Top left: signing the book. Top right: discussing the amendments to article 8 with the Bulgarian delegation.

Bottom left: my great friend Roger Clark. Bottom right: Ron Slye and Youk Chang.

Later, I had dinner with Andrew Clapham, Ben and Don Ferencz, Nick Strapatsas and Stefan Barriga. Stefan is at the heart of the aggression negotiations. By Friday, everything else at the review conference with be out of the way, and we will really only have one issue remaining: aggression. Everybody is anxious, and we are expecting much excitement in the days to come. Stefan left us to go to a meeting, and after a minute or two his chair was filled by Bianca Jagger. We all lamented the fact that the NGO guns on the aggression issue (sorry for the metaphor) seem silent, and we spent some time strategizing as to how to change this lamentable situation.

Part of the crowd at the book launch.

War crimes amendment negotiations

2010-06-04T07:32:00.002+03:00

Today (Friday) we have a session of the Working Group devoted to the war crimes amendment. To recall, it proposes to add three paragraphs concerning prohibited weapons to the non-international armed conflict part of article 8 (para. 8(2)(e)). The prohibition of these weapons is already covered with respect to international armed conflict (Rome Statute, art. 8(2)(b)(xvii), (xviii) and (xix)).
The draft is now accompanied by a resolution (‘Draft resolution amending article 8 of the Rome Statute’, RC/WGOA/1/Rev.1) with several paragraphs, some of which are not without interest.

The second paragraph of the preamble of the resolution is in square brackets, indicating that it has yet to be accepted by consensus. It states:

[Noting article 121, paragraph 5, of the Statute which states that any amendments to articles 5, 6, 7 and 8 of the 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 and that in respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party’s nationals or on its territory, and confirming its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted the amendment applies also in respect of States that are not parties to the Statute.]

This is followed by a footnote: ‘The text is subject to further consideration, namely with regard to the outcome of the discussion on the other amendments.’

The issue here is the strange consequence of article 121(5) by which a State Party appears to be able to shelter its own nationals from an amendment by its failure to ratify the amendment, even when the crime takes place on the territory of a State that has accepted the amendment. According to the ‘understanding’ in the paragraph, the nationals of a non-party State can never be prosecuted for a crime comprised in an amendment to articles 5, 6, 7 and 8. Surely this is not a reasonable outcome? It makes no sense that nationals of non-party States are liable for prosecution for crimes currently included in the Rome Statute but not with respect to amendments. But this seems to be what article 121(5) says, and the ‘understanding’ confirms it.

The preamble of the draft resolution also contains some language respecting the issue of dum-dum bullets (i.e., those that ‘expand or flatten easily in the human body’). The seventh preambular paragraph of the draft refers to the Elements of Crimes, and their provisions governing prohibited weapons, saying they ‘can also help in their interpretation and application in armed conflict not of an international character’, adding that they confirm ‘the exclusion from the Court’s jurisdiction of law enforcement situations’. This reflects a concern to exclude from the scope of the Rome Statute the use of dum-dum bullets by law enforcement authorities, which takes place, apparently even in Geneva! Of course, the Statute already establishes that the provisions governing war crimes in non-international armed conflict do not apply does not apply to ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature’.

Preambular paragraph eight of the draft refers to the prohibition of poison or poisoned weapons, and asphyxiating, poisonous or other gases, noting that these are ‘serious violations of the laws and customs applicable in armed conflict not of an international character, as reflected in customary international law’. Similar language is employed in the ninth preambular paragraph concerning dum-dum bullets. It is an intriguing reference to the concept of customary international law. There are no references to customary international law in the Rome Statute itself or the elements of Crimes.

Finally, the ninth preambular paragraph notes that the crime of using dum-dum bullets is only committed ‘if the perpetrator employs the bullets to uselessly aggravate suffering or the wounding effect upon the target of such bullets…’ The words ‘uselessly aggravate suffering or the wounding effect’ are already included in the Elements of Crimes for the comparable offence under the international armed conflict provisions. The relevant text of the Elements of Crimes for bullets reads: ‘The perpetrator was aware that the nature of the bullets was such that their employment would uselessly aggravate suffering or the wounding effect.’

Two things are new, however. First, the mental element seems to be significantly narrowed by requiring that the perpetrator ‘employ the bullets to…’ rather than simply be ‘aware that the nature of the bullets was such that…’. Perhaps this is saying the same thing. But in legal texts, if you want to say the same thing, it is better to simply repeat the same words. The other change or addition is the reference to ‘upon the target of such bullets’ following the words ‘uselessly aggravate suffering or the wounding effect’. I don’t understand this one. If you intend to ‘uselessly aggravate suffering or the wounding effect’, it is presumably with respect to ‘the target’. It does not seem theoretically possible to intend to cause harm to something that is not ‘the target’. That’s the whole point of the idea of ‘the target’. These words ‘upon the target of such bullets’ add nothing and may – who knows? – create confusion. I’d be inclined to leave them out.

It may not matter very much, of course. As I have already said, there have never been any prosecutions for use of prohibited weapons, and there may never be any, at least as far as dum-dum bullets are concerned. Some will say, too, that this is only a resolution. But years from now, a judge may look at these materials and scratch her or his head about what they mean. Perhaps we’ll get some clarity in the days that follow. But I can’t provide any, at least right now.

Kampala Diary 2/6/10

2010-06-03T07:06:00.000+03:00

The Review Conference changed gears today. After two days of ‘general debate’ on Monday and Tuesday, we moved into the ‘stocktaking’ phase.

The concept of stocktaking only emerged about a year or so ago. It was described as ‘stocktaking of international criminal justice … in order to enhance the work of the Court’. It is not, to be sure, a stocktaking about the performance of the Court itself. At last November’s meeting of the Assembly of States Parties, agreement was reached that there would be four themes: The impact of the Rome Statute system on victims and affected communities; Peace and justice; Complementarity; Cooperation. These four themes are being discussed in half-day sessions over Wednesday and Thursday.

Today, the morning session was devoted to ‘The impact of the Rome Statute system on victims and affected communities’ and the afternoon to ‘Peace and justice’. There were several panelists, who exchanged views during a discussion chaired by Eric Stover, of the University of California at Berkeley. Participants included David Tolbert, of the International Centre for Transitional Justice, and Binta Mansaray, who is the Registrar of the Special Court for Sierra Leone. After about an hour, the debate was opened up for questions and comments from the floor, first from States parties, and then from non-party States and NGOs. The session was informative and interesting, but not particularly controversial. A resolution on the subject has already been agreed to – it was negotiated in March, prior to the Conference – and it will presumably be adopted during the final session at the end of next week.

The afternoon session, on ‘peace and justice’, was more stimulating. At the Rome Conference, this was an issue on which views were sharply divided, and while the debate this afternoon was relatively serene, the divisions clearly remain. Of course, everybody is in favour of both peace and justice. But some like to say that justice must take precedence, while others say that peace comes first. Still others talk of the two going hand in hand, and that is the view I prefer. At its sharpest, this is the quarrel about whether peacemakers may contemplate conceding an amnesty to combatants in return for an end to the armed conflict.

The able chair of the session, Ken Roth of Human Rights Watch, invited each of the panelists to make a short comment, and then he questioned them about different aspects of their views. Just as the panel in the morning session, on victims, had been rather feminine, the afternoon session, on peace and justice, was a very masculine affair. I was particularly impressed by Barney Afako, who has been involved in the peace negotiations concerning the conflict in Northern Uganda. You can see Barney in the photo. As this is the first ‘situation’ to come before the Court, and the one where its work has been stymied by the inability to execute the arrest warrants that were issued in 2005, it is a subject of great interest.

The five arrest warrants of 2005 were directed against the leaders of the Lord’s Resistance Army. After their issuance, this rebel group sued for peace. An agreement was negotiated that included clauses intended to neutralize the International Criminal Court, although the leader of the Lord’s Resistance Army never signed the agreement. They have now left northern Uganda, where peace has returned. The contribution of the Court to this process needs to understood.

Barney Afako was asked whether the Lord’s Resistance Army had come to the negotiating table because of the arrest warrants from the International Criminal Court. He answered that the arrest warrants had certainly ‘concentrated the minds’ of the rebel leaders. He described a conversation with Vincent Otti, who was at the time a Lord’s Resistance Army leader and one of the five persons charged by the Court. Otti said: ‘If you don’t do something about the indictments there isn’t going to be a deal.’

But ultimately, there was no deal. Afako suggested it was the fact that the negotiated peace agreement could not lift the arrest warrants that prevented a signature, with the result that the conflict was not brought to an end. ‘We have taken that choice, as the international community, and we have to live with those consequences,’ he said. It that is indeed the case, it is profoundly troubling. That would mean the International Criminal Court, because of its refusal to countenance any compromise in the interests of peace, would have contributed to the prolonging of a conflict.

Another panelist, James Lemoyne, who is an experienced peace negotiator, spoke of the ‘terrible choice’ between peace and justice. Recognizing the danger, he said that ‘the International Criminal Court will be harmed if indictments appear to prolong wars rather than bring them to an end’.

In the debate from the floor, I perceived a clear division in the emphasis that states put upon the components of this problem. The Europeans were clear and uncompromising about the importance of justice. There was a particularly shrill intervention from the European Union – actually, from a member of the European Parliament – who charged that those who were questioning the wisdom of prosecuting President Al-Bashir of Sudan were doing so because they themselves feared prosecution by the Court.

The African Union representative responded by providing examples. ‘If you ask people in Mozambique, they would say peace was more important’, he said. As a general proposition, ‘you cannot put one ahead of the other’. By and large, the African states stressed the importance of peace, or a flexible approach. They said they wanted peace and justice, and that one should not take priority over the other.

Perhaps the discrepancies between the European and African views are understandable. Terrible devastation has been wrought by war on the African continent in recent decades. Most European states have had no experience with war for more than two generations.

There was talk of what was called ‘sequencing’, by which peace comes first, followed later by prosecution. This is an interesting idea, but it conceals a controversy, and does not directly address the real issue – which is the one that the Ugandan negotiators confronted – of being able to use the promise of impunity in exchange for an agreement to lay down arms.

Stefan Bariga of Liechtenstein spoke of a ‘paradigm shift’ resulting from the exclusion of amnesties. He said this must actually be helpful to negotiators, because they can no longer promise amnesties. But experienced peace negotiator James LeMoyne said that it might not always be helpful to a negotiator. Some speakers, including those from the NGOs, said there could be no amnesty for crimes contained in the Rome Statute. The so-called ‘Template’ for the stocktaking discussion, which is an annex to the report of the March 2010 session, says that ‘amnesties, once viewed as a necessary price for peace, are no longer considered acceptable for the most serious international crimes’.

In my view, the view that amnesties are always impermissible for crimes in the Rome Statute swings the pendulum too far. It is an extreme view that deprives peace processes of the flexibility that they need to end armed conflict. The evidence that amnesty may either bring peace, or prevent war, is simply too strong to be dismissed. Nobody today seems to want to talk about the South African transitional process. To my mind, it is one of the finer developments in recent decades. The end of apartheid, without real bloodshed and civil war, stands as one of the great events of my lifetime. It was built upon an amnesty. I am not hear referring to the amnesties that were granted as a result of the Truth and Reconciliation Commission, but rather the broader amnesty that was agreed by Mandela and de Klerk with respect to the crime against humanity of apartheid. There have been no prosecutions in South Africa, or for that matter anywhere else, for perpetrators of apartheid. No country with universal jurisdiction has suggested it wants to upset the South African transition process. Judge Garzon has not tried to issue indictments against racist South Africans for the crime. Indeed, there seems to be broad consensus that Nelson Mandela not only knew what he was doing, but that he did the right thing. Yet today, far from taking this as a model that might be repeated in the future, there are those who want to make sure that this cannot happen again.

Nor does the claim that we must be uncompromising in insisting upon prosecution seem consistent with policies of the international community today. If we were truly insistent upon justice without amnesty, the United Nations would have insisted upon prosecuting more than a dozen individuals at the Special Court for Sierra Leone. At the United Nations, they will answer that the issue is one of resources. But if the imperative of justice that can be limited by available resources, surely it can also be subject to the requirements of peace.

Isn’t it enough to insist upon prosecution, and other forms of accountability, such as truth and reconciliation commissions, but realizing that sometimes these priorities must be balanced with the exigencies of a peace process? It is often said that victims want justice. But, and some of the African delegations said it yesterday, victims also want peace. The goal should be to deliver as much of both, but without sacrificing one to the other. It is something that eludes a legal formula. It eluded it at Rome, and we are no closer today to agreement on a text that can resolve the peace and justice conundrum.

Apparently, there will be no resolution or ‘outcome document’ from the session on peace and justice. That makes sense. It would probably be more difficult than trying to resolve the issue of the crime of aggression.

The day concluded with what are called ‘side events’. The European Union presented a very useful booklet of about 60 pages entitled ‘The European Union and the International Criminal Court’. The International Committee of the Red Cross launched its manual on ‘The Domestic Implementation of International Humanitarian Law’. This is a very thorough set of guidelines and legislative templates to be used by national lawmakers. The minister of justice of Burkina Faso did the honours. He is shown here speaking at the event, together with Knut Döhrmann and Yves Sandoz of the International Committee of the Red Cross.

* * * *

The stocktaking exercise is not really concerned with the performance of the Court itself. But one document making the rounds, the ‘Statement by the Chairperson of the Committee on Budget and Finance, Mr Santiago Wins’, raises some interesting issues.

The statement says that with an increasing case load, the Court may require more judges. Following the example from the temporary tribunals, it might consider the use of ad litem judges, who are appointed on a case by case basis. This would require an amendment to the Statute, which only allows for an increase in the number of permanent judges.

The statement also considered whether ‘all the bodies that are being set up are really necessary and whether the structures of the Court should not perhaps be adjusted to the reality of its situation’. It expressed concern about ‘the risk of duplication of roles and failure to achieve the desired results’.

On the participation of victims in proceedings before the Court, the statement says: ‘While acknowledging the importance for the international community of this step forward in international criminal justice, and being aware of the sensitivity of the issue, the Committee has found it necessary to highlight the potential cost driver that legal aid to victims has become, given the potential for the eligibility of large numbers of persons to be declared victims by Chambers.’

Kampala Diary 1/6/10

2010-06-01T22:55:00.001+03:00

I began the day having breakfast with Ben Ferencz, the former Nuremberg prosecutor who has been one of the most insistent and compelling voices for the full incorporation of the crime of aggression in the Statute. Ben’s son Don was also with us. Prince Zaid came over and joined us for a chat, and I snapped a photo of Ben and Zaid.

The general sense is that yesterday went rather well. As I mentioned on my entry for yesterday, no state came out and argued against completing the work on aggression. Well, that changed today. This is the second and final day of what is called the ‘general debate’. It is the occasion for States to set out their positions on the various issues confronting the Review Conference in short speeches to the plenary session. At the end of the day, there was a one-hour session on the crime of aggression. Prince Zaid, who presides over the negotiations on aggression, presented the two documents he has drafted, and which are described in an earlier post on this blog. He said that over the next couple of days he will hold ‘informal consultations’ with delegations. He told delegates to ‘brace yourself’ for intense negotiations early next week, noting that a period of work by the drafting committee later in the week will be required. It is beginning to look again like the Rome Conference, with a day or two of suspense at the end, and then a final presentation of a document gambling on the fact that there will be consensus.

The first to stake out its position was France. According to the French statement, ‘Inseparable from the United Nations system, the Court must base itself upon the competent organs and, in particular, the Security Council which has primary responsibility for the maintenance of international peace and security. It alone has the authority to determine the existence of an act of aggression. This position results both from the Charter of the United Nations and the Rome Statute.’
Late in the afternoon, Ambassador Steve Rapp of the United States went to the podium. He referred to developments in Northern Uganda, noting that last week President Obama had signed into law an act aimed at disarming the Lord’s Resistance Army and to help Northern Uganda recover. Here’s what he said on aggression:

…as my government has noted before, we have deep respect for the work on this issue undertaken by the Special Working Group on the Crime of Aggression. At the same time, in recent months we have repeatedly been reminded that many issues concerning the crime of aggression remain to be resolved, including core questions that the Special Working Group identified when it concluded its work last year. These issues are not of marginal significance, they are elemental: What conditions must be satisfied before the ICC can exercise jurisdiction over the crime of aggression, for example? How will any aggression amendments that might be adopted enter into force?
One year after the Special Working Group finished its work, the Eighth Session of the Assembly of States Parties ended without bringing its members close to resolving those questions. Instead, the session ended on a note that highlighted wide divisions, and this is not surprising.

Steve Rapp went on to state that ‘key aspects of the definition are still uncertain. He referred to the use of force ‘undertaken to end the very crimes the ICC is now charged with prosecuting’. He said there remained divergent interpretations, that some have said could be resolved by the Court itself. ‘Yet a fundamental principle of legality is that individuals must know whether conduct crosses the line into that which is forbidden before they act…’
He referred to a letter signed by ‘leading civil society organizations’ calling upon States parties to postpone the issue of aggression. Steve Rapp concluded by saying tat ‘moving forward now on the crime of aggression without genuine consensus could undermine the Court’.
That is an idea that has come from other delegations too. Canada, for example, insisted upon consensus if provisions on aggression were to be adopted. It is hard to see that this is possible. Although the Special Working Groups has come up with a range of options, reflecting the willingness of many States to explore a range of alternatives, the permanent members of the Security Council have given no indication that they are prepared to compromise one iota. So the battle lines are being drawn here. On the other amendment issues there seems to be no controversy at all.
The day continued with brief presentations on the other amendment issues, namely the future of article 124 (which allows a State to opt out of jurisdiction over war crimes) and amendments to article 8 so as to criminalize the use of certain weapons in non-international armed conflict, given that they are already prohibited in international armed conflict.

During today’s session, there was a special ceremony at which States presented their pledges to the Court. There were 112 such pledges, from 37 States and international organizations, including some non-party States. One of them was the United States. The pledges concern such issues as contributions to the Trust Fund for Victims, sentencing agreements with the Court, ratification of the immunities agreement, and the relocation of witnesses.

Gaza

2010-06-01T15:33:00.001+03:00

The recent attacks on a humanitarian aid flotilla heading for Gaza have prompted NGOs at the Kamapal Review Conference ot issue a statement. The statement is still open for signature by NGOs, and I will post a full list once it is finalized.
Earlier today, on my blog 'PhD Studies in Human Rights' I posted a note on the possibility of the International Criminal Court exercising jurisdiction over the acts of Israeli forces.
The Palestinian Centre for Human Rights and the Fédération internationale des droits de l'homme are hosting an event at the Review Conference on Thursday from 12:00-13:00 in the Royal Palm room (opposite the main hall). The event will be a debate around Palestine’s declaration pursuant to article 12(3) of the Rome Statute, and may also include a screening of segments of ‘Gazastrophe’, a documentary on Operation Cast Lead.
Thanks to Darragh Murray.

Speke Conference Centre

2010-05-31T17:42:00.000+03:00

The Review Conference is being held at the Speke Conference Centre, which is named after John Hanning Speke. Speke was a British officer who led expeditions to central Africa and who is credited with 'discovery' of Lake Victoria, which was then believed to be the source of the Nile River. It is an odd honour, reflective of a Eurocentric way of writing history, even here in Africa. After all, it seems beyond dispute that the first humans evolved not far from here, and that we are all their descendants. Presumably our African ancestors had discovered Lake Victoria a few years before Mr Speke.

Book Launch of Rome Statute Commentary

2010-05-31T17:36:00.000+03:00

Please attend the launch of my new book, ‘The International Criminal Court: A Commentary on the Rome Statute’, on Thursday at 1830 in the Commonwealth Banquet Hall here at the Conference. The invitation is made by the Head of the Irish Delegation to the ICC Review Conference, Mr. James Kingston, and the Ambassador of Ireland to Uganda, Mr. Kevin Kelly. Brief remarks will be delivered by Philippe Kirsch, who was the first President of the International Criminal Court and who is currently an ad hoc judge at the International Court of Justice.

Kampala Diary 31/5/10

2010-05-31T17:20:00.000+03:00

I arrived in Kampala last night on the flight from Amsterdam. It was full of conference delegates, and a lot of schmoozing went on during the trip. Many of the Americans on the flight were exhausted, as they had flown overnight. I left Dublin early in the morning, on a 6 AM flight. So I only had to wake up at 430. Ugh!

Upon arrival at Entebbe Airport, we were taken to the conference site, which is a huge hotel complex on the shores of Lake Victoria about 10 km or so from the centre of Kampala. With a great 50m pool!

We arrived too late for a couple of events that took place yesterday, and about which I only have second hand knowledge. There was a football game in support of victims. Among the players: UN Secretary-General Ban Ki-Moon, President Museveni of Uganda, Prosecutor Luis Moreno-Ocampo and Professor David Crane, who is former prosecutor of the Special Court for Sierra Leone.
In the evening, there was a dinner which featured Ben Ferencz, the legendary prosecutor at the Nuremberg Einsatzgruppen trial. I’m told he was at his most eloquent and persuasive about fully including the crime of aggression within the Rome Statute. Secretary-General Ban Ki-Moon gave a charming talk in which he reminisced about his youth. Apparently, he indicated his support for including the crime of aggression.

The Conference itself began this morning at 10 AM. It is a small room, as you can see from the photo, and not everyone could fit. Many had to watch the proceedings on video, and there were annoying problems with the sound feed disappearing from time to time. The morning session featured speeches by the various dignitaries, including Ban Ki-Moon, Ugandan President Museveni, ICC President Sang-hyun Song, Prosecutor Moreno-Ocampo, and former Secretary-General Kofi Annan. President Song announced that tomorrow he will sign three agreements with States on the enforcement of sentences.

Ban Ki-Moon spoke about the selectivity of the Court, and the charge that it is overly focused on Africa. Others, including Kofi Annan, picked up the same theme. But the speakers sounded on the defensive, as if they are not even themselves convinced that they have an adequate answer. The speeches reminded me of the famous line from Shakespeare’s Hamlet: ‘The lady doth protest too much, methinks.’

It is true, of course, that three of the five situations before the Court (Uganda, Democratic Republic of the Congo, Central African Republic) are the result of ‘self-referrals’, and the fourth situation, Kenya, might also have had the same fate had the Prosecutor not decided to exercise his proprio motu authority under article 15. Still, everybody would like to see the Court being fully operational elsewhere in the world, where there are also serious problems deserving its attention.

President Museveni livened things up a bit when he seemed to throw away his prepared text in favour of a rather rambling discourse. He said he had been fighting impunity for the past 45 years, and then insisted upon the distinction between just and unjust wars. It was his own folksy way, it seems, of supporting the inclusion of aggression. He finished with a reference, in French, to ‘immunité provisoire’. Nobody seems to know exactly what he was talking about.

The afternoon session consisted of speeches by delegations about their positions. It isn’t over – I’m still listening to the talks in the conference hall as I write this entry, and prepare to post it. Right now, the South African Ambassador is speaking. He has referred to the loss of South African lives in the first world war, and clearly favours including the crime of aggression.

Several delegations have supported fully including the crime of aggression in the Statute. I have yet to hear anyone oppose it. And yet, the opponents are out there, surely. They seem to be lurking below the radar. Perhaps nobody wants to be the first one to come out and say what I am sure that many think.

The Netherlands said the Rome Conference was an ‘historic opportunity’ and that ‘no stone should be left unturned’ in order to find a solution. With ‘necessary political will and courage’ we can succeed. The representative of Kenya referred to the debate in the Assembly of States Parties session in March, and said ‘an overwhelming number of states’ were willing to adopt provisions based upon combinations 3 or 4, which basically exclude the role of the Security Council. I heard those words (‘an overwhelming number of states’) a lot at the Rome Conference, and if this were all it takes, some of the more obnoxious provisions in the Statute would not be there.

Chatting with knowledgeable insiders in the corridors, on the plane and at the airport, I will add a few impressions (but without naming sources). It seems that there is a minimum position emerging, by which it could be acceptable to adopt a definition of aggression. Other issues would also be resolved, but with the exception of the big issue – indeed it is the only real issue – of how the jurisdiction is triggered. That would mean, of course, that the Court would still not be able to exercise jurisdiction over the crime. But its advocates say this would be ‘progress’, and that it would mean certain aspects of the issue would be resolved even if the entire problem remained unsolved.

I will call this the ‘Zeno’s paradox solution’. According to the paradox, it is impossible to cross a room, because first one must cross half the room, and than half of the remaining half, and then half of the remaining quarter, and so on. There always remains a bit more ground to be covered. Far from representing progress, my impression is that the Zeno’s paradox solution is a way to put a brave face on a defeat.

But it is early days yet, and the debate will continue to evolve in the days to come. We are in a formal part of the Conference. The real negotiating is yet to come. I have it on good authority that everything will not be wrapped up until the final session, eleven days hence.

There are many academics attending, and some students too. We currently have three doctoral candidates from the Irish Centre for Human Rights attending the conference, Nicolaos Strapatsas (who will defend his thesis later this year on the crime of aggression), Fannie Lafontaine (who is also a professor at Laval University, in Quebec City), and Rosette Muzigo-Morrison (of the International Criminal Tribunal for Rwanda). Meg de Guzman, a professor at Temple University in Philadelphia who is writing a thesis on gravity, arrives tomorrow. That makes four, and I am sure it is the largest delegation of doctoral students from any university.

Nidal Jurdi on Complementarity

2010-05-31T15:56:00.000+03:00

Nidal Jurdi has just published an article entitled 'Some Lessons on Complementarity for the International Criminal Court Review Conference' in the South African Yearbook of International Law. According to the author, it sheds light on shortages and missed opportunities in the interpretation and application of complementarity, as a mechanism to encourage national systems to prosecute international crimes, in the last seven years. The article concludes with a number of recommendations for the Review Conference.

Amnesty International Annual Report Addresses Human Rights Issues in Uganda

2010-05-29T10:01:00.000+03:00

Amnesty International issued its annual report a few days ago. The introductory summary to the entry on Uganda reads as follows:

Law enforcement officials were not held to account for human rights violations including unlawful killings, torture and other ill-treatment. The government attacked freedom of expression and press freedom. Despite a high prevalence of gender based violence, there was little progress in bringing perpetrators to justice and implementing long promised legislative reforms. Lesbian, gay, bisexual and transgender (LGBT) people continued to face discrimination and other human rights violations, and a draft law threatened to further entrench discrimination against them. Death sentences were passed; there were no executions.

In the discussion of Uganda and the International Criminal Court, the report notes that President Yoveri Museveni stated in July and October2009 that Sudanese President Omar Hassan Ahmed Al Bashir, against whom the ICC issued an arrest warrant in March 2009, could visit Uganda. Sudan can of course attend the Review Conference with observer status, on the same basis as States like the United States, but it is not expected the President Al Bashir will attend in person.
According to the recent quinquennial report of the United Nations on the status of capital punishment in the world, Uganda has not actually conducted an execution since 2006.

Special issue of Revue internationale de droit pénal on the Review Conference

2010-05-28T10:43:00.000+03:00

The Association internationale de droit pénal has published a special issue of the Revue internationale de droit pénal on the Review Conference, which is available electronically.
The contents include:
José Luis de la Cuesta and Reynald Ottenhof , 'The Association Internationale de Droit Pénal and the Establishment of the International Criminal Court'
Károly Bárd, The difficulties of writing the past through law - Historical trials revisited at the European Court of Human Rights'
Steven W. Becker, 'The objections of larger nations to the International Criminal Court'
Roger S. Clark, 'Effecting amendments to the Rome Statute that may be decided upon at the first Review Conference in 2010'
Matthew Heaphy, 'The United States and its interests in the 2010 Review Conference of the Rome Statute of the ICC'
Davorin Lapaš, 'Sanctioning non-state entities -- An international law approach'
Héctor Olásolo and Alejandro Kiss, 'The role of victims in criminal proceedings before the International Criminal Court'
Sergey Sayapin, The compatibility of the Rome Statute’s draft definition of the crime of aggression with national criminal justice systems'
Christine Schön, 'Telling their stories in their own words: Witness familiarisation at the International Criminal Court'
Sabine Swoboda, 'Confidentiality for the protection of national security interests'

Background Paper, Other Materials from Coalition for the International Criminal Court

2010-05-27T21:01:00.000+03:00

The Coalition for the International Criminal Court (CICC) has issued a very helpful 17-page Background Paper on the Review Conference. It has also produced a paper on Complementarity for the purpose of the stocktaking exercise.

New documents on the crime of aggression

2010-05-26T23:29:00.000+03:00

Two new documents on the crime of aggression have been issued by the Chair of the Working Group on the Crime of Aggression, Prince Zeid Ra’ad Zeid Al-Hussein of Jordan. The first, entitled Conference Room Paper on the Crime of Aggression, based on existing elements, is a summary of existing proposals. The second, entitled Non-Paper, proposes solutions to three specific issues that have arisen in the course of the negotiations. The first is the entry into force of the amendments concerning the crime of aggression. Prince Zaid proposes a provision that would declare the law concerning aggression to enter into force a specified number of years following the entry into force of the relevant amendments. The second provides for a review of the provisions on aggression after a specified number of years. Under article 123(2), a future Review Conference may be held at the request of a State party, but only if a majority of States parties concurs. The proposed amendment would constitute an exception to this general rule. The third addresses concerns that in amending the Statute to provide for prosecution of the crime of aggression, obligations would be imposed upon States to prosecute aggression in their domestic legislation. Although the Rome Statute encourages States to prosecute the crimes contained therein, it doesn't seem to impose an obligation, because the Prosecutor and judges seem happy enough when a State fails to prosecute. They have added a new concept to article 17 that they describe as 'inactivity'. There doesn't seem to be any reason why a State could not also be inactive with regard to the crime of aggression.
These proposals may help to resolve some of the details. There is nothing to indicate any progress on the big issue, however, which concerns the powers of the Security Council. A number of alternatives are now on the table. At one extreme, the Security Council has a monopoly on prosecution for aggression, which it must authorize before the Court can proceed. Five States - three of them non-parties to the Statute - seem to favour this option. At the other, the Court may proceed as it would with any other crime within its jurisdiction. Some options offer possibilities for compromise. But the permanent members of the Security Council have not shown any willingness to find some middle ground. Theoretically, the Review Conference could simply put the matter to a vote. It would seem unlikely that the views of the two permanent members of the Security Council who are parties to the Statute could prevail over those of the other 109 States parties. But that would mean a direct confrontation between the Court and the Security Council, that many will think it preferable to avoid.

Article 124: Much Ado About Nothing

2010-05-23T14:37:00.000+03:00

Backgrounder
The Rome Statute contemplates the convening of periodic Review Conferences, but there is a special place for the first Review Conference, to be held seven years after entry into force of the Statute. The purpose of the first Review Conference is to ‘consider any amendments to the Statute’, including but not limited to ‘the list of crimes contained in article 5’ (art. 123(1). But only one item, article 124, is required to be ‘reviewed’ by the Review Conference.
Article 124, labeled ‘Transitional Provision’, reads as follows:

Notwithstanding article 12 paragraph 1, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.

Article 12(1) declares: ‘A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.’
Article 124 was introduced in the final draft of the Statute at the Rome Conference in what was widely believed to be an attempt to resolve a difficulty of the French delegation, and thereby earn its support for the final package. France’s military was said to be uncomfortable with the war crimes provisions, for reasons that are hard to fathom. France invoked article 124 when it ratified the Statute, but later withdrew its declaration, thereby accepting jurisdiction over war crimes even before the seven year period had expired. Colombia, too, invoked the provisions of article 124 upon ratification. Its declaration expired on 31 October 2009. It was indeed a 'transitional provision', in that it provided these two States with a temporary comfort zone. Both France and Colombia seem now to have accepted a Court with full jurisdiction over war crimes.
At the time the Rome Statute was adopted, article 124 was resoundingly condemned by the human rights NGOs as a grievous flaw that would promote impunity. In its position paper on the Review Conference, Amnesty International recalls how it had described article 124 as a 'licence to kill'. It was a bit of hyperbole, even then, but more than a decade of hindsight shows just how unrealistic and exaggerated such concerns really were. Article 124 was no more than an innocuous compromise that had the effect of soothing a difficulty for an important government, however irrational France's concerns may have been. to date, the provision has facilitated ratification of the Statute by two States.
Opinions on the ‘review’ of article 124 are varied (see the discussion in the report to the November 2009 Assembly of States Parties session). There are three options: remove it from the Statute, leave it alone, and amend it. States favouring its retention argue that it has facilitated the adherence of States Parties, thereby contributing to the universality of the Statute. Removing it would create a discriminatory situation between those States that have already joined the Court, with the option of invoking article 124, and those that may consider ratification in the future. They argue that the low number of States having made declarations does not mean it is not useful, even if it will only be invoked occasionally in the future.
States supporting deletion of article 124 argue that it was always intended to be temporary in nature, that the low number of States to invoke it shows its lack of usefulness, and that the manner in which it limits jurisdiction is analogous to a reservation, which is prohibited by article 120. Finally, they argue that it could encourage impunity in a State where a war crime was perpetrated. There is no evidence of this, however. Perhaps those who want to remove article 124 simply don't like the symbolism, or are unwilling to admit that they overreacted in 1998.
It has been suggested that if article 124 is retained, it might be amended either by deleting the first sentence or by reformulating it as a ‘sunset’ clause by which it would expire at a certain point in time.
Article 124 only covers war crimes. A State cannot ratify the Statute and exclude jurisdiction over genocide and crimes against humanity. Indeed, even if there were no provisions governing war crimes in the Rome Statute, the Court would remain a very effective institution to deal with impunity for ‘the most serious crimes of concern to the international community as a whole’ because it addresses genocide and crimes against humanity. Indeed, of the three categories of crimes in the Court's subject matter jurisdiction, war crimes is surely the least essential. Don't be misled by the fact that it is the longest provision in the Statute!
With rare exceptions, serious war crimes will also meet the terms of crimes against humanity. This can be seen in the case law of the three ad hoc tribunals, for the former Yugoslavia, Rwanda and Sierra Leone. Only at the International Criminal Tribunal for the former Yugoslavia have there been convictions for war crimes alone with accompanying convictions for crimes against humanity. Of these, there are only a handful, and they have generally resulted in low sentences, confirming that where they do not overlap with the definition of crimes against humanity, they are of secondary importance. At the Rwanda and Sierra Leone tribunals, there have been no convictions for war crimes that were not associated with convictions for crimes against humanity and genocide. In other words, it would have made almost no difference to the campaign against impunity in these three recent examples of international prosecution had jurisdiction over war crimes been excluded altogether.
It is true, of course, that the very first prosecution at the International Criminal Court concerns charges that are only addressed by the war crimes provision. Thomas Lubanga is being tried for recruiting child soldiers, and there is no corresponding accusation under the heading of crimes against humanity. But when this recent experience is taken alongside the practice of the ad hoc tribunals, it suggests that such a case will be the exception rather than the rule. With the exception of Lubanga, the arrest warrants already issued by the Court concern crimes against humanity as well as war crimes. The recently authorized investigation into the post-election violence in Kenya concerns crimes against humanity but not war crimes.
In other words, the war crimes provisions in the Rome Statute are somewhat peripheral anyway. Their temporary exclusion in the case of a ratifying State is unlikely to have any genuine impact in terms of addressing impunity. Practice has shown the usefulness of article 124 in encouraging a couple of ratifications, and has confirmed that the provision may help to ease the way for a few States to full acceptance of the Rome Statute. Of course, we will never know whether France and Colombia would have ratified the Statute (or even supported its adoption) in the absence of such a provision. Article 124 has proven to be an essentially harmless provision that has played a minor but certainly not a negligeable role in promoting ratification. On balance, it would be better to simply leave article 124 unchanged, in the hope that it will bring another one or two ratifications. But one way or another, it is hardly worth arguing about for very long.

Prohibited Weapons and the Belgian Amendment: Symbolic, but of What?

2010-05-22T10:35:00.005+03:00

Backgrounder
One of the three proposed amendments to the Rome Statute on the agenda of the Review Conference has been submitted by Belgium, and concerns the prohibition of the use of certain prohibited weapons during non-international armed conflict. The Belgian proposal adds the following to article 8(2)(e) of the Statute:

xiii) Employing poison or poisoned weapons;
xiv) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
xv) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions.

Belgium has also prepared a draft amendment to the Elements of Crimes which corresponds to the three new provisions of the Statute.
These three paragraphs correspond exactly to those in article 8(2)( b)(xvii), (xviii) and (xix) of the Statute as it was adopted in 1998. Article 8, which defines the war crimes that may be prosecuted by the Court, is divided into two broad categories, depending upon whether the crimes were committed in an international or a non-international armed conflict. Traditionally, the law of armed conflict was not as advanced with respect to non-international armed conflict, reflecting resistance by States to the encroachment of international law in areas that had historically been part of their own sovereign authority, and the failure of the Rome Statute to adopt provisions governing the use of prohibited weapons in non-international armed conflict is a reflection of this.
The original draft Statute of the International Criminal Court, adopted by the Preparatory Committee in April 1998 in advance of the Rome Conference, contained parallel provisions for prohibited weapons in non-international armed conflict corresponding to those for international armed conflict. These texts were quietly dropped during the Rome Conference, despite objections from some States (see, e.g., UN Doc. A/CONF.183/C.1/SR.34, paras. 4 (Sweden), 108 (Australia)).
The three categories of prohibited weapons correspond to historic categories and are contemplated by such instruments as the 1925 Geneva Protocol, the 1899 Hague Declaration on Prohibited Bullets, and articles 23(a) and (e) of the 1907 Hague Regulations, as well as earlier instruments, such as the St. Petersburg Declaration of 29 November 1868. The 1919 Commission on Responsibilities of the Paris Peace Conference listed two categories of war crime falling within the rubric of employment of prohibited weapons: ‘use of deleterious and asphyxiating gases’ and ‘use of explosive or expanding bullets, and other inhuman appliances’. The Statute of the International Criminal Tribunal for the former Yugoslavia establishes jurisdiction over the war crime of ‘employment of poisonous weapons or other weapons calculated to cause unnecessary suffering’, which is a broad formulation capable of addressing a range of weapons (including, arguably, nuclear weapons, anti-personnel mines and cluster munitions) but there have been no prosecutions under the provision. It does not seem possible to prosecute the use of prohibited weapons as such under the statutes of the ad hoc tribunals for Rwanda and Sierra Leone.
The assumption that prohibited weapons provisions can be transposed automatically from international to non-international armed conflict may be subject to some question. Typically, civil war may have features that are different in nature from what is found on the international battlefield. For example, Professor Françoise Hampson has pointed that security forces may use so-called ‘dum-dum’ bullets or analogous ammunition in riot control situations precisely in order to avoid collateral damage to civilians. Although it is today unlikely that armies engaged in international armed conflict still use such weapons, the case may not be the same with respect to security forces at the domestic level. See her report to the Council of Europe, para. 32.
In 2005, when British police murdered an innocent Brazilian national in the London Underground because they suspected he was a terrorist, they used ‘dum dum’ or hollow tipped bullets, apparently with the purpose of avoiding unnecessary death or injury to innocent bystanders.
In generally, nevertheless, the categories of weapons that feature in the Belgian amendment rarely if ever figure in modern warfare. The main argument for the amendment at the Review Conference is not the importance of filling a loophole in the Statute but rather a quest for consistency and parallelism. Perhaps this is a way of stating that the law applicable to non-international armed conflict is largely identical to that of international armed conflict, and the Belgian proposal spoke of the objective of ‘standardizing rules regarding situations of international armed conflict and situations of non international armed conflict’. According to a statement by the International Committee of the Red Cross at the November 2009 session of the Assembly of States Parties, 'what is inhumane, and consequently proscribed in international armed conflict, cannot but be inhumane and inadmissible in a non-international armed conflict'.
But to the extent the amendment is driven by such considerations, which are essentially symbolic, its adoption (which seems hardly in doubt) will manifest the inability of the Rome Statute to deal with prohibited weapons in a meaningful way. Far from signaling an accomplishment of the Statute, and a manifestation of progressive development of the law of armed conflict (it will no doubt be hailed as such by many), the Belgian amendment does little more than highlight embarrassing shortcomings of the Rome Statute in this respect, reflecting the primitive state of intenrational law in this area.
Belgian had initially proposed three amendments. The other two were dropped at the November 2009 session of the Assembly of States Parties for lack of broad consensus (see the report of the Working group, para. 33). The amendments abandoned by Belgium concerned weapons that have been of genuine concern in armed conflict in recent times, such as blinding laser weapons and anti-personnel mines.
The only really important provision dealing with prohibited weapons is article 8(2)(b)(xx). It states the more general principle condemning all weapons that are ‘of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate’. There will be no amendment at the Review Conference to extend article 8(2)(b)(xx) to non-international armed conflict. This provision sets out a rule of customary international law which was confirmed in the famous 1996 Advisory Opinion of the International Court of Justice on nuclear weapons. However, article 8(2)(b)(xx) is an emasculated provision, because it requires completion with an ‘Annex’ listing the prohibited weapons to which it applies. And there is no Annex.
Belgium had initially proposed adoption of such an Annex at the Review Conference, but later transformed this into a series of amendments. These were the proposals that were abandoned at the November 2008 session of the Assembly of States Parties. So article 8(2)(b)(xx) remains an empty shell. Those who congratulate the Review Conference (should it adopt the Belgian proposal) for extending the prohibition on certain archaic weapons to non-international armed conflict must be reminded of the truly dramatic failure of the Rome Statute to incorporate provisions that are meaningful and relevant to modern armed conflict. As things now stand, nineteenth century technology is governed by the Rome Statute, but twenty-first century technology is ignored.
At the heart of the inadequacy of article 8(2)(b)(xx) is the debate about nuclear weapons. Any general prohibition of weapons that are ‘of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate’ might eventually contemplate nuclear weapons. And this has always been a concern to some of the usual suspects. At the Rome Conference, the delegate from Jordan said he ‘would find it hard to explain to anyone why bullets which expanded or flattened were prohibited while nuclear weapons and laser guns were not’ (see UN Doc. A/CONF.183/C.1/SR.34, para. 80).
Upon ratification of the Rome Statute, both New Zealand and Sweden used declarations to raise the issue of nuclear weapons. Noting that most of the war crimes in article 8 do not refer to the type of weapons, New Zealand said it would be ‘inconsistent with the principles of international humanitarian law’ to limit the scope of the Statute ‘to events that involve conventional weapons only’. New Zealand cited the Advisory Opinion of the International Court of Justice on nuclear weapons, adding that ‘international humanitarian law applies equally to aggressor and defender states and its application in a particular context is not dependent on a determination of whether or not a state is acting in self-defence’. Similarly, Sweden also cited the advisory opinion in its declaration, stating that ‘the Court finds that there can be no doubt as to the applicability of humanitarian law to nuclear weapons’. On the opposite side of this divide, France made a declaration stating that ‘the provisions of Article 8 of the Statute, in particular paragraph 2(b) thereof, relate solely to conventional weapons and can neither regulate nor prohibit the possible use of nuclear weapons’. Upon signature, Egypt stated: ‘The provisions of the Statute with regard to the war crimes referred to in article 8 in general and article 8, paragraph 2(b) in particular shall apply irrespective of the means by which they were perpetrated or the type of weapon used, including nuclear weapons, which are indiscriminate in nature and cause unnecessary damage, in contravention of international humanitarian law.’
Mexico has proposed an amendment to the Rome Statute that prohibits nuclear weapons, but it will not be considered at the Review Conference. Mexico has explained that its proposal is based on the belief that the threat or use of nuclear weapons is forbidden under general international law.

NGO Concerns about Space Limitations in Conference Facilities

2010-05-22T10:13:00.000+03:00

Bill Pace, co-ordinatory of the NGO Coalition for the International Criminal Court, has issued a letter expressing concerns about access by NGOs to the Conference, given space constraints. He calls it an 'unacceptable dilemma'. To read the letter, click here.

Live Blog Session on Review Conference with Assembly of States Parties President, Ambassador Christian Wenaweser

2010-05-22T08:50:00.001+03:00

The President of the Assembly of the States Parties, Ambassador Christian Wenaweser, will hold a live blogging session on 25 Mayb2010, between 16:15 and 17:15 (The Hague local time). Ambassador Wenaweser will answer questions in English, French and Spanish about the Review Conference. To post questions and follow the session live, visit the Review Conference site.
To submit questions in advance, please write to: PublicAffairs.Unit@icc-cpi.int.

Summary of Review Conference Issues

2010-05-22T08:43:00.000+03:00

ASIL Insight has published a short survey of the major issues at the Review Conference by David Kaye, a member of the Executive Council of the American Society of International Law.

David Scheffer Webinar on Review Conference

2010-05-21T18:14:00.000+03:00

Prof. David Scheffer, former US Ambassador at Large for War Crimes, will present a 'Webinar' on the Review Conference under the auspices of the American Society of International Law on 26 May 2010 from 1100 to 1200 ET. Professor Scheffer will discuss and take questions on US policy toward the upcoming Review Conference of the Rome Statute of the International Criminal Court. He will also explore what has changed since he led the US delegation in the negotiations leading to the adoption of the Rome Statute at the Rome Conference in 1998.

Registration for this webinar is free, but space is limited. Internet connection with speakers (or telephone access) is required to participate. Instructions for joining the webinar will be emailed to registrants the day before the event. Registration will close at 1700 ET on 15 May 2010. To register, click here.

The United States and the Crime of Aggression

2010-05-21T11:03:00.001+03:00

Earlier this week, the White House issued a statement condemning the 'act of aggression' of North Korea in the sinking of the South Korean ship in March. Would this 'act of aggression' be punishable under the Rome Statute if the amendments are adopted at the Review Conference?
It is hard to answer the question at present, given the available options and the lack of consensus on the definition of the crime as well as the preconditions for the exercise of jurisdiction. The very narrow definition favoured by the United States would probably exclude this 'act of aggression'. Moreover, the option by which the consent to jurisdiction of both the victim and the perpetrator States is required would also rule out prosecution. South Korea is a State party to the Statute, but North Korea is not.

In late March, United States Ambassador Harold Koh delivered an address to the American Society of International Law in which he described the International Criminal Court as a 'wobbly bicycle' and appeared to urge that the negotiations on the crime of aggression be suspended. Here are the relevant bits of his remarks:

The crime of aggression, which is a jus ad bellum crime based on acts committed by the state, fundamentally differs from the other three crimes under the Court’s jurisdiction—genocide, war crimes, and crimes against humanity—which are jus in bello crimes directed against particular individuals. In particular, we are concerned that adopting a definition of aggression at this point in the court’s history could divert the ICC from its core mission, and potentially politicize and weaken this young institution. Among the States Parties we found strongly held, yet divergent, views on many fundamental and unresolved questions.
First, there are questions raised by the terms of the definition itself, including the degree to which it may depart from customary international law of both the “crime of aggression” and the state “act of aggression.” This encompasses questions like what does it mean when the current draft definition requires that an act of aggression must be a “manifest” –as opposed to an “egregious” violation of the U.N. Charter?
A second question of who decides. The United States believes that investigation or prosecution of the crime of aggression should not take place absent a determination by the U.N. Security Council that aggression has occurred. The U.N. Charter confers on the Security Council the responsibility for determining when aggression has taken place. We are concerned by the confusion that might arise if more than one institutionwere legally empowered to make such a determination in the same case, especially since these bodies, under the current proposal, would be applying different definitions of aggression.
Third, there are questions about how such a crime would potentially affect the Court at this point in its development. For example, how would the still-maturing Court be affected if its prosecutor were mandated to investigate and prosecute this crime, which by its very nature, even if perfectly defined, would inevitably be seen as political--both by those who are charged, as well as by those who believe aggressors have been wrongly left uncharged? To what extent would the availability of such a charge place burdens on the prosecutor in every case, both those in which he chooses to charge aggression and those in which he does not? If you think of the Court as a wobbly bicycle that is finally starting to move forward, is this frankly more weight than the bicycle can bear?
Fourth, would adopting the crime of aggression at this time advance or hinder the key goals of the stock taking exercise: promoting complementarity, cooperation, and universality? With respect to complementarity, how would this principle apply to a crime of aggression? Do we want national courts to pass judgment on public acts of foreign states that are elements of the crime of aggression? Would adding at this time a crime that would run against heads of state and senior leaders enhance or obstruct the prospects for state cooperation with the Court? And will moving to adopt this highly politicized crime at a time when there is genuine disagreement on such issues enhance the prospects for universal adherence to the Rome Statute?
All of these questions go to our ultimate concern: has a genuine consensus yet emerged to finalize a definition of the crime of aggression? What outcome in Kampala will truly strengthen the Court at this critical moment in its history? What we heard at the Resumed Session in New York is that no clear consensus has yet emerged on many of these questions. Because this is such a momentous decision for this institution, which would bring about such an organic change in the Court’s work, that we believe that we should leave no stone unturned in search of genuine consensus. And we look forward to discussing these important issues with as many States Parties and Non States Parties as possible between now and what we hope will be a successful Review Conference in Kampala.

The United States branch of the International Law Association is circulating a letter with its policy advice to the United States government with respect to the crime of aggression. It urges the United States not to attempt to reopen the definition aspects, that have been negotiated over the previous decade and about which there is fairly broad agreement. Nevertheless, it also says the United States should address the issue of the triggering of jurisdiction 'in a way that satisfies U.S.interests, and yet is seen as constructive engagement by the majority of states'.
Supporters of the Court have welcomed the return of the United States to the process of building the institution. The United States will be out in force at Kampala. In one sense, this brings new momentum to the Court, but it is also bringing a very chill wind on the incorporation of the crime of aggression.

Justice Through the Eyes of Civil Society

2010-05-19T10:17:00.000+03:00

In advance of the Review Conference , the Coalition for the International Criminal Court (CICC) will host a live question and answer blogging session with NGO expert Brigitte Chelebian. The session will be held on Thursday 20 May 2010 on the Coalition's blog, In Situ: See Justice through the Eyes of Civil Society from 4 to 5 p.m. CET (10-11 a.m. EST). To follow the live discussion, visit the Coalition's blog at: http://www.coalitionfortheicc.org/blog. Submit questions during the live event or in advance to: communications@coalitionfortheicc.org.

Report on Case-Based Reparation Scheme to be Launched in Kampala

2010-05-19T10:09:00.000+03:00

The War Crimes Research Office of the Washington College of Law of the American University will launch its report entitled 'The Case Based Reparation Scheme at the International Criminal Court' at the Review Conference on 4 June at 1830, location to be announced. Speakers will include: Elisabeth Rehn, chairperson of the Board of Directors of the Trust Fund for Victims, Müa Aro-Sanchez, of the Embassy of Finland, Elene Bornand of the Embassy of Chile, and Susana Sa Conto and Katherine Cleary of the War Crimes Research Office.

Oxford Lectures on Review Conference

2010-05-17T11:03:00.000+03:00

Prof. Claus Kress, of the University of Köln, and myself delivered lectures at the University of Oxford a few weeks ago on the subject of the Review Conference. The lectures are available on podcast from the Oxford Institute for Ethics, Law and Armed Conflict.

On the Shores of Lake Victoria

2010-05-16T10:41:00.002+03:00

Professor Leila Sadat, of Washington University, has written 'On the Shores of Lake Victoria: Africa and the Review Conference for the International Criminal Court', in which she reflects upon the establishment of the Court and particularly its relationship to Africa. She writes:

Bringing the ICC Review Conference to Africa is an important symbolic and practical gesture. It reassures Africans that this is 'their Court' not something imposed upon them from the outside; it brings non-Africans to the heart of Africa to listen and debate what this Court means (and does not mean) to victims of atrocity crimes. Yet the tensions that swirl around the existence and the operation of the ICC remain, and some may even be intensified by the African venue. Charybdis looms large. The great powers, unwilling to relinquish their prerogatives, may stymie progress on the crime of aggression and other important agenda items for the Review Conference; African leaders may wish the Court to become more pliable and sensitive to their political realities.

See the whole article.

The Monitor: Special Issue on the Kampala Conference

2010-05-15T15:20:00.000+03:00

A special issue of the newsletter of the Coalition for the International Criminal Court, The Monitor, dedicated to the Kampala Conference has been published.

Introducing this blog

2010-05-15T12:52:00.000+03:00

The Review Conference of the Rome Statute of the International Criminal Court will be held from 31 May to 11 June 2010 in Kampala, Uganda. This blog aims to provide readers with information about the Conference, to publish relevant documents as they become available, and to serve as a forum for observers and participants who wish to communicate their views on the issues as they unfold.
The editor of the blog, who will be attending the entire conference, will produce a diary of the Conference on a regular basis.
Although many followers of the Court have long believed that the Review Conference would generate many amendments to the Rome Statute, both in terms of procedure and substance, this looks increasingly unlikely. The big issue is the crime of aggression, whose full incorporation in the Statute seems promised by article 5. The other amendments likely to be considered are not very significant: whether to leave or remove an essentially anodine provision (art. 124) that allows States to 'opt out' of jurisdiction over war crimes; extending prohibitions of certain classic weapons, which are in any event of no consequence in modern armed conflict, so as to cover non-international as well as international armed conflict.
In addition, the Conference will provide a venue for 'stocktaking'. A series of panels will address the following issues:
1. Complementarity.
2. Cooperation.
3. The impact of the Rome Statute on victims and affected communities.
4. Peace and justice.