22 June 2010

Aftermath of Kampala

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

17 June 2010

An Assessment of Kampala: the Final Blog

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

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.

15 June 2010

Official version of Aggression amendment

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.

14 June 2010

Final version of the amendments

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

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.

12 June 2010

The Result: Prosecuting Aggression at the International Criminal Court

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.


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.

11 June 2010

High Drama: Moving Closer to a Result

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

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!

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

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

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.

10 June 2010

White Water Rafting

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

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

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.

09 June 2010

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

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

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

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)

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)

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

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

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;


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.

08 June 2010

Canadian proposal

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;
(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

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

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.


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,

07 June 2010

Kampala Diary 6/6/10

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.