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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.