AMICC Report from Kampala on the First Week of the ICC Review Conference

Please note that AMICC does not take a position on the substance of issues under discussion in the conference and therefore our reports like this one are confined to description and characterization. We will post another summary at the end of the second week and publish a final report on our website, http://www.amicc.org/. Please continue to follow our daily reporting on Twitter, Facebook and here on our blog.

It was a busy and exciting first week here in Kampala at the ICC Review Conference. This part of the conference focused primarily on a special “high-level” segment of statements by eminent ICC supporters as well as a high-level declaration by them; a general debate in which States Parties, Observer States and international and non-governmental organizations expressed their support, commitments and concerns about the Court; a “stocktaking” assessment of the system of international criminal justice for atrocity crimes; and initial and informal discussions on the amendments proposals to be decided next week, including on the crime of aggression.

During the first days of the conference, the United States delegation made several statements and commitments about the Court and its relationship with it. In particular, on Tuesday US Ambassador-at-Large for War Crimes Issues Stephen Rapp made a statement in the general debate in which he reiterated the US desire to cooperate with the ICC on cases in the US national interest, such as its willingness to assist with witness relocation in the Kenya investigation. It also made two concrete “pledges,” or commitments, to cooperate with the Court and to help build the capacity of domestic courts to deal with atrocity crimes. On Wednesday evening, Ambassador Rapp and State Department Legal Adviser Harold Koh, the co-heads of the US delegation, held a press briefing via teleconference.

In addition, on AMICC’s suggestion, Ambassador Rapp made a statement in an NGO meeting on the first day of the conference about nations’ cooperation with the ICC about how non-States Parties can assist the ICC, including through political and diplomatic support; sharing of information; and witness assistance. The US also co-sponsored, with Norway and the Democratic Republic of the Congo (DRC), a meeting on the margins of the conference about the concept of “positive complementarity” which has to do with assistance to domestic judicial systems so that they can deal with ICC crimes. The DRC’s justice minister also thanked the Obama administration for its signing into law US legislation on US policy toward dealing with and bringing to justice Uganda’s Lord’s Resistance Army which is now allegedly in the DRC.

The US, as at the last two Assembly of States Parties (ASP) meetings, was well received by other delegations and by NGOs, though some governments and NGOs have expressed some concern about how the US may influence the negotiations on the crime of aggression. Ambassador Rapp included a very detailed description of American concerns about the proposed amendment on the crime of aggression in his general debate statement, and Legal Adviser Koh elaborated on these in the first substantive working group meeting on the aggression amendment on Friday. In particular, the US and other permanent members of the UN Security Council have expressed a strong preference that any amendment should require an exclusive role for the Security Council in determining that an act of aggression occurred, thereby triggering the Court’s jurisdiction over an aggression situation. A majority of states would prefer that the ICC Prosecutor be permitted to open an investigation, as he or she is able to do with respect to the crimes now under the Court’s jurisdiction. This is possible if the situation is referred to the ICC by the Security Council, a State Party, or if the Prosecutor obtains the permission of a Pre-Trial Chamber to initiate an investigation.

Brazil, Argentina and Switzerland have informally proposed a novel approach to this issue which those countries hope will help bridge the gap between the P-5 and their allies, on one hand, and the vast majority of others that do not want the ICC’s jurisdiction over aggression to be controlled by the Security Council. The idea would be for the Review Conference to use two different amendment procedures which would allow the Court to soon have jurisdiction over aggression exclusively through a Security Council referral. Once 7/8ths of all ICC States Parties agreed to it, a State Party referral or a Pre-Trial Chamber approval of a Prosecutor-initiated investigation could also bring an ICC situation within the Court’s jurisdiction. However, it may take years, if not decades, to reach this next phase. There is also the discussion of a possible “opt-out” for the 1/8th of ICC members that do not wish to join the aggression regime.

Next week the conference will continue its consideration of amendments to Articles 8 and 124 of the Rome Statute. The Belgian proposal seeks to expand to domestic conflicts the use of certain weapons, gases and poisons as Article 8 war crimes in international conflicts. It was approved on Friday by the Working Group on Other Amendments and forwarded to the full conference for consideration next week. The only open question on it relates to how its addition to the Rome Statute will affect States Parties that choose not to accept the amendment. This question, which hinges on the interpretation of Article 121(5), needs to be resolved for the aggression amendment as well.

Article 124, which this Review Conference is required by the Rome Statute to examine but not necessarily delete or amend, permits new States Parties upon joining the ICC to declare that they will not be subject to the ICC’s jurisdiction over war crimes for the first seven years of ICC membership. Initial discussions on Friday indicated that there does not appear to be consensus on amending or deleting it, though Venezuela indicated that it would table an amendment proposal which would eliminate Article 124 after a certain number of years.

The second week here in Kampala will see the climax on the debate on the crime of aggression, and its success or failure in adopting a final amendment on the crime of aggression. There will be extensive negotiations at various degrees of formality. These will include working group meetings, discussions in full plenary meetings, and numerous bilateral or small group meetings. Ambassador Zeid of Jordan, who is chairing the working group and coordinating the negotiation on the crime of aggression, has conducted over 100 bilateral meetings and will do many more next week.

Unlike the other speeches and interventions by the US delegation, Koh’s speech on Friday did not find favor with many government delegations and NGO representatives. Partly this was the result of its awkward organization and internal inconsistency. Many also found in it a demanding and condescending tone. This tone contrasted with the great majority of government interventions on Friday and Zeid’s introductions and summaries on Tuesday and Friday. These anticipated success in the negotiations, praised the quality of the text so far achieved, and pledged flexibility and compromise in the achievement of a strong eventual consensus.

Beginning on Friday, the conference has now gone into a “pressure cooker” phase in which delegates with the influence and contributions of NGO’s will work hard to achieve an amendment on aggression. The complex proposal by Brazil, Argentina and Switzerland is a striking example of this.

This atmosphere will be heightened by the confinement of delegations and NGOs to a relatively small conference venue well away from the rest of Kampala where they will spend 12-18 hour days and where many of them will sleep. As we anticipated, there is considerable emotion and psychological pressure in these negotiations. Germany, Japan, and a number of other countries both developed and developing emphasized their historical and still painful experiences with aggression. An intervention of Kuwait reminded the conference that although traditional interstate aggression is not now as common as in the past, it still exists and is likely to have to be dealt with in the future.