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

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The second week here in Kampala was dominated by intense negotiations on the crime of aggression, and ultimately a final outcome which will activate the Court’s jurisdiction over it with a vote of the Court’s Assembly of States Parties (ASP) after January 1, 2017. The conference worked through several proposals which attempted to bridge the gap between those countries seeking to limit the ways in which aggression could be brought before the Court and those seeking a more expansive approach to the Court’s jurisdiction over the crime. The week concluded dramatically after midnight of the final day of the conference with the adoption by consensus of the crime of aggression amendment. This was followed by a long round of applause in the plenary hall recognizing the conference’s achievement and finally the closing of the conference at 1:30am Kampala time. The conference also adopted an amendment to Article 8 expanding the Court’s jurisdiction over the use of certain weapons as war crimes in non-international conflicts.

Hurried consultations, contesting proposals, midnight conferences and hectic redrafting filled the last days of the Review Conference. Delegates struggled with the jurisdiction of the ICC over the crime of aggression. This was an issue long foreseen as the most controversial and contentious of these two weeks in the bubble of a luxury resort and conference campus on the shores of Lake Victoria. As the pace picked up for government delegates in one closed meeting after another, it slowed for NGO representatives who could not attend these sessions. In the final rush to an outcome or an impasse NGOs were represented by a few civil society experts on the crime of aggression who have special access to government delegates and ICC officials.

At the center of the debate loomed the image of the United Nations Security Council and its great unpopularity with most countries. The ICC's Rome Statute has a statement in its section on the crime of aggression that reasonably appears to require respect for the Council's UN Charter mission to determine threats to international peace and security. Nonetheless, a large number of states, from past experience quite possibly a clear majority, arrived in Kampala strongly determined to deny the Council any role whatever in the Court's jurisdiction. They believed that role would politicize the Court and compromise its independence and legitimacy. Other countries, such as, but by no means only, the Council's permanent members (including the United States) began the conference equally dug in on the insistence that all situations about aggression should come to the Court only through the Council. They said that the question of an act of aggression is indeed political and that the Council is the right place in the international system to deal with it.

Several problems, circumstances and influences were at work on this polarization during the conference: The preparations for the conferences had failed to even modify stark disagreements in the original text. Quite a few countries were willing to give some, if not an exclusive, place for the Council in the passage of an alleged situation of aggression into the jurisdiction of the ICC. There was considerable concern that the Court is not yet well enough developed institutionally and judicially with the special political and state action aspects of this crime. Almost all participants found the original text and most of the too many proposals made here very complex and technically difficult and often obscure. Unfortunately, the Statute's amendment procedures, generally considered to be among the worst drafted of its provisions, were important in these negotiations.

Probably most important was the almost universal and intense determination of the participants to reach a final outcome here and now after eight years of negotiations in preparations. This was very clear in speeches by governments and in their side comments. Some of the proposals intended to ease a complete outcome showed their sponsors moving sharply away from their previously declared positions.

The final amendment package was an elaborate scheme to bring the crime within the jurisdiction of the Court while making major concessions to powerful countries. Many observed that it will limit significantly the reach of the Court’s jurisdiction with respect to the crime. The major features of the outcome are that the amendment will take effect only after a vote of two-thirds of the ASP after January 1, 2017. The ASP will then be able to decide separately on its activation of Security Council-initiated actions and for situations referred by States Parties and those initiated by the Prosecutor. ICC States Parties must ratify the amendment and then have the option of filing a declaration with the ICC Registrar that it does not accept aggression jurisdiction. Also, once jurisdiction is activated, non-Security Council situations will need to be approved by the entire Pre-Trial Division of the Court. Another provision will prevent the Court from exercising jurisdiction over nationals of non-States Parties or their territories. It also included a mandatory review of the provision seven years after coming into effect in order to examine the performance of the Court with respect to the crime and to make any necessary changes to the provision.

In effect, the provision will shield nationals of non-States Parties, including those of the United States, as well as nationals of States Parties if they are willing to lodge a declaration with the Registrar. This declaration would effectively take those countries and their nationals out of the Court’s jurisdiction over the crime of aggression. Many delegations felt that the final package also conceded too much to the proponents of less expansive ICC jurisdiction over aggression. This is because States Parties will be able to control whether they will be bound by the amendment through their consent to the amendment. The final package was also not completely satisfactory to the permanent members of the Security Council. They would have preferred an exclusive role for the Council in determining a state act of aggression for the purposes of the ICC’s jurisdiction, and they reiterated this position after the adoption of the amendment. These countries have argued over the years that, as a matter of international law under the UN Charter, this role should be exclusive to the Council. The final text does, however, effectively shield P-5 nationals from ICC jurisdiction over aggression.

Following the adoption of the amendment and statements by several countries, State Department Legal Adviser Harold Koh took the floor on behalf of the US to describe how it engaged in all aspects of the Kampala conference, including on stocktaking of the system of international criminal justice and on the amendment proposals. He expressed the appreciation of the US delegation for the warm welcome it received and for the constructive conversations with other conference participants. The US also associated itself with the statements of France and the UK regarding their view of the primacy of the UN Security Council in determining acts of aggression. Further, Koh suggested that constitutional decisions of the magnitude of activating the Court’s jurisdiction over the crime of aggression after January 1, 2017 should be taken in the context of a review conference, not a regular ASP meeting.

The week began with an effort by the United States to repair what was seen by many as a overbearing speech on the previous Friday by Harold Koh (available at: http://www.state.gov/s/l/releases/remarks/142665.htm). It very generally referred to US concerns about the crime of aggression and concluded that it was not very likely that consensus could be achieved. The US was somewhat successful in rebounding from this perceived misstep in an intervention on Monday of the second week which sought to specifically describe those concerns and suggest ways to deal with them. William Lietzau, a senior Pentagon official who participated in the negotiations for the Rome Statute and the accompanying Elements of Crimes document, proposed four interpretive “understandings” about the definition of the crime which would make it more acceptable to the US, and also suggested leaving open for negotiation the elements of the crime for a short period after Kampala. His statement, which is not available, seemed to take into account the developments at the conference and struck a more conciliatory tone that Koh’s previous intervention. Most notably, Lietzau said that the US recognized that it had been absent from the negotiations on aggression for eight years and must therefore live with the practical consequences of that failure to participate.

Lietzau said that the understandings were intended to be modest without bringing any unintended consequences. The Review Conference resolution on the amendment includes some of these understandings. The understandings do not change the agreed definition of the crime of aggression but will guide judges in applying it.

The amendment of Article 8, known as the Belgian amendment, culminated late on Thursday evening. It expands war crimes prohibitions on certain weapons such as poisons, gases and bullets, to non-international conflicts. The use of these weapons in international conflicts was already prohibited under the Rome Statute. In addition, the conference interpreted the amendment provision used, Article 121(5), in such a way that treats alike non-States Parties and States Parties that have not accepted the amendment. This means that the added provisions would not likely reach the nationals of non-States Parties such as the US.

The Review Conference on Thursday also adopted a resolution which stated that it reviewed Article 124 as required by the Statute. That article permits countries upon joining the Rome Statute to opt-out of the Court’s jurisdiction over war crimes for a period of seven years. The conference did not, however, delete the article as suggested by some delegations. As a compromise it decided to review the article again in five years, at an ASP meeting, with a view to deleting it.

The US, throughout most of the two weeks, was effective at presenting itself positively to the conference as a strong supporter of international justice. It spoke of cooperating with the Court more widely but within US legal restrictions. It emphasized its strong desire to support domestic and international justice generally. US Ambassador-at-Large for War Crimes Issues Stephen Rapp declared that the stocktaking exercise of the previous week was “an enormous success” in supporting the cause of international justice. Statements like these and of Lietzau helped to build goodwill, which was especially necessary as the US entered into the intense negotiations on the crime of aggression. Subject to hindsight, it appears now that the US effectively represented its positions without alienating itself from other countries. Our general impression, moreover, is that the US had a satisfactory experience in Kampala that sustained its major interests. It remains on good terms with the Court and learned lessons that will enrich the final stage of making US policy on the ICC.