Review Conference Heads into Final Days with Intense Negotiations on the Crime of Aggression

With only two days to go and few formal meetings scheduled, governments and NGOs at the ICC Review Conference in Kampala are busy negotiating and trying to figure out whether the meeting will adopt an amendment which would make it possible for the ICC to investigate and try individuals for the crime of aggression.

The conference’s working group on the crime of aggression concluded its work today and forwarded its results, outcomes and potential proposals to the full conference which will meet informally on Thursday morning at 11am Kampala time and determine whether there is a solution that all ICC States Parties can live with. Among the options are separate proposals from Canada and Slovenia, and a third tabled by Argentina, Brazil and Switzerland.

In considering these options, the conference will need to decide whether the Court could act without a determination of the UN Security Council; whether to delay other possible triggers of the Court’s jurisdiction beyond the Review Conference by way of a different amendment procedure or by revisiting the amendment at a later meeting; and whether ICC action on aggression would require the consent of both countries involved in the alleged aggression.

Also under intense negotiation are certain “understandings” about the definition of the crime itself proposed by the United States which are intended to assist in interpreting certain aspects of the definition. They would likely be seen as a sort of legislative history. We won’t know, of course, whether they will be included in a final package which the conference would then decide to adopt either by consensus or, if it can’t agree, by a vote. Whether the conference will get that far is very difficult to say right now.