The International Criminal Court Review Conference opened today, May 31, 2010 in Kampala, Uganda. The Conference has drawn thousands of participants, including heads of state, ministers, diplomats and other State officials, NGOs, parliamentarians, academics, media and officials from international courts and from the United Nations (including the current Secretary General and his predecessor). The conference is hosted by Uganda, the first State Party to refer a situation to the Court and a site of the Court’s earliest investigations.
The Review Conference marks the first opportunity to consider amendments to the Rome Statute, which was adopted at a Diplomatic Conference in 1998. The centre of attention on the agenda is the crime of aggression, which has brought to the fore contrasting visions of the role of the ICC and its relationship with other international institutions. Other proposed amendments include war crimes and the ‘transitional provision’ (discussed below). The scope of the Review Conference has expanded beyond discussion of amendments; participants have seized the opportunity for a deeper discussion on the future shape of international criminal justice. Thus, a “stock-taking” exercise is taking place to discuss complementarity, cooperation, peace and justice, and the impact on victims and affected communities.
The crime of aggression presents by far the most controversial, the most complex and most profound questions. Major debates surround the jurisdictional “preconditions” for Court action and the regime for consenting to ICC jurisdiction over the crime (see post by Dapo Akande). Early proposals (including the original ILC draft Statute) indicated that, to recognize the Security Council’s primary responsibility for international peace and security, a Council identification of a State act of aggression should be a precondition to ICC action. The objection to this approach is that it allows the P5 to insulate themselves and their allies. Thus, other proposals suggest either no “filter” or that other bodies also be empowered to make the initial determination, including the General Assembly, the International Court of Justice and/or the Pre-Trial Chamber, each of which presents their own strengths and weaknesses in the eyes of different delegations.
Arguments in favour of including the crime of aggression are that it was recognized in Nuremberg and should join its place among the other core crimes. Aggression is the “supreme crime”, from which the other core crimes often flow. Moreover, it is hoped that holding individuals accountable for aggression would act as a significant deterrent, as decision makers would seriously have to ponder the legality and risks of their actions.
An argument raised against the inclusion of the crime of aggression is that it is of a different nature than the current “core” crimes. Genocide, crimes against humanity and war crimes are jus in bello crimes, dealing with comparatively straightforward factual questions (eg. the occurrence of a massacre, issuance of orders). Aggression concerns jus ad bellum, and can entail subtle public international law questions, such as self-defence, territorial claims, self-determination or responsibility to protect. The question is raised whether a criminal court is an appropriate forum for such questions. Another argument is that a role in identifying aggression will embroil the Court in politically charged and controversial questions, politicizing the Court and detracting from its important work on the other core crimes.
If agreement is reached to include the crime of aggression, it will provide fertile ground for analysis on the role of international institutions and the nature of international criminal law. It would also represent a remarkable step in the ongoing strengthening of the reach of international law and international regulation of State actors.
At the Rome Conference, debates on the Court’s jurisdiction contemplated an “opt in” regime, and “opt out” regime. In the result, “automatic jurisdiction” was adopted, meaning that States Parties accept the Court’s competence of all three crimes, but with Article 124 allowing new States Parties to invoke a temporary 7-year opt-out for war crimes only. The formal purpose of the provision is to allow hesitant States to join the Court and become familiar with it before accepting the full subject-matter competence. On a tactical plane, the aim of the provision was to address the concerns of France, a country which went on to become a significant supporter of the Court. The provision has been invoked only by France and Colombia, and both States are now subject to the full jurisdiction of the Court.
The proposal under discussion is to delete the provision. The arguments for deletion are that Article 124 undermines the aim of preventing impunity, it creates asymmetries, it has only been used by two States and thus seems to no longer serve a purpose, and it is expressly earmarked in the Statute for review and reconsideration at the Review Conference. Some delegations wish to retain it on the ground that it may have helped two States to join and ultimately transition into their full obligations, and so it may help other States in future.
Delegates will also discuss a proposal by Belgium to extend the recognition of three weapons-related war crimes, currently recognized in international armed conflict, to non-international armed conflict. The relevant crimes concern the use of poison or poisoned weapons, asphyxiating gases and expanding (“dum-dum”) bullets. The arguments in favour of the proposal are that it increases the reach and protection of war crimes law and that it recognizes the continuing convergence between the laws applicable in international and non-international armed conflicts. Some delegations have argued that the proposal concerning dum-dum bullets may reach beyond existing law and practice, and that dum/dum bullets are often used in law enforcement and counter-terrorism activities to reduce risks to bystanders, and that the borderline with non-international armed conflicts can at times be unclear.
The ASP has made a sound selection of topics for review and discussion in the “stocktaking” exercise. The topics include: peace and justice; complementarity (with a particular focus on ‘positive complementarity’ and the steps that may be taken to encourage and facilitate genuine national proceedings); cooperation (including implementing legislation, supplementary agreements, the role of the UN, and arrest warrants); and impact on victims and affected populations (including outreach, victim participation, reparations and the trust fund).
In addition, to the stocktaking, several other initiatives are underway to promote discussion of and commitment to international justice. States Parties have been urged to offer “pledges” of specific and measurable undertakings. A high level declaration is being prepared. A “People’s Space” has been installed. Civil society is providing panels on many important issues, such as gender justice, reparations, crime prevention and access to justice.
In comparison with the frenetic pace of the Rome Conference, which had to resolve over 1000 issues in 5 weeks, the pace of the Review Conference is relatively leisurely. This is not necessarily negative; it has allowed space for more reflection than is seen in a typical diplomatic conference or Assembly session. The issues faced by the Court are in many respects more complex than was readily foreseen at the Rome Conference, and building a common understanding on the new issues would be a particularly valuable outcome.
The Conference has an intriguing hybrid character: It has aspects of a diplomatic conference, namely plenary sessions with formal speeches and working group sessions negotiating text. It also has aspects of an academic conference, namely panels, presentations, documentaries and discussions, organized by States and by civil society. This roughly corresponds to a formal/technical track (amendments) and an organic/deliberative track. It is entirely possible that the latter activities, by elevating public awareness, strengthening political commitment and deepening a common understanding, may ultimately have a more significant impact than the formal amendments.