Chatham House Discussion on the ICC Review Conference

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On June 24, Chatham House held an event in London to review the recently held Review Conference of the International Criminal Court. The discussion was moderated by Elizabeth Wilmhurst who heads the International Law Programme at Chatham House. The four speakers at the event were Chris Whomersley, Deputy Legal Adviser at the UK’s Foreign & Commonwealth Office and head of the UK’s delegation to the ICC Review Conference, Akbar Khan, Legal Director at the Commonwealth Secretariat, Chris Hall, Senior Legal Adviser at Amnesty International and me. The discussion ranged across the various issues discussed in Kampala: stocktaking of international criminal justice, including peace and justice, complementarity and cooperation with the ICC; the crime of aggression and the other proposed amendments to the ICC statute. The summary of the meeting is now available at the Chatham House website (see here).

The discussion on aggression covered many of the matters previously discussed on this blog (see here and here) and over at Opinio Juris (see here, here and here). There was much interest in the conditions under which the ICC will exercise jurisdiction over aggression, particularly the question of whether the amendments would create jurisdiction over all ICC state parties or only over those who accept the amendments. Surprisingly, there was not much discussion on whether the definition of aggression was satisfactory, though there was discussion on the effect of the understandings (for Opinio Juris discussion, see here , here and here). According to the summary:

 A participant raised the question as to whether the understandings were legally binding. It was noted that the US had proposed changing the definition itself but there was no support; they fairly quickly accepted the concept of understandings. Definition of terms forms part of the context of a treaty to assist in its interpretation. The Vienna Convention on the Law of Treaties allows the context to be considered when the wording of a provision is unclear, as well as agreements reached by the parties. It was considered by the discussion participants that understandings had a higher status than just context; on the other hand they could not be considered as part of the treaty amendments (similar to an Annex, for example): no special ratification process had been decided upon for them and in any case not all States Parties were present at Kampala to ratify their inclusion. But a similar approach had been used for the Convention on Jurisdictional Immunities.

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Mihai Martoiu Ticu says

July 7, 2010

I understand that the understandings of the parties might be used in the future by a court of law to interpret the statute, but what about the understandings the U.S. produced? Could they have any significance?