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Live from Kampala: Day 2

Published on June 1, 2010        Author: 

At long last, I have arrived in Kampala, after my original flight booking was affected – twice – by the British Airways strike. Much of today was a continuation of yesterday’s general plenary, wherein the states parties representatives read out pre-prepared statements of a polite but general nature, and diplomats and NGO delegates go hunting for extra copies. For many, the statements of interest today were those of the Observer States, including the statement of the United States.

A Plea of Caution, Care and Regard for the Court

The US statement was delivered by Stephen Rapp, US Ambassador-at-Large for War Crimes, and the former prosecutor at the Special Court for Sierra Leone. Evoking a general theme of “caution, care and regard for the Court”, and attributing support for this theme to prominent groups within civil society, Ambassador Rapp spoke of the challenges facing delegates, using a series of questions about the success of the ICC’s efforts in situation countries to connect with the four themes of the upcoming stocktaking exercise. Mention was also made of US co-sponsorship, along with Norway and the DRC, of a side-event on “positive complementarity”, drawing a link to the “frontlines of justice, national courts”.

But the larger, and more immediate, challenge facing the Conference, as identified by Ambassador Rapp, are the proposed amendments concerning the crime of aggression. Despite years of discussion, key issues remain without a consensus resolution, with Rapp identifying the conditions for the exercise of jurisdiction and how the aggression amendments will enter into force as being “elemental”, and “not of marginal significance”. Rapp also identified problems with the definitional aspect of the aggression amendment project, albeit that many view the definition aspect as easier to resolve than the conditions for the exercise of jurisdiction. (English School IR scholars and R2P watchers may be interested in Rapp’s reference to “the use of force that is undertaken to end the very crimes the ICC is now charged with prosecuting” in discussing the uncertainties of the proposed definition.)

The possible impact of aggression amendments on national jurisdiction was also highlighted as an area of uncertainty, with Rapp drawing a link to a conference non-paper circulated by the chairman of the Special Working Group on the Crime of Aggression, H.R.H. Prince Zeid of Jordan, available at: http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-WGCA-2-ENG.pdf

Rapp then focused on the “plea for caution, care and regard for the Court” promulgated by some civil society organizations, and clearly supported by the US, which has emphasized a need for a genuine consensus with respect to the definitions of crimes for the ICC. The point was made that pushing forward with aggression amendments that lacked a true consensus could do more harm than good to the Court – with Human Rights Watch being specifically mentioned by Rapp as a group favouring caution. (It is also a point made by former ICTY prosecutor Richard Goldstone in a recent op-ed for the New York Times: http://www.nytimes.com/2010/05/27/opinion/27iht-edpoint.html )

It is possible that a copy of the US statement will be posted on the State Department website, but with the spotty internet service at the Review Conference, I cannot verify at present.

Introduction of the Amendments

After the general plenary, the room became the Working Group on the Crime of Aggression, and then the Working Group on Other Amendments, with the purpose today being to introduce the amendments. The amendments concerning the crime of aggression were introduced first, with Prince Zeid providing a useful overview of the crime of aggression discussions. See further:

 http://www.icc-cpi.int/Menus/ASP/ReviewConference/Crime+of+Aggression.htm

A brief overview was then provided by the co-chair of the Working Group on Other Amendments with respect to the proposed amendment concerning article 124, and then Belgium took the floor to introduce its amendments to Article 8, the war crimes provision of the Rome Statute. Gerard Dive of the Belgian Ministry of Justice also reviewed the import of the nine proposed preambular paragraphs of the draft resolution text, noting that it “seemed necessary” to be clear, and thus make express mention, of the position of non-states-parties in the third preambular paragraph of the proposed resolution. Dive concluded his statement by expressing Belgium’s desire for consensus on this amendment and urged delegates to meet with him to discuss concerns. A copy of the draft resolution text can be found here:

http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-WGOA-1-ENG.pdf

The two Working Groups will next meet on Friday, after the stocktaking component of the Review Conference.

Postscript

For a helpful discussion of both aggression and the war crimes amendments, I recommend viewing a pre-conference webinar hosted by the American Society of International Law featuring Harold Koh, Rosa Brooks, and Ambassador Stephen Rapp, as well as John Bellinger and William Taft.

See: http://www.asil.org/activities_calendar.cfm?action=detail&rec=124

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