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Home EJIL Analysis The End of Stocktaking and on to the Main Event

The End of Stocktaking and on to the Main Event

Published on June 3, 2010        Author: 

We continue with our coverage of the Review Conference for the International Criminal Court, (see here, here and here), taking place at a resort on the shores of Lake Victoria, outside Kampala, Uganda (and well-insulated from the hustle and bustle of everyday life). Readers may be interested in comments on the stocktaking exercise that has occupied the formal agenda of the conference for the past two days. Of course, the real action is taking place informally, as the stocktaking exercise has allowed state delegations to engage in behind-the-scenes bilateral consultations and small group discussions to determine possible areas of agreement for the crime of aggression deliberations (which is clearly the main event at this conference) and to get a sense of each others’ bottom lines and end result objectives. As indicated in the conference Journal, state representatives have also been meeting, one after another, with Jordan’s Prince Zeid, the Chair of the Working Group on the Crime of Aggression, who will likely have inquired as to their current and possible positions in advance of Friday’s scheduled discussions.

Stocktaking of International Criminal Justice

Meanwhile, inside the main conference room, the stated focus has been on stocktaking, with the phrasing of this agenda item, as noted above, reflecting the fact that discussions were not focussed solely on a review of the ICC. Invited panellists drew upon the comparative experiences of the Yugoslav and Rwanda tribunals (ICTY and ICTR), the Special Court for Sierra Leone, and the Cambodian tribunal (more accurately, the “Extraordinary Chambers in the Courts of Cambodia” or the “E, triple C”).

For many delegates, the stocktaking exercise has been described in positive terms as akin to an academic conference; an interesting affirmation of Darryl Robinson’s introductory post on the hybrid nature of this Review Conference available here. And yet, for those of us who are academics, this is not equivalent to an academic conference with panel discussions lacking an opposing or dissenting view. Frankly, it was hard to see the point of the stocktaking exercise, with the discussion dominated in each of the four thematic areas by panellists with expertise and/or past experience with a particular international or internationalized criminal tribunal, but no state party allegiance. With a few exceptions, notably Kenya on the panel on cooperation, states parties have only been able to make brief interventions after the panellists, provided that the chair of the particular panel was able to keep either the panellists or the states parties to the (repeatedly stated) time limits. These interventions have been wide-ranging, and lack the focus provided by a discussion of proposed resolution text. Of particular disappointment was the session on victims and affected communities, which failed to debate or question whether the legal representation of 100s of victims had any negative impacts on the Court.

The limited presence of states parties on the panels was notable, reflecting perhaps the intended educational focus of this segment of the Review Conference. But who were the panellists trying to educate? And are not the representatives of the states parties to the Rome Statute, by their very membership, already aware of the matters under discussion, at least at the general level in which they were discussed? Could not the time have been better used by states parties to probe and question the positive and negative aspects of the Rome Statute’s operation and implementation to date?

Moreover, while many delegates will say that the discussions were “interesting” and “worthwhile”, one wonders what were the real gains, given the limited “deliberative” nature of the discussions for both states parties and non-states-parties, with panellists taking up most of the allotted time. There is also the matter of the agreement in advance as to the outcome documents to result from this exercise.

A review of the Journal for next week suggests that only an hour will be needed on Tuesday, June 8, for the “adoption of outcome documents” on stocktaking, with the draft resolutions and other texts having been circulated and discussed in capitals well before the Review Conference began. A review of the official records from the resumed eighth session of the Assembly of States Parties held in March 2010 makes this clear, and copies of the draft texts have been made available on the ICC’s website at: http://www.icc-cpi.int/Menus/ASP/ReviewConference/Stocktaking/

Clearly, these texts on stocktaking serve to provide the fallback position if no agreement is reached on aggression. States can then look to stocktaking as the achievement of Kampala, but this strategic point does not answer the question as to why have two days of invited panels, other than to serve as conference program filler while key members of delegations engage in consultations on aggression.

Back to the Main Event: Aggression

With the “deliberative” component of the stocktaking exercise now concluded, the Review Conference returns to its main event, namely the discussion of the crime of aggression. Most of the agenda for Friday and Monday has been allocated to the Working Group on the Crime of Aggression, except for an hour on Friday being set aside for the Working Group on Other Amendments, with the focus likely to be on the amendment effort initiated by Belgium with respect to the extension of certain provisions within the war crimes article of the Rome Statute to non-international armed conflict (specifically, the provisions in Article 8 on the use of poison, gas, and expanding or “dum dum” bullets).

For those interested in the position of non-states-parties, (a topic of some focus in the corridor discussions), it has been announced that Harold Koh, the Legal Adviser for the US State Department, and the co-head of the rather large US delegation, will be speaking on Friday. (See further: http://www.state.gov/s/wci/us_releases/remarks/142585.htm). The US delegation is the largest delegation here at Kampala, numbering 18 or so, and this despite the country’s non-state-party status, and the largest group of academics in attendance at this Review Conference also hail from the US.

What’s Not on the Agenda

Readers may also be interested in noting what is not on the agenda for this Review Conference (leaving the door open to a second Review Conference sometime in the future?). A number of topics were proposed by states for discussion at Kampala, including international drug-trafficking and terrorism, but these topics did not make the cut and have instead been referred to an Assembly of States Parties (ASP) working group, set to begin its work at the ninth session in December 2010.

One topic of interest that is not up for discussion is Article 16, the deferral provision in the Rome Statute, with the African Union having already expressed its view that Article 16 should be modified to empower the UN General Assembly to act should the UN Security Council fail to decide on a referral request after six months. (This option also reflects a similar option proposed for aggression and, in particular, the conditions for the exercise of jurisdiction.) The Article 16 proposal is intimately tied to the ICC Prosecutor’s desire to prosecute President Bashir of Sudan, with Sudan being the only non-party to the Rome Statute that is subject to the ICC’s jurisdiction. It also reflects concerns about retaining the ICC’s credibility in Africa, with some clearly perceiving a need for greater sensitivity towards the interests and views of African states. A two-page pamphlet has been circulating the conference room advising of a forthcoming African expert study on Article 16 to be finalized in June (with the co-editor of EJIL Talk! being a member of this 16-person expert group). I await the results with interest.

Local Media Coverage of the Review Conference

Meanwhile, one of the local newspapers reports that an opposition party is trying to score political points by calling on the ICC Prosecutor to investigate crimes committed in Northern Uganda going back to the 1980s, and then criticising the Prosecutor for his perceived lack of action, without any recognition of the temporal limits on the ICC’s jurisdiction. This lack of understanding illustrates the difficulties to be faced by outreach programs, with no amount of ICC fact sheets being able to address misconceptions bred, in part, by the high expectations instilled by the Court’s supporters to “end impunity”.

Financial support for our coverage of the 2010 Review Conference was provided by the Social Sciences and Humanities Research Council of Canada.

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