The President’s Non-paper on the Crime of Aggression (Updated)

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The President of the Assembly of States Parties (PASP) has, as of mid-day on the second to last day of the ICC Review Conference, released his own “non-paper” containing proposals for the crime of aggression amendments at the 2010 Review Conference for the International Criminal Court. The non-paper complements the rev. 2 version of the Conference Room Paper circulated by HRH Prince Zeid, and picks up on ideas and proposals in circulation among delegates. A copy is not available on the ICC’s Review Conference website, but it can be found here.

Introduction of the Non-paper

The President used this morning’s plenary session to introduce his non-paper and then adjourned the meeting to allow for informal consultations to take place, rather than opening the floor for states to make comments. In his introduction, the President explained that the proposal for article 15bis separated out the triggers found in article 13 of the Rome Statute, reflecting a trend in the informal discussions among delegates that favoured this route. Article 15bis will address the state referral and propio motu triggers, while a new article 15ter will address Security Council referrals. The President’s non-paper also contains a declaratory option within article 15bis, whereby a state party may lodge a declaration of non-acceptance of jurisdiction, picking up an idea that had been gathering interest among delegates in the “informal informals”. The President noted for the benefit of those who had just obtained copies of the proposal that the declaratory route was based on a provision already found within article 12 of the Rome Statute. The President’s non-paper also contains a new provision that makes clear that: “The Court may not exercise jurisdiction with respect to an act of aggression committed by a Non-State Party.” (A revised version released in the evening now reads: “In respect of a State that is not a party to this Statute, the Court shall not exercise jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.”)

On article 15ter, the President raised the possibility of deleting several paragraphs in his text so as to dispense with the need for the Security Council to determine an act of aggression in order to proceed by way of Security Council referral. This may not be the best way to proceed if a Security Council referral of a situation to the Court of crimes against humanity does not bar the possibility of a subsequent finding of aggression.

As for other aspects, the President has not shown his hand with respect to paragraph 4 of article 15bis, which still contains the two alternatives of the Security Council filter and the Pre-trial Chamber filter, presumably reflecting the continued existence of this division among delegates. On the amendment formula issue, however, the President’s non-paper expressly refers to entry into force in accordance with article 121(5) in the proposed covering resolution to accompany the amendments.

After the introduction of the non-paper, the plenary was then adjourned until 5 pm today, to allow the President to conduct bilateral and group discussions with delegates, and for delegates to discuss the non-paper amongst themselves.

UPDATE: The conference resumed in plenary after 5 pm, with the President advising that further bilateral consultations and group discussions were needed, offering both his assistance and that of HRH Prince Zeid of Jordan. The President has decided to adjourn the plenary and reconvene at 10:30 pm. The pressure is on and it’s clearly crunch time for a deal on aggression.

SECOND UPDATE: The plenary reconvened at 10:30 pm, with the amendment concerning article 8 being adopted. France made a declaration for the record with respect to the expanding bullets aspect, with which Canada, the United States and Israel associated. But on aggression, the President circulated another version of his non-paper, available here:

The revised non-paper from the President continues to list the two alternatives with respect to the Security Council filter and the now enhanced internal filter (the Pre-trial Division rather than the Pre-trial Chamber), indicating there remains no clear resolution of this long-standing division. Perhaps it’s best to conclude this review conference with an agreement on the definition of the crime of aggression and a Security Council referral, and then postpone the rest for a second review conference. Corridor talk has included the issue of vote counts, which will need to take into account the possibility that some will choose not to vote as well as possibly absent delegations (with some having flights that need to go this evening to make connections).

As for the article 124 and article 8 amendments

After the release of the President’s non-paper, there was a flurry of excitement and discussion among delegates, with some scurrying from the room to undertake informal consultations within like-minded groupings, and some delegations forgetting to keep at least one person in their designated chair for the meeting of the Working Group on Other Amendments that followed the adjournment of the plenary session.

The co-chair of the Working Group on Other Amendments introduced the resolution text concerning the retention of article 124, (see document RC/WGOA/2 of 9 June 2010). Two wording changes can be found in this text as compared to the earlier non-paper on article 124 that had been in circulation. Preambular paragraph 2 of the resolution text now recognizes the “importance of the universality of the founding instrument of the International Criminal Court” rather than the “possible contribution of article 124 to the universality …”, while operative paragraph 2 indicates that the parties will be undertaking a “further” review of the provisions of article 124 during the fourteenth session of the Assembly of States Parties. The resolution to retain article 124 and further review its provisions at a later date was then promptly adopted by consensus at the working group level. Several NGOs expressed their dissatisfaction, having wanted to see article 124 deleted from the Rome Statute. Ecuador has announced that it will make a strong statement expressing dissatisfaction about article 124’s retention at the final plenary of the conference. A number of other states have also expressed their desire for deletion but did not want to oppose consensus.

The draft report of the Working Group on Other Amendments was then circulated for review and approval by the Working Group. The likely paragraph of interest to readers is paragraph 5 of the report, which encapsulates the concerns that resulted in the wording of preambular paragraphs 8 and 9 of the article 8 resolution. These preambular paragraphs draw a distinction between the strictly forbidden use of poison and gas as weapons, and the absence of an absolute prohibition on the use of bullets which expand or flatten easily in the human body (aka dum dum bullets). With the latter, “the crime is committed only if the perpetrator employed the bullets to uselessly aggravate suffering or the wounding effect upon the target of such bullets”.  Paragraph 5 of the Report of the Working Group on Other Amendments was adopted with a Belgian addition to stress that law enforcement situations are excluded from the court’s jurisdiction, with an example being the use of dum dum bullets by police officers in hostage situations in an effort to avoid harm to the hostage.

The author is part of a research team consisting of Professor John Currie of the University of Ottawa, Professor Joanna Harrington of the University of Alberta, Professor Valerie Oosterveld of the University of Western Ontario, and Professor Darryl Robinson of Queen’s University, with financial support for the team’s coverage of the 2010 Review Conference having been provided by the Social Sciences and Humanities Research Council of Canada.

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