Home EJIL Analysis Waiting for a confirmed development in the ICC aggression negotiations

Waiting for a confirmed development in the ICC aggression negotiations

Published on June 10, 2010        Author: 

Day 8 of the Review Conference for the International Criminal Court saw the wrapping up of the work of the Working Group on the Crime of Aggression (WGCA), leaving the aggression negotiations to be conducted through “informal informals”, bilateral discussions, and plenary sessions. The move from working group to plenary will also be accompanied by a change of chair, with the President of the Assembly of States Parties, Ambassador Christian Wenaweser of Liechtenstein, taking over the reins from HRH Prince Zeid, the Chair of the WGCA (and a previous ASP President). Wenaweser is well aware of the positions and divisions among states, having previously chaired the Special Working Group on the Crime of Aggression (SWGCA) within which the aggression proposals were developed for the Review Conference. The question on the minds of many delegates is whether these negotiations will go late into the night on Friday in search of an acceptable text (and thus causing many of us to miss the first match of the much anticipated World Cup in South Africa).

Which proposal will emerge for plenary discussion?

As indicated in a previous post, there are two proposals currently in circulation, namely the Argentine-Brazilian-Swiss proposal (known as ABS) and the Canadian proposal, plus a third proposal from Slovenia that builds upon the Canadian proposal. The second version of the conference room paper prepared by the Chair of the Working Group on the Crime of Aggression also contains a proposal in terms of text, but it is also viewed as a neutral summary of where the room stands (or stood at the time of the paper’s release).

During the last informal session of the Working Group on the Crime of Aggression, held in the late afternoon of 8 June 2010, there was no clear indication as to which proposal was attracting the most support. Some delegates expressed support for the Canadian proposal, while others expressed support for “ABS”. After noting the “ingenious complexities” of the ABS proposal, the United Kingdom put the boot into the Canadian proposal, and its reciprocity aspect, arguing that a provision modelled on the ICJ for inter-state dispute settlement does not work for matters of criminal law. Mexico, however, then noted that while ABS had received a large measure of support, it did not achieve consensus, with Mexico then suggesting that Canada’s proposal could be the starting point for reaching a consensus.

And so the room went back and forth, expressing support for one proposal or the other, and arguing for a third version of the conference room paper to reflect one proposal or the other, or the best elements of both. Several delegates urged the proposers to get together to combine their proposals to bridge the gaps, and it may be that this will occur in time for tomorrow’s plenary session on aggression. There are many participants in these negotiations who hope that a third version of the conference room paper (a “rev. 3”) will be released tomorrow, which will bring the delegations together.

Aggressor State Consent and the Security Council

There are, however, several states that clearly cannot compromise on the issue of state consent and the role of the Security Council vis-à-vis the International Criminal Court. France, for example, has been quite blunt as to the bottom lines that cannot be crossed. A future research project may find utility in examining the role and position of the “P2”, which is a reference to the two members of the P5 that are parties to the Rome Statute (namely Britain and France).

If there is no deal that will bridge the gaps between the parties in the last two days, perhaps the end result will be the adoption of the definition of the crime of aggression (with certain understandings for interpretive assistance) and an article 15 addition to allow for Security Council referrals to the court for matters of aggression. In one sense, this would go further than proposals that push for language that focus on the other two triggers in the Rome Statute, in that a Security Council referral can clearly apply to a non-state-party to the Rome Statute, as we have seen with Sudan. For some, however, the inclusion of the crime of aggression with application in relation to all three existing trigger mechanisms is a coherence and integrity of the court issue, as well as an effective deterrent to future acts of war (assuming a state leader planning to commit an act of aggression would take notice of the possibility of an ICC prosecution). The application to attempts to commit aggression are ruled out by the proposed Elements of Crime, with element 3 requiring that the act of aggression “was committed”.

Article 121(4) or (5)?

Clearly, one item of business at the top of the agenda for the new Working Group on Other Amendments to be established by the Assembly of States Parties at its next session in December must be the revision and clarification of article 121. Much time has been spent by delegates at this Review Conference arguing for the application of one or the other, leading to awkward proposals that try to combine both (4) and (5). Frankly, I did not find Switzerland’s assertion that “you cannot be entirely pure with either position” to be convincing since a plain reading of the text favours article 121(5). It is also clear that the underlying issue of aggressor state consent as a prerequisite for action is influencing the camp that favours article 121(4). Many in this camp, however, assume that they will secure the required 7/8ths so as to achieve application to the non-accepting states, but such a strategy may actually delay the operationalization of the aggression amendments and create a hold-out position for the 1/8ths plus one. By contrast, article 121(5) respects the fundamental international law principle of state consent with the amendments only binding on accepting states.

Note too that this issue also has a knock-on effect for the amendments to article 8 that were spearheaded by Belgium. It is possible that there will no longer be uniformity in the application of the components of article 8 to states parties after this Review Conference, once the article 8 amendments are adopted.


Much of this afternoon’s published agenda was concerned with the topic of understandings, with Professor Claus Kress of the delegation of Germany serving as the focal point to coordinate discussions and engage in bilateral and informal consultations. States appear to be reaching agreement on the use and content of understandings, with the United States having actively promoted the adoption of several understandings as a means to address its concerns about the definition of the crime of aggression and the potential impact of an aggression amendment on the development of customary international law.

As for article 124 of the Rome Statute …

As indicated in a previous post, there had been interest in proposing an amendment at this Review Conference to delete the “Transitional Provision” found in article 124 of the Rome Statute. However, a non-paper has now been circulated containing the text of a draft resolution to “retain article 124 in its current form” and “to review the provisions of article 124 during the fourteenth session of the Assembly of States Parties.” Given Japan’s strong support for the retention of article 124, as well as the support of other states, this proposal is likely to be the one that can secure consensus, although the night may be needed for some delegates to convey the proposal back to capitals to confirm or receive instructions.

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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