The first ten-year Review Conference of the International Criminal Court (ICC) will take place from 31 May - 11 June 2010 in Kampala, Uganda. Most states parties will be satisfied with the progress made by the Court since the adoption of its founding treaty, the Rome Statute, back in 1998. Supporters will be pleased that 110 countries have signed up to the ICC, that it is fully operational, and that it is actively investigating cases in five countries.
There have, however, been significant challenges along the way. For Africa, one of the lesser-known challenges relates to the limited progress that has been made on defining the crime of aggression and agreeing on the process through which the ICC gains jurisdiction over the crime. States parties are now faced with the task of coming up with a workable way forward on this issue at the Review Conference.
The drafters of the Rome Statute gave the ICC jurisdiction over crimes against humanity, genocide, and war crimes. They also intended the Court to be given jurisdiction over the crime of aggression; however, at that time, the drafters could not agree on a legal definition of the crime. So although the crime of aggression was written into the statute in 1998, the Court's jurisdiction will remain non-operational until agreement is reached on the definition.
Due to the complexity involved in legally defining aggression, a Special Working Group on the Crime of Aggression (SWGCA) was established in 2002 to work on a definition and submit its proposals for the Review Conference. The purpose behind prosecuting crimes of aggression is to hold accountable those individuals who instigate and engage in unjustified armed conflicts between states. The legal definition involves two parts: the elements that define when a crime of aggression has been committed, and the circumstances which give the ICC jurisdiction over the crime. In short: a ‘crime of aggression' means the planning, preparation, initiation or execution of the use of armed force when not acting in authorised self-defence. The crime must be conducted by a person in a position to direct the actions of a sovereign state`s political or military branches. And the crime must be targeted against another sovereign nation.
The failure of the representatives at the Rome Conference in 1998 to agree on the definition of the crime of aggression was the result of both definitional and jurisdictional controversies. Certainly the most contentious hurdle was the role of the UN Security Council in triggering the ICC's jurisdiction, in other words bringing crimes of aggression before the Court. Some states wanted to uphold the inherent power of the UN Security Council to decide whether an act of aggression should be prosecuted. Others, most notably countries from the developing south, wanted a greater say for the UN General Assembly and International Court of Justice.
These debates, which relate to the uneven nature of international criminal justice, remain heated, and resonate elsewhere too. Recently much debate has centred around the power of the UN Security Council to refer cases to ICC under article 13 of the Rome Statute. The Security Council also has the power, under article 16, to defer ICC cases for a period of 12 months - and the African Union has vocally called for the ICC's case against President al-Bashir of Sudan to be deferred. For many African countries, the skewed institutional power of the UN Security Council creates an environment in which it is more likely that action will be taken against suspects from weaker states than those from powerful states, or those protected by powerful states. For example, the perception in Africa is that by referring the Darfur situation in Sudan to the ICC but not acting in relation to, for instance, Israel's assault on Gaza, the UN Security Council is guilty of double standards. The same considerations are obviously at play in relation to the crime of aggression and any proposals aiming to give the UN Security Council exclusive authority to trigger the ICC's jurisdiction over the crime.
African states are accordingly looking to use the upcoming Review Conference to voice their concerns regarding the Court's structure and operation within this uneven geo-political landscape. In that regard it is not coincidental that the most contentious aspect of the crime of aggression (the role of the UN Security Council in triggering the Court's jurisdiction) is co-extensive with many of the issues raised by African states in the context of the arrest warrant for al-Bashir. Second, and in a related manner, the issue of aggression touches on the question of the characterisation (as legal or illegal) of a particular use of force, which could potentially have serious consequences for the continent's nascent regional security architecture, particularly insofar as humanitarian intervention is concerned.
It has surprised few then that at their last Ministerial Meeting in November 2009, African states parties rejected the structuring of aggression in a manner that grants the UN Security Council exclusive authority to trigger prosecutions. The continuity between this position on the crime of aggression and the controversial article 16 amendment which aims to trim to exclusive power of the UN Security Council to defer ICC cases (endorsed by African States Parties at the same meeting) is self-evident. Both seek to displace (or prevent) the Security Council's hegemony in respect of the Court's pursuit of international justice: one by providing a residual power to defer proceedings to the General Assembly, the other by preventing further power being given to the Council in respect of initiating prosecutions. More broadly, both share a common motif that challenges the asymmetrical nature of the international criminal justice order. Given this correlation, to the extent that African states might be able to force compromise on either issue, it would be tactically advantageous to capitalise on this inter-play.
Aside from concerns about the inequality of international criminal justice, African states have reason to fear that a Security Council-dominated prosecution regime for aggression has the potential to undermine the regional security architecture developed since the AU's inception. This architecture, which boldly asserts a degree of autonomy in regional security issues, indirectly challenges the dominion granted by the UN Charter to the Council in respect of forcible interventions.
There is accordingly much at stake. Africa should be encouraged to take a bold, yet constructive, role in shaping the policy and practice of the Court in relation to these contentious, and developing areas of international criminal justice.
Written by: Anton du Plessis, Head: International Crime in Africa Programme (ICAP), ISS Pretoria and Christopher Gevers ICAP research consultant and lecturer, University of KwaZulu Natal