The next few weeks are important ones for the International Criminal Court (ICC). States parties, NGOs and international criminal law experts will gather for the Court's first ten-yearly Review Conference in Kampala, Uganda from 31 May - 11 June. As one would imagine, delegates will have much to discuss. Despite notable progress, the Court still faces a number of complex challenges, ranging from victim participation to the role of the UN Security Council. The Review Conference provides a vital platform to tackle these challenges head on. However, this opportunity may be undermined by another key agenda item: the push for members to forge agreement on the definition and jurisdictional triggers of the crime of aggression. This was something the Court's founding members could not agree on in 1998, so they postponed the problematic decision to the first Review Conference. It is not clear - 12 years on - that the problems have been resolved.

Reaching agreement on the crime of aggression (committed by individuals who instigate and engage in unjustified armed conflicts between states) will be no easy task. The definitional and jurisdictional controversies that blocked consensus in 1998 linger yet. Two of the most intractable are the contentious role of the UN Security Council in triggering the ICC's jurisdiction, and whether consent from the aggressor or victim state should be required before a prosecution may commence. Some states want to uphold the inherent power of the UN Security Council to decide whether an act of aggression should be prosecuted. For some of them, consent from the aggressor state also remains a prerequisite. Others, most notably countries from the developing south, want a greater say for the UN General Assembly and International Court of Justice. Additionally, these countries see consent from the victim state as a prerequisite for the prosecution of aggression.

A recent ISS Today contribution argued that these debates, which relate to the uneven nature of international criminal justice, are understandably heated. 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. The debates about consent and the role of the Security Council demonstrate that the same principles are at play in relation to the crime of aggression. And notwithstanding several years of debate, there still exists substantial disagreement among states parties on key aspects of the proposed crime of aggression.

Narrowing this divide in the short-term does not seem likely. Indeed, given the wide range of perspectives that currently exist on the aggression amendment, pushing it to a vote in Kampala risks undermining the cohesiveness of states parties that has been so essential to the Court's establishment and mission, and risks politicising and straining an already burdened ICC.

For the following practical and principled reasons, it may be too early to add aggression to the Court's docket:

• First, aggression - a crime based on acts of individuals committed against a state - raises inherently political considerations about a state's initial decision to resort to the use of force. The decisions by US President George W Bush and UK Prime Minister Tony Blair to invade Iraq (illegally) in 2003 are stark examples of just how political and complex this issue can become. The ICC's other three crimes - war crimes, crimes against humanity and genocide -- are violations against individuals for which legal remedies have long been available and clearly defined in international law, both under customary law and international treaties. For obvious reasons, the ICC strives to present itself as an effective judicial body that is independent of political concerns. Amending the Rome Statute now to grant the Court jurisdiction over aggression will exacerbate the challenges the ICC already faces in fending off attacks about its perceived politicisation.

• Second, asking the ICC to take on another category of crime at present risks overburdening the Court when it is still striving to prosecute and try those responsible for current very serious crimes. That is not in the interests of African victims, who are looking to the Court for justice in respect of crimes committed in some of the continent's most treacherous war zones - the DRC, CAR, Sudan and Uganda. The Court's most recent attention on Kenya heightens this burden.

• Third, much work is needed to further improve the operation of the Rome Statute system in respect of cooperation, complementarity, the impact on victims and affected communities, and questions of peace and justice. Each of these issues requires dedicated attention at Kampala.

In light of this, it may be strategic for ICC states parties not to push ahead for an amendment on aggression at this time, especially considering that the Court has such urgent challenges to tackle. Although it is obviously important that an agreement on the crime of aggression is reached at some point, there are real concerns about doing so now when other existing priorities require the Court's focus and effort.

The Kampala Review Conference is not the last opportunity to address the crime of aggression. Under Article 121 of the Rome Statute, an amendment can be considered at any time in the future by the Assembly of States Parties directly or by another Review Conference. Taking more time to strengthen the Court, to consider the complexities of aggression further, and to achieve broader agreement on the crime's outstanding issues, may benefit the ICC in the long-term. An aggressive push now for the crime's adoption may reap unintended consequences and do untold damage to a Court that is steadily, but delicately, finding its feet.

Written by: Anton du Plessis, Head: International Crime in Africa Programme, ISS Pretoria