One step forward two steps back for the ICC Review Conference on the crime of aggression

15th June 2010 By: ISS, Institute for Security Studies

Following ten days of deliberations, the first review conference of the International Criminal Court ended after midnight on Friday 11 June 2010 in Kampala, Uganda. Attended by around 4 600 representatives of governments, international organisations and NGOs, the conference's main aim was to review amendments to the ICC's Rome Statute. Of the three amendments under consideration, the crime of aggression - which seeks to criminalise the use of armed force by one state against another in contravention of the UN Charter - dominated proceedings.


The crime of aggression has been the subject of a dedicated working group of the ICC's Assembly of States Parties (ASP) for the past seven years after delegates at the ICC's Rome conference in 1998 could not agree on the issue. Running more than three days over time in Kampala, the compromise eventually reached is complicated and potentially damaging to the ICC as it creates expectations that cannot be met. It also risks linking the Court - which should be an independent judicial body - to highly politicised disputes between states. Although potentially a blessing in disguise, the agreement gives the ICC at least seven years before it would have authority to prosecute these complex crimes.


Reaching agreement on the definition of the crime of aggression was the least controversial aspect of the negotiations, with states parties essentially adopting the definition that emerged from the ASP's special working group on aggression. Agreement on how the ICC exercises jurisdiction over individuals for the crime of aggression was harder to achieve. Many states, including most from the developing South, were strongly opposed to any move that might strengthen the role of the UN Security Council (UNSC) in deciding which cases could be brought before the ICC. Although the Kampala agreement does not grant the UNSC exclusive control over the Court's authority to prosecute aggression, in practice the UNSC provides the only alternative for aggression-related prosecution of individuals from non-state parties, and non-consenting states parties. Without the UNSC, the ICC's powers to prosecute aggressive wars will therefore be limited to consenting states parties, from both sides of the conflict.


In terms of the agreement, the Court will not be able to exercise jurisdiction until at least 1 January 2017, and then only after 30 states parties have ratified the amendment. Moreover, separate procedures will be employed to deal with the crime of aggression depending on whether the referral was made by the UNSC, by a state party to the ICC, or where the ICC prosecutor decides to utilise his/her inherent powers under the ICC statute, and then only when authorised to proceed by the Court's Pre-Trial Chamber. Like other ICC crimes, the UNSC can refer (and defer) a situation of aggression involving a state that is not party to the ICC statute.


The other jurisdictional triggers, however, create more limited authority for the Court than with regard to genocide, crimes against humanity, and war crimes as the ICC will have no authority to prosecute the crime of aggression when committed by individuals from a state that is not party to the statute unless the UNSC refers the matter. And once the amendment is in force, both states parties (i.e. the aggressor and victim states) will have to consent to the ICC's jurisdiction over the crime. Individuals from states parties that make formal declarations opting out of the Court's jurisdiction over aggression will therefore not be subject to prosecution for this crime.


In terms of the other amendments that were considered at the review conference, delegates agreed, without controversy, to amend Article 8 of the Rome Statute which criminalises the use of certain poisonous weapons and expanding (‘dum-dum') bullets, asphyxiating or poisonous gases, and all analogous liquids, materials and devices, when committed in armed conflicts not of an international character. The conference also decided to retain Article 124, which allows new states parties to opt for excluding from the ICC's jurisdiction war crimes allegedly committed by its nationals or on its territory for a period of seven years. Article 124 will be reviewed again by the ASP in 2015.


Apart from the amendments, the conference was also billed as an opportunity to take stock of the implementation and impact of the Rome Statute. The ‘stocktaking' theme was only added to the conference agenda in November 2008, largely through encouragement from civil society led by the Coalition for the International Criminal Court (CICC). Late preparations and the limited time allocated on the review conference agenda were early signs that an assessment of the ICC's impact would be impossible, and that stocktaking was not a priority. The ASP specified the four stocktaking topics in November last year, leaving country focal points only four months to develop outcomes and agendas for each topic. In Kampala, each stocktaking session was allocated a mere three hours.


Considering the murky result of the conference's main business - agreement on the definition and jurisdiction over the crime of aggression - it would be ironic if the stocktaking sessions ultimately present the most useful outcomes for the ICC in the near future. The stocktaking process accurately identified and raised the profile of the key challenges facing the ICC: the impact of the Rome Statute system on victims and affected communities, peace and justice, complementarity, and cooperation. Although these are familiar issues for international justice experts, the conference drew considered international attention to each and provided focus areas for action to improve the Court's work.


From the planning stages it was evident that the victims session would be the least controversial of the stocktaking topics. A resolution was adopted that among other things, "recognised...the right of victims to equal and effective access to justice, support and protection, adequate and prompt reparation for harm suffered and access to information concerning violations and redress mechanisms" (ICC Press Release, 12 June 2010). The conference, in both official sessions and side events, also emphasised the need for better outreach activities and called for contributions for the Trust Fund for Victims.


The peace and justice session was the most interesting. During the preceding plenary, states were largely united in their assurances of support for the Rome Statute system. This changed during discussions on peace and justice. As Professor William Schabas observed, European states were ‘clear and uncompromising about the importance of justice' while the African Union and several African states ‘stressed the importance of peace, or a flexible approach'. Ultimately the question is whether amnesties should be granted to combatants to help facilitate peace. Although amnesties are no longer an option for the most serious crimes under the Rome Statute, Kampala revealed deep divisions on the issue.


Compared to peace and justice, complementarity and cooperation were much less divisive. The resolution adopted by the review conference on complementarity recognises that states have the primary responsibility to investigate and prosecute the most serious crimes of international concern and that states should assist each other in strengthening domestic capacity in this regard. The declaration on cooperation emphasised ‘that all states under an obligation to cooperate with the Court must do so' particularly with respect to the execution of arrest warrants.


A new development aimed at ensuring that the review conference, and particularly the stocktaking sessions, have an impact beyond Kampala, was the call for pledges. After sustained efforts by civil society in the build up to the conference, a major achievement was the presentation of over 100 pledges from nearly 40 states and international organisations, including some non-party states. The pledges cover issues like contributions to the Trust Fund for Victims, sentencing agreements with the ICC, ratification of the immunities agreement, and the relocation of witnesses. Many pledges no doubt fall short of the requirement that they comprise tangible objectives to be attained within a specific time period. Nevertheless, they represent an important new mechanism to encourage active and accountable participation by states parties in particular, in the Rome Statute system.


Encouraging pledges in future, and monitoring their implementation at the national level is a key task for civil society. Already, the active role that civil society played, and was allowed to play, in Kampala should be acknowledged as an important achievement of the conference. Through the tireless and effective work of the CICC, hundreds of civil society representatives - many from Africa - contributed to official proceedings and side events. The important role played by civil society from the drafting of the Rome Statute in 1998 to Kampala in 2010 was referred to by both UN Secretary General Ban Ki-moon and former secretary general Kofi Annan during the opening of the conference.


Ultimately, what we can be sure of is that the review conference was, in the words of Ban Ki-moon, an ‘occasion to strengthen our collective determination that crimes against humanity cannot go unpunished...'. Beyond that, it will take the continued collaboration of states parties and civil society to ensure that the many pledges made in Kampala are acted upon, and that the crime of aggression is resolved in a manner that does not further polarise supporters of the Rome Statute system.


Written by: Antoinette Louw and Anton du Plessis, International Crime in Africa Programme (ICAP)