Sunday, June 13, 2010

Assessing the ICC conference

(Another in IntLawGrrls' series of posts on the Kampala Conference)

KAMPALA, Uganda - The International Criminal Court Review Conference has ended in Kampala, with the adoption of a resolution adding the crime of aggression and conditions for the exercise of that jurisdiction to the Rome Statute.

How the final day unfolded
Friday began with numerous bilateral and group meetings among states -- for example, the Latin American and African groups met, together with the states of the Non-Aligned Movement, several times to consider the ever-changing proposals meant to resolve the issue of the conditions for the exercise of jurisdiction of the ICC over the crime of aggression. While some state discussions focused on determining if there was support for the "non-papers" issued the evening prior and throughout the day, other discussions aimed at trying to come up with creative solutions to bridge differences among states.
Originally, a plenary was set for 11:30 a.m. to consider the crime of aggression. However, that was delayed until 2 p.m., as intense inter-state discussions were still going on. At 2:00 p.m., the President – Ambassador Christian Wenaweser of Liechtenstein -- took the floor for only a few minutes to indicate that he had provided some delegations with a very informal paper, and that copies of that paper were now available to all states. He then delayed the plenary until 5:00 p.m. and, then again, at 9 p.m.
The plenary finally got under way at 11 p.m., when the President introduced his final package proposal, an effort to accommodate the bottom lines of all delegations. He then suspended the plenary again to allow states to consult.
Finally, at 12:10 a.m. yesterday, after the marathon day, the plenary took place. A resolution amending the Rome Statute was adopted by consensus. As posted, it sets out the crime of aggression and the conditions for the exercise of jurisdiction. These conditions allow the ICC to exercise jurisdiction over the crime of aggression without the need for prior U.N. Security Council authorization. However, this grant of independent jurisdiction is subject to significant caveats. Specifically, it:
► Does not extend to acts of aggression committed on the territory of or by nationals of non-state parties (unless the Security Council refers the matter to the ICC).
► Is subject to declarations of non-acceptance by states parties; and
► Will not come into effect at all until 2017 at the earliest, and even then only if States Parties positively decide to activate this new aspect of the ICC’s jurisdiction.

Also in Kampala
The crime of aggression was not the only focus of the Review Conference. Other aspects:
► The Rome Statute was also amended to include within the jurisdiction of the Court the war crimes of employing poison or poisoned weapons, employing asphyxiating, poisonous or other gases and analogous liquids, materials and devices, and employing bullets which expand or flatten easily in the human body, when committed in internal armed conflicts.
► There were stocktaking exercises focused on victims issues, peace and justice, complementarity and cooperation.
Article 124 (a transitional provision) was retained, but will be revisited in 2015. A resolution on the enforcement of sentences was adopted and, finally, the Kampala Declaration was adopted, reaffirming states’ commitment to the universality, integrity and full implementation of the Rome Statute.

Was the close of the Review Conference the historic moment many hoped it would be?
International criminal law now has a definition for the crime of aggression, as well as recognition of additional serious war crimes committed in internal armed conflicts. The jurisdictional regime for the crime of aggression does have built-in caveats and delays – which may seem less like success – but it certainly was not clear until the very final minutes of the Review Conference that any agreement was possible at all. Certain of the stocktaking discussions are likely to inform the work of the Court and the ICC’s Assembly of States Parties for years to come. Finally, increased cooperation on sentence enforcement may stem from the efforts of Norway at the Review Conference.
Thus I would argue that the answer to the question above is a qualified “yes”.

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