Friday opened with the much-anticipated discussion on the crime of aggression – an unprovoked attack carried out by a leader against another country. Most delegations came to Kampala with firm positions on whether the International Criminal Court should begin prosecuting the crime of aggression, but before the formal debate began, we were hearing almost hourly rumors about the latest developments emerging from conversations among states.
On Friday morning, the Brazilian delegation, with the support of the Argentine and Swiss delegations, put forth a concept paper detailing how the ICC might gradually take on the crime of aggression. The Brazilian proposal was apparently in the form of a flow chart that reflected a “staggered” entry into force for an agreed definition of the new crime, including the trigger for when the crime of aggression can be charged. Assuming there is an agreed definition on what the crime of aggression would actually be, the approach on the actual exercise of this jurisdiction would be along the following lines: One year after a certain number of ratifications had been met, exercise of the jurisdiction of the crime would begin. The first phase would have the definition of aggression immediately come into force, and the only path for opening an investigation would be through a referral by the Security Council. Then, one year after the ratification of the amendment by seven-eighths of the parties to the Rome Statute, there would be an exercise of jurisdiction through a “self-referral” by a state party or by the prosecutor on his or her own (oversimplifying just a bit). It would then be applicable to all parties.
This concept note was welcomed by a number of parties as pointing a way toward compromise. South Africa suggested that the committee chairperson (Ambassador Zeid of Jordan) consult with other countries and then put together his own draft text based on the Brazilian/Swiss proposal and other suggestions made by other countries. However, France remained adamant that the U.N. Security Council referral be a precondition for investigation, a position that was also allegedly taken by the U.K.
U.S. Legal Adviser Harold Koh then delivered a very strong statement that was apparently neither well-received by the civil society groups, nor by at least some of the countries, who considered it “too directive.” The U.S. statement focused on ensuring that there was “genuine” consensus, that consensus was both “necessary and appropriate,” and that the only consensus that seemed to be emerging was that there was no consensus. These statements rang false with many at the conference, since, under the rules of the Rome Statute, consensus is not necessary to adopt the amendment. And it seemed premature to many to say – with a week left to go at the Review Conference – that there was no emerging consensus when new ideas had just been laid on the table that had been welcomed (even if they didn’t generate instant consensus). Koh’s statement also explained U.S. views on the already agreed-to definition, suggesting a number of “understandings” (clarifications) that would be useful.
For the remaining days of the conference, which ends on Friday, June 11, participants will focus on the potential amendments to the Rome Statute. There will no doubt be lively debates, which I’ll be sorry to miss as I travel elsewhere in the region. While this post will be my final regular update from Kampala, I may be able to pass along additional insights as I hear them from folks who are staying at the conference until the end of the week.
David Abramowitz is the director of policy and government relations at Humanity United. Previously, he served as chief counsel to the House Foreign Affairs Committee, where he was responsible for advising the committee on issues such as international law, international justice, and global human rights, and democracy.