Reflections on the First Week in Kampala

The pace of meetings during the first five days of the Review Conference has been hectic. With a more relaxing weekend and a little bit of distance, I wanted to briefly summarize what has been achieved to this point.

The RevCon opened on Monday with the usual speeches from various dignitaries, including the President of Uganda, and the current and previous Secretaries General of the United Nations. The official plenary meetings on days 1 and 2 were reserved for the High Level statements from the delegations. States Parties, non-parties, and some non-governmental organizations offered their views—in typically diplomatic language—on the status of the Court and agenda for the Review Conference. Few of these statements were very revealing, though the frequent invocation of the need for “consensus” decisions provides a preview of the likely shape of negotiations to come.

On Wednesday and Thursday attention turned to “stocktaking,” with four panels organized on victims and the Court, peace and justice, complementarity and cooperation. While the inclusion of stocktaking is surely welcome (demonstrating the importance of these topics for the Court), many have questioned whether the exercise achieved much of value in practical terms. These sessions did however provide time for delegations to engage in informal bilateral discussions on the proposed amendments.

Throughout the week, numerous side-events—often hosted by civil society groups—have addressed a wide array of ICC-related matters. Personally I have found these to be some of the most interesting and informative sessions, and it only unfortunate that the demands of scheduling meant that it wasn’t possible to attend more.

Friday saw the first public discussion of the proposed amendments to the Rome Statute. Unsurprisingly, the crime of aggression occupied the bulk of the day’s proceedings. Brazil, along with Argentina and Switzerland, tabled a hybrid proposal which would work in a “two-stage” fashion. Professor Schabas’ blog has a useful summary of this, so I won’t recap the developments here. Amendments to Articles 8 and 124 were also briefly considered.

The Belgian proposal on Article 8—which would effectively extend provisions on prohibited weapons to non-international conflicts under the Rome Statute—was adopted by the Working Group by consensus, and passed to the full plenary for consideration. Barring any last-minute drama, this amendment will be adopted by the States Parties. This is, however, a potentially more complex decision than first appears. In particular, a number of states have raised concerns about how the extension of Article 8.2(b)(xvii-xix) to internal conflicts may impact domestic policing operations. For example, so-called “dum-dum” bullets—which are designed to flatten in the body and are considered to produce excessive harm to the victim—are reportedly used by some police and S.W.A.T.-type operations. The idea is that such bullets have greater “stopping power” and will reduce the chances of collateral damage to innocent persons because they tend not to exit the victim’s body. Speaking after the adoption of the draft resolution by the Working Group, the delegate from the Philippines welcomed the amendment, but stated that his country recognized a legitimate and necessary right to employ these weapons in special circumstances to reduce collateral damage and protect civilians. In most conceivable circumstances the police and counter-terror operations envisioned by the Philippine delegate would likely not rise to a level of gravity so as to trigger an investigation by the Court – but future practice could provide for some interesting discussions at the ICC and in national capitals.

Finally, delegates briefly considered the proposed amendment to Article 124. Essentially, the decision comes down to whether to retain or eliminate the article. At this stage opinion remains divided, as the Coordination of the Working Group noted that the majority of states want to remove the article, while a few “strong” states wanted it retained. More work clearly needs to be done before this matter is resolved one way or the other.

So that’s where we stand at the present moment. The Attorney General of Uganda and President of the ASP are hosting an “African Gala” at the Munyonyo Resort (site of the Review Conference) this evening. So, another change to enjoy some good food and company before work really resumes tomorrow.