Summing Up

This final summary post has been a long time in coming, but internet blackouts and personal travel conspired to delay its release.  With the benefit of some distance and hindsight, however, it is useful to think about the outcomes of the Review Conference, and their potential implications.

So, what was accomplished in Kampala?  Well, a number of things, actually, though their importance, and impact on the future operations of the Court, may vary with one’s perspective.

Stocktaking

As previous posts have documented, the RevCon began with a four-day stocktaking exercise. I won’t rehash the full discussion here, though it remains, for me at least, an open question as to whether the stocktaking exercise actually contributed many workable new ideas for how to improve Court operations going forward. Dialogue is of course always preferable to none at all, and conference organizers should be congratulated for the decision to include substantive discussions on cooperation, complementarity, peace and justice, and the Court’s impact on victims. But at the same time, one wonders whether other formats might have produced more frank, incisive, and ultimately productive discussions.

Amendments

As was noted frequently, the original purpose of the Review Conference was to consider amendments to the Rome Statute. Ultimately, three resolutions were passed concerning the three proposed amendments.

Article 124

After some back-and-forth, delegates ultimately decided to retain Article 124–the seven-year optional opt-out for war crimes–in the Rome Statute. As per the terms of the agreement, the article will be reviewed again in five years’ time, at the 14th meeting of the Assembly of States Parties. This was a slight nod towards those many states which wanted to scrap the provision entirely. Venezuela had proposed a “sunset” clause whereby the article would expire after an additional agreed number of years, but this failed to gain the support of all States Parties. Japan in particular argued strongly for the retention of Article 124, claiming that it had helped some states join the Court, and could do so again in the future. The Draft Resolution on Article 124 was duly adopted by consensus on Thursday, June 10. A number of NGO groups expressed disappointment at the decision, but with the overwhelming majority of attention focused on negotiations surrounding the crime of aggression, this item passed with very little fanfare on either side.

Article 8

On June 10, at approximately 11pm, delegates approved the Draft Resolution on Article 8, marking the first ever amendment to the Rome Statute. The final text follows the language proposed before the Review Conference, and there was little in the way of substantive debate on this topic. However, an important sentence (not reflected in the above text) was added by Belgium to the effect that the amended Article 8 does not apply to domestic policing operations (where, for example, so-called “dum-dum” bullets are sometimes employed).

The amendment was useful in closing an odd gap in the law of international and non-international armed conflict. However, the real impact of the change may be minimal. As we have often done, I again turn to Professor Schabas:

It is of course positive to have repaired an oversight in the war crimes provisions. However, the amendment to article 8 is symbolic, and it is doubtful that it will ever lead to prosecutions. There have, to date, never been any international prosecutions for the use of such weapons. It is occasionally pointed out that Saddam Hussein used poison gas at Halabja, but it is absurd to suggest that the failure to recognize the use of such weapons as an international crime means that there is an impunity gap for such atrocities. They can be prosecuted as crimes against humanity and even genocide. Years from now, people will point the prohibited weapons issue at Kampala with irony, noting that the States Parties were able to address the prohibition of relatively archaic weapons that are rarely if ever used in modern combat, but that they could not deal with the important issues: anti-personnel mines, cluster munitions, depleted uranium weapons and, of course, nuclear weapons.

It is in this sense that a number of NGO groups considered the narrowness of the proposal on Article 8 to have been an opportunity missed in Kampala.

Crime of Aggression

Undoubtedly the most highly anticipated and dramatic aspect of the RevCon was the debate surrounding whether and how to incorporate the crime of aggression into the Rome Statute. The background to this process will be familiar to readers of this blog and the many others which addressed this topic will great skill. I won’t review the long and tortuous road by which the Draft Resolution on the Crime of Aggression was ultimately adopted; instead, I offer here an overview of its most critical elements.

Definition – 8 bis

The new Article 8 bis lays out the definitional content of the crime of aggression in two parts. The first paragraph defines the individual criminal act of aggression, which “means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” The second paragraph details the State act of aggression as per the main elements of the earlier UN General Assembly Resolution 3314 of December 14 1974. So, while the ICC will have jurisdiction–eventually–over the criminal actions of individuals (political and military leaders), the Resolution recognizes that the acts of aggression themselves necessarily involve states.

The definition of the crime of aggression was ultimately the least controversial aspect of the resolution, as the text for 8 bis had been hammered-out through a decade-long process of negotiation. These were hard-fought battles, but ones that were largely resolved in advance of the Kampala meeting.

Entry Into Force

Followers of this blog will recall that a key point of debate surrounded how any amendment on the crime of aggression would enter into force. Two options were possible, via the processes of Articles 121.4 and 121.5, respectively. Ultimately, the latter won out. However, this is read with a “positive interpretation” such that the amendment will apply to all States Parties (irrespective of whether they have individually  ratified the new text) provided they have not lodged a declaration opting-out of the provision. Japan’s last-minute intervention early on Saturday morning, in which it objected to the dubious legality of the amendment, was presumably directed at this point.

Exercise of Jurisdiction

Closely related to the issue of entry into force is the matter of how and when the Court will be able to exercise jurisdiction over the crime of aggression. The Resolution sets out two general conditions which must both be fulfilled before the Court can consider a case of aggression. First, jurisdiction may only be exercise over alleged acts of aggression “committed one year after the ratification or acceptance of the amendments by thirty States Parties.” Second, jurisdiction over the crime must be activated by an affirmative vote, after January 1 2017, of a two-thirds majority of States Parties. Until that time at least, the Court cannot consider any alleged crimes of aggression. This latter hurdle should be relatively easily achieved, though predicting the future course of international diplomacy is always a fraught business — it is certainly conceivable that some States Parties may seek to further delay the exercise of jurisdiction beyond 2017.

The Resolution also details how jurisdiction may be exercised via the different modalities. Article 15 bis concerns State referrals and proprio motu. 15bis.4 states that “The Court may… exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar.” The Court has no authority over crimes committed by the nationals of a non-party, or on its territory. In order for an investigation to proceed, the Prosecutor must first notify the UN Security Council of his/her intention. If the UNSC has already determined an act of aggression has occurred, the Prosecutor may proceed immediately. If no such determination is forthcoming, after a period of six months the Prosecutor may proceed in any case, provided that he/she receives authorization from the ICC Pre-Trial Division, and the UNSC has not blocked the process as per its prerogative under Article 16 of the Rome Statute. As above, this process applies to all States Parties, regardless of whether they have ratified the new amendment itself.

Article 15 ter concerns UNSC referrals, which follows the same procedure under Article 13(b) of the Rome Statute. As with the other core crimes, a UNSC referral can apply to non-party states. This is the only means by which non-parties may be subject to the jurisdiction of the Court on the crime of aggression.

So where does this leave us on the highly-charged matter of aggression? It is fair to say that the mood was decidedly split in Kampala. Many NGOs and states were deeply disappointed with the result. The Resolution entrenches a relatively weak legal regime on aggression, especially since it exempts non-parties (like the United States, Russia, China, India, Pakistan, and Israel) from the Court’s jurisdiction, and allows existing States Parties to remove themselves by declaration. The most likely perpetrators of aggressive war would seem to be able to avoid the Court’s judgment entirely. The delay of jurisdiction is also problematic for those who would like to see the Court actively take-up aggression as a matter of urgency. Many also felt that the final outcome gave too much to the powerful “P5” states, with little in return for the large majority of states which favoured a strongly independent ICC authority over the crime. There was a palpable sense that negotiations had largely ignored the wishes of smaller, less powerful nations, and this sense may well have poisoned much of the goodwill otherwise associated with the achievement.

On the other hand, many have argued that the outcome is a good deal more positive than the above characterization suggests.  First, the Resolution expands and deepens the legal regime governing the crime of aggression, for the first time instituting an individual criminal liability in treaty law. This is itself significant, and may provide the basis for further extension of the law in the future. In this sense, any achievement was preferable to nothing. As one academic noted during an informal civil society meeting, if no text had been agreed in Kampala, the implications for the legal status of the aggression regime, and state commitment to it, would have been extremely negative. Though imperfect, the inclusion of aggression can also serve as a focal point for political pressure at the domestic level, and can influence future parliamentary inquiries, domestic lawsuits, and even the decision to engage in hostilities in the first place. And the processes of ratifying the amendment and reviewing the provision in seven years time present important opportunities for civil society to engage states in promoting the aims of the Court. Much as joining the ICC has served as a demonstration of “good guy” status for many states, so too can accepting the jurisdiction of the Court over the crime of aggression.

On balance, then, the outcome achieved appears much better than the alternative of leaving Kampala with nothing, though it falls far short of the goal many states and civil society actors had set for themselves.

Where to go From Here?

The Review Conference represented the beginning and end of the first round of constitutional changes to the Court. From this point on, amendments may be considered at the annual meetings of the Assembly of States Parties — though it seems unlikely that states will wish to enter into this process again in the near term. The foreseeable future, therefore, should be  a period of reinforcement, as States Parties and civil society actors take stock of their achievements, and seek to consolidate the gains already made.

As expected, the Review Conference has had an important impact on the future direction of the International Criminal Court, not only because of the content of the decisions, but also the manner in which they were agreed. It has been a great pleasure providing our observations for this blog, and we hope that our efforts have been interesting and useful for those who have taken the time to read them.