The initial dust has settled in Kampala, and we begin the period of post-mortem assessments.  A few have already begun to circulate, and readers may be interested in the short reports from Robbie Manson and Jennifer Trahan, both of whom attended the Review Conference as NGO observers. And for a little more on the crime of aggression, see some excellent summaries here, here, and here.

The opportunity to attend to attend the Review Conference was a real privilege, and our participation was greatly facilitated by assistance from a number of people and organizations. We are grateful to the Coalition for the International Criminal Court for offering us both accreditation to the conference as part of their umbrella NGO delegation, and for the inclusive spirit in which they conducted their meetings and interventions. The trip to Kampala was initially conceived strictly as a means of engaging in research for our respective doctoral dissertations. However, colleagues at the Liu Institute for Global Issues at the University of British Columbia took an early interest in our proposed travels, and encouraged us to share our observations and experiences through this blog. The Liu Institute also provided generous financial assistance to help offset the costs of travel and accommodation. Particular thanks go to Dr. Peter Dauvergne, Director of the Liu Institute, for his enthusiastic support; and to Dr. Erin Baines, who provided valuable encouragement and local contacts. Sally Reay provided all manner of technical support, and her efforts were instrumental to the smooth functioning of this blog. Additional funding for Adam’s trip to Kampala has been generously provided by the Liu Institute’s Centre for International Relations through their Security and Defence Forum programme (sponsored by the Department of National Defence Canada).

Major thanks also go out to Asad Kiyani, the third member of our blog team, who offered invaluable contributions from his own areas of expertise. Brendan Naef provided a lucid backgrounder on the crime of aggression at just the moment that things really got going in Kampala.

Thanks are also owed to the Government of Uganda for their generous hospitality, and to the Munyonyo Commonwealth Resort, the host venue for the Review Conference.

Finally, we offer a tip-of-the-hat to our readers–whoever you are–with our thanks for following our reports as they developed. The Reports From the Field blog will be utilized to support other UBC research projects in the future, so be sure to check back for further updates down the road. For us, however, this marks the end of the line.

Signing off,

Adam Bower and Chris Tenove

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.

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At 12:15am, the final plenary session of the Review Conference of the International Criminal Conference adopted the draft amendment on the crime of aggression by consensus.

Immediately beforehand, the Japanese delegation made a pointed speech opposing the content of the resolution. They noted two particular grounds.  First, the amendment was, in the view of the Japanese delegation, concluded via dubious legal means, as it did not accord with the procedures of the Rome Statute. Second, as a State Party in a region of non-parties, Japan was deeply unhappy with the “blanket immunity” applied to non-parties (since as per the amendment acts of aggression committed by the nationals or on the territory of a non-party are completely exempt from the Court’s jurisdiction). For a few moments, it looked to those assembled that Japan was going to announce that it would not join the consensus position. But in the final sentence of the intervention, the Head of the Japanese delegation announced that “with a heavy heart” given their significant concerns, Japan would not stand in the way of consensus.

Following the intervention, the Chair asked if it was the will of the assembled delegations to adopt the amendment without a vote. As there were no objections raised, it was so agreed, and the amendment resolution on the crime of aggression was adopted.

It is very late here, and everyone is exhausted, so we will leave substantive analysis for a later time. Suffice it to say that many delegations and NGO groups are disappointed with many aspects of the amendment, but that ultimately most feel it was better to get something done here, rather than wait for a indeterminate future moment.

For the moment, we are signing off.

The final decision will come any moment now.  Follow these developments at @asbower.

UPDATE 11:30 p.m.

We returned at 10:15 (which became 11 p.m. before the gavel dropped), to have Ambassador Wenaweser present new language for the contentious issue of the entry into force of the jurisdiction over the crime of aggression. The new language reads, for both 15 bis 3 and 15 ter 3:

The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute;

Before a 15-minute break to consider this new proposal, Ambassador Wenaweser said the following:

“You will now that consultations on this particular aspect have been taking place throughout the day…What I am putting forward for your consideration is my best attempt to try to capture a compromise on this topic. This compromise would mean that the two provisions 15 bis and 15 ter are given identical treatment…and that they would both be subject to an affirmative decision by the States Parties.

“I am fully aware that this text does not meet with the suggestion made by any of you, and that is in my experience the nature of a compromise at this stage of a negotiation… I do believe we are very close to adopting a daft resolution on the crime of aggression, by consensus…This is the last step that we can make, if you all want to make it, and I’m looking forward to your continued support in this effort… so we can finalize our business on the crime of aggression.”

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ORIGINAL POST

It is now 8:45 p.m. on the final night of the Review Conference. Those of us who are observers have spent the day wondering what is going on behind closed doors. The Plenary convened at 11 a.m. and 2 p.m., and on both occasions Christian Wenaweser, President of the Assembly of States Parties, quickly dismissed the meeting to return to informal negotiations. At five p.m. he circulated a non-paper, with several small but important revisions to the proposed amendment on aggression. (We had hoped to post an analysis of the non-paper circulated last night, but failed in part due to the resort’s very spotty wifi. For good analyses see these by Bill Schabas, David Scheffer, and Joanna Harrington.)

Perhaps the most important development in this afternoon’s non-paper was the elimination of “Alternative 1” of Article 15 bis. This alternative had proposed that the International Criminal Court could only prosecute the crime of aggression if the United Nations Security Council (UNSC) had made a determination that a state act of aggression had occurred. “Alternative 1” had been the preferred option of Permanent Members of the UNSC, but it was unacceptable to the majority of States Parties. Its removal suggests that an important step in the negotiating process had been taken. On the other hand, the non-paper also shows many compromises from the large group of states who had preferred an independent and immediate Pre-Trial Chamber filter that would apply to all States Parties (once the amendment was passed).

As can be seen in this a non-paper, the two issues still to be resolved are the entry into force and the declaration that enables states to opt out of the external filter (proprio motu or self-referral of the crime of aggression, reviewed by the ICC’s Pre-Trial Chamber.)

When he introduced this latest non-paper, Ambassador Wenaweser (in his usual deadpan delivery) made some surprisingly optimistic remarks: “I am encouraged by the continuing work and by those who have made concessions,” he said. “We are very close to reaching [a consensual outcome] together…this makes me confident that we will be able to bridge the remaining gap within the time that is available to us, and bring this exercise to a very positive conclusion.”

Ambassador Wenaweser asked us all to return at 8:30 p.m. for the final plenary meeting. It is now 9 p.m., and there are clearly more informal negotiations going on. It could be a long night.

It is 1 a.m. on Thursday night, on the eve of the final day of the Review Conference. It has been a long and uneasy evening. At 5:30 p.m., the Plenary of the Conference broke for five hours for delegations to work on some final language on the proposed amendment for the crime of aggression, which then had to be translated into the six official languages of the Court. We knew it would be a long night.

At that point many of us strolled down to the hotel’s terrace restaurant, where for two weeks we have dined most nights at candle-lit tables next to the pond. This evening the terrace was particularly crowded, as clever state delegations had reserved long tables so that they could dine, regroup, and then return to the fray.

For those drafting text or lobbying for support, this would be a busy evening. But observers like myself instead spent the evening chatting, waving away moths and the occasional mosquito, watching for signs of what would come. What would the new proposal look like? Were the United States, the United Kingdom, and France making headway with the African and South American states? Were the latter  staying firm in demanding more than a Security Council filter? Speculation abounded.

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We have little in the way of an update over the past two days, principally because the situation with respect to aggression has been extremely fluid. There have been few substantive meetings of the delegations in plenary, as the vast majority of the time has been allocated for bilateral (and “mini-lateral”) meetings among the Chairs of the Working Group and Assembly of States Parties and various state delegates. Various proposals have been presented, each of which seeks to incorporate elements of previous ones, in the interest of building towards a document that is acceptable–or at least tolerable–to all delegations. These are too detailed, and unsettled, to describe in detail here. Suffice it to say that the “facts on the ground” are changing relatively quickly, and appear to be moving towards a consensus. But this too could still change.

As I write this, the Chair of the Assembly of States Parties has suspended the plenary session until 10:30pm tonight. It is hoped that the intervening time will allow delegates to hammer-out final points of disagreement. It should become apparent relatively soon after we reconvene whether this effort has been productive. The endeavour this evening takes on added significance as many delegations depart tomorrow, before the official close of the conference. This raises potential challenges for reaching a necessary quorum for a consensus agreement, whereby all parties agree (by not raising objections) to the adoption of the amendment. There almost certainly will not be a vote on this, as the clear position of many States Parties has to been to avoid this outcome at all costs.

For the moment, there is little to report. As they say: further details to come as they become available.

By Chris Tenove

Yesterday at the Review Conference, Canada proposed a partial solution to disagreements over the crime of aggression. The “Canadian proposal” provoked enthusiasm from some delegations and deep concern from others. You can find the exact language of the proposal in an initial post by Adam Bower here. You can find background to the aggression debate on our blog here and here, and from U of A professor Joanna Harrington here. You can also find a good commentary on the debate and the Canadian proposal by William Schabas here. In this post I want to expand on Adam’s initial comments.

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By Brendan Naef

The crime of aggression is the hot topic at the Review Conference this week, and perhaps right up to final moments on Friday. Discussion has focused on the definition of the crime and its constitutive elements, and also, more controversially, the jurisdictional conditions of its enforcement. Otherwise stated, the conference are discussing what the State Parties believe “aggression” to be and the situations in which individuals accused of the act may fall within the grasp of the International Criminal Court. By no means, however, should this discussion be taken as an indication that the execution of a war of aggression is not yet an international crime. Simply put, although the current lack of agreement among States over a specific or exhaustive definition of the act may significantly complicate matters, in no way does it provide that perpetrators of aggression cannot be prosecuted. Thus, the role of the State Parties to the Rome Statute is to come to an agreement on aggression that falls within the boundaries of the current customary law definition. In the following discussion I will briefly address some of the past efforts to define the act of aggression, and I will follow this with a review of some of the aspects likely to be considered in Kampala.

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This morning, the Canadian delegation presented a proposal as a practical means of “contributing towards an eventual compromise package” on the operationalization of the crime of aggression.

The text reproduced below proposes a new modality by which the ICC may assert jurisdiction over the crime. There is now broad agreement that the UN Security Council should be entrusted with the ability to determine that an act of aggression has occurred, and refer the case to the ICC Prosecutor. Should a final agreement be reached here in Kampala, this element may enter into effect very soon after. The debate remains whether the UNSC should have the exclusive right in this respect, or whether additional “internal” filters would allow the ICC to consider cases of aggression in the absence of a positive UNSC determination. The Canadian proposal was presented as a compromise in this regard.

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