What is the Review Conference, and Why Should You Care?

Between May 31 and June 11, the International Criminal Court will host its first Review Conference in Kampala, Uganda. This is the first opportunity for States Parties to amend the Rome Statute since its creation in 1998. The current diplomatic efforts take on added significance as the present Review Conference is the only one mandated by the Rome Statute.

In recognition of its legislative and symbolic importance, the Kampala Review Conference will bring together the largest collection of senior political figures and non-governmental organizations since the drafting of the Rome Statute. This will include delegations from prominent non-parties – the United States, for example, is expected to be well represented at the conference, with the Obama administration expressing a greater willingness to cooperate with the Court.

The outcomes of the Kampala Review Conference will have a major impact on the shape of the Court for years to come. Here we offer a brief summary of the key topics under discussion.

Defining the Crime of Aggression

The most contentious topic to be considered at the Kampala Review Conference is the development of a definition for the crime of waging aggressive war. The Rome Statute includes aggression as a “core crime” under the Court’s jurisdiction; however, the Statute as drafted in 1998 left this undefined, as delegates could not agree on a definition or the means by which the Court would exercise jurisdiction over the crime. The ICC therefore cannot currently consider cases involving aggression; this will remain the case until such time as a final definition is adopted and added to the Rome Statute via formal amendment.

The question of whether and how to incorporate aggression within the Rome regime has been politically charged since negotiations for the Court began in earnest in the mid-1990s. Proponents have long argued that an effective ICC must criminalize the waging of aggressive war—which the judges at the Nuremberg Military Tribunal of 1945 termed “the supreme international crime”—since it acts as the wellspring from which many other ICC crimes flow. Yet a number of powerful non-parties like China, India, and the United States of America strongly oppose granting the Court the ability to prosecute their military and political leaders for decisions relating to the use of force. Given that these states’ existing objections regarding the ICC, many fear that adding the crime of aggression will further reduce the prospects for gaining their support in the future.

While progress has been made in framing the scope and nature of aggression as an international crime, much diplomatic work remains for the Review Conference if a final definition is to be agreed. In particular, delegates must select a procedural mechanism for determining when an act of aggressive war has been committed. Three options appear most likely. First, the final decision could be left to the United Nations Security Council, in keeping with its historical role under the UN Charter. Under this scenario, the ICC Prosecutor could only launch an investigation for this crime once the Security Council had determined that an act of aggression had occurred. This would give the five Permanent Members of China, France, Russia, the United Kingdom and the United States vetos over when the ICC could exercise jurisdiction over the crime of aggression. Alternatively, other permanent bodies the United Nations General Assembly or International Court of Justice (ICJ) could serve as the ultimate arbiter – choices that are popular with some states seeking to shift political power away from the Security Council. Finally, authority could be vested with the Court itself via the Prosecutor and Pre-Trial Chamber, requiring no input from the Security Council or other bodies, and thus further enhancing the independence of the ICC.

Each option is potentially problematic. While giving the Security Council the sole authority to determine acts of aggression would appeal to powerful ICC opponents (and may increase their willingness to join or at least support the Court), such a solution would significantly erode the independence and impartiality of the ICC and would be met with strong resistance from many Court supporters. Devolving the “gatekeeper” role to the General Assembly would imply many of the same political concerns; and the ICJ’s competence in determining the legality of acts of aggression by individuals is unclear. Last, while proceeding without a jurisdictional filter and leaving the determination to the Court is popular with proponents of a strongly independent Court, such a move would further antagonise powerful non-parties like the United States, China, and Russia, and imperil any positive signs of increased assistance to Court operations.

More fundamentally, many international justice groups worry that including the crime of aggression under the Statute in any form may threaten the perception of the Court as an impartial, apolitical actor, and thus undermine its ability to effectively end impunity with respect to the other core crimes of genocide, crimes against humanity, and war crimes.

Amending Article 124

Article 124 of the Rome Statute provides a transitional period of seven years by which States Parties, through written declaration, may delay their acceptance of the Court’s jurisdiction over war crimes committed by their nationals or on their territory. Article 124 does not apply to acts of genocide or crimes against humanity, for which no such transitional provision is permitted. To this point, only two countries—France and Colombia—have invoked this optional declaration, and in both cases the seven-year period has now expired.

At the Review Conference, delegates from States Parties will decide on whether to delete or retain Article 124. A number of states and non-governmental organizations have long opposed the inclusion of a transitional period on the grounds that it would significantly weaken efforts to ensure prompt criminal punishment of war crimes. Critics have suggested that the initial purpose of the article has now passed, and the fact that so few states have made use of the clause demonstrates its irrelevance. By contrast, some delegations have argued for retaining Article 124 in order to make the Rome Statute more palatable to resistant states, thus improving the universality of the Court.

Weapons in Non-International Conflicts

At the Review Conference delegates will also consider a Belgian proposal to extend existing prohibitions on weapons in the Rome Statute to non-international armed conflicts. This would apply to “poison or poisoned weapons,” “asphyxiating, poisonous or other gases,” and “bullets which expand or flatten easily in the human body”. The use of these weapons is already classified as a war crime under the Rome Statute in cases of international conflict—between two or more states—but does not apply to instances where the acts were committed by security forces or rebel groups solely within national borders. The amendment would thus bring the Rome Statute in line with existing customary international humanitarian law governing the use of weapons.

Interestingly, the Assembly of States Parties—the Court’s governing body—elected not to pursue the inclusion of other weapons systems at the Review Conference. In particular, Belgium had suggested that the use of anti-personnel landmines, and chemical and biological weapons should explicitly be made war crimes under the jurisdiction of the Rome Statute. Mexico had similarly argued for the inclusion of the threat or use of nuclear weapons in the scope of Article 8 of the Statute. This has been viewed by some campaigners as a significant “missed opportunity” to further strengthen international humanitarian law.

Stocktaking

In addition to the proposed amendments to the Rome Statute, delegates will also engage in a wide-ranging “stocktaking” exercise to evaluate the progress of the Court to date. To that end, participants will consider how the ICC relates to the international system and its impact on the twin causes of peace and justice. Topics include the Court’s impact on victims and communities affected by severe violence, its influence on domestic legal systems, and the ICC’s role in the effective punishment of grave criminality and resolution of violent conflicts. Finally, delegates will assess the cooperation provided to the Court by its members (as well as non-parties), and how these efforts contribute to the above-mentioned goals. While not the primary purpose of the Review Conference, this stocktaking effort is nonetheless important for reflecting on what has already been achieved, and building momentum for improving the Court’s functioning and universality going forward.