Day 5: Aggression Kicks Off

Today’s plenary sessions were dedicated to initial discussions of the proposed amendments, with the crime of aggression unsurprisingly taking up the vast majority of the time (approximately 5 hours to the 1 hour set aside for discussion of Art’s 8 and 124 combined). Today can be understood as a “temperature-taking” day, with delegations providing statements of their positions or more generalized references to principles or values they wished to invoke as guiding the final negotiations. All also found ample time to congratulate the chair, Price Zeid of Jordan, for his stewardship.

At this point a number of potential points of contention remain to be resolved, principally concerning how the Court will gain jurisdiction over the crime (the so called “filters”) and how any provision will take effect. Debates have circled around whether the UN Security Council would be entrusted as the sole body capable of determining an act of aggression had occurred (the filter), and whether the alleged aggressor state must first accept the consent to the Court’s authority for a case to go ahead. Four main options for combining these two features have emerged, which can be classified from least to most “robust”: UN Security Council as the only filter and aggressor must consent; UNSC filter and no aggressor state consent; UNSC + alternative filters (General Assembly, International Court of Justice, or authority within the Court itself) and aggressor state consent; and finally, alternative (and especially internal ICC) filters and no aggressor state consent.

Further muddying the waters is the question of when and how any accepted amendment would enter into force, and a significant division remains concerning two differing interpretations of how this might go ahead. If all this appears convoluted and confusing it is because, well, it is. Today the delegations of Brazil, Argentina, and Switzerland proposed a sort of hybrid solution which presents a number of interesting and perplexing challenges.  As it’s late on a Friday eve here, I will leave this for now, but we’ll get a more substantive post on this topic up soon, and will be following–and reporting on–developments closely next week.