Day 7: The Canadian Proposal

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.

The text is envisioned as an insertion into Article 15bis of the Chair’s current Conference Room Paper (Rev.2) (text available here), which deals with whether and how the ICC may exercise jurisdiction over the crime of aggression independent of UNSC referral (i.e., via State referral or proprio motu). Article 3 is a verbatim reproducing of the one in the CRP Rev. 2. Article 4 is the new addition, replacing two alternative options for Article 4 in Rev. 2. Please note that the text is reproduced here in full, and as presented during the morning Working Group session:

Article 15 bis

…

3. Where the Security Council has made such a determination [that an act of aggression has occurred], the Prosecutor may proceed with the investigation in respect of a crime of aggression.

4. Where the Security Council has not made such a determination within six (6) months after the date of notification and where a State Party has declared its acceptance of this Paragraph, at the time of deposit of its instrument of ratification or acceptance or at any time thereafter, the Prosecutor may proceed with an investigation of a crime of aggression provided that

(i) the Pre-trial Chamber has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in Article 15;

and

(ii) [all state(s) concerned with the alleged crime of aggression] [the state on whose territory the alleged offence occurred and the state(s) of nationality of the persons accused of the crime] have declared their acceptance of this Paragraph.

The Canadian delegation has framed this as a “menu” option for selecting additional jurisdictional filters concurrent with or subsequent to, the incorporation of the UNSC filter. The two sentences in square brackets in sub-paragraph (ii) are meant to reflect two different means of articulating the same principle; according to the Canadian delegation, they are functionally equivalent. Some doubt was expressed about this view in the meeting with NGOs today (see below).

Canada presented their text as reflecting two core guiding principles. First, state consent is ensured because the additional filters do not become operative or binding for a state unless it has explicitly consented to Paragraph 4. Second, the Canadian text incorporates the principle of reciprocity (or more fully, the reciprocal acceptance of jurisdiction) as enshrined in the International Court of Justice and other inter-state dispute resolution mechanisms — this is found in sub-paragraph (ii), as both the aggressor and victim state must accept the jurisdictional mode. The Canadian delegation has further argued that this approach resolves the problem of how to implement the provision, and offers a “halfway house” for operationalizing the crime of aggression. Moreover, in the Canadian view this would result in a faster entry-into-force of the independent filters, since the threshold of ratification of seven-eighths of States Parties would no longer be necessary. Rather, the Court could assert independent jurisdiction over aggression upon entry-into-force among those states which had accepted the paragraph.

It is fair to say that opinions on this new proposal have been mixed.  A number of states have praised the text as resolving some challenges inherent in the Argentine-Brazilian-Swiss (ABS) proposal. Some, including the Netherlands, Czech Republic, and Mexico asserted their support for the Canadian proposal as the basis for working towards a compromise text.

However, many other states and non-governmental groups raised serious questions about the proposal. While a number of concerns have been expressed, the most prominent appears to be with the notion of reciprocal state consent. Many NGOs, including Amnesty International, Human Rights Watch, and Parliamentarians for Global Action have rejected the notion that aggressor state consent should be essential for ICC jurisdiction. In particular, these groups, and many others (and states) have argued that the ICJ is a poor analogy to the ICC, since the former is directed towards inter-state disputes, while the latter is created to adjudicate international criminal liability for individual human beings. There has been a consistent push-back from civil society on the aggressor-state consent issue. Interestingly, the United Kingdom was among the most vocal state proponents of this position during discussions today. This is remarkable in that, for perhaps the first time, a member of the P5 appears to have expressed support for the view that the UNSC should not possess exclusive jurisdiction over the crime of aggression. However, the consensus view among the NGO actors here is that this position is not fully genuine, in that it provides an additional means of undercutting a potential consensus outcome where the Court would be given the ability to decide on whether an act of aggression had occurred in the first place.

The day is wrapping-up now, and positions will surely shift overnight.  So – stay tuned.