The Canadian Proposal, Unpacked

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.

Canada’s proposal is based on the understanding that certain states believe that the United Nations Security Council (UNSC) has the primary role – and perhaps the exclusive role – to determine if aggression has occurred. (Note that there is a distinction between an act or war of aggression, which is something that states do, and the crime of aggression, which individuals commit and which the ICC would prosecute. Thus, the crime of aggression can only occur if state aggression occurs.) This seems to be the position of the United Kingdom and France, the two members of the UNSC Permanent Five who are also State Parties to the ICC. But it is also the position of a larger group of states, including Canada, who (1) want to make sure that the ICC is as attractive as possible for other P5 states (especially the United States), foreseeing that they might ratify the Rome Statute one day; and/or (2) want to achieve consensus on aggression at this Review Conference, and know that the UK and France will not budge on this issue; and/or (3) worry that if the ICC has other means to secure jurisdiction over aggression, it may lead to a “politicized” prosecution of the crime.

[The illustrious Ben Ferencz has said on several occasions: “They worry about politicization? The Security Council is the most politicized body in human history!” So perhaps it would be more accurate to say that those states who want exclusive UNSC determination over aggression want to avoid another means of politicization. One could write an academic paper entitled “Politicizing Politicization: Good Politics and “Politicized” Politics in International Law.” A topic for another day.]

Canada’s proposal reaches out to the two main camps on the question of jurisdiction over aggression. Many states, particularly those from Latin America and Africa, want the ICC to have jurisdiction over aggression even without a UNSC determination that aggression occurred. There is a general agreement among these states that the Pre-trial Chamber of the ICC (PTC) should be able to authorize an investigation into aggression independently of such a UNSC determination. The Canadian proposal gives the ICC this jurisdiction, but only in cases where both the alleged “victim” state and the alleged “aggressor” state had already ceded this authority to the ICC through legal declarations. Thus, the Canadian proposal reaches out to the camp who want the UNSC to have sole determination over aggression, because it says, “You are in no risk that the ICC will investigate you for aggression without a UNSC determination, unless you have already consented to giving it jurisdiction to do so.”

The Canadian proposal, if adopted, would lead to a two-tiered system of ICC jurisdiction over aggression. The ICC would have independent jurisdiction over aggression for some States Parties to the Rome Statute (those who consented to it). But other states, including non-parties, could not be investigated by the ICC without a UNSC determination of aggression.

In addition to reaching out to both camps, Canada’s proposal has three main advantages:

First, it avoids the technical disagreements over whether an amendment on aggression falls under article 121.4 or 121.5. (For more on this see posts by Adam and Bill Schabas.)

Second, the Canadian proposal gives the ICC jurisdiction over aggression almost immediately, under the UNSC filter. So if the Canadian proposal passed this week, next week the UNSC could determine an act of aggression had occurred and refer the case to the ICC.

Third, the Canadian proposal could make it possible for ICC jurisdiction under Pre-trial Chamber (PTC) determination to be up and running soon. States would simply need to make a declaration that they give their consent to this arrangement. Seven-eights approval of the amendment wouldn’t be necessary. Thus, if the Canadian proposal passed this week and two states declared that they would be bound to ICC jurisdiction with a PTC filter, and if one of those states then illegally attacked the other, then the PTC could recommend an investigation. No UNSC determination of aggression would be necessary.

But in that last scenario, what if only the “victim” state had consented to ICC jurisdiction over aggression? That state would be out of luck, unless the UNSC determined that aggression had occurred.

This, clearly, is what some states consider to be the greatest flaw of Canadian proposal. They fear that many states – and particularly those states most likely to commit aggression – won’t cede UNSC-independent jurisdiction to the ICC. In such a case, so long as you are a P5 member or a friend of a P5 member, you will be impervious to prosecution for the crime of aggression. Rather than being a check and balance on the power of the UNSC members, the ICC would remain yet another instrument of the UNSC…at least as far as the crime of aggression is concerned. (And it is important to remember that the UNSC filter will remain unnecessary for ICC jurisdiction over genocide, war crimes, and crimes against humanity. How often does one expect that aggression can occur in the absence of such crimes?)

When the debate came to a close yesterday evening, many states seemed interested in finding some composite amendment, which would include elements of the Canadian proposal along with others.

It’s hard to guess where that debate will go. One thing is clear, however: Canada, which was largely invisible at the Review Conference the first week, is now in the thick of things.