On the Eve of the Aggression Showdown

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.

Finally 10:30 arrived and everyone walked through the dark, fragrant night back towards the plenary hall. As we stood to pass through the X-ray machine, I found myself behind Harold Koh, chief legal adviser to the US State Department. He and Stephen Rapp, the US Ambassador for War Crimes, have been conspicuously public and pleasant, conversing amiably with delegates and NGO representatives. They have seemed to convey, in demeanor, a continuing thaw between the US and the International Criminal Court.

Once back in the plenary hall we sat, waiting, while state representatives continued their conversations. It was difficult to tell who were exchanging pleasantries, and who were trying to martial agreement on a position. The murmuring room did not have the eagerness of a crowd before a Broadway play or a sports match, not raucous or enthusiastic or belligerent, but there was to my mind an affect of unease, anticipation, and forced smiles. Among civil society there was a growing concern that the Review Conference will end with no amendment on aggression.

At last Christian Wenaweser, the President of the Assembly of States Parties, gaveled us to order after 11 p.m. A new proposal on aggressing is being prepared as we speak, he announced. There were two matters to attend to before it is released. First, the Credentials Committee announced that they had received credentials from 72 states. (See Valerie Oosterveld’s post for how this low number threatens the ability for a successful vote on any amendment.)

Second, more substantively, the Plenary adopted the amendment of Article 8 of the Rome Statute. In the near future we will put up the text of this amendment, which extends the list of prohibited weapons from international wars to internal conflicts. While known as the “Belgian Proposal,” the Belgian representative graciously thanked the 19 other co-sponsors of the amendment. France, Canada, the United States, and Israel all took the opportunity at that point to endorse both the amendment and the “spirit of consensus” that led to its adoption. That last comment seemed a message for any delegation considering that an amendment on aggression be put to a vote, rather than being adopted by consensus. Amnesty International announced that it, too, welcomed the Article 8 amendment, but wanted to make sure that it was not read to endorse the use of prohibited weapons by law enforcement. (More on this is forthcoming in a post.)

“We have thus for the first time amended the Rome Statute,” Ambassador Wenaweser intoned, giving the plenary a moment to savour the moment.

But as important as this first amendment was, peoples’ minds were on aggression. After another short break, secretariat staff began to hand out an English version of the new non-paper on aggression. Hands waved in the air to get the text as quickly as possible, to see the direction of developments. As people got their hands on a copy, they immediately scanned through to see what had changed, where compromise had been reached, and where struggles would continue.

Before briefly walking us through that text, Ambassador Wenaweser announced, “I have been in consultations since this morning with many of you — I have reached out to all the groups with the help of Prince Zeid to consult on the non-paper we had made available. We have received input, some of which is reflected in this text. We trust that it is a further step forward.”

(On this blog we will soon post that text, and links to commentary.)

Ambassador Wenaweser informed us that we would convene in the plenary hall at 11:30 a.m. on Friday, the final day of the Review Conference. “I will be available at any time for consultation,” he said, suggesting that he had an exhausting night ahead of him. “Meeting is adjourned.”

It was now nearly midnight. Hundreds of delegates streamed out into the darkened resort, sheets of the proposed amendment in hand, for a long night of discussion and negotiation.


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