The final hours

UPDATE 11:30 p.m.

We returned at 10:15 (which became 11 p.m. before the gavel dropped), to have Ambassador Wenaweser present new language for the contentious issue of the entry into force of the jurisdiction over the crime of aggression. The new language reads, for both 15 bis 3 and 15 ter 3:

The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute;

Before a 15-minute break to consider this new proposal, Ambassador Wenaweser said the following:

“You will now that consultations on this particular aspect have been taking place throughout the day…What I am putting forward for your consideration is my best attempt to try to capture a compromise on this topic. This compromise would mean that the two provisions 15 bis and 15 ter are given identical treatment…and that they would both be subject to an affirmative decision by the States Parties.

“I am fully aware that this text does not meet with the suggestion made by any of you, and that is in my experience the nature of a compromise at this stage of a negotiation… I do believe we are very close to adopting a daft resolution on the crime of aggression, by consensus…This is the last step that we can make, if you all want to make it, and I’m looking forward to your continued support in this effort… so we can finalize our business on the crime of aggression.”


It is now 8:45 p.m. on the final night of the Review Conference. Those of us who are observers have spent the day wondering what is going on behind closed doors. The Plenary convened at 11 a.m. and 2 p.m., and on both occasions Christian Wenaweser, President of the Assembly of States Parties, quickly dismissed the meeting to return to informal negotiations. At five p.m. he circulated a non-paper, with several small but important revisions to the proposed amendment on aggression. (We had hoped to post an analysis of the non-paper circulated last night, but failed in part due to the resort’s very spotty wifi. For good analyses see these by Bill Schabas, David Scheffer, and Joanna Harrington.)

Perhaps the most important development in this afternoon’s non-paper was the elimination of “Alternative 1” of Article 15 bis. This alternative had proposed that the International Criminal Court could only prosecute the crime of aggression if the United Nations Security Council (UNSC) had made a determination that a state act of aggression had occurred. “Alternative 1” had been the preferred option of Permanent Members of the UNSC, but it was unacceptable to the majority of States Parties. Its removal suggests that an important step in the negotiating process had been taken. On the other hand, the non-paper also shows many compromises from the large group of states who had preferred an independent and immediate Pre-Trial Chamber filter that would apply to all States Parties (once the amendment was passed).

As can be seen in this a non-paper, the two issues still to be resolved are the entry into force and the declaration that enables states to opt out of the external filter (proprio motu or self-referral of the crime of aggression, reviewed by the ICC’s Pre-Trial Chamber.)

When he introduced this latest non-paper, Ambassador Wenaweser (in his usual deadpan delivery) made some surprisingly optimistic remarks: “I am encouraged by the continuing work and by those who have made concessions,” he said. “We are very close to reaching [a consensual outcome] together…this makes me confident that we will be able to bridge the remaining gap within the time that is available to us, and bring this exercise to a very positive conclusion.”

Ambassador Wenaweser asked us all to return at 8:30 p.m. for the final plenary meeting. It is now 9 p.m., and there are clearly more informal negotiations going on. It could be a long night.


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