Author: asbower

The initial dust has settled in Kampala, and we begin the period of post-mortem assessments.  A few have already begun to circulate, and readers may be interested in the short reports from Robbie Manson and Jennifer Trahan, both of whom attended the Review Conference as NGO observers. And for a little more on the crime of aggression, see some excellent summaries here, here, and here.

The opportunity to attend to attend the Review Conference was a real privilege, and our participation was greatly facilitated by assistance from a number of people and organizations. We are grateful to the Coalition for the International Criminal Court for offering us both accreditation to the conference as part of their umbrella NGO delegation, and for the inclusive spirit in which they conducted their meetings and interventions. The trip to Kampala was initially conceived strictly as a means of engaging in research for our respective doctoral dissertations. However, colleagues at the Liu Institute for Global Issues at the University of British Columbia took an early interest in our proposed travels, and encouraged us to share our observations and experiences through this blog. The Liu Institute also provided generous financial assistance to help offset the costs of travel and accommodation. Particular thanks go to Dr. Peter Dauvergne, Director of the Liu Institute, for his enthusiastic support; and to Dr. Erin Baines, who provided valuable encouragement and local contacts. Sally Reay provided all manner of technical support, and her efforts were instrumental to the smooth functioning of this blog. Additional funding for Adam’s trip to Kampala has been generously provided by the Liu Institute’s Centre for International Relations through their Security and Defence Forum programme (sponsored by the Department of National Defence Canada).

Major thanks also go out to Asad Kiyani, the third member of our blog team, who offered invaluable contributions from his own areas of expertise. Brendan Naef provided a lucid backgrounder on the crime of aggression at just the moment that things really got going in Kampala.

Thanks are also owed to the Government of Uganda for their generous hospitality, and to the Munyonyo Commonwealth Resort, the host venue for the Review Conference.

Finally, we offer a tip-of-the-hat to our readers–whoever you are–with our thanks for following our reports as they developed. The Reports From the Field blog will be utilized to support other UBC research projects in the future, so be sure to check back for further updates down the road. For us, however, this marks the end of the line.

Signing off,

Adam Bower and Chris Tenove

This final summary post has been a long time in coming, but internet blackouts and personal travel conspired to delay its release.  With the benefit of some distance and hindsight, however, it is useful to think about the outcomes of the Review Conference, and their potential implications.

So, what was accomplished in Kampala?  Well, a number of things, actually, though their importance, and impact on the future operations of the Court, may vary with one’s perspective.

At 12:15am, the final plenary session of the Review Conference of the International Criminal Conference adopted the draft amendment on the crime of aggression by consensus.

Immediately beforehand, the Japanese delegation made a pointed speech opposing the content of the resolution. They noted two particular grounds.  First, the amendment was, in the view of the Japanese delegation, concluded via dubious legal means, as it did not accord with the procedures of the Rome Statute. Second, as a State Party in a region of non-parties, Japan was deeply unhappy with the “blanket immunity” applied to non-parties (since as per the amendment acts of aggression committed by the nationals or on the territory of a non-party are completely exempt from the Court’s jurisdiction). For a few moments, it looked to those assembled that Japan was going to announce that it would not join the consensus position. But in the final sentence of the intervention, the Head of the Japanese delegation announced that “with a heavy heart” given their significant concerns, Japan would not stand in the way of consensus.

Following the intervention, the Chair asked if it was the will of the assembled delegations to adopt the amendment without a vote. As there were no objections raised, it was so agreed, and the amendment resolution on the crime of aggression was adopted.

It is very late here, and everyone is exhausted, so we will leave substantive analysis for a later time. Suffice it to say that many delegations and NGO groups are disappointed with many aspects of the amendment, but that ultimately most feel it was better to get something done here, rather than wait for a indeterminate future moment.

For the moment, we are signing off.

The final decision will come any moment now.  Follow these developments at @asbower.

We have little in the way of an update over the past two days, principally because the situation with respect to aggression has been extremely fluid. There have been few substantive meetings of the delegations in plenary, as the vast majority of the time has been allocated for bilateral (and “mini-lateral”) meetings among the Chairs of the Working Group and Assembly of States Parties and various state delegates. Various proposals have been presented, each of which seeks to incorporate elements of previous ones, in the interest of building towards a document that is acceptable–or at least tolerable–to all delegations. These are too detailed, and unsettled, to describe in detail here. Suffice it to say that the “facts on the ground” are changing relatively quickly, and appear to be moving towards a consensus. But this too could still change.

As I write this, the Chair of the Assembly of States Parties has suspended the plenary session until 10:30pm tonight. It is hoped that the intervening time will allow delegates to hammer-out final points of disagreement. It should become apparent relatively soon after we reconvene whether this effort has been productive. The endeavour this evening takes on added significance as many delegations depart tomorrow, before the official close of the conference. This raises potential challenges for reaching a necessary quorum for a consensus agreement, whereby all parties agree (by not raising objections) to the adoption of the amendment. There almost certainly will not be a vote on this, as the clear position of many States Parties has to been to avoid this outcome at all costs.

For the moment, there is little to report. As they say: further details to come as they become available.

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.

By Brendan Naef

The crime of aggression is the hot topic at the Review Conference this week, and perhaps right up to final moments on Friday. Discussion has focused on the definition of the crime and its constitutive elements, and also, more controversially, the jurisdictional conditions of its enforcement. Otherwise stated, the conference are discussing what the State Parties believe “aggression” to be and the situations in which individuals accused of the act may fall within the grasp of the International Criminal Court. By no means, however, should this discussion be taken as an indication that the execution of a war of aggression is not yet an international crime. Simply put, although the current lack of agreement among States over a specific or exhaustive definition of the act may significantly complicate matters, in no way does it provide that perpetrators of aggression cannot be prosecuted. Thus, the role of the State Parties to the Rome Statute is to come to an agreement on aggression that falls within the boundaries of the current customary law definition. In the following discussion I will briefly address some of the past efforts to define the act of aggression, and I will follow this with a review of some of the aspects likely to be considered in Kampala.

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 second week of the RevCon is almost exclusively dedicated to the consideration of proposed amendments. The main event is undoubtedly the crime of aggression, and this will occupy the overwhelming majority of the energy and time over the next four to five days. Many delegations held informal bilateral meetings over the weekend, and views appear to be slowly converging towards a few main options. To that end, the Chair of the Working Group released a new Conference Room Paper, the text of which can be found on Professor Schabas’ blog. The crime of aggression not being a subject of personal expertise, I am wary of providing detailed analysis here. Instead, I offer a more modest summary of the key outstanding issues at this point.

The pace of meetings during the first five days of the Review Conference has been hectic. With a more relaxing weekend and a little bit of distance, I wanted to briefly summarize what has been achieved to this point.