Author: cjtenove

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.”

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ORIGINAL POST

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.

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.

“Victims” have been ubiquitous at the Review Conference this week. Several actual victims of conflict have attended the conference, as a part of the Women’s Initiative for Gender Justice and other NGOs. But victims have appeared more often in oration than in the flesh. State representatives declaim the importance of victims and their pursuit of justice. Side-panels have addressed victims’ issues, and Wednesday saw a formal stocktaking session on Victims and Affected Communities in the plenary hall. So what, exactly, is the role of victims at the Review Conference?

Before addressing the function or contribution of victims here, let me first sketch out the role of victims in the International Criminal Court in general. As many speakers have pointed out this week, the ICC includes a more extensive legal role for victims than other international criminal trials. (With the possible exception of the Extraordinary Chambers in the Courts of Cambodia, and the inclusion of victims as civil parties.) For an elaboration of that role, here are resources from the ICC, the Coalition for the ICC, and the International Federation for Human Rights.

In brief, victims are to be made aware of the work of the ICC by its outreach programs, they can apply to participate in different Court proceedings from pre-trial investigations to the trials, and they may receive individual or collective reparations as a result of judgments (or, in some cases before judgments, through the work of the Trust Fund for Victims). The contrast with common law criminal trials is striking. Canadian courts, for instance, do not mount media campaigns and hold townhall meetings; Attorneys General do not consult with victims about the crimes they should prosecute; and judges in criminal trials do not order reparations or restitutions for the victims.

The New York Times today published a story on the living conditions of indictees at the ICC detention centre in The Hague. It’s an issue with great potential for indignation and grandstanding, and the Times provided a reasonably balanced set of comments. But first, a few of the juicy details:

Beyond the brick towers of a Dutch prison just east of here is a compound where former Congolese warlords, Serbian militia leaders and a former Liberian president accused of instigating murder, rape and enslavement are confined in two detention centers with private cells stocked like college dormitories, with wooden bookcases, television sets and personal computers. Among the other amenities are a gym, a trainer, a spiritual room and a common kitchen where some former enemies trade recipes and dine on cevapi, or Balkan meatballs…

But an additional benefit — travel subsidies of tens of thousands of euros for family visits from distant African countries — is stirring an emotional debate among the court’s donor nations…

Thanks to conjugal visits, several detainees became new fathers, including a Serbian general and [Charles] Taylor, 62, whose baby girl was born in February.

Canada delivered its official statement to the Review Conference general debate today. “Debate” is a more active term than is accurate. Instead, state representatives deliver prepared speeches, which tend to include the following elements: gratitude to Uganda for hosting the conference, praise of the work of the ICC to date, reflection on their own state’s contributions to the ICC, and an insinuation (sometimes clear, sometimes guarded) of their state’s position on the proposed amendments to the Rome Statute. (See Adam’s post for a description of those topics.) I’ll include excerpts from Canada’s statement below. But first, let me describe the scene.

The official plenary takes place in a large banquet hall on the grounds of the Speke Resort. The hall is pleasant enough, done in tones of peach and rust, but is perhaps a little small for the occasion. Diplomats are packed tightly together, seated at long, thin worktables, behind the small white placards that bear their country names.  The seating arrangements reflect the playful vagaries of the alphabet, with Iraq next to Israel, and so on. A visiting alien, looking over the hall, would not be able to distinguish the powerful countries from the others. Each gets a white placard, and each gets a single vote. This will prove important when it comes to a final decision over the crime of aggression.