Day 6: All Aggression, All the Time

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.

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June 7, 2010   No Comments

Do Victims Have a Role at the Review Conference?

“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.

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June 6, 2010   1 Comment

Reflections on the First Week in Kampala

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.

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June 6, 2010   No Comments

Day 5: Aggression Kicks Off

Today’s plenary sessions were dedicated to initial discussions of the proposed amendments, with the crime of aggression unsurprisingly taking up the vast majority of the time (approximately 5 hours to the 1 hour set aside for discussion of Art’s 8 and 124 combined). Today can be understood as a “temperature-taking” day, with delegations providing statements of their positions or more generalized references to principles or values they wished to invoke as guiding the final negotiations. All also found ample time to congratulate the chair, Price Zeid of Jordan, for his stewardship.

At this point a number of potential points of contention remain to be resolved, principally concerning how the Court will gain jurisdiction over the crime (the so called “filters”) and how any provision will take effect. Debates have circled around whether the UN Security Council would be entrusted as the sole body capable of determining an act of aggression had occurred (the filter), and whether the alleged aggressor state must first accept the consent to the Court’s authority for a case to go ahead. Four main options for combining these two features have emerged, which can be classified from least to most “robust”: UN Security Council as the only filter and aggressor must consent; UNSC filter and no aggressor state consent; UNSC + alternative filters (General Assembly, International Court of Justice, or authority within the Court itself) and aggressor state consent; and finally, alternative (and especially internal ICC) filters and no aggressor state consent.

Further muddying the waters is the question of when and how any accepted amendment would enter into force, and a significant division remains concerning two differing interpretations of how this might go ahead. If all this appears convoluted and confusing it is because, well, it is. Today the delegations of Brazil, Argentina, and Switzerland proposed a sort of hybrid solution which presents a number of interesting and perplexing challenges.  As it’s late on a Friday eve here, I will leave this for now, but we’ll get a more substantive post on this topic up soon, and will be following–and reporting on–developments closely next week.

June 4, 2010   No Comments

Cushy Digs for Indicted Warlords?

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.

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June 4, 2010   No Comments

Article 16: Peace, Justice and Political Interference in the Court

By Asad Kiyani

The Review Conference will debate a number of proposed amendments to the Rome Statute.  One that will not be discussed – at least as a formal amendment – is the proposal tabled by South Africa to alter the provisions of Article 16 of the Statute.  As noted in a previous post, this proposal is rooted in the African Union’s response to the indictment of Sudanese President Omar al-Bashir.

What is Article 16?

Article 16 is the deferral provision of the Rome Statute. It permits the UN Security Council to suspend any investigations or proceedings for a period of 12 months by passing a resolution under Chapter VII of the UN Charter.  After the one-year has passed, the deferral may be renewed (and renewed repeatedly) for a further 12 months.

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June 3, 2010   No Comments

Day 4: Complementarity and Cooperation

The stocktaking sessions continue today, with various formal panels and side-events on complementarity and cooperation.

The morning plenary session addressed complementarity, which frames the relationship between the ICC and national jurisdictions and when a particular case may be admissible before the Court. The Rome Statute establishes that the ICC is complementary, rather than superior, to state legal processes; this diverges from the practice of the ad hoc tribunals for the Former Yugoslavia and Rwanda, in which the international court took prominence over national courts. In short, the Rome Statute–as per Article 17–states that the Court shall defer to national processes “unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”. What this means in practice has been the subject of an extensive debate among scholars and practitioners, and this process has continued here at the Review Conference. There are at least two core issues bound-up in this discussion: how does a state demonstrate its ability and willingness; and relatedly, who makes the final determination in assessing admissibility?

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June 3, 2010   1 Comment

Day 3: Stocktaking Begins

With the plenary sessions (where national delegations delivered their official statements) now completed, attention has turned to the so-called stocktaking sessions.  These 3-hour panel discussions will address four topics: the relationship of the Court to victims and affected communities, and peace and justice are on the agenda today.  Tomorrow will see sessions on complementarity and cooperation.  These offer a different format from the more static set-piece speeches of Monday and Tuesday.  The panels are composed of a mix of legal experts and practitioners, with a variety of geographic regions and issues represented.   A set of parallel civil society stocktaking sessions with academics and non-governmental experts round out this experience.

In many respects, these panels resemble those of an academic conference: each panelist is given a defined period of time (here approximately five minutes) to make a statement, with a question period afterward.  Having observed three sessions, I wonder whether–and how–these panels contribute to the goals of promoting understanding and improvement of the Court’s operations.

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June 2, 2010   1 Comment

Canada and the ICC. Part Two: General Statement.

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.

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June 1, 2010   No Comments

The United States and the ICC: A Slight Warming?

U.S. Ambassador-at-Large for War Crimes Stephen Rapp just concluded his statement to the plenary session of the Review Conference.  His comments included some broadly positive references to the ICC, but equally some concerns and warnings.  On the positive side, Rapp noted the important role the Court can play in bringing international criminals to justice and contributing to the decisive end of heinous acts of violence.  The United States, Rapp noted, supports current efforts to arrest Joseph Kony and other indicted members of the Lord’s Resistance Army.  However, Rapp’s statement was also at pains to emphasize the challenges facing the ICC.  While avoiding reference to specific U.S. objections to the Court, Ambassador Rapp did highlight the unsettled status of the crime of aggression, and the current lack of agreement on key elements of its definition and proposed operation (the so-called “jurisdictional filter”).  The conclusion in this respect was stark:  moving forward on aggression without consensus could undermine the ICC as an effective–or perhaps potentially effective–international legal institution.

The question, it seems, is whether this interesting but relatively innocuous statement represents anything new.

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June 1, 2010   No Comments