Between May 31 and June 11, the International Criminal Court will host its first Review Conference in Kampala, Uganda. This is the first opportunity for States Parties to amend the Rome Statute since its creation in 1998. The current diplomatic efforts take on added significance as the present Review Conference is the only one mandated by the Rome Statute.<\/p>\n
In recognition of its legislative and symbolic importance, the Kampala Review Conference will bring together the largest collection of senior political figures and non-governmental organizations since the drafting of the Rome Statute. This will include delegations from prominent non-parties \u2013 the United States, for example, is expected to be well represented at the conference, with the Obama administration expressing a greater willingness to cooperate with the Court.<\/p>\n
The outcomes of the Kampala Review Conference will have a major impact on the shape of the Court for years to come.\u00a0Here we offer a brief summary of the key topics under discussion.<\/p>\n
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Defining the Crime of Aggression<\/em><\/p>\n The most contentious topic to be considered at the Kampala Review Conference is the development of a definition for the crime of waging aggressive war<\/a>. The Rome Statute includes aggression as a \u201ccore crime\u201d under the Court\u2019s jurisdiction; however, the Statute as drafted in 1998 left this undefined, as delegates could not agree on a definition or the means by which the Court would exercise jurisdiction over the crime. The ICC therefore cannot currently consider cases involving aggression; this will remain the case until such time as a final definition is adopted and added to the Rome Statute via formal amendment.<\/p>\n The question of whether and how to incorporate aggression within the Rome regime has been politically charged since negotiations for the Court began in earnest in the mid-1990s. Proponents have long argued that an effective ICC must criminalize the waging of aggressive war\u2014which the judges at the Nuremberg Military Tribunal of 1945 termed \u201cthe supreme international crime\u201d\u2014since it acts as the wellspring from which many other ICC crimes flow. Yet a number of powerful non-parties like China, India, and the United States of America strongly oppose granting the Court the ability to prosecute their military and political leaders for decisions relating to the use of force. Given that these states\u2019 existing objections regarding the ICC, many fear that adding the crime of aggression will further reduce the prospects for gaining their support in the future.<\/p>\n While progress has been made in framing the scope and nature of aggression as an international crime, much diplomatic work remains for the Review Conference if a final definition is to be agreed. In particular, delegates must select a procedural mechanism for determining when an act of aggressive war has been committed. Three options appear most likely. First, the final decision could be left to the United Nations Security Council, in keeping with its historical role under the UN Charter. Under this scenario, the ICC Prosecutor could only launch an investigation for this crime once the Security Council had determined that an act of aggression had occurred. This would give the five Permanent Members of China, France, Russia, the United Kingdom and the United States vetos over when the ICC could exercise jurisdiction over the crime of aggression. Alternatively, other permanent bodies the United Nations General Assembly or International Court of Justice (ICJ) could serve as the ultimate arbiter \u2013 choices that are popular with some states seeking to shift political power away from the Security Council. Finally, authority could be vested with the Court itself via the Prosecutor and Pre-Trial Chamber, requiring no input from the Security Council or other bodies, and thus further enhancing the independence of the ICC.<\/p>\n Each option is potentially problematic. While giving the Security Council the sole authority to determine acts of aggression would appeal to powerful ICC opponents (and may increase their willingness to join or at least support the Court), such a solution would significantly erode the independence and impartiality of the ICC and would be met with strong resistance from many Court supporters. Devolving the \u201cgatekeeper\u201d role to the General Assembly would imply many of the same political concerns; and the ICJ\u2019s competence in determining the legality of acts of aggression by individuals<\/em> is unclear. Last, while proceeding without a jurisdictional filter and leaving the determination to the Court is popular with proponents of a strongly independent Court, such a move would further antagonise powerful non-parties like the United States, China, and Russia, and imperil any positive signs of increased assistance to Court operations.<\/p>\n More fundamentally, many international justice groups worry that including the crime of aggression under the Statute in any form<\/em> may threaten the perception of the Court as an impartial, apolitical actor, and thus undermine its ability to effectively end impunity with respect to the other core crimes of genocide, crimes against humanity, and war crimes.<\/p>\n Amending Article 124<\/em><\/p>\n Article 124<\/a> of the Rome Statute provides a transitional period of seven years by which States Parties, through written declaration, may delay their acceptance of the Court\u2019s jurisdiction over war crimes committed by their nationals or on their territory. Article 124 does not apply to acts of genocide or crimes against humanity, for which no such transitional provision is permitted. To this point, only two countries\u2014France and Colombia\u2014have invoked this optional declaration, and in both cases the seven-year period has now expired.<\/p>\n At the Review Conference, delegates from States Parties will decide on whether to delete or retain Article 124. A number of states and non-governmental organizations have long opposed the inclusion of a transitional period on the grounds that it would significantly weaken efforts to ensure prompt criminal punishment of war crimes. Critics have suggested that the initial purpose of the article has now passed, and the fact that so few states have made use of the clause demonstrates its irrelevance. By contrast, some delegations have argued for retaining Article 124 in order to make the Rome Statute more palatable to resistant states, thus improving the universality of the Court.<\/p>\n