Approaching the Aggression Endgame in Kampala

by Brett D. Schaefer

The ICC Review Conference took a break from formal debate over the crime of aggression on Wednesday, but things did not stand still on that issue. Early in the day on Thursday, an attempt was made by the chairman to combine the Canadian and the Argentine, Brazilian, and Swiss versions of the aggression amendment in hopes of forging a consensus position; nothing prevents states from offering new or old proposals, but this draft supersedes previous proposals and is currently the main option under consideration.

The chair’s draft resolution includes some of the U.S. understandings introduced on Monday, although not all. The good news: Although it would need to be approved by the states parties, bracketed text (not agreed to by all delegations) in the draft would prohibit the ICC from exercising jurisdiction over non-ICC state parties for alleged acts of aggression.

Other parts of the proposal are more troubling. On its face, bracketed text in the proposal would go against the amendment procedures in the Rome Statute by asserting ICC jurisdiction over all ICC states parties for the crime of aggression unless they specifically lodged a “declaration of non-acceptance with the Registrar.” This would violate the letter and spirit of Article 121.5 of the Rome Statute, which states:

Any amendment to articles 5, 6, 7 and 8 of this Statute [the crimes under ICC jurisdiction including aggression] shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.

Asking states parties to declare that they do not wish to accept ICC jurisdiction over the crime of aggression places them in the extremely awkward position of repudiating the authority of a court that they agreed to join. This is unfaithful to the Rome Statute and a rather transparent attempt to pressure states parties into accepting ICC jurisdiction over the crime of aggression.

If the state parties agree to the bracketed text, the U.S. would not be subject to ICC jurisdiction over the crime of aggression, but U.S. interests still come into play: Many of our European allies may accept this jurisdiction by default by not submitting a “declaration of non-acceptance”; they might subsequently refuse to participate in joint military action with the U.S. out of fear that that action could be considered “aggression” by the court.

The resolution also contains an alternative that would allow the ICC prosecutor to proceed with an investigation if the Security Council does not make such a determination six months after the prosecutor notified the Security Council that he wished to proceed with an investigation and the ICC Pre-Trial Chamber tehn authorized the investigation. Thus, the proposal could possibly permit two avenues or “triggers” for the ICC to exercise jurisdiction over the crime of aggression. This is clearly unacceptable to the U.S., based on it statements.

The chair’s decision to jumpstart the process of reaching consensus by offering his own new draft resolution raises a number of new questions and concerns. Indeed, a number of delegations and NGOs have expressed puzzlement over the chair’s draft and how it should be read and interpreted. In the end, it may end up only further complicating the process. With many delegates having booked tickets to South Africa for the World Cup on Friday afternoon, the clock is ticking.

Brett D. Schaefer is the Jay Kingham Fellow in International Regulatory Affairs in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at the Heritage Foundation. He is also editor of ConUNdrum: The Limits of the United Nations and the Search for Alternatives (Rowman & Littlefield Publishers, 2009).

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