Sensing that the delegations were gridlocked over the most contentious issue at the Review Conference for the International Criminal Court, the proposed amendment on the crime of aggression, the conference did not spend much time in formal meetings on Wednesday or Thursday. Instead, the delegates were encouraged to participate in informal meetings with each other to try and resolve their differences.
Meanwhile, there were some positive signs on the other two amendments on the agenda in Kampala.
An amendment had been proposed to delete Article 124 from the Rome Statute; article 124 allows new state parties to exclude from the ICC’s jurisdiction “war crimes allegedly committed by its nationals or on its territory for a period of seven years.” But Japan and other nations argued that deleting the article would make it less likely that new states would ratify the Rome Statute.
Apparently, these arguments have been convincing. The Working Group agreed on a resolution that would retain Article 124, albeit with a provision to revisit the issue in five years. The delegates unanimously adopted that resolution on Thursday afternoon. While the U.S. was not involved in this debate, it nonetheless is an outcome that is in American interests.
Second, there is the Belgian Amendment, which would classify as a war crime the use of additional weapons in non-international armed conflicts. The Working Group adopted by consensus a draft resolution to adopt this amendment.
But the U.S., among other states, was concerned that the amendment could inadvertently criminalize legitimate use of the weapons included, such as “bullets that expand or flatten in the body.” Fortunately, these nations were able to include language in draft resolution that would help address their concerns. For instance, the use of such bullets would be understood to be a crime “only if the perpetrator employs the bullets to uselessly aggravate suffering or the wounding effect upon the target of such bullets, as reflected in customary international law.” This addresses the U.S.’s belief that the use of hollow-point bullets, in some circumstances, should not be considered a crime (e.g., if their use was intended to minimize danger to civilians or hostages), and that the use of special bullets should be permitted if intended to advance a specific mission or purpose rather than to cause undue suffering, e.g., the use of indented tips on sniper ammunition to improve accuracy.
The most critical concern outstanding for the U.S. regarding the Belgian Amendment is the following text, which is still bracketed (not agreed to by all the delegations):
Noting article 121, paragraph 5, of the Statute which states that any amendment to articles 5, 6, 7 and 8 of the Statute 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 and that in respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party’s nationals or on its territory, and confirming its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted the amendment applies also in respect of States that are not parties to the Statute.
Originally, it was expected that the resolution on the Belgian Amendment would be debated and formally adopted on Friday as the conference concluded. However, because of a week-long failure to find consensus on the amendment on the crime of aggression, the conference reconvened late on Thursday evening to try and move the ball forward. As one of the first acts of the late-night session on Thursday, the delegates officially adopted the resolution on the Belgian Amendment with the above text, which specifically states that it would not apply to countries that have not specifically ratified the amendment. Critically, with that text, the Belgian Amendment also would not apply to non-ICC party states like the U.S., making it effectively irrelevant from the U.S. perspective, because American military personnel and officials would not be subject to the crimes adopted under the amendment.
As the conference enters its final hours, the U.S. can mark off two successful outcomes, but the big issue of aggression remains uncertain.
– 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).