The Corner

The ICC Review Conference Rollercoaster

Typically, international conferences like the Review Conference of the International Criminal Court are predictable, even boring. The months (or, in this case, years) prior to the conference are spent in meetings, sifting through various positions and policy redlines among the delegations, so that differences are minor by the time the conference kicks off, making the path to a consensus agreement clear.

The most important priority for the conference organizers and many of the delegates is that the conference be viewed as a “success.” On rare occasions, conferences deadlock on major issues, and the delegates eventually agree on a less ambitious final agreement than was originally envisioned. Inevitably, this watered-down outcome is nevertheless presented as a triumph.

Extremely rare is an international conference than cannot be viewed as anything other than a failure. The 2009 U.N. Climate Change Conference in Copenhagen was one: Not only were the delegates unable to agree to a binding agreement, but they failed to achieve consensus support for the non-binding Copenhagen Accord.

What is happening in Kampala is the reverse of the typical pattern for international conferences. Instead of a gradual convergence around a common proposal or text as countries compromise or abandon positions that lack broad support, in Kampala we have seen new proposals for the amendment on the crime of aggression pop up like mushrooms.

● Argentina, Brazil, and Switzerland offered an alternative to the official amendment text on Monday that would permit the ICC to investigate an alleged crime of aggression if the U.N. Security Council determines that an act of aggression had been committed. However, it also would allow the ICC prosecutor to proceed with an investigation if the Security Council had not made such a determination six months after the prosecutor notified the Security Council that he wished to proceed with an investigation; in this second scenario, the ICC Pre-Trial Chamber would be able to authorize the investigation. Thus, the proposal would have two “triggers” for the ICC to exercise jurisdiction over the crime of aggression.

● Canada offered an amendment on Tuesday. It again included the Security Council trigger and the Pre-Trial Chamber trigger in the event that the Security Council makes no determination on aggression within six months of being notified by the ICC prosecutor. Critically, though, the Canadian proposal would allow the ICC to proceed with the case absent a Security Council determination of aggression only if the states involved had accepted the jurisdiction of the ICC over the crime of aggression by ratifying the Rome Statute and the amendment on the crime of aggression. Thus, both the alleged victim(s) and perpetrator(s) of the act of aggression would have to “consent” to the authority of the ICC to investigate a crime of aggression (unless, of course, the U.N. Security Council determined that aggression had been committed).

● Later on Tuesday, Slovenia offered a modified version of the Canadian proposal that would allow the ICC prosecutor to approach the Security Council a second time to try and convince it to refer the alleged case of aggression to the ICC. It also recommended that state parties revisit the crime of aggression sometime in the future, after seven-eighths of the member states had ratified the amendment on the crime of aggression, to consider additional “triggers” or other changes.

The African and Latin American delegations and the pro-ICC NGOs are very much opposed to the Canadian and Slovenian proposals, which they see as greatly weakening the independence and authority of the ICC. They worry that, absent a Security Council determination of aggression, the proposals would require an “aggressor” state to have ratified the Rome Statute and the amendment on the crime of aggression. They believe this is extremely unlikely for most potential aggressors and would therefore curtail the ICC’s powers.

A number of other states, mostly European, supported the Canadian amendment because it builds on customary international law based on state consent and reciprocity. Shockingly, one country even defended the Canadian proposal as an appropriate recognition of national sovereignty. (References to national sovereignty at the U.N. are nearly as rare as U.N. resolutions praising Israel.)

The proliferation of proposals for the amendment on the crime of aggression is a clear sign that fundamental differences remain. The most contentious issue remains whether a U.N. Security Council determination of aggression should be the sole trigger for an ICC investigation of an alleged crime of aggression. Currently, there is no bridge over this divide.

As the conference winds down and time constraints come into play, the pressure to have a “successful” conference could lead to a compromise. The compromise most likely to arise is an agreement expressing the lowest common denominator: adopting only the flawed definition of the crime of aggression without any accompanying means for the ICC to exercise authority over that crime, or adopting the definition with a sole Security Council trigger, since that option is contained in all the proposals. In either case, it would be important for the U.S. to successfully get the delegates to adopt its “understandings” on how that definition should be interpreted if it is to mitigate the problems potentially posed by the definition of the crime of aggression.

However, a good bet right now is that no consensus will be reached on the crime of aggression by the end of the conference and nothing will be adopted.

Either result should be considered a positive outcome from the perspective of the United States.

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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