Reviewing Justice in Kampala

The summit of summits on the international criminal justice circuit is set to kick off in Uganda next Monday with debate over the crime of aggression commanding center stage, Claudio Guler writes for ISN Security Watch.

By Claudio Guler for ISN Security Watch

From 31 May to 11 June, 1,500 to 2,000 delegates from 110 states parties, observer states, other states invited by the UN General Assembly, and members of civil society, academia and practitioners of international criminal justice will descend on Kampala, Uganda to participate in the first and only statutorily mandated review conference of the Rome Statute of the International Criminal Court (ICC).

The conference will feature numerous events and debates, including an exhibition football match promising to showcase the dribbling skills of UN Secretary General Ban Ki-moon and Ugandan President Yoweri Museveni. None, however, is garnering more comment and attention than efforts to define and operationalize the crime of aggression.

Judging performance

The conference agenda includes a series of stocktaking exercises that will appraise the first and soon-to-be eight years of the Court's work. The stocktaking will look at four areas: the impact of the Rome Statute system on victims and affected communities - discussions will certainly address ongoing witness protection concerns in Kenya; complementarity, the legal principle that calls for the primacy (precedence) of national judicial efforts ; and peace and justice, striking the proper balance between the demands of making peace and guaranteeing accountability.

The Assembly of States Parties (ASP), the intergovernmental body that oversees and funds the Court, has further approved for debate two amendments to the Statute other than the crime of aggression.

Delegates must decide whether or not to remove a temporary and transitional war crimes amnesty provision. Set out in Article 124, the provision gives states parties the choice to exempt their nationals from war crimes prosecutions for seven years following ratification of the Statute. To date, only France and Colombia have made use of the provision.

The second amendment is a Belgian proposal to criminalize 'the use of poison, poisoned weapons, asphyxiating, poisonous or other gases and all analogous liquids, materials or devices as well as the use of bullets that expand or flatten in the body to armed conflicts not of an international character.' The provision already exists for conflicts of an inter-state nature.

Thou shall not aggress

The debate on the aggression amendment has in the main two parts: definitional issues and jurisdictional issues.

The ASP established a Special Working Group on the Crime of Aggression in 2002. Since then, the group has convened periodically to come up with a definition and has tabled a draft version for the conference.

The draft version defines the crime of aggression as: "the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations"; and an act of aggression - favoring a specific, list-based interpretation based on UN General Assembly Resolution 3314 (XXIX) of 14 December 1974 rather than a generic one - as: seven different acts of hostility that amount to an act of aggression.

Discussing the US position with ISN Security Watch that Washington is widely seen as the most significant holdout from the Rome Statute system given its frequent rhetorical appeals to human rights and the rule of law, Matthew Heaphy, deputy convenor of the American NGO Coalition for the International Criminal Court (AMICC) explained, "The US was absent from the aggression negotiations for eight years and thus did not participate in the informal discussions that led to a draft proposal to be considered at the Review Conference. The American delegation will be under pressure from various actors at Kampala to accept the already agreed definition of the crime of aggression and to negotiate actively on the other elements of an amendment, including how the ICC gets jurisdiction over an aggression situation.

"The Review Conference, given its importance to the ICC community, will arouse close attention to US actions and positions. If the US seeks to reopen issues that have already been settled or takes positions different from its allies who are ICC States Parties, the resulting reactions could make a closer US relationship with the Court difficult."

Jurisdictional issues also feature prominently. Should the crime of aggression require acceptance by both the aggressor and the victim state, or only the victim state, for the ICC to proceed? Should any effort to try the crime of aggression first pass muster by way of a filter, either the UN Security Council, the UN General Assembly, the International Court of Justice, a Pre-Trial Chamber of the ICC or other body?

Two thirds of the members of the ASP must ratify the amendment to make it enter into force. Seven-eighths must ratify it for it to become binding on all states parties.

The voices weigh in

With apprehension characterizing much of the pre-conference debate, a number of scholars and practitioners have expressed their viewpoints. Stephan G Rademaker, a former Bush administration official, and a recent Council on Foreign Relations report authored by Vijay Padmanabhan have argued against adoption. Both primarily cite sovereignty concerns and misgivings about the potential politicization of Court prosecutions.

Other notable voices such as Anton du Plessis, Richard Goldstone, Harold Koh, David Kaye and civil society groups under the Open Society Justice Initiative umbrella fret adoption could overwhelm the Court at an early stage, blight its credibility and hamper cooperation with the Court by non-states parties, in particular powerful states. They urge putting off the matter to a later date. Others yet, such as professors Michael Glennon and Anthony Clark Arend, have primarily taken issue with the definition produce by the Special Working Group.

Notwithstanding, there is significant momentum in favor of realizing the crime of aggression; especially among states parties that rank low in the international power hierarchy and would on balance benefit from the added legal protections. Many of the critical observers mentioned above, moreover, are notably calling for the delay and not the dismissal of the amendment. And the original framers of the Statute included the offense - Article 5 (2) - but left the paragraph undefined.

Noah Weisbord, a visiting assistant professor at Duke Law School and an expert on the working group defining the crime, advocates a compromise approach, which he popularized in a recent International Herald Tribune op-ed. If a definition can be agreed and the amendment adopted, Article 121 (5) of the Statute provides for an 'opt-in' mechanism whereby states parties that ratify the amendment accept jurisdiction while those that do not ratify remain immune, unless and until they sign on.

Regarding jurisdiction, Weisbord explained to ISN Security Watch, "Judging from the meeting of the Assembly of States Parties in March, the two most likely, and competing, scenarios are: 1) acceptance by aggressor State not required plus non-SC or no filter and; 2) acceptance by aggressor State required plus non-SC or no filter. The SC filter, which was on everyone's mind until recently, is not very popular, though a number of influential states, including the United States, are advocating for it. But things can change quickly at the review conference, especially if a creative diplomat or legal scholar invents a new idea that appeals to a wide range of interests."

Weisbord prefers the latter, primarily because, although he reckons option 1 is the most fair, it could lead to a scenario in which the ICC prosecutor is unable or unwilling to prosecute a powerful and victorious aggressor, thereby undermining the credibility of the Court. "A reasonable compromise - one that tempers justice with prudence - is to require that both the aggressor and the victim state have signed onto the provision before the court can proceed. The drawback is that not all states will be bound by the new law. The hope is that states will gradually sign on, as they have with unexpected speed with the ICC Statute, and that, over time the prohibition on aggression will become the norm."

May the conferencing begin

Claudio Guler is an ISN Security Watch senior correspondent based in New York. His areas of expertise include international criminal justice and climate change. Guler holds a degree in political science from Oberlin College, Ohio, USA