Compromise and Contradictions: Negotiating the Crime of Aggression

By Ryan Liss (University of Toronto Faculty of Law, International Human Rights Program; and Coalition for the International Criminal Court) 
July 12, 2010

Kampala, Uganda – History was made in Uganda last month. States parties to the Rome Statute of the International Criminal Court agreed upon a definition of and terms of jurisdiction over the crime of aggression— described by the Nuremberg Tribunal as the “ultimate crime of concern to the international community.” Despite this historic move forward, the negotiating process was fraught with significant compromise, contradiction and controversy.

Over the course of two weeks beginning on May 31, 2010, state delegates, dignitaries, inter- governmental organizations, non-governmental organizations and academics met in Kampala, Uganda for the first Review Conference of the Rome Statute. I joined the delegation of the Coalition for the International Criminal Court (“CICC”) providing support throughout the Conference to those of the CICC’s 2500 constituent organizations that were able to make the trip to Kampala. The Faculty of Law and the International Human Rights Program (“IHRP”) generously provided support for my work.

The Conference

While the Conference dealt with various issues—taking stock of the development of international criminal justice since the creation of the Court, amendments to Rome Statute articles 8 (war crimes) and 124 (optional deferral of the Court’s jurisdiction over war crimes for a states party)—the discussions and the diplomacy centred substantially around the Court’s jurisdiction over the crime of aggression. When the Rome Statute was drafted in 1998, those countries in attendance were unable to agree upon either an acceptable definition of the offence or terms governing the Court’s jurisdiction over it. States decided to include the crime within the Court’s jurisdiction; however, the Court’s ability to exercise this aspect of its jurisdiction was to be delayed until a definition and terms of jurisdiction were agreed upon at a Review Conference to take place seven years after the statute entered into force.

The two weeks of the Conference in Kampala involved dramatic shifts in the negotiations defining the Court’s jurisdiction over crime of aggression. Indeed, concerns that had prevented consensus in Rome and agreement over the years since were—to an extent—bridged. This focal agreement of the Conference was reached past the intended eleventh hour, shortly after midnight on the final Friday. States parties to the Rome Statute were determined only to reach agreement by consensus and the ultimate decision—in which no one was happy but most were somewhat satisfied—reflects this intention.

According to the amendment drafted by the state parties, with the input of those non-state parties present (including the United States, China, Russia and others), the Court’s jurisdiction over the crime of aggression effectively remains inchoate. The relevant amendments to the Rome Statute come into force for the Court upon the ratification of the amendment by a single states party; however, the agreement reached once again delays the Court’s ability to exercise jurisdiction over the crime until two prerequisites are achieved: (i) thirty states must ratify the new amendments; and (ii) after 1 January 2017, the Court’s Assembly of state parties must decide, by a positive decision, to “activate” the ICC’s exercise of jurisdiction over the crime. Consequently, the Court’s jurisdiction over the crime of aggression will remain provisional and effectively without force for at least seven years.

Nevertheless, history was made: as a result of the Conference, international relations and international law experienced a subtle but meaningful revolution. The state parties agreed upon a definition of the crime of aggression to be included in the statute (draft article 8bis). As well, they agreed upon the jurisdictional procedure to be followed if and when states parties activate the Court’s jurisdiction (in particular, draft articles 15bis and 15ter). Perhaps most significant, draft article 15bisincludes a mechanism for exercise of jurisdiction over the crime of aggression that does not require the involvement of the UN Security Council.

The role of the Security Council was by far the most controversial and polarizing issue in the negotiations leading up to and in Kampala. For some states, a predetermination by the Security Council that an act of aggression had occurred, or alternatively a referral of the incident by the Security Council were non-negotiable requirements of the Court’s jurisdiction of the Crime. For other states, an amendment which included exclusive Security Council oversight was a non-starter.

The compromise creates a two-tier system. The Court can proceed to investigate and try alleged crimes of aggression once the amendment comes into force; however, states can choose to opt out of the Court’s jurisdiction over the crime for those instances where the Security Council has not referred the case. States cannot, however, opt out of the Court’s jurisdiction over the crime for those incidents where the Security Council has referred the situation. This was a bitter pill to swallow for some countries (most notably Brazil) and NGOs (most notably Amnesty International and Human Rights Watch) who vocally advocated for the protection of the Court’s independence and the consistent application of the Rome Statute system.

Specifically, these parties had hoped for a framework of jurisdiction over the crime of aggression which was identical to or at least consistent with the court’s existence jurisdiction over crimes against humanity, war crimes and genocide.

What was more disconcerting for these parties, however, was a provision in draft article 15bis providing that incidents of aggression that take place on the territory or by the nationals of non-states parties are exempt from the Court’s jurisdiction in the absence of a Security Council referral. Many of those critical of this provision viewed it as inconsistent with the principles traditionally animating the boundaries of a state’s criminal law jurisdiction. In particular, the exemption of all acts taking place on the territory of a non-states party—even if the perpetrators involved are nationals of a country that has ratified the Rome Statute—is viewed by some states and NGOs as inconsistent with the principle of jurisdiction on the basis of active nationality.

Ultimately, however, the creation of an international criminal system which has begun to accept that a determination of aggression is not within the exclusive purview of the UN Security Council was viewed as an unexpected victory by many of the states and NGOs present. Until the final day of the Conference it seemed that the two members of the permanent five Security Council members who have acceded to the Rome Statute (the “P2”—England and France) simply would not accept anything short of exclusive Security Council control. As well, the delegates of the United States, while speaking positively about the growing relationship between the Court and the U.S., exercised a fair bit of diplomatic mite in ensuring their country’s interests were protected. In light of the widely endorsed need for consensus in adopting an amendment (despite a procedure for adoption by vote in the Rome Statute) the opposition of these parties at times appeared potentially fatal to this central focus of the Conference in Kampala.

The Experience

Spending most of my days locked inside the perhaps overly protected security compound of the Munyonyo Commonwealth Resort was at times incredibly interesting and at times incredibly trying. My work with the CICC in Kampala included speaking with delegations to determine the latest status of the fluid draft amendments. As well, I, along with other members of the CICC delegation, had the opportunity to discuss the merits of possible improvements to the drafts with state delegates.

At times, I was surprised at the open and collaborative nature of the relationship between states and NGOs. When a major proposal was presented by a state in the formal negotiating sessions, the presenting state would sit down with members of the Coalition later that day to be criticized and/or praised by NGO members eager for an opportunity to speak and exercise their influence.

At other times, the interactions between states and NGOs seemed overly diplomatic and almost without substance. In the final days, state delegates locked themselves away in informal bilateral meetings for hours. Most informal meetings took place in closed conference or hotel rooms (though some took place while wandering the overly manicured lawns or under the tent where the Government of Uganda provided lunch daily). These negotiations were punctuated by reconvened formal sessions every few hours in which the President of the Assembly would simply state that informal consultations would continue. Frustrated, NGO members and state delegates that found themselves out of the loop would leave the comfort of the Plenary Room to seek out the latest lead or newest draft once again. In the final hours, some states grew irritated, feeling their voices were not heard, and feeling they had no control over the process.

Similarly inconsistent was the relationship between the work of states and the principles underlying the “non-amendment issues” addressed at the Conference. The first week of the Conference focused on: the rights of victims under the Rome Statute system, cooperation between states and the Court, the relationship of complementarity between national judicial systems and the ICC’s jurisdiction, and the nature of the interaction between peace and justice in international conflict. As well, throughout the Conference, there was an area within the Resort grounds called the “Peoples' Space.” At the Peoples' Space members of Affected Communities and NGOs were given the opportunity to articulate in various ways their experience with conflict and with international justice efforts. The impetus for this platform was the idea that (i) it would be beneficial for those individuals who so chose to speak about their experience, and (ii) the discussion of amending the Rome Statute was best situated within the context of its successes and failures, and the experiences of those it was meant to protect. There was much praise for this “non–amendment” dialogue by state delegates during the first week of the Conference. However, in the course of negotiating amendments there was seldom any mention of these communities or the principles discussed in the first week, except for a few impassioned pleas by NGOs and one or two states.

In many ways, the compromise reached in Kampala reflects these contradictions. There were significant victories for victim’s rights and the system of international justice—most notably, the lack of a requirement of oversight by the UN Security Council under the Court’s jurisdiction over the crime of aggression. However, these victories were confined by the traditional system of state-driven international law, making the Court’s jurisdiction contingent exclusively on state consent. Thus, the evolution of the Rome Statute system—unique at international law for its concern with individual acts and the protection of the interests of individuals— has continued to be and will continue to be driven and directed by the political interests of states. Nevertheless, despite the shortcomings, the crime of aggression-related developments in Kampala seem to represent a step forward, inasmuch as they allow states, generally, to get accustomed to the idea of the criminalization of illegal war. At the very least, the negotiations in 2017 will begin one step ahead with a system of criminalization reached by consensus in Kampala as the starting point for moving forward.