The ICC Review Conference: A Briefing

By Anthony Dworkin

On Monday May 31, the states that have signed up to the International Criminal Court will meet for a major conference in Kampala, Uganda, to review the Court’s workings and consider amendments to its statute. After eight years of operation, the conference will be the Court’s moment in the international diplomatic spotlight: a chance for states parties to give their verdict on the way the Court has developed and to set priorities for their future engagement with it. Another central issue before the conference will be whether the ICC’s statute should be amended to give it jurisdiction over the crime of aggression.

The question of aggression is the most disputed point that the review conference will consider. There is little doubt that the waging of aggressive war is a crime under international law: the Nuremberg Trials after World War II included aggression (or “crimes against peace”) as one of the central charges against former members of the Nazi regime. But since then no international tribunal has had jurisdiction to prosecute individual defendants for aggression.

When the Statute of the ICC was being drafted, negotiators included aggression as a possible crime, alongside war crimes, crimes against humanity and genocide, but put off the difficult question of how it should be defined and how cases should be initiated. The Rome Statute therefore says that the ICC will only gain jurisdiction over aggression after an amendment has been adopted that defines it. The statute also says that amendments may be adopted after the Court has been in existence for seven years. The passing of that deadline explains why the review conference has been called now.

Disagreements over Aggression

A working group on aggression, set up by the Assembly of States Parties, has been struggling for years to produce a consensus on this politically fraught question. At the heart of the controversy over the way that the ICC should deal with aggression is the fact that it is inherently different from the other crimes over which the Court has jurisdiction. It is easy to accept that acts of mass atrocity should be condemned as illegal actions for which individuals should be held accountable: even when ordered by a political or military leader, they could never be conceived as a legitimate act of state. But launching an armed attack against another country is both an individual leadership decision and an act of state. The conviction of an individual for an act of aggression would at the same time constitute a judicial determination that the country involved in the attack was acting in violation of international law.

By adopting jurisdiction over aggression, the ICC would inevitably be drawn into questions about inter-state conflict. It would have to decide which of the countries involved in a war was responsible for starting it, and whether it had a valid justification (through a resolution of the UN Security Council or through a claim to be acting in self-defence) for having done so. Many countries that support the Court are concerned that the ICC would become mired in political controversy if it took cases on aggression, and that this could overwhelm its work on other crimes and damage its international standing.

The working group on aggression came up with a definition of aggression that attempts to deal with this concern. It says that the term “crime of aggression” should be understood 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.” This inclusion of the term “manifest” was intended to separate out cases that involve disputed issues (some would see the Iraq War or proclaimed cases of humanitarian intervention as examples) from more clear-cut cases where there are no grey areas of international law to be resolved. The definition also makes it clear that aggression is a “leadership crime” that can only be committed by someone in authority over a country’s political or military action. This definition has been criticised for vagueness by some legal scholars, but it has nevertheless been accepted into a proposed amendment by states parties of the ICC.

One Filter or More?

But other points about the proposed amendment remain unresolved and highly contentious. One concerns the way that cases of aggression should be initiated. Some countries, including the United Kingdom and France, argue that the special nature of the proposed crime of aggression requires a different procedure for initiating cases from that used for other crimes in the ICC’s jurisdiction. To protect the place of the UN Security Council in the international system, with its special responsibility for responding to threats to international peace and security, these countries say the ICC should not be able to investigate or prosecute cases of aggression without a Security Council authorization.

Other countries support the idea of such a “filtering system” but would prefer that either the UN General Assembly or the International Court of Justice should also be empowered to play this role, if the Security Council did not make a determination that an act of aggression had occurred. Other countries again argue against any external filtering system, which they say would compromise the Court’s independence, but are willing to consider giving the ICC’s Pre-Trial Chamber a special role in reviewing possible cases of aggression before they are allowed to proceed.

Another, and more technical, question that has not been resolved in the preparatory work for the review conference is how the amendment should be adopted. Should it only be binding on states that agree to accept it, or could it become binding on all ICC states parties once a sufficient number of them (seven-eighths of those who have ratified the statute) have agreed? And is it necessary for the aggressor state to have accepted the jurisdiction of the Court over aggression, or is it sufficient for the victim state to have accepted it? These questions are based in ambiguities in the wording of the Court’s statute, but they have important repercussions for the international consequences that a decision to include aggression among the Court’s crimes would have.

It is not clear whether the review conference will be able to reach a consensus on these issues, or whether there will be a sufficient majority for some version of the amendment to be adopted. Two-thirds of the states parties must vote in favour of an amendment for it to be adopted. The President of the Assembly of States Parties, Christian Wenaweser of Liechtenstein, said on May 28 that he was “cautiously optimistic” that an agreement would be reached. Wenaweser said there was broad agreement that the Security Council should be offered a chance to rule on whether aggression had taken place before the Court gained jurisdiction—but did not indicate whether there was any convergence on what should happen if the Security Council did not give a green light.

How Countries are Aligning

At the last meeting of the Assembly of States Parties in March, an informal roll-call of states was taken to give an indication of the development of states’ positions. According to observers, the largest number of states expressed support either for the idea that the ICC should be able to proceed without an external filter, or that a body other than the Security Council should also be able to authorize a case to go forward. African and Latin American countries in particular appear opposed to giving an exclusive filtering role to the Security Council. States were more or less evenly divided on whether the state charged with aggression would need to consent to the ICC having jurisdiction, with a small majority of states arguing that consent from the victim state should be sufficient for a case to proceed.

NGO groups have not adopted a consistent position on the aggression amendment, but most have opposed any solution which would undermine the perceived independence of the Court – as many believe that giving the Security Council exclusive control over cases of aggression might do. The influential South African judge Richard Goldstone, former Chief Prosecutor for the Yugoslavia and Rwanda war crimes tribunals, recently came out against the ICC adopting jurisdiction over aggression now, warning that “the issues that would arise from dealing with allegations of aggression would give ammunition to the ICC’s critics who claim that it is a highly politicized institution.” Goldstone wrote that the challenge of getting the Serbian public to see the Yugoslavia tribunal as an impartial body would have been “immensely greater – perhaps impossible” if aggression had also been included as a possible charge.

Two other possible amendments will also be considered. One removes the possibility of states becoming party to the Court but deferring the exercise of its jurisdiction for seven years—a measure that is widely accepted as redundant and harmful now that the Court has an established track record. Another extends the criminalization of the use of some weapons to cover non-international (or internal) armed conflicts as well as international ones. Neither of these amendments has attracted anything like the division that has arisen over aggression.

Taking Stock of the Court

But it is not only amendments that will be considered at the conference. An increasing amount of emphasis has come to be placed on what is called the “stocktaking” part of proceedings—an opportunity to reflect on the ICC’s work with particular reference to four key areas. The chosen areas are: the Court’s impact on victims and affected communities; complementarity (i.e. the relationship of the ICC process to domestic prosecutions for genocide, crimes against humanity and war crimes); cooperation of states with the Court; and the relationship of peace with justice.

This list shows that the subjects to be considered are fundamental to the impact of the ICC’s work in the widest sense. Countries represented at the conference are likely to make a number of pledges, and NGOs are pushing to make them as concrete as possible so that they lead to tangible results.

One significant way in which the review conference could make a difference is to reaffirm international support for the ICC, and to help influence perceptions of its work. It is striking how the political repercussions of the ICC have so far vastly outstripped its judicial record. No trials have yet been completed, yet the Court has aroused a storm of political debate. This is particularly the case in Africa, where all five of the ICC’s ongoing cases are located. Last year the African Union passed a resolution opposing cooperation with the arrest or transfer of President Bashir of Sudan to the ICC; since then, however, African country has actually refused a request for cooperation in this case, while South Africa has made it clear that it would be obliged to enforce the arrest warrant if President Bashir were to visit. In other cases, critics have accused the ICC’s prosecutor of working too closely with national governments—for instance by targeting the opposition leader Jean-Pierre Bemba in the Democratic Republic of Congo or failing to prosecute abuses by the armed forces in Uganda.

It would be enormously helpful for the ICC’s future work if the conference, taking place in Africa, became a forum for African states parties to commit themselves to support an independent and impartial Court. A wide group of African and African-based NGOs recently issued a declaration calling on African governments “to help advance the global fight against impunity by restating their commitment to justice for the victims of grave crimes and offering views on the development of international criminal justice and the ICC.” Among the steps called for by the declaration were high-level participation and the agreement of a strong declaration at the end; to adopt pledges including the adoption of domestic implementing legislation; and active participation in stocktaking discussions. At the same time, Western countries should take care to consider the impact that their actions at the conference—including the position they adopt on the crime of aggression—will have on the views of African countrires.

The United States, which is not a party to the ICC and was strongly opposed to the Court under the administration of George Bush, will now attend the review conference as an observer. This decision reflects the changed position on the ICC that the Obama administration has adopted. The administration has promised to look for specific ways to assist the Court with its work. However the United States has not given any promise to become party to the ICC and this remains a distant prospect. The US strongly opposes the Court being given jurisdiction over aggression and would push hard for the Security Council to be given an exclusive controlling role if any amendment is adopted.

Related Links:

Review Conference of the Rome Statute
Resources Page
International Criminal Court

Review Conference of the Rome Statute
Coalition for International Criminal Court

Civil Society Declaration on Africa and the Review Conference of the Rome Statute
African civil society organizations
May 24, 2010

Global Justice: The Expanding Reach of Accountability
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May 2010

ICC Review Conference Resources
American Society of International Law
September 29, 2008

The International Criminal Court: A Time for Consolidation
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European Council on Foreign Relations, May 28, 2010

The First Review Conference of the Rome Statute of the International Criminal Court
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ICC Review Conference: Kampala 2010
Blog edited by William Schabas

Prosecuting Aggression: The Consent Problem and the Role of the Security Council (PDF)
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Oxford Institute for Ethics, Law and Armed Conflict Working Paper, May 2010

From Rome to Kampala: The US Approach to the 2010 ICC Review Conference
Council on Foreign Relations, April 2010

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