The first International Criminal Court (ICC) Review Conference in Kampala, Uganda “is a chance to build the court into all that it can be and all that it must be,” United Nations Secretary General Ban-Ki Moon told delegates on Monday.

By Hermione Gee

When the Rome Statute came into force in July 2002, it mandated a review conference seven years later to assess the work of the ICC and consider amendments to the Statute. On the agenda for the eight-day meeting are three proposed amendments: the deletion of article 124, an amendment to article 8 and a definition of the crime of aggression.

The first two amendments are uncontroversial but defining the crime of aggression is proving to be contentious. The battle lines drawn around the issue get to the heart of the court’s main political difficulty, namely its relationship to the UN Security Council, says William Schabas, director of the Irish Centre for Human Rights.

“The permanent members of the Security Council want to retain a monopoly on determining whether...a case dealing with aggression should go before the ICC and they don’t appear to be willing to compromise on that. And it will be unacceptable for many other states to agree to a court where that decision is left with the Security Council.”

Richard Howitt, chair of the EU delegation, announced on Tuesday that he has a mandate to call for the adoption of the crime of aggression. European permanent members of the Security Council - the United Kingdom and France - would not defend their privileges to rule on the legality of war for the whole world, he said.

“The right place is the ICC. The EU, which was forged out of war crimes of the Second World War, should not today prevent the same crimes tried at Tokyo and Nuremberg from being tried for the wars of the 21st century,” he explained.

The American delegation is equally determined to block passage of the current draft proposal, concerned that US personnel could be subject to prosecution if the crime is too broadly defined. US delegate Elisabeth van Schaack told reporters that the US is also concerned that inclusion of the crime could overwhelm a court already dealing with genocide, war crimes and crimes against humanity. “Crime of aggression is not only too vague but would distract the court from pursuing atrocious crimes,” she said.

A declaration released on Tuesday evening remained vague on the issue, with state parties expressing their “firm commitment to work actively during the Review Conference towards a satisfactory outcome on the amendment proposals...keeping in mind the mission the ICC is meant to accomplish in the international community.”

There will also be a stocktaking exercise to assess the operating principles of complementarity and co-operation as well as the impact of the Statute on victims and affected communities, and on peace and justice.

“Unfortunately,” says William Schabas, “the stocktaking is not even looking at the problems of the court [but] looking at states and how they relate to the court.” And that’s a major oversight, he says, given the court has not lived up to expectations. “I would describe its performance as lacklustre right now... It’s not doing as many cases as people thought it would. So I think it would be a good thing for the Review Conference to think about that a little bit and think of some changes and improvements.”

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