Nearly a week into the International Criminal Court review meeting In Kampala, the US is pushing for consensus on the crime of aggression.

By David Rupiny in Kampala

Of particular interest to the US delegation is the fact that there is so far no consensus on a number of contested issues such as the amendment rule and jurisdictional filters and triggers, disagreements over elements of the crime’s definition and understandings and conditions attached to the definition of crime of aggression.

These, the US State Department’s Legal Adviser Harold Hongju Koh says, cannot be resolved in the remaining days. He presented his country’s position during a plenary on the crime of aggression.

 
“To be a success, the Review Conference must provide a principled, workable system of international criminal justice that is consistent with existing international law and institutions, and fair both to victims of abuse and to individuals who may eventually be prosecuted for the crime of aggression,” Koh said.

 
“We cannot credibly claim success if we produce an unworkable and divisive compromise that weakens the Court, diverts it from its core human rights mision, or undermines our multilateral system of peace and security.”

The proposed amendment on crime of aggression, Article 8bis, defines the crime 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”.

Two points of agreement seem to have emerged in the conference: that any amendments to the Rome Statute should be by consensus, and that there are a number of issues over which there are no consensus yet.

Koh said the bedrock procedural question that affects both the amendments regarding aggression is “what is the legitimate way to adopt amendments that add crimes to the Rome Statute?”

Koh outlined a number of disagreements that call for consensus. These are disagreements over whether proposed amendments should be adopted under article 121(4), Article 121(5), or some combination thereof. Other disagreements are about the extent to which amendments under Article 121(5) apply to states that do not accept the amendments and non-state parties, and about whether states that do not accept the amendments are obligated to cooperate with the Court in cases involving nationals of accepting states.

“For something as fundamental to this Court as its core crimes, a rule of amendment by consensus is both necessary and appropriate,” said Koh. “In the history of the International Court, the definitions of all the crimes over which the Court has jurisdiction and all of the elements of these crimes have been adopted by consensus.”

Koh asserted that the delegates should not deviate from that (consensual) decision-making principle for even more sensitive and highly-charged offences.

“Proceeding by consensus is the soundest way to develop international law, and the best way to build a strong institution that can effectively improve the plight of victims,” Koh said. “We cannot adopt amendments relating to a crime under conditions that ensure that every aggression prosecution will begin with a challenge to the legitimacy of the process by which the crime was adopted.”

Koh also raised the question of when any crime of aggression amendments would come into force, considering that there has been no consensus on whether or not to operationalise the crime at the Kampala conference.

“For the three existing crimes – genocide, war crimes and crimes against humanity – the elements of the crimes were not finalised until nearly four years after Rome. Even if a definition of aggression were adopted, we would need a similar period of careful deliberation regarding the elements of what is a far less well-stated offense.”

Another question Koh raises are the jurisdictional conditions, filters or triggers that must be satisfied before the ICC exercises jurisdiction over the crime of aggression. Citing the Princeton Process, he said there was support for the proposition that investigations and prosecutions for the crime of aggression could go forward where the Security Council had determined that aggression had occurred.

“But apart from that, there was little agreement regarding any filters or triggers beyond the Security Council,” Koh reasoned.

He further challenged the proposed definitionof crime of aggression developed by the Special Working Group based on the agreement of many, but not all, nations.

“Although we respect the considerable effort that has gone into [drafting the amendment], we believe that without agreed-upon understandings, the current draft definition remains flawed.”

He continued: “We are concerned that the apparent consensus on the wording of Article 8bis masks sharp disagreement on particular points regarding the meaning of that language that must be addressed before the amendments on the crime of aggression can enter into force.”

Koh pleaded for understandings around the crime of aggression regarding the risk of criminalising lawful uses of crime.

“If Article 8bis were to be adopted as a definition, understandings would need to make clear that those who undertake efforts to prevent war crimes, crimes against humanity or genocide – the very crimes that the Rome Statute is designed to deter – do not commit ‘manifest’ violations of the UN Charter...” said Koh.

He said regrdless of how states may view the legality of such efforts, those who plan them are not committing the “crime of aggression” and should not run the risk of prosecution. Also, if investigation or prosecution were to proceed, it must be shown that it was manifest that the action was taken in self-defense, without the consent of the state in question, and without any authorisation provided by the Security Council.

By adopting the proposed crime of aggression, Koh said it would not truly reflect customary international law, arguing that while supporters of the definition claim it mirrors the provisions of General Assembly Resolution 3314, it in fact departs from the resolution in significant ways.

Resolution 3314 states, in part, that only the most serious crimes and dangerous forms of illegal uses of force constitute aggression.

“If the proposed definition were adopted, understandings should be made clear that only the most serious and dangerous forms of illegal use of force constitute acts of aggression and all relevant factors must be considered in each particular case to assess whether any particular use of force constitutes an act of aggression,” said Koh.

The third risk Koh highlighted is that of “unjustified domestic prosecutions” and how the principle of complementarity would apply to the crime of aggression.

“Even if states incorporate an acceptable definition into their domestic law, it is not clear whether or when it is appropriate for one state to bring its neighbour’s leaders before its domestic courts for the crime of aggression,” he said.

Koh concluded that the the Conference should now turn urgently to developing these ideas and see what consensus is genuinely possible.

“Surely finishing the unfinished business of Rome does not mean rushing to a premature conclusion of institution- transforming amendments on which there is not yet genuine consensus. Instead finishing the work of Rome means building a stronger Court with a renewed commitment to pursuing meaningful solutions by genuine consensus that can advance the cause of human rights and international justice”.
 
A number of countries, mainly from Africa including Nigeria, seemed to have taken up the US appealfor consensus. It remains to be seen how the remaining of the days unfold, and whether the US position will gain momentum and eventually sway the delegates to her side.