Monday 23 Jul 2018 | 10:22 | SYDNEY
Monday 23 Jul 2018 | 10:22 | SYDNEY

Crime of aggression: Agreement in Kampala

15 June 2010 09:22

Tobias Hanson attended the ICC Review Conference on behalf of the Coalition for the International Criminal Court. This post is written in his personal capacity. Earlier posts here and here.

After decades of discussions that have culminated in two weeks of intense debate in Kampala, States Parties to the International Criminal Court have by consensus passed breakthrough resolutions facilitating the inclusion of the crime of aggression within the jurisdiction of the Hague-based Court. But in a major concession by advocates of the crime, a final decision to activate the Court's jurisdiction will have to be made by States Parties after 1 January 2017.

Tension has marked the final days of the Conference, which has unfolded like a game of chess, with some delegations clearly playing several moves ahead of others during long days of largely informal negotiations (see picture).

Despite fears that the whole process would fall apart at the last minute, the complex negotiation came to an end at 1:15 am on the final day, with all necessary amendments passing without the need for a potentially divisive vote.

Fierce debate centered on how these amendments will shape the relationship between the Court and the UN Security Council, which is mandated to determine acts of aggression under the UN Charter. More specifically, discussion focused on the role the Security Council should play in filtering the Court's jurisdiction over a crime which establishes individual criminal responsibility for leaders who plan and initiate the use of armed force against another state in a manner which manifestly violates the UN Charter.

Predictably, the interests of the permanent members of the Security Council were pitted against states from Latin America, Africa and members of the Non-Aligned Movement, the latter group lobbying hard for the Court's jurisdiction to be unfettered from Security Council control.

The final compromise creates a unique referral regime governing when the ICC Prosecutor will be able to initiate an investigation into this politically sensitive crime.  

In conformity with the other crimes within the Court's jurisdiction (genocide, crimes against humanity and war crimes), when the Security Council refers a situation to the Court — as it did in the case of Darfur — the Prosecutor will be able to investigate any of the crimes falling under the Court's Statute — including the crime of aggression. 

However, in contrast to the other crimes, the other two triggers for the Court's jurisdiction — state referrals and the Prosecutor's self-initiated investigations — will only be possible in situations arising between countries party to the Court's Statute (there are now 111 parties).

States have also been given the opportunity to exclude themselves from these two jurisdictional triggers by going through the (politically difficult) process of opting out of the Court's jurisdiction by lodging a declaration with the Court's registrar.

The final compromise deal can be interpreted as a major victory for an informal grouping of like-minded states including Australia and Canada. A central tenet of this group's position has been to create a regime which respects the primary role of the Security Council in determining acts of aggression while at the same time respecting state sovereignty.

While major concessions were made on all sides, the adoption by consensus of these amendments to the Statute marks a significant development in international relations. If the decision is made to activate the regime in 2017, any use of armed force against another state could be brought before the Court via the Security Council, marking a major victory for the rule of law.

In other news from Kampala, States Parties decided to leave Article 124 (allowing new states to the treaty to opt out of the Court's jurisdiction over war crimes for seven years) within the Statute, despite a strong push by civil society to have it removed.

A resolution was also adopted amending Article 8 to extend the definition of war crimes to include the use of expanding (or 'dumb dumb') bullets, poison and poisonous weapons, and asphyxiating poisonous and other gases when used in non-international armed conflict. And along with 37 other nations, Australia made a $210,000 pledge to the Court, split between the ICC's trust fund for victims and a program which subsidises the attendance of developing nations at the Court's Assembly of States Parties.