The International Criminal Court Takes Steps to End Aggression
Kampala Uganda ~ June 2010
Representatives from nations around the world joined together in the early hours on the morning of June 11th to applaud their historic decision to put The Hague’s International Criminal Court (ICC) on the path to become the first permanent court to try individuals for the crime of aggression.
This agreement by state parties is an historic step in the right direction. For the first time we have a clear definition of aggression and a process to move forward to ensure that this crime can be prosecuted in the future. This decision came after two weeks of intense meetings in Kampala, during the Review Conference, capping eight years of negotiations by parties to the ICC.
The United States was voluntarily absent from the earlier negotiations. Despite having decided not to become a member of the ICC at this time, the United States participated fully in the negotiations in Kampala.
What Was Decided in Kampala
At the historic 2010 International Criminal Court Rome Statute Review Conference, stocktaking, two proposed amendments on war crimes, and the crime of aggression were all on the agenda. Of the 111 States Parties, 84 gathered in Kampala, Uganda, including 30 Observer states, to make critical decisions regarding the Court’s future.
In the stocktaking exercises, States considered the overall successes and impact of the Rome Statute system in regards to complementarity, co-operation, the impact of the Rome Statute System on victims and affected communities, and peace and justice. Many observers and States Parties made pledges in support of the Court.
This article of the Rome Statute allows new states-parties to the ICC to declare that the Court cannot investigate and prosecute war crimes committed by its nationals for the first seven years. By agreement, this provision was included in the Rome Statute on the condition that it would be reviewed again at the Kampala Conference. It was decided in Kampala that article 124 would remain in the Statute and would be considered again in five years.
THE BELGIAN AMENDMENT
This amendment proposed to extend the criminalization of the use of poison, poisoned weapons, asphyxiating, poisonous or other gases and all analogous liquids, materials or devices as well as the use of bullets that expand or flatten in the body (“dum dum bullets”) to international armed conflicts. At the Review Conference, all of these weapons were extended, except for dum dum or “hollow-point” bullets when used by policing forces.
CRIME OF AGGRESSION
In Kampala, in an historic move by the ICC, the crime of aggression was defined, basically, as the planning, preparation and implementation of an act of aggression, by the head of state or military, which clearly violates the UN Charter. Additionally, States Parties to the ICC formally agreed, for the first time, to a process by which the crime itself could be prosecuted in the future. The process includes examining an act of aggression that must be very serious, in its character, gravity and scale, for it to rise to the level of consideration by the ICC. This act must also involve the use of force by one State against the sovereign, territorial and political independence of another State.
The way that this could work in practice, as laid out in the Review Conference, is that an investigation can be started by the UN Security Council (which the US is a part of), the ICC Prosecutor or a State Party. When the Prosecutor decides to act, s/he must wait 6 months for the UN Security Council to decide if they want to take action. If the UNSC hasn’t acted within 6 months, then the Prosecutor may go ahead. If the UNSC has any more concerns once the Prosecutor acts, they can delay the case from moving forward for one year, and renew it annually (Article 16).
When it came to the timing of when the ICC could start prosecuting the crime of aggression, the U.S. and other permanent members of the U.N. Security Council [United Kingdom, France, China and Russia], wanted to postpone the decision. Therefore, it was decided in Kampala that as early as January 1, 2017, States will meet together to discuss the act of aggression again and have, in essence, a Kampala II. If 2/3rds of States parties vote in favor of the inclusion of aggression at that time, then States need to formally agree to be bound by the amendment. When 30 states parties make such a formal notification, there will be a one year ramping up period, until the date the Court may begin prosecuting aggression. Beyond timing, there are other concerns as to how prosecutions of aggression may look in the future. States Parties can elect to opt out of aggression jurisdiction and non States parties and their citizens are excluded from aggression jurisdiction.
In May and June of 2010, states party to the International Criminal Court (ICC) met in Kampala, Uganda for the first Review Conference of the ICC. The purpose of the Conference was to evaluate the ICC, and make it more effective in prosecuting the world's most horrendous criminals. Those who attended discussed the Court's past and future, and proposed changes to the Court's founding treaty, the Rome Statute. Nations such as the United States that participated in the Rome Conference and signed its Final Act took part in the Conference and its preparatory meetings as observers. Those that have ratified the Rome Statute and make up the Court's governing body, the Assembly of States Parties (ASP), voted on the proposals.
At the conference, stocktaking of the ICC's performance thus far, a review of Article 124, an amendment to the Rome Statute proposed by Belgium, and the most controversial- the addition of the crime of aggression to the Rome Statute were discussed.
The Review Conference had the potential to dramatically change the ICC and it did. Those who attended as observers and the 111 ASP members not only determined how the ICC will function in the future, but influenced the struggle for global human rights.
The American delegation there was led by Ambassador-at-Large for War Crimes Issues Stephen J. Rapp and State Department Legal Adviser Harold H. Koh. The Obama administration should be applauded for its policy of constructive engagement with the Court. The deal they struck there serves U.S. national security interests, will help prevent aggressive war and foster peace in the future.
Final Issue Documents
Aggression is now a crime- The New York Times- By David Scheffer- Not since the Nuremberg and Tokyo tribunals of World War II has any political or military leader stood trial before an international court for the crime of aggression. Those days of impunity are coming to an end. Following years of talks and two weeks of intensive negotiations in Kampala last month, diplomats and international lawyers from almost 100 nations have agreed to empower the International Criminal Court to prosecute the authors of aggression...
US opposes ICC bid to make aggression a crime- The Christian Science Monitor- The United States under the Obama administration has developed an increasingly close working relationship with the International Criminal Court in The Hague. But that growing engagement with a controversial institution of international law was unable to prevent the ICC from expanding the scope of its work to include the murky crime of “aggression,” a move the US had vehemently opposed.
ICC Makes Waging War a Crime- Al Jazeera- Following the devastation of the second world war, the International Military Tribunal at Nuremburg, established by the Allied Forces to try leading figures of defeated Nazi Germany, described aggressive wars waged against other nations as "[a] supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole".
The ICC and the Use of Force- Voice of America- Diplomats from around the world are meeting in Kampala, Uganda, to review the workings of the International Criminal Court and possibly expand its authority. The court's founding in 2002 was a key development in international law, creating a permanent forum to bring to justice those responsible for crimes of staggering scale and providing recognition and relief to their victims.
Move to Make Act of Aggression ICC Offence Welcomed- The Daily Nation (Nairobi)- Non-governmental organisations have welcomed a resolution by the International Criminal Court to add crimes of aggression to The Hague's list of offences.They also welcomed the rejection of a push to have the United Nations Security Council have the sole mandate over which crimes of aggression the Court could investigate and prosecute.
CGS Crime of Aggression Resources
When a state uses force against another state outside of the authorization of the United Nations Security Council, it is an act of aggression. The crime of aggression has been included in the guidelines that govern the ICC since 1998. Despite the crime appearing in the statute of the ICC, the Court hasn't been able to try leaders who wage an aggressive war because countries that belong to the Court first must agree to a definition of the crime and lay out exactly how it would work.
Unfortunately they were not able to come to an agreement in Rome in 1998, when the statute was drafted. During the Review Conference, defining the crime of aggression and laying out the jurisdictional mandate was the most discussed element. The agreement in Kampala establishes an historic precedent. In the future, those who initiate aggressive wars may find that they find themselves going right from the throne to the slammer. The negotiations among the 84 nations present in Kampala required compromises, such as requiring seven years to pass and an affirmative agreement by two-thirds of states. Before the meetings scheduled for 2017, the international community and civil society must use this time to reach broad agreement on prosecuting aggression and maintaining the independence of the ICC in prosecuting individuals for all of the crimes under the Rome Statute.
The agreement in Kampala shows the need for another review conference in 2017, when the entry into force of the crime of aggression will be addressed. In the Kampala agreements, the U.S. succeeded in including provisions to exempt future coalition-based military operations and good-faith humanitarian interventions. Citizens for Global Solutions is concerned that this new agreement may over-broaden the powers of nations who have not joined the ICC by making a blanket exemption for their national leaders to commit aggressive acts, including on the territory of a nation party to the ICC. The compromise also provides that nations party to the ICC may file a declaration to opt out of the prohibitions on aggression. However, the results of the Kampala conference strengthen the ICC’s capacity to hold the world’s worst criminals accountable for their actions and gives the world a new means to stave off the trauma of unjust wars.
To read more...
From Rome to Kampala: The U.S. Approach to the 2010 International Criminal Court Review Conference- By: Vijay Padmanabhan of the Council on Foreign Relations
Coalition for the International Criminal Court Background Paper: Prepared in Preparation for the Review Conference
U.S. Engagement With The International Criminal Court and The Outcome Of The Recently Concluded Review Conference On June 15, 2010, Ambassador-at-Large for War Crimes Issues Stephen Rapp and State Department Legal Adviser Harold Koh gave a press conference regarding the ICC Review Conference. Harold Koh opened the press briefing with this remark,
"So to paraphrase Churchill, this is not the end, it was not the beginning of the end, but it did feel like the end of the beginning of the U.S’s 12-year relationship with this court. After 12 years, I think we have reset the default on the U.S. relationship with the court from hostility to positive engagement. In this case, principled engagement worked to protect our interest, to improve the outcome, and to bring us renewed international goodwill. As one delegate put it to me, the U.S. was once again seen, with respect to the ICC, as part of the solution and not the problem. The outcome in Kampala demonstrates again principled engagement can protect and advance our interests, it can help the states parties to find better solutions, and make for a better court, better protection of our interests, and a better relationship going forward between the U.S. and the ICC."
The U.S. and the International Criminal Court: Report from the Kampala Review Conference Ambassador Stephen Rapp and State Department Legal Adviser Harold Koh briefed attendees of this American Society of International Law event on the outcome of the conference, including on the question of the Court’s jurisdiction over the crime of aggression. Legal Adviser Koh and Ambassador Rapp described the Kampala deliberations and outlined the implications for future U.S. policy toward the Court.
U.S. Policy Toward the Upcoming International Criminal Court Review Conference- This event, also hosted by ASIL, occurred in advance of the Review Conference. Ambassador Stephen Rapp, Legal Adviser Harold Koh, and Rosa Brooks of the Department of Defense presented and outlined the U.S. approach to the Review Conference, including the question of whether and how the "Crime of Aggression" should be included in the jurisdiction of the Court.
Opt-out System Risks Undermining the ICC- The Amnesty International organizational statement regarding aggression.
ICC: Delay on a Tough Issue- The Human Rights Watch organizational statement regarding aggression.