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Review Conference: Informal Daily Summary - 11 June 2010
11 June 2010
Dear All,


From 31 May to 11 June, States Parties to the ICC Rome Statute - ICC's founding treaty - as well as observer states, international organizations and NGOs met in Kampala (Uganda) to discuss amendments to the Statute as well as its impact to date. After a week of high-level discussions on the impact of the Rome Statute to date, ICC Member States came to an agreement regarding amendments to the Rome Statute pertaining to the crime of aggression.

This message includes a short summary of developments at the Review conference on Thursday 11 June 2010 (I); related documents and statements (II); as well as latest news articles and opinions on the conference (III).

For more information on the Review Conference, please visit the CICC website at: http://www.coalitionfortheicc.org/?mod=review

Please note that official Review Conference documents can be found on the ICC website at: http://www.icc-cpi.int/

Please do not hesitate to contact us should you need further information.

Regards,

CICC Secretariat
www.coalitionfortheicc.org


I. INFORMAL SUMMARY OF THE REVIEW CONFERENCE: 11 JUNE 2010

A. CRIME OF AGGRESSION

On 11 June 2010, the Review Conference adopted by consensus a set of amendments to the Rome Statute which include a definition of the crime of aggression and a regime establishing how the Court will exercise its jurisdiction over this crime. The conditions for entry into force decided upon in Kampala provide that the Court will not have jurisdiction over the crime until a decision is made to activate its entry into force by States Parties after 1 January 2017.

The amendments set out a unique jurisdictional regime outlining when the ICC Prosecutor can initiate an investigation into a crime of aggression. Where a ‘situation’ is referred to the Prosecutor by the UN Security Council, the Court’s jurisdiction is triggered in the same manner as with the other crimes in the Statute, meaning the Prosecutor may proceed with an investigation into the crime of aggression. In contrast to Security Council referrals, the Prosecutor may only proceed with an own motion (proprio motu) investigation or an investigation based on a State referral of a situation into the crime of aggression after first ascertaining whether the Security Council has made a determination of the existence of an act of aggression and waiting for a period of 6 months; whether that situation concerns an act of aggression committed between States Parties; and after the Pre-Trial Division of the Court has authorized the commencement of the investigation.

The amendments also provide that States Parties may opt-out of the Court’s jurisdiction under the article by lodging a declaration of non-acceptance of jurisdiction with the Court’s Registrar. Non-State Parties have been explicitly excluded from the Court’s jurisdiction into a crime of aggression under this article when committed by that State’s nationals or on its territory.

Read the amendments: http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.4-ENG.pdf

B. SIDE EVENTS

The Coalition for the ICC held a media briefing on key issues discussed during the two weeks of the Review Conference. Panel participants included Paulina Vega of the Fédération internationale des ligues des droits de l'Homme, Brigid Inder of the Women’s Initiatives for Gender Justice, Mohammed Ndifuna of Human Rights Network—Uganda, Deborah Ruiz Verduzco of Parliamentarians for Global Action and Niccolò Figà-Talamanca of No peace Without Justice.

II. RELATED DOCUMENTS AND STATEMENTS
1. “ICC: Delay on a Tough Issue: Agreement on Crime of Aggression May Expand Court’s Portfolio but Raises Challenges for the Future,” Press release, Human Rights Watch, 11 June 2010, http://www.hrw.org/en/news/2010/06/11/icc-delay-tough-issue

2. “Conclusion of landmark ICC Review Conference: difficult compromise and commitments to be confirmed,” Press release, FIDH, 14 June 2010, http://fidh.org/Conclusion-of-landmark-ICC-Review-Conference
3. "Landmark ICC Review Conference concludes business,” Press release, CICC, 12 June 2010
http://www.coalitionfortheicc.org/documents/CICC_MA11June2010.pdf
4. “Review Conference of the Rome Statute concludes in Kampala,” Press release, ASP-ICC, 12 June 2010, http://www.icc-cpi.int/NR/exeres/CF95BB41-B15A-45DA-B8CF-33E873E73829.htm


5. “VIDEO - International courts must reach out”, Stephen Hubbell for the OSI blog, part of the Guardian Legal Network, 10 June 2010, http://www.guardian.co.uk/law/2010/jun/10/international-courts-osi

6. “VIDEO - IS the ICC Europe’s Guantánamo Bay for Africa?”, Dr David Hoile, 11 June 2010, http://www.weinformers.net/2010/06/11/is-the-icc-europe’s-guantanamo-bay-for-africa/?utm_source=subscriber&utm_medium=rss&utm_campaign=rss

III. LATEST NEWS AND OPINIONS

i. “ICC member states still locked on crime of aggression”, Xinhua, 11 June 2010, http://english.eastday.com/e/100611/u1a5257137.html

“States signatory to the Rome Statute that established the International Criminal Court (ICC) on late Thursday remained locked after five days of protracted negotiations on the Court's jurisdiction over the crime of aggression.

The 111 ICC states including other non-member states like the U.S., Russia, and China as observers attending the ICC Review Conference here failed to reach the consensus on who is to determine that an act of aggression has been committed.

The conference that started on May 31 ends on Friday.

The President of the Assembly of States Parties to the Rome Statute, Christian Wenaweser, on late Thursday night called on the delegates to have a consensus by Friday.

‘I appeal to you to continue with your informal and formal discussion to try to bridge the existing gaps and come tomorrow (Friday) for the very final stretch,’ said Wenaweser.

‘We shall conclude this (crime of aggression debate) tomorrow and make the final decision,’ he said before adjourning the late night session.

The major points of division are whether the UN Security Council should have the exclusive right to determine that an act of aggression has been committed or the ICC should independently make the determination.

Some states argue that the involvement of the Security Council which they refer to as a political body will undermine the judicial independence of the Court.

They including most African and some European countries argue that instead the ICC prosecutor should with approval of the Pre-Trail Chamber of the Court investigate whether a crime has been committed or not.

Another point of contention is that if the Security Council fails to make a determination on the crime of aggression after six months of the occurrence of the incident, the ICC prosecutor can go ahead and investigate.

In the absence of such determination, the prosecutor may not proceed with the investigations in respect of a crime of aggression, unless the Security Council has, in a resolution adopted,’ reads an alternative version of the draft resolution on the jurisdiction over the crime of aggression.

The draft in alternative two reads, ‘Where no such determination is made within six months after the date of notification, the prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the pre-trial division has authorized the commencement of the investigation in respect of a crime of aggression.’

The negotiations reopened last Friday on the sides of the ongoing first ICC Review Conference since the establishment of the court in 2002. Negotiations on the crime of aggression have stalled for over 10 years….”

ii. “ICC nations at odds over pursuing crimes of aggression”, Aaron Gray-Block, Reuters, 11 June 2010, http://af.reuters.com/article/topNews/idAFJOE65A08T20100611

“Dozens of countries deadlocked on Thursday in efforts to agree powers for the International Criminal Court to prosecute crimes of state aggression, arguing over criteria for triggering investigations.

At a landmark ICC review conference held in Uganda, delegates were seeking to agree a definition of state aggression and how ICC inquiries into the offence, one of four grave crimes the court has jurisdiction over, could be triggered.

In a late-night meeting on Thursday, in an effort to reach a compromise, delegates were given a new draft resolution outlining how the U.N. Security Council, the ICC or a state referral might set off a probe into an act of aggression.

Christian Wenaweser, president of the Assembly of States Parties that oversees the ICC, urged states to try and bridge the gaps as they are now under ‘considerable time pressure.’

The issue has deeply divided states over the role the Security Council should play, with smaller nations wary of yielding authority to a world body dominated by five big powers.

Several draft papers and resolutions have been circulated among delegates this week.

One delegate said the latest draft resolution might still draw objections from smaller states as it allows the Security Council to thwart an ICC investigation with a so-called ‘red light clause’. Other delegates said it was too early to comment.

The new resolution still included a type of ‘opt-out clause’ for states to shield them from a probe if they have declared with the ICC registrar that they do not accept ICC jurisdiction. Amnesty International has warned against an opt-out clause, but the latest variant obliges states to review its opt-out within three years.

The proposal also provides for delayed entry of the court's mandate to prosecute aggression, an idea widely supported. But the key issue remained whether the ICC would be able to start an investigation if the Security Council had not determined that an act of aggression took place.

Under the latest proposal, the court could not investigate an act of aggression committed by a non-member state. Security Council powers the United States, Russia and China are not members of the ICC, and states such as India, Indonesia and Israel and many Islamic countries have not signed up to the court either.

The crime of aggression is broadly defined as the use of force that manifestly breaches the U.N. charter and includes an invasion, a bombardment, blockade or a country allowing another state to use its territory to attack a third nation.

Big powers who are permanent members of the Security Council are concerned about granting the ICC powers to prosecute state aggression, arguing such writ must be vested with the council and that it is premature to push forward without consensus.

NGOs argue that giving the council powers to determine whether an act of aggression has taken place could undermine the ICC's independence, while investigations into acts of aggression could also be seen as politically biased.”

iii. “Consensus Unlikely At Rome Statute Conference In Uganda”, Peter Clottey, VOA News, 10 June 2010, http://www1.voanews.com/english/news/africa/Consensus-Unlikely-At-Rome-Statute-Conference-In-Uganda--96108034.html

“Former U.S Ambassador David Scheffer has expressed doubt a consensus can be formed among participants over the crime of aggression at the Rome Statute Review Conference which ends Friday in Kampala. Scheffer, who served as an ambassador-at-large for war crimes issues in the Clinton Administration, described as constructive the debate and dialogue among governments at the conference.

‘There has been an enormous amount of, I think, very constructive dialogue among governments at this conference. There has also been divisiveness. There have been very divergent views about how to achieve particularly the incorporation of the crime of aggression into the Rome Statute. But, it has been a two-week venture and we are in a better position today than we were two weeks ago on this issue,’ he said.

Amendment proposals that were deliberated upon during the conference included the revision of Article 125 of the Rome Statute, the crime of aggression and the inclusion of the use of certain weapons as war crimes.

Scheffer, now law professor at Northwestern University in Evanston, Illinois who is participating in the Kampala conference, said it is unlikely there would be a compromise on including the crime of aggression in the Rome Statute.

‘I think that is doubtful because there are too many governments in the world that view how to use military force differently. There are governments who (say) there a very lawful uses of military force that should not be questioned by a court. It’s a political matter. And, there are governments, for example, at the Security Council that do see it as an issue that is solely to be determined by the Security Council,’ Scheffer said….”

iv. “American expert warns super powers on ICC amendments”, Alfred Nyongesa Wandera, Daily Monitor, 10 June 2010, http://www.monitor.co.ug/News/National/-/688334/935830/-/x0t482/-/

“An American expert on crimes against humanity has warned the ‘big nations’ of dire consequences in the near future if they play tricks to fail adoption of the crime of aggression in the Rome Statute.

Mr Benjamin Ferencz, a former chief prosecutor during the 1946 Nuremberg Tribunal trials that brought to book top Nazi war criminals, hit at his own nation[USA] and Rusia and China that are opposed to the making of crime of aggression triable by the International Criminal Court that the court of opinion will judge them harshly.

‘This is the time all nations in the world should come in full support of the crime of aggression to be part of crimes tried by ICC so that we put to past impunity and open a new chapter to accountability. A country should not commit crimes for its own benefit thinking no one will question it,’ said Mr Ferencz.

Mr Ferencz, 91, who served in the US army during the Second World War but came out unscathed, said the Nazi government committed genocide to exterminate the Jews in German but were later made to account for the six million deaths they caused when the Nuremberg Tribunal came into force.

‘In 1998 during the establishment of the Rome Statute, the big nations delayed inclusion of the crime of aggression on the list of crimes tried by ICC because they felt that they would dodge it and make it die out completely. They set up conditions that they felt would never be met,’ said Mr Ferencz….”

v. “The wheels of international justice in Africa”, Martyn Drakard, Mercator, 10 June 2010, http://www.mercatornet.com/articles/view/the_wheels_of_international_justice_in_africa/

‘With World Cup fever about to peak, a May 31 soccer face-off between the president of Uganda and the secretary-general of the United Nations was bound to struggle in the media. But just for the record, Mr Yoweri Musuveni’s white-shirted Dignity team defeated Mr Ban Ki-moon’s Justice team 1-0. Survivors of wars in Uganda and Darfur played with them.

The occasion was a two-week ICC (International Criminal Court) conference in Kampala, Uganda. ICC Prosecutor Luis Moreno Ocampo, ICC president, Sang Hyun Song and former UN Secretary-General, Kofi Annan, are also at the conference.

In the eight years since the Court began operating, it has convicted no one. Investigations are under way in five countries -- Kenya, Uganda, Central African Republic, the Democratic Republic of Congo, and Sudan – but all of them are in Africa. In March this year Bangladesh became the 111th party to the Rome Statute, while 37 others have signed but not yet ratified it.

The ICC deals with crimes like genocide, crimes against humanity, and rape as a weapon of war. It only intervenes when national courts do not or cannot act. Signatory states have the power and duty to arrest any person served with an ICC warrant who enters their territory.

Although – predictably – there were calls for Israel to be hauled before the ICC after the nine deaths in the Gaza flotilla incident last week, Israel is not a signatory to the Rome Treaty which created the court. Nor are superpowers the United States, Russia, India and China. The ICC has no jurisdiction over crimes committed by their citizens.

Early in June President Museveni formally assented to the ICC Act, enabling prosecution of perpetrators of war crimes in Uganda. The most wanted Ugandans are Joseph Kony, the Lord’s Resistance Army (LRA) rebel leader, and two of his commanders, Okot Odhiambo and Dominic Ongwen. Two other warrants for arrest were made on Vincent Otti and Raska Lukwiya, both of whom are now dead. At the request of the Ugandan government, the ICC has indicted the five men for their part in the more than 2,000 killings and 3,200 abductions in nearly 900 attacks carried out between July 2002 (when the Rome Statute came into force) and June 2004.

Some local people argue that the ICC is concentrating exclusively on Africa. A special court for the main Rwandan genocide perpetrators was convened in Arusha, Tanzania. Arrest warrants are also out for Omar Bashir, the only ‘wanted’ sitting head of state, Muhammed Ali Abd al-Rahman, the Janjaweed militia leader and Muhammed Harun, former Sudanese State Minister for the Interior, for their part in the crimes committed in Darfur.

….. Is this contempt for international justice and human rights or African ‘apathy’? Perhaps it is just a different perception, with the emphasis on reconciliation and rehabilitation rather than individual retribution. Perhaps the slender margin of victory for Dignity over Justice in the celebrity soccer match gives a clue about what most Africans really want.”

vi. “Aside from Aggression, U.S. Interests Being Protected in Kampala”, Brett D. Schaefer, National Review Online, 10 June 2010, http://corner.nationalreview.com/post/?q=ZGVkMjkyODBiNWZmNzAyMDlmMGEzN2Q1MzAwZmIwY2U=

“Sensing that the delegations were gridlocked over the most contentious issue at the Review Conference for the International Criminal Court, the proposed amendment on the crime of aggression, the conference did not spend much time in formal meetings on Wednesday or Thursday. Instead, the delegates were encouraged to participate in informal meetings with each other to try and resolve their differences.

Meanwhile, there were some positive signs on the other two amendments on the agenda in Kampala.

An amendment had been proposed to delete Article 124 from the Rome Statute; article 124 allows new state parties to exclude from the ICC’s jurisdiction ‘war crimes allegedly committed by its nationals or on its territory for a period of seven years.’ But Japan and other nations argued that deleting the article would make it less likely that new states would ratify the Rome Statute.

Apparently, these arguments have been convincing. The Working Group agreed on a resolution that would retain Article 124, albeit with a provision to revisit the issue in five years. The delegates unanimously adopted that resolution on Thursday afternoon. While the U.S. was not involved in this debate, it nonetheless is an outcome that is in American interests.

Second, there is the Belgian Amendment, which would classify as a war crime the use of additional weapons in non-international armed conflicts. The Working Group adopted by consensus a draft resolution to adopt this amendment.

But the U.S., among other states, was concerned that the amendment could inadvertently criminalize legitimate use of the weapons included, such as ‘bullets that expand or flatten in the body.’ Fortunately, these nations were able to include language in draft resolution that would help address their concerns. For instance, the use of such bullets would be understood to be a crime ‘only if the perpetrator employs the bullets to uselessly aggravate suffering or the wounding effect upon the target of such bullets, as reflected in customary international law.’ This addresses the U.S.’s belief that the use of hollow-point bullets, in some circumstances, should not be considered a crime (e.g., if their use was intended to minimize danger to civilians or hostages), and that the use of special bullets should be permitted if intended to advance a specific mission or purpose rather than to cause undue suffering, e.g., the use of indented tips on sniper ammunition to improve accuracy.

The most critical concern outstanding for the U.S. regarding the Belgian Amendment is the following text, which is still bracketed (not agreed to by all the delegations):

Noting article 121, paragraph 5, of the Statute which states that any amendment to articles 5, 6, 7 and 8 of the Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance and that in respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party’s nationals or on its territory, and confirming its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted the amendment applies also in respect of States that are not parties to the Statute.

Originally, it was expected that the resolution on the Belgian Amendment would be debated and formally adopted on Friday as the conference concluded. However, because of a week-long failure to find consensus on the amendment on the crime of aggression, the conference reconvened late on Thursday evening to try and move the ball forward. As one of the first acts of the late-night session on Thursday, the delegates officially adopted the resolution on the Belgian Amendment with the above text, which specifically states that it would not apply to countries that have not specifically ratified the amendment. Critically, with that text, the Belgian Amendment also would not apply to non-ICC party states like the U.S., making it effectively irrelevant from the U.S. perspective, because American military personnel and officials would not be subject to the crimes adopted under the amendment. As the conference enters its final hours, the U.S. can mark off two successful outcomes, but the big issue of aggression remains uncertain.”


vii. “ICC member states adopt draft on crime of aggression,” Xinhua, 12 June 2010
http://news.xinhuanet.com/english2010/world/2010-06/12/c_13346188.htm

“States signatory to the Rome Statute that established the International Criminal Court (ICC) on late Friday adopted the definition of the crime of aggression which leaves the exclusive right of determination to the UN Security Council.

The ICC prosecutor, however, has the right to initiate an investigation if the Security Council failed to make a determination on a reported act of aggression, which is seen as a compromise of the divided member states on the role of the Security Council.
The draft was adopted on consensus built almost at the last minute following intensified negotiations between member states and observers….”

viii. “UPDATE 2-ICC states reach compromise on crime of aggression,” Reuters, 12 June 2010
http://af.reuters.com/article/ugandaNews/idAFLDE65A28W20100612


“Member nations of the International Criminal Court hammered out a compromise deal on Saturday that smoothed over divisions on how investigations into suspected crimes of state aggression could be triggered.

The adopted resolution said the United Nations Security Council would have the primary call for an investigation, but that the International Criminal Court (ICC) itself and individual member states would also be able to initiate probes.

The deal will shield non-members, such as the United States, China and Russia, from being investigated and also includes a type of "opt-out clause" criticised by Amnesty International.

The agreement also includes a review clause, delaying its entry into force until ICC member states grant formal approval after January 2017….”

ix. “ICC states strike deal on crime of aggression,” AFP, 12 June 2010
http://www.google.com/hostednews/afp/article/ALeqM5iOdxB-p9KVt6MaZha0e6rKbAw7Iw

“International Criminal Court (ICC) member states late Friday agreed to add aggression to the list of the court's prosecutable offences, and reached a compromise on how such offences could be referred to the court, officials said.

But the new deal will not come into force until 2017 at the earliest, they said.

The amendment states that the UN Security Council will hold primary responsibility for determining whether an act of aggression has occurred. But where the Security Council takes no action, the ICC prosecutor or a state party could initiate an aggression case.

The amendment provides for the Security Council to be able to halt any aggression case initiated by the prosecution or by a state party by passing a resolution to that affect.
But such a resolution would need to be renewed every 12 months to stop the prosecution going ahead.

ICC states can exempt themselves from jurisdiction over the crime of aggression by submitting a declaration of non-acceptance to the court. Citizens of countries not party to the court will also be immune from prosecution.
Those exemptions, however, will not apply in cases where the Security Council has determined aggression has occurred.

Christian Wenaweser, president of the assembly of state parties of the International Criminal Court, said he was relieved to have obtained a deal on referral mechanisms.

‘Two weeks ago I didn't necessarily expect that we would be able to find a solution that dealt with all aspects of the crime of aggression, so yes it is a bit more than I initially hoped for,’ he told AFP.

But the head of the Japanese delegation, Ichiro Komatsu, expressed frustration….”



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CICC's policy on the referral and prosecution of situations before the ICC:

The Coalition for the ICC is not an organ of the court. The CICC is an independent NGO movement dedicated to the establishment of the International Criminal Court as a fair, effective, and independent international organization. The Coalition will continue to provide the most up-to-date information about the ICC and to help coordinate global action to effectively implement the Rome Statute of the ICC. The Coalition will also endeavor to respond to basic queries and to raise awareness about the ICC's trigger mechanisms and procedures, as they develop. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts.

Communications to the ICC can be sent to:
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