Monday, July 12, 2010

The First Review Conference of the ICC Statute & the Crime of Aggression Part II

Update
This post is a follow up of a prior post discussing issues to be addressed at the Kampala Conference in Uganda which took place from the 31st of May until the 11th of June 2010. This post will briefly discuss the most important outcomes of this Conference.

After two weeks of intense debates and years of preparatory work by the Special Working Group on the Crime of Aggression, the Review Conference of the Rome Statute adopted by consensus amendments to the Rome Statute which includes a definition of the Crime of Aggression and determined how the Court will exercise its jurisdiction over the crime. [1]
Even though the Rome Statute has always included the Crime of Aggression within its subject matter jurisdiction, the ICC was not authorized to prosecute or investigate such crimes until the treaty was amended and a jurisdictional means was established to bring cases before the Court.
Article 8 bis adopted in Kampala defines an act of aggression “as the use of armed force by one state against another state without the justification of self-defense or authorization by the United Nations Security Council”. [2] The individual crime of aggression is defined “as the planning, preparation, initiation or execution by a person in a leadership position of an act of aggression. Most importantly, both contain the requirement that the act of aggression must constitute a manifest violation of the Charter of the United Nations. [3]
The definition of the act of aggression as well as the actions qualifying as acts of aggression contained in the amendments are to a large extent influenced by the UN General Assembly Resolution 3314 (XXIX) of December 1974.[4]

The conditions regarding the exercise of jurisdiction are set out in articles 15 bis and 15 ter of the Rome Statute. Here, an important distinction is made between, on the one hand, the UN Security Council’s referral of a situation of aggression, and on the other, a State Party’s referral of a situation of aggression or the ICC Prosecutor's initiation of an investigation of aggression.
This means that the procedures activating the Court’s jurisdiction will also be different depending on which party initiates an investigation or refers a situation of aggression. In case the UN Security Council refers a situation of aggression to the ICC, any State as well as its nationals can be subjected to an investigation and prosecution for the Crime of Aggression, regardless whether the State concerned has accepted the Courts jurisdiction. When a State Party refers a situation of aggression or the ICC Prosecutor initiates an investigation of aggression, the Court must determine whether the State concerned has declared to the Registrar of the Court that it does not accept the Court’s jurisdiction on aggression. If this is indeed the case, the Court is not allowed to proceed against the nationals of this State. The Court is also not authorized to prosecute Crimes of Aggression when they’re committed by a non-State party’s nationals or on a non-State party’s territory. This provision achieved the much sought- after protection from jurisdiction by key Non State Parties such as China, India, Indonesia, Russia and the United States of America. [5]
The United States in particular participated fully in the negotiations in Kampala and was able to play a significant role in the outcome of the Conference. The US managed to persuade State parties to extend the entry into force of the amendments until 1 January 2017. [6] Furthermore, the US also attempted to enhance the role of the UN Security Council and therefore enabling Permanent Members to use their Veto powers to subvert the process which would subsequently lead to a politicization of the ICC. It is worthwhile noting that the Bush Administration claimed that this very issue of politicization was the problem with the ICC in the first place. This renewed engagement with the ICC does suggest that the Obama administration is interested in the development of international law and can play an important role by supporting efforts to bring perpetrators of international crimes to justice. [7]
In the end, the accomplishments of the ICC Review Conference do strengthen the ICC’s capacity to hold perpetrators of the worst international crimes accountable for their actions and provides the international community with a new instrument to fend off the trauma of unjust wars. [8]


Footnotes
[1] http://www.iccnow.org/

[2] http://www.iccnow.org/

[3] http://www.iccnow.org/

[4] http://www.iccnow.org/

[5] States Parties Approve New Crimes for The International Criminal Court, by D. Scheffer, The American Society of International Law, Vol. 14, Issue 16, June 22nd 2010.

1 comment:

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