The Review Conference on the Rome Statute of the International Criminal Court, Kampala, Uganda.

AuthorClark, Roger S.

Abstract

Article 123 of the Rome Statute of the International Criminal Court mandated a Review Conference, seven years after the Statute came into force, to 'consider any amendments to the Statute'. This article focuses on the three potential amendments that were forwarded by the governing body of the Court to the Review Conference scheduled in Kampala, Uganda, 31 May to 11 June 2010. These were: (a) whether to delete article 124 of the Rome Statute (which permits a ratifying or acceding State to opt out of the application of the war crimes provisions of the Statute for actions on its territory or by its nationals); (b) how to activate the Court's jurisdiction over the crime of aggression (by concluding a definition of the crime and setting out the conditions for the exercise of jurisdiction; and (c) the question of extending prohibition of the use of certain weapons (poisons, asphyxiating gases and expanding bullets) from international armed conflict into non-international armed conflict. The Conference is also expected to engage in a wide-ranging stocktaking of the Court's successes and failures. Proposed amendments that were not forwarded to Kampala will be the subject of a new working group to be established late in 2010.

Introduction

Article 123 of the Rome Statute of the International Criminal Court ('Rome Statute') provides that, seven years after the entry into effect of the Rome Statute, the Secretary-General of the United Nations is to 'convene' a Review Conference 'to consider any amendments to the Statute'. (1) It adds that '[s]uch review may include, but is not limited to, the list of crimes contained in article 5 [of the Rome Statute]'. (2) When this provision was being negotiated in Rome (mostly during the third and fourth weeks of a five-week Diplomatic Conference to conclude the Rome Statute), 'article 5' encompassed what finally became articles 5 to 8 of the Rome Statute. Thus, it included what became the article 5 statement of the crimes within the subject-matter jurisdiction of the International Criminal Court ('ICC'): genocide, crimes against humanity, war crimes and 'the crime of aggression', as well as the detailed definitions of genocide in article 6, crimes against humanity in article 7 and war crimes in article 8. Aggression, as we shall explain shortly, was included ambiguously in the Rome Statute as one of the four crimes over which the ICC has jurisdiction, but the crime needed to be defined later, as a precondition for the 'exercise' of that jurisdiction.

The group negotiating article 123 in Rome was, in fact, somewhat in the dark about what might finally be in the Rome Statute as a matter of substance. Some members of the group were concerned about the importance of eventually including such crimes as aggression, terrorism and serious drug crimes, which seemed likely to be excluded from the jurisdiction of the ICC in the short term. The latter two crimes were in fact excluded from the Rome Statute as adopted in Rome. Others were more concerned that it might not be possible to include the use of nuclear weapons and other weapons of mass destruction in the war crime provisions of the Rome Statute from the beginning; thus, it ought to be possible to consider adding them later. Others wanted to encourage the potential assimilation of the rules relating to non-international armed conflict with those pertaining to international conflict. (3) Some were more concerned with the possibility that difficulties might arise in the application of the Rome Statute, having more to do with its machinery provisions than with substantive criminal law, which would need to be addressed by an amendment. (4) Hence, there is a reference to what the agenda of a review conference could include, but while the emphasis is on potential amendments to the Rome Statute, the precise subject matter is left open-ended. It should be noted also that no agreement could be had about holding regularly scheduled meetings at, say, five-yearly intervals. (5) Thus, article 123 provides for one mandatory Review Conference (6) and later ones when deemed appropriate by the ICC's governing body, the Assembly of States Parties ('ASP'). (7) The current disposition at the ASP seems to be to hold further review conferences, but the time between them has not even been considered.

Not everyone was enthusiastic about the prospect of future amendments and the Rome Statute precluded change for the period of seven years. It also contained provisions designed to make amendment difficult. The machinery provisions dealing with amendments will be touched on later. (8)

The Rome Statute came into force on 1 July 2002. In accordance with article 123, the United Nations Secretary-General wrote to all States in August 2009 inviting them to participate in the first Review Conference, to take place in Kampala, Uganda, beginning on 31 May 2010. (9) At its meeting held in The Hague in November 2009, the ASP finalised the agenda for Kampala. In a media release at the end of the Assembly's session, it was announced that:

The Assembly decided that the Review Conference would be held in Kampala, Uganda, from 31 May to 11 June 2010, for a period of 10 working days, to consider: a) The possible deletion of article 124 of the Statute, which allows a new State Party to opt for excluding from the Court's jurisdiction war crimes allegedly committed by its nationals or on its territory for a period of seven years; b) The definition of the crime of aggression, the conditions for the exercise of jurisdiction by the Court, as well as draft elements of the crime; c) The inclusion of the employment of certain poisonous weapons and expanding bullets in the definition of war crimes |in non-international armed conflict] in article 8 of the Statute. Furthermore, the Review Conference would conduct a stocktaking of international criminal justice focusing on four topics: complementarity, cooperation, the impact of the Rome Statute system on victims and affected communities, and peace and justice. The Assembly also decided to establish a working group for the purpose of considering the remaining proposals for amendments as from its ninth session in 2010. (10) The next section of this article examines each of the agenda items for the Review Conference. This article also notes briefly some matters that did not make it to Kampala, but which are candidates for the agenda of the working group mentioned in the last paragraph of the media release.

One wild card relating to what follows, and to Kampala in general, is the attitude of the United States (US). During the (George W) Bush years, the US did not attend ICC meetings, including those of the Special Working Group on the Crime of Aggression and the ASP. The former was open to all States and, although it is not a party to the Rome Statute, the US is entitled to attend (and speak at, but not vote at) meetings of the ASP as an Observer because of its participation in Rome. That the Obama Administration is taking a fresh approach to the ICC was demonstrated dramatically by the presence of a fifteen-person US delegation at the November 2009 meeting of the ASP--by far the largest delegation present. It was led by Legal Adviser Harold Koh and Ambassador for War Crimes Stephen Rapp. The delegation, which consulted widely, insisted that it was there to learn. While the US, as a non-party to the Rome Statute, would not have a vote in Kampala, its attitude to such issues as the definition of aggression could be of some significance.

  1. Possible deletion of article 124 of the Rome Statute

Article 124 of the Rome Statute is the only provision in the Statute that specifically requires its own inclusion on the agenda of the first Review Conference. It provides that, upon becoming a party to the Rome Statute, a State may declare that, for a period of seven years, it is not bound by the provisions of article 8 of the Statute (which deals with war crimes) 'when a crime is alleged to have been committed by its nationals or on its territory'. The Rome Statute has a general prohibition of reservations; (11) yet article 124, which is headed 'Transitional Provision' and often described as an 'opt-out clause', permits, in this special case, what is functionally a reservation. It was negotiated at the very end of the 1998 Diplomatic Conference to enable France to accept the Rome Statute. Of the 110 existing parties to the Rome Statute, only France and Colombia have availed themselves of it. France, in fact, withdrew its declaration after about six years and Colombia's seven years have now passed. Article 124 provides, in its own terms, that it 'shall be reviewed at the [first] Review Conference'.

The procedural stance of the matter going into Kampala is that the 2009 ASP forwarded a bracketed proposal for the deletion of the article--indicating that the matter is controversial. (12) In the course of the ASP's meeting, a clear majority' of those taking the floor spoke in favour of its deletion--although France, along with two States that are nonparties to the Rome Statute, Iran and China, supported its retention. Iran and China suggested that it might be helpful in enabling them to come aboard (although it has not done the trick in the past 11 years). Many of those opposed to keeping it emphasised that it detracted from the general policy of the Rome Statute against reservations and did not appear to have played a significant role in achieving the goal of universality; that is, of encouraging all 190 or so States to ratify or accede to the Rome Statute. If there is no substantial consensus in Kampala for removing it, 'review' in this case may mean simply deciding to do nothing.

  1. The crime of aggression

    Aggression is the most important piece of unfinished business from the Rome Diplomatic Conference in 1998. Article 5(1) of the Rome Statute lists 'the crime of aggression' (along with the crime of genocide, crimes against humanity...

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