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Crime of aggression: Kick-off in Kampala

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8 June 2010 12:05

Tobias Hanson is working with the Coalition for the International Criminal Court and is currently in Kampala for the ICC Review Conference. This post is written in his personal capacity.

After a lively warm-up, the real discussions at the International Criminal Court's first Review Conference have kicked off.

Last Sunday, the Ugandan President took on the UN Secretary-General in a football match dedicated to, and played with, victims of war in northern Uganda. Fittingly perhaps, the President's team (Justice) narrowly defeated the Secretary-General's (Dignity) in front of several thousand onlookers in Kampala's aging national stadium.

Back at the negotiating tables, among the dignitaries and luminaries present for the Review Conference is Ben Ferencz, a former prosecutor at the Nuremberg International Military Tribunal — a reminder of just how long the road has been to getting the crime of aggression under the jurisdiction of a permanent international criminal court.

Both Germany and Japan used their precious time at the microphone to make impassioned pleas for the inclusion of the crime in the statute. Citing their unique positions as states whose citizens have been tried for the crime of aggression after the Second World War, they urged states parties not to squander the historic opportunity.

As to getting there, 'consensus' has definitely been the word of the week — with the US Legal Advisor using the word 16 times in what was supposed to be a three minute intervention on Friday. He accurately summed up the present state of discussions on the crime of aggression when he said that moving forward with 'consensus (as opposed to a vote) is the only thing with consensus.'

Despite this carefully worded scepticism, there has been some real progress.

Brazil presented a creative proposal on Friday which allows for the inclusion of a definition of the crime of aggression in the statute, and for Security Council referrals to the Court for such crimes after the first state party accepts the amendment package.

This would allow a period of time where the Court's Prosecutor could only investigate potential crimes of aggression after a Security Council referral. After 7/8ths of states parties (currently 98 of 111) accept the amendment package, the more controversial state referrals and the Prosecutor's own investigations would be possible. This would bring the legal regime governing the crime of aggression into line with the other crimes within the Court's jurisdiction (genocide, crimes against humanity and war crimes).

The value of this proposal is that it would allow for a concrete political and legal outcome to the Review Conference but would defer the most controversial aspects of the crime's operational effect until well into the future.

This proposal has attracted strong support from Argentina and Switzerland (who helped develop the idea) and was welcomed by many delegations on Friday, but it also has the Japanese delegation and many experts questioning the legality of its creative interpretation of the Court's confused and onerous amendment procedures.

The Chair of the discussions, Prince Zeid of Jordan, has told delegates that any amendments are to be finalised by Wednesday so as to afford the drafters two days to work on the text. In reality, the political and legal discussions as well as last-minute brinkmanship will continue late into the final night this Friday.

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