IN THE NEWS: What Should You Know About the 2010 ICC Review Conference?

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In May and June of 2010, states party to the International Criminal Court (ICC) will meet in Kampala, Uganda for the first Review Conference of the ICC.  The purpose of the Conference is to evaluate the ICC, and make it more effective in prosecuting the world's most horrendous criminals.  Those who attend will discuss the Court's past and future, and will propose 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 will have the opportunity to take part in the Conference and its preparatory meetings as observers and have their voices heard.  Those that have ratified the Rome Statute and make up the Court's governing body, the Assembly of States Parties (ASP), will be able to vote on the proposals. 

The following issues are expected to be on the agenda:

1. A legal definition of the crime of aggression, and a discussion of the ICC's jurisdiction over the crime;
2. Stock taking of the ICC's performance thus far;
3. A review of Article 124, which allows nations to postpone ICC jurisdiction over war crimes; and
4. An amendment to the Rome Statute proposed by Belgium.

The Review Conference has the potential to dramatically change the ICC.  Those who attend as observers and the 111 ASP members will not only determine how the ICC will function in the future, but influence the struggle for global human rights.

More About the Review Conference:

Preparation

Aggression

Stocktaking

Article 124

The Mexican and Belgian Amendments

The United States and the Conference

Preparation

Leading up to the Conference, the ASP has been holding informal meetings and has assigned special working groups to prepare for discussion of the Conference issues.  Like the Review Conference, nations that have signed the Rome Statute or Final Act but have not yet ratified the Statute can participate in these meetings as observers so that their concerns may be addressed.  The meetings and working groups have focused on developing a consensus among the States Parties on the issues that will ultimately be decided at the Conference.

The preparations have been split into two groups: one that works on defining the crime of aggression and determining when the Court will have jurisdiction over the crime, and the other on the proposed amendments and stocktaking process.  These meetings will continue into the summer and fall, and conclude in November.

Aggression

The drafters of the Rome Statute gave the ICC jurisdiction over crimes against humanity, genocide, and war crimes.  They also intended the Court be given jurisdiction over the crime of aggression; however, at that time, the drafters did not agree on a legal definition for aggression.  The crime of aggression was written into the statute in 1998.  However, the ICC's jurisdiction over aggression will remain non-operational until a provision is drafted legally defining the crime.

Due to the complexity involved in legally defining aggression, a Special Working Group on the Crime of Aggression (SWGCA) was established in 2002 to work on a definition and submit its proposals for the Review Conference.  The purpose behind prosecuting crimes of aggression is to hold accountable those who instigate and engage in unjustified armed conflicts between states.  The legal definition involves two parts: the elements that define when a crime of aggression has been committed, and the circumstances which give the ICC jurisdiction over the crime. 

In June 2009, the SWGCA submitted a proposal which states that the elements for the crime of aggression are, in short:

• A "crime of aggression" means the planning, preparation, initiation or execution of the use of armed force
• The crime must be conducted by a person in a position to direct the actions of a sovereign state's political or military branches
• The crime must be targeted against another sovereign nation

+ Here is the full text of the proposed definition

One issue that is still under discussion is whether the Court can obtain jurisdiction over nations that have not specifically ratified the amendment to criminalize aggression.  The Rome Statute provides two possibilities for how this amendment could enter into force for the States Parties to the ICC.  The first would give the Court jurisdiction over crimes of aggression for all States Parties if seven-eighths of all members decide to ratify the amendment.  The second possibility would require that a nation must specifically ratify the amendment before the ICC can hold jurisdiction over it regarding crimes of aggression.

However, the most contentious issue on defining the crime of aggression is whether the ICC will have to seek the approval of the UN Security Council before an alleged crime of aggression can be prosecuted.  On these two issues, the SWGCA has not yet offered an answer.  As things stand currently, it will be up to the participants of the Review Conference to find the solutions.

Stocktaking

To help improve the ICC, the Review Conference will engage in a stocktaking process.  The stocktaking will take a detailed look at the ICC, the Rome Statute, and the entire system of global justice in order to get a better idea of what has worked over the years, and what has not.  Stocktaking will include an analysis of the formation of the court, the drafting of the Rome Statute, and the Court's performance since its inception.  Among the topics discussed will be a look at how to improve oversight of the ICC and prevent waste and corruption within the Court.

Article 124

Article 124 allows a country to temporarily prevent the ICC from charging any of its citizens with war crimes.  The Article provides that after the Rome Statute enters into force for any nation that ratifies it, that country may make a declaration under Article 124 and avoid ICC jurisdiction over war crimes for a period of seven years.  The last sentence of this Article provides that a review of Article 124 will be conducted at the Conference.  It is the one issue on the Conference agenda that the ASP is legally obligated to discuss.

Article 124 has had a rather colorful history.  Many have claimed that this Article is contradictory to the purpose of the ICC, and those countries that have made or threatened to make declarations under it have come under intense domestic and international pressure not to do so.  To date, only two nations, France and Colombia, have utilized Article 124.  France eventually withdrew its declaration in 2008; and there have been repeated attempts within the Colombian Senate to convince their government to withdraw its declaration.  Burundi had at one point intended to use Article 124.  However, there was such a public outcry against this decision that the nation's leaders were forced to change their minds.

At the Review Conference, the delegates will evaluate whether any changes need to be made to this controversial section of the Rome Statute, and will try to come to a consensus on what those changes should be.

The Mexican and Belgian Amendments

Mexico and Belgium have each proposed an amendment to the Rome Statute.  The Statute declares that in a time of war, the use of weapons that inflict widespread, indiscriminate violence on civilians is a war crime.  The Mexican and Belgian amendments seek to list the weapons that meet these criteria.  So far, Belgium has proposed outlawing use of the following weapons:

1. Poison in any form, and bullets which are designed to expand or flatten in the human body in a domestic armed conflict;
2. Chemical weapons, biological weapons, and land mines in either an international or domestic conflict; and
3. Those weapons forbidden in two widely ratified and accepted Protocols
   1. The Protocol on Non-Detectable Fragments, that was signed in Geneva, October 1980; and
   2. The Protocol on Blinding Laser Weapons, that was signed in Vienne, October 1995

There are already numerous widely accepted treaties which state that the use of these weapons in an international conflict is a violation of international law.  The Belgian amendment though, attempts to criminalize their use further.  In the past, entire nations were held accountable for committing using these weapons in combat.  The Belgian amendment would change this paradigm, enabling the world to hold individuals responsible for ordering the use of these weapons and charge them with war crimes.

The Mexican amendment proposes something even more dramatic: banning the use of nuclear weapons as a war crime.  Mexico believes it to be essential that the Rome Statute explicitly state that nuclear weapons cause such widespread and indiscriminate suffering that their use would constitute a war crime. 

The United States and the Conference

While the United States is still eligible to take part in the Review Conference and its preparations, it is not certain whether it will.  President Obama has declared that he plans to work closer with the ICC.  However, he is waiting for the completion of a U.S. review on its policy towards the Court before deciding whether to send a representative to the Conference or its preparations.  This review is not expected to be completed for another 4 to 6 months.  This means that the President may not make his decision until after the last preparatory meeting for the Review Conference has concluded.  Not attending the preparatory meetings would cause the United States to walk into a Conference where the agenda has already been set and where American concerns may not have been addressed beforehand, leaving the U.S. at a disadvantage to influence the proceedings.

If America attends the Review Conference and its preparatory meetings, it can help decide whether the ICC will be permitted to arrest someone for a crime of aggression when that person's nation has not ratified the amendment on aggression.  The U.S. could state its opinion on what weapons should be outlawed in a time of war, or what can be done to ensure that there is proper oversight to monitor the ICC.  Although America cannot currently vote on the Conference proposals, the influence of its voice would certainly have a persuasive effect on those who can.  United States participation could sway the results of the Conference in its favor.  Not attending either the Review Conference, or its preparations, could result in an ICC that is far less consistent with American ideals and interests. 

Finally, responsible U.S. participation would signal to the world its commitment to universal human rights.  For nearly a century, most of the world has seen America as a nation that actively works for global justice.  Now, the United States can once again take the lead in this cause.  The 2010 Review Conference is a unique opportunity for America to help build the ICC into an institution that effectively fights the worst examples of injustice and works to guide the world towards a more stable, prosperous state.

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