Aggression under the spotlight

The review conference of the Rome Statute that established the International Criminal Court, which will take place in Kampala from 31 May to 11 June, presents the greatest opportunity in the fight against crimes that are gross violations of international law, writes Desmond Davies

Under the Rome Statute, which created the International Criminal Court (ICC), a review conference must be held seven years after the statute entered into force 2002. The main purpose of this statutory obligation on member countries of the ICC is to consider amendments to the Statute, most notably regarding the crime of aggression.

Although the ICC has been charged with dealing with the world’s worst crimes – genocide, war crimes and crimes against humanity – many developing countries were not too happy that the crime of aggression was left in abeyance.

Indeed, at the Rome Diplomatic Conference in 1998, the decision to include the crime of aggression in the Rome Statute was a controversial one. The major powers that were the ones that would commit crimes of aggression – as was clearly evident in the case of Iraq – were opposed to the inclusion of the crime of aggression. So, even though it was listed under the ICC’s jurisdiction, a working definition and a clear outline of the conditions under which the ICC would have legal authority to prosecute those accused of committing the crime of aggression were not reached. Thus arose the need for an amendment, whose provisions have been scrutinised since 2002 by a Special Working Group on the Crime of Aggression (SWGCA).

After years of discussions by legal experts representing countries with radically different interests, a number of definitive proposals on the crime of aggression are ready to be considered by the Kampala review conference. The act of aggression, generally speaking, is “aggressive violence waged on an international level without the justification of self-defence”. In less convoluted language it means that world leaders who launch wars against another country without legal justification would be guilty of committing a crime of aggression.

However, there are still some sticking points. For instance, there is the issue of when the ICC can act with regards to an alleged crime of aggression. Though no one knows for certain what conclusion will be reached in Kampala on this legal, but yet highly political issue, the SWGCA has successfully managed to map out clear options an alternatives.

In a background paper, the Coalition for the ICC (CICC), a grouping of 2,500 non-governmental organisations (NGOs) around the world working to strengthen international cooperation with the ICC, explained how the crime of aggression would be dealt with. “There is consensus that an investigation can be opened by the [ICC] prosecutor on the basis of a [UN] Security Council referral, a state referral, or propio motu – of the prosecutor’s own volition.

“The contentious point comes when the prosecutor determines that there is a reasonable basis to proceed with the investigation and the Security Council does not follow up with a determination of an act of aggression. Some delegates believe that the prosecutor should not go ahead with his investigation without the Security Council’s determination of an act of aggression. Others believe that the prosecutor should be able to act on [his] own or get approval from other sources such as the UN General Assembly, the International Court of Justice or the ICC Pre-Trial Chamber.”

So, the big powers that have the veto power in the Security Council are still looming large over the determination of the crime of aggression. But at least in Kampala, in order for the crime of aggression to be adopted, two-thirds (currently 74 out 0f 110) of the countries that have ratified the Rome Statute have to vote in favour. If it is passed, member states will also have to decide when the crime of aggression should enter into force.

As the CICC explains, one interpretation is that the crime is already included in the Statute, hence no amendment is necessary and the definition can be adopted and apply to all member states upon adoption. But in the end, what many member states would like to see is an end to the protracted debated on the issue. 

For NGOs in the field of human rights, on the other hand, the review conference presents a unique opportunity for global reflection on international criminal justice for genocide, war crimes and crimes against humanity. While undertaking this stocking exercise, the review conference will look at the impact the Rome Statute has had on victims and affected communities; cooperation; complementing the work of the ICC; and peace and justice.  

NGOs are therefore looking for robust interventions from countries that are parties to the Rome Statute. The argument is that such political support is every bit as essential for the success of the ICC as the technical discussions that will follow in the second half of the review conference.

In a statement, Human Rights Watch said: “The scope and substance of the discussions in Kampala make essential the presence at the general debate and throughout the stocktaking exercise of senior-level officials of the ICC’s 110 states parties, including heads of state or government and ministers.

“The political stature of such officials would help confirm policy decisions made in the preparations phase and lend prominence to their formal adoption in Kampala. More broadly, high-level attendance would be instrumental in sending the message, including to perpetrators and would-be perpetrators, that the international community prioritises justice for the victims of the worst crimes known to humankind.”

Considering that all of the ICC’s current situations are in Africa, it is expected that Africans will actively participate in Kampala – more so because concerns have been raised in the continent about the Court.

All this makes for an interesting two weeks in Kampala.