In recent weeks three major political detonations have brought home the timeliness of the discussion in New York on the crime of aggression. One has been the birth of a new court under the auspices of the Council of Europe on aggression, solely in relation to Ukraine. The second has been a nebulous peace treaty negotiated under US auspices between Rwanda and the Democratic Republic of Congo. The third was the Israeli attack on Iranian nuclear sites, joined by the United States.
From July 7 to 9, at the United Nations headquarters in New York, the International Criminal Court (ICC) state members are due to undertake a highly technical discussion on this politically explosive topic to agree or not an amendment to its statute. This amendment would enable the prosecution of those deemed responsible for aggression against any of the court’s member states which has ratified the new provisions.
“The heat is on now”
Unsurprisingly, pressure is being put on delegates from a non-member state, the United States, with a sharply worded diplomatic note, seen by Justice Info, which expresses “grave concerns” over efforts to “expand the Court’s jurisdiction over the crime of aggression, including over non-States Parties”. The demarche goes on to threaten to use “all appropriate and effective diplomatic, political, and legal instruments to block the ICC’s assertion of such jurisdiction”. The court lies already under threat of further sanctions from Washington DC, having singled out the prosecutor and four judges, on the basis that the court is targeting a main US ally - Israel - with warrants for arrest.
Justice Info has also learnt of other diplomatic manoeuvres including states suggesting a change of venue from New York to The Hague amid uncertainties over the current US visa regime, raising questions over the United Nations usual provision of diplomatic privileges to ICC meetings. Every three years, the court’s member states gather in New York, to elect a new roster of judges. “People are not rolling over and saying, okay we’re not doing this,” said one senior diplomatic source who asked not to be named. But “it’s clearly getting much harder and the heat is on now.”
In addition, a group of ICC states including Canada, France, the UK, Japan and New Zealand, have circulated a counterproposal which would postpone any decision to amend the Rome Statute. According to the version seen by Justice Info, states would agree instead of discussing the proposal on the table “that additional time is required to allow for further dialogue, with a view to reaching consensus on potential amendments to the Rome Statute, bearing in mind the complexity and importance of the issue at hand” and that they would “convene a review conference to consider this proposal” which would only take place once the current crime of aggression provisions had been ratified by two-thirds of State Parties. Currently less than one third have ratified them.
“A juridical monster created to satisfy the US”
To understand what is at stake, it’s necessary to go back to the way the ICC was set up. When, back in Rome when the ICC Statute was written in 1998, there were four international crimes, derived from the legacy of the Nuremberg tribunal – war crimes, crimes against humanity, genocide and aggression. But, on the latest, even the definition couldn’t be agreed, and any decision was put off for many years after.
At a special review conference held in Kampala in 2010 a definition was agreed and a complex series of rules - “the conditions for the exercise of jurisdiction” were laid out says Astrid Reisinger Coracini, from the Salzburg Law School. Part of those rules essentially mirrored the way that any situation could be referred by the UN to the court for the three other international crimes. But, in addition, states came up with a whole new way to agree to the court’s jurisdiction. “Most importantly, the ICC can only exercise its jurisdiction over a crime of aggression arising from an act of aggression that is committed by a state party that has not opted out of the court’s jurisdiction” says Reisinger Coracini. “In other words, the ICC can never exercise its jurisdiction over a crime of aggression committed by a non-state party. And that’s why the ICC cannot exercise its jurisdiction over aggression committed against Ukraine”, she says.
“It was a juridical monster that was created to satisfy the Americans”, adds David Donat Cattin, from New York University, “with a very narrow exercise of jurisdiction of the ICC.”
“Two parallel jurisdictional regimes at the ICC”
The actual meeting in New York was triggered by the agreement already made in Kampala to review the provision. Next week will see attempts to rebalance that kink which left nearly no room for any potential ICC investigations, with a new proposal from Costa Rica, Germany, Sierra Leone, Slovenia and Vanuatu. WIt provides any victims from an ICC member state which has signed up to the new elements with potential intervention from the court. This proposal is described as “harmonisation” by its supporters, “because we would not have two parallel jurisdictional regimes ongoing at the ICC” says Reisinger Coracini.
If you read the plethora of articles which questioned what was agreed in Kampala seven years ago and how it would work, a clearer provision sounds preferable. “States are now finally ready to amend their shameful decision to exempt the nationals of non-state parties,” says Donat Cattin. Germany has played an important role, especially as the new tribunal for aggression against Ukraine was created. “So that in the future, it would not be necessary anymore to create any special tribunals” says Reisinger Coracini.
But can it be adopted by consensus or a vote of two thirds of the 125 member states? This time, says Donat Cattin, “my impression is that even though some concessions had to be given, the vast majority is ready to start informal negotiations at the first lunch breaks.”
And whether states decide to reject the counter-proposal for a delay or to go ahead with amending the Rome Statute, there is still a battle ahead, reminds Reisinger Coracini: “This is a discussion that is still ongoing. There are two possibilities: either it enters into force only for those states parties that accept it, or it enters into force once seven-eighths of the state’s parties will have ratified it. That’s the two different entrance to force mechanisms that the Rome Statute knows”. Patrycja Grzebyk of Warsaw University estimates that if the choice is to wait until seven eighths had ratified, at the current pace of ratification of the Kampala amendment, “this would mean that we would wait approximately 44 years” for the New York amendments to come into force.
“I think it’s going to be very, very difficult. But the more these issues get public, the more we have chances of success”, says Donat Cattin.
