Second Plenary Meeting of the ASP15: Overview

By Rosalie Dieleman, Research Associate PILPG-NL

Highlights:

• The withdrawal of the three African states Gambia, South Africa and Burundi prompted a majority of states‘ representatives to express regret at the decision of these states to withdraw from the ICC. They invited them to reconsider their decision and engage in a constructive dialogue during the ASP.

• South Africa: “credibility and acceptability of the ICC to become the universally accepted institution of justice will be questioned for as long as the concerns of Africa specifically and member states more generally are not addressed.”

• Several states added that the dialogue should be open to the critique of these states, and that this should discussing possible amendments to the Rome Statute.

• The possibility of the activation of the crime of aggression at the Assembly of State parties in the upcoming year, was also discussed by various states.

• Several states called upon the Security Council to take action with respect to the situation in Syria.

During the second plenary meeting of the 15th Assembly of State’s parties on 16 November 2016, 25 state parties to the Rome Statute have issued statements. A topic that was addressed by each of these states was the withdrawal of the three African states Gambia, South Africa and Burundi. Many of these 25 states expressed that they regretted the decision of these countries to withdraw from the ICC, and have invited them to reconsider their decision and engage in a constructive dialogue during the ASP.

South Africa, as one of the states that is withdrawing from the ICC, expressed that “there are perceptions of inequality and unfairness in the practice of the ICC that do not only emanate from the Court’s relationship with the Security Council, but also by the perceived focus of the ICC on African states, notwithstanding clear evidence of violations by others”. And that the “credibility and acceptability of the ICC to become the universally accepted institution of justice will be questioned for as long as the concerns of Africa specifically and member states more generally are not addressed”. In the statement, South Africa stressed that the Rome Statute cannot be regarded as a static instrument and that it must be amended to address its weaknesses. On the other hand, the Democratic Republic of the Congo declared that, despite the difficult context and the growing temptation, it will not be withdrawing from the ICC. The DRC expressed that the trust in the ICC is being undermined as serious crimes are being committed on a daily basis and on a broad scale, while the perpetrators are being protected. Consequently, the DRC believes that now is the time for the Assembly to take a serious look at the concerns expressed by the African nations.

Several states added that the dialogue should be open to the critique of these states, and that this should discussing possible amendments to the Rome Statute. Austria expressed that it very much regretted the withdrawal of three states, however that it is still important to stress the important role of African States, leaders and civil society in the establishment of the Court. Austria added that the ICC has a unique role in delivering justice to victims, and that it hopes Burundi, South Africa and Gambia will reconsider their withdrawal. Costa Rica expressed that it is especially sad that one of the standard-bearers of the Rome Statute has withdrawn. Costa Rica added that the Court should undergo improvements if this is necessary, and that this may very well include revision of the Rome Statute. Colombia expressed its concern about these recent developments and the fact that they stand in the way of universality of the ICC. Colombia expressed the importance of getting to the bottom of this issue, cutting through the false reasons and getting to the genuine problems underlying these decisions. In addition, it declared that the diversity of the parties to the Rome Statute is something that should be celebrated. The ambassador of Slovakia, also representing the European Union in this statement, expressed its concerns about the relationship between the ICC and some governments, and stressed the importance of dialogue and constructive communication between states. The Netherlands statement stressed that walking away is not the solution, and that the only solution is improving the Rome Statue system.

On the other hand, there were several states that emphasized the need to reaffirm the fundamental principles of the Court as a response to these challenges. Australia engaged in a passionate statement in which it stressed that it should be important to reaffirm, and not to undermine the fundamental principles of the Rome Statute. It added to the discussion that when states leave the ICC, they also take with them their history, their voices and their diverse perspectives. Norway engaged both lines of argument by stating that it believes that it is possible to address the critique of the African states whilst adhering to the fundamental principles of the Rome Statute.

The possibility of the activation of the crime of aggression at the Assembly of State parties in the upcoming year, was also discussed by various states. Germany expressed in this regard that it considers the jurisdiction of the Court incomplete without jurisdiction over the crime of aggression, and that reaching the threshold of 30 ratifications has been very encouraging. Finland expressed that the Kampala amendments will enter into force in Finland at the end of the year, and that it is looking forward to the activation of the crime of aggression at the next ASP. In addition, Italy announced that it expects to ratify the Kampala amendments soon.

Another issue that was addressed in various statements is the referral power by the United Nations Security Council. The Slovakian ambassador, representing Slovakia as well as the European Union, called upon the Security Council to take action with respect to the situation in Syria. The Republic of Korea also addressed the necessity of the Security Council to direct its attention to alleged ongoing human rights abuses. In addition, Palestine requested prompt investigation into alleged crimes of which the Palestinian people have been victim.

Side Event: “Towards a Multilateral Treaty for Mutual Legal Assistance and Extradition for Domestic Prosecution of the Most Serious International Crimes – State of Play”

Event co-hosted by Argentina, Belgium, the Netherlands and Slovenia

Overview by Maite van Rinsum, Senior Research Associate PILPG-NL

Highlights:

• The MLA initiative introduced by The Netherlands, Slovenia, Argentina and Belgium aims at filling the gap in the legal framework that addresses the most serious international crimes.

• The initiative enjoys the support from 52 states, which have expressed their support by signing a permanent declaration.

• The MLA initiative will organize a three-day retreat in The Hague in May/June 2017 for negotiations on the treaty.

The Netherlands, Slovenia, Argentina and Belgium introduced their initiative for a new multilateral treaty. States carry the obligation to investigate crimes on a domestic level. Inter-state cooperation is key to this: without an adequate international legal framework, the effectiveness of domestic prosecutions diminishes. At the moment, the legal framework for the most serious international crimes is incomplete. There is, for example, a UN convention against organized crime – however, there is no comparable instrument for the core international crimes. This initiative aims to provide a practical but also a political solution: it sends a message that states want to fight impunity. The initiative so far enjoys the support from 52 states, which have expressed their support by signing a permanent declaration. The initiative is not linked to the Rome Statute: non-state parties to the ICC have also joined. The MLA initiative will organize a three-day retreat in The Hague in May/June 2017 for negotiations on the treaty.

A few outstanding issues will be discussed during the retreat. Its main goals are: (1) to inform supporting states, academics, practitioners, and civil society of the latest development of this initiative; (2) to have a discussion about the way forward of the initiative: what form should be used for treaty negotiations: a UN treaty or a stand-alone treaty? (3) to discuss possible elements of the treaty; (4) conclusions will be incorporated in a document, which will constitute the basis for further steps in the process. Working groups will be formed to discuss the way forward in smaller and interactive sessions.

During the Q&A session, someone raised the issue that the International Law Commission of the UN is developing a comparable convention on crimes against humanity. The difference with this initiative is that it includes all atrocity crimes: it is not limited to crimes against humanity but also includes, for example, genocide. Another question was why other states have not joined. The initiating states answered that states have certain priorities, and that signing the treaty requires coordination with states’ ministries of justice. The gap in the legal framework and the importance of this treaty may not be recognized as such by their ministries. Moreover, some non-state parties of the Rome State have joined the initiative: they realized that it is not linked to the Rome Statute. However, it can take some time before other states realize this.

ASP Briefings: ICC: Moving Towards Crime of Aggression Jurisdiction

On 11 June 2010, the Assembly of States Parties (ASP) to the Rome Statute of the International Criminal Court (ICC) reached an agreement on the definition of the crime of aggression during the ICC Review Conference in Kampala, Uganda (hereafter Kampala Conference).[1] The ICC may become enabled to exercise jurisdiction over crimes of aggression after 1 January 2017, provided that the crime of aggression is activated following the process set out in the Kampala Resolution. However, before and since the Review Conference, many have identified problems with the crime of aggression that would challenge the ICC upon activation of its jurisdiction over it. The 15th ASP Session serves as a last chance for the States Parties to clarify and resolve these issues before the Court officially activate its jurisdiction.

Background to the Crime of Aggression

During the 1998 Rome Conference that led to the establishment of the ICC in 2002, State Parties were not able to agree on the definition and jurisdictional details of the crime of aggression. As a way out, Article 5(2) of the Rome Statute was agreed on, which provided that once States Parties would be able to agree on its definition and modalities, the ICC would be able to exercise jurisdiction over the crime of aggression.[2] After negotiations and explorations in the Special Working Group since 2003, the ASP reached a compromise in Kampala that relies extensively on the definition of aggression provided by the 1974 Resolution 3314 of the UN General Assembly.[3]

The Kampala Resolution amended the Rome Statute to incorporate, among others, Article 8bis containing definitions on the crime and act of aggression, and Article 15bis and 15ter, containing detailed provisions on the exercise of jurisdiction. According to Art. 8bis, the crime of aggression entails:

The planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.[4]

Moreover, there was debate on how the amendments would enter into force. The majority agreed that in accordance with Article 121(5) Rome Statute, the amendments will enter into force one year after the submission of the instrument of ratification by each State Party. Thirty States Parties need to ratify the amendments before the Court can exercise jurisdiction, and there needs to be a one-time activation vote by at least a majority of two-thirds of the States Parties after 1 January 2017. Jurisdiction will then only spread over crimes of aggression committed after the crime of aggression gets activated. A State Party can opt-out of the jurisdiction of the Court by filing an official declaration with the Registrar, in line with Art. 15 bis (4) of the Rome Statute.[5]

Current Status of Ratification and Implementation

As of 23 September 2016, 32 States have ratified the Kampala Amendments, fulfilling the 30 ratifications threshold. Additionally, six countries have incorporated the Kampala Amendments into their domestic legislation, namely Croatia, Czech Republic, Ecuador, Luxembourg, Slovenia and Samoa. The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression estimates that 15 more States Parties to the ICC will consider domestic incorporation.[6] The Republic of Kenya was the first State Party to use the opt-out procedure by lodging a declaration of non-acceptance of the ICC jurisdiction over the crime of aggression on 30 November 2015.[7]

Expectations and Challenges at the 15th ASP Meeting

The 15th ASP session of 16-24 November 2016 will be the last ASP before the ICC’s jurisdiction over the crime of aggression may be activated (after 1 January 2017), particularly now that the threshold of 30 ratifications is reached. It is therefore crucial for State Parties to consider any residual substantial and jurisdictional difficulties. According to the Provisional Agenda, the 15th ASP will discuss, among others, the Amendments to the Rome Statute, the progress of the Court, and of course allow discussion during the General Debate.[8]

The States Parties are expected to discuss the fulfillment of the threshold of the 30 States Parties ratification of the Kampala Amendments, and the ability of the Court to proceed with the activation vote in the next ASP. Moreover, they are expected to discuss a number of challenges and issues concerning the crime of aggression amendment. This includes disagreement on whether the crime of aggression also encompasses use of force with “humanitarian intent” and how this highly political assessment of whether force is used for “the good” can be taken into account in the judicial process without further politicization of the ICC and its reputation. Another but related concern is whether prosecuting the crime of aggression will do more good than harm to the peaceful relations between states, that usually fundamentally disagree on whether use of force was aggressive or somehow legitimate (even if illegal). See for instance the discussions around the 1999 NATO intervention in Serbia regarding Kosovo, the 2003 US/UK intervention in Iraq and the 2014 Russia intervention in Crimea. Another example is the issue of the compatibility of prosecuting the crime of aggression with the principle of complementarity, which received limited attention prior and during the Kampala Conference.[9] Both domestic and international prosecutions of the crime of aggression might threaten international political stability. The principle of complementarity provides that domestic prosecution should in principle be the preferred situation. However, domestic prosecutions of the alleged aggression of another state may raise severe political tensions, possibly undermining state cooperation and the acceptance of international criminal law and the ICC among states,[10] as well as tensions with state and head of state immunity.[11] The crime of aggression activation moreover challenges states not only on how to incorporate the crime of aggression in their domestic criminal codes but also on how to organize the decision-making over military missions to protect their state leaders against being prosecuted for committing the crime of aggression when it uses force for what itself believes legitimate reasons but that others may deem to be aggression.

It is important to understand the wider context that the legitimacy of the ICC is currently already under severe challenges. In October 2016, three African states declared their intent to withdraw from the ICC. Burundi (18 October), South Africa (21 October), and Gambia (24 October) declared their intention to submit an official withdrawal from the Rome Statute. Other African states have also announced that they may leave the Court and the African Union has adopted several anti-ICC resolutions these past years. In this light, the crime of aggression discussions are another issue which may have consequences for future cooperation between remaining, departing and non-State Parties. It should therefore be seriously considered what the consequences are for the functioning and support of the ICC if the crime of aggression gets activated and how to move forward that limits negative consequences as best possible.

From and organizational aspect, the provisional Work Program of the 15th ASP specifically includes a Working Group on the Amendments that will probably take up discussion on the remaining challenges prosecuting crimes of aggression entails. Furthermore, side events organized by State Parties and accredited delegations to the ASP will provide an opportunity for broader discussion and debate. Amongst some of them are the “Activation of the Kampala Amendments on the crime of aggression,” hosted by Liechtenstein, and “The Future of ICC: facing the challenges and strengthening its legitimacy” co-hosted by The Netherlands and PILPG.

Conclusion

The amendments adopted in the Kampala Process have been hailed as historic, since they officially incorporate a definition of the crime of aggression to the Rome Statute, and set up in detail the conditions for the exercise of the Court’s jurisdiction. So far 32 States Parties have ratified the amendments, and more are expected to follow. Nonetheless, some remaining issues of complementarity and domestic jurisdiction for the crime of aggression have been brought up in academic and policy debates. The 15th Session of the ASP will therefore be a significant opportunity for the States Parties to address all remaining questions with the regard to the crime of aggression and issues of practical implementation both in domestic and ICC level.

Footnotes

[1] Assembly of States Parties, Resolution on Crime of Aggression, RC/Res.6, (June 11, 2010), available at: https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf.

[2] Rome Statue of the International Criminal Court Art. 5(2) (1998).

[3] General Assembly Resolution on Definition of Aggression, Resolution 3314 (XXIX), Annex, UN. Doc. A/9631, (Dec. 14, 1974), available at: http://legal.un.org/avl/pdf/ha/da/da_ph_e.pdf.

[4] Assembly of States Parties, Resolution on Crime of Aggression, RC/Res.6, (June 11, 2010), available at: https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf.

[5] Handbook of Ratification and Implementation of the Kampala Amendments to the Rome Statute of the ICC, Liechtenstein Institute of Self Determination, 5-6 (2012), available at: http://crimeofaggression.info/documents/1/handbook.pdf.

[6] Status of Ratification and Implementation of the Kampala Amendments on the Crime of Aggression, Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression, (2015), available at: http://crimeofaggression.info/the-role-of-states/status-of-ratification-and-implementation/.

[7] Declaration of non-acceptance of jurisdiction of the International Criminal Court pertaining to the crime of aggression pursuant to paragraph 4 of Article 15bis of the Rome Statute, Republic of Kenya, (Nov. 30, 2015), available at: https://www.icc-cpi.int/iccdocs/other/2015_NV_Kenya_Declaration_article15bis-4.pdf.

[8] Assembly of States Parties to the ICC, Provisional Agenda for the 15th Session, ICC-ASP/15/1/Rev.1 (Oct. 4, 2016), available at: https://asp.icc-cpi.int/iccdocs/asp_docs/ASP15/ICC-ASP-15-1-ENG.pdf.

[9] See for instance Julie Veroff, Reconciling the Crime of Aggression and Complementarity: Unaddressed Tensions and a Way Forward, 125 Yale Law Journal, 730, 735 (2016).

[10] See for instance Harold Hongju Koh, Legal Advisor, Statement Regarding the Crime of Aggression at the Resumed Eighth Session Assembly of States Parties of the International Criminal Court, U.S. Department of States, (Mar. 23, 2010), available at: http://usun.state.gov/remarks/4646.

[11] Nidal Nabil Jurdi, The Domestic Prosecution of the Crime of Aggression after the International Criminal Court Review Conference: Possibilities and Alternatives, 14 Melbourne Journal of International Law, 1, 14, (2013), available at: http://law.unimelb.edu.au/__data/assets/pdf_file/0005/1687442/05Jurdi1.pdf.