Prof. Gordon at International Criminal Court (ICC) Conference in Kampala, Uganda
From May 31 through June 11, 2010, States Parties to the International Criminal Court (ICC) will meet in Kampala, Uganda for the first “Review Conference” of the International Criminal Court. According to Article 123(1) of the International Criminal Court Statute (known as the “Rome Statute” given the place of its negotiation): “Seven years after the entry into force of this Statute the Secretary-General of the United Nations shall convene a Review Conference to consider any amendments to this Statute. Such review may include, but is not limited to, the list of crimes contained in article 5 [Genocide, Crimes against Humanity, War Crimes and the Crime of Aggression]. The Conference shall be open to those participating in the Assembly of States Parties and on the same conditions.”
Countries such as the United States, which participated in the Rome Conference and signed its Final Act, will have the opportunity to participate and have their voices heard as observers. As stated in Article 123(1), those nations 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. Another important participating bloc will be Non-Governmental Organizations (NGOs – often referred to as “Civil Society”), such as Amnesty International and Human Rights Watch. The NGOs will try to exert influence on the States Parties to adopt policies favorable to and consistent with the goals of their respective organizations. Many want to see a more effective and independent International Criminal Court. The NGOs will be coordinated at the Conference by an umbrella group called the “Coalition for the International Criminal Court.”
I will be at the Review Conference representing the International League for Human Rights (ILHR), the oldest human rights NGO in the United States. I was invited on behalf of ILHR by Professor Roger Clark of Rutgers Law School (Camden). Professor Clark is one of the world’s top experts in international criminal law and was a chief architect and drafter of the Rome Statute in 1998 (he will be representing the nation of Samoa at the Kampala Conference, as he did at Rome in 1998) . I was extremely honored by Professor Clark’s invitation! And I will be focusing on advocacy for a definition and jurisdiction for the crime of aggression. It could be argued that the crime of aggression, roughly defined as an unjustified armed attack of a sovereign nation, is the most important crime international crime to prosecute. It tends to be the crime that makes possible the other core crimes within the ICC’s jurisdiction, namely genocide, crimes against humanity and war crimes.
Unfortunately, although Article 5 of the Rome Statute included aggression within the core crimes of the ICC, given its politically charged nature, aggression was left undefined and its jurisdiction was not formulated. According to Article 5(2) of the Rome Statute: “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.”
In addition to dealing with the crime of aggression, the following issues are expected to be on the Review Conference agenda:
Stock-taking of the ICC's performance thus far (focusing on the issues of victims, the tension between peace and justice, complementarity (the jurisdictional principle under which domestic jurisdictions have priority to investigate and prosecute cases); and cooperation with the ICC;
- A review of Article 124, which allows nations to postpone ICC jurisdiction over war crimes; and
- An amendment to the Rome Statute (proposed by Belgium), which would criminalize use of certain inhumane weapons (such as poison gas) in internal armed conflict (use of such weapons in international armed conflict is already criminalized).
My participation in the Review Conference is made possible by the support of the University of North Dakota. I am particularly indebted to the School of Law and our Dean Kathryn Rand for strong support on every level. I am also indebted to the Office of Instructional Development for its assistance. This will be my first time at multilateral treaty negotiations. In addition to providing advocacy and, where necessary, legal advice, I also hope to learn about how treaty negotiations work and try to incorporate that into my teaching and scholarship. This will be a once-in-a-lifetime experience and I am excited to get there!
May 28, 2010
On the flight from Amsterdam to Kampala I sat next to a government representative of one of the State Parties to the International Criminal Court and I appreciated being able to speak about the relevant legal issues of the Review Conference with a member of one of the government delegations. We had a particularly good talk about the crime of aggression – clearly the most important issue on the Kampala agenda. This person’s government could be an important player on this issue so this was a fortuitous meeting on the airplane.
We arrived in Uganda around 8:20 p.m. local time and the Entebbe Airport was a scene of chaos as scores of delegations arrived from around the world to attend the Review Conference.
Although the line was long, I got through immigration with no problem. I was then thrilled to find my bag on the luggage carousel. Based on what the Speke Hotel told me, I expected to find someone holding a sign with my name – no such luck. Instead, I found an ICC Review Conference Transportation Table and managed to secure a ride with other conference attendees. We were all packed into a van and taken downtown. On the way, I was seated next to two members of another government delegation and, once again, was able to speak about some of the important issues with them and get their take. It occurred to me that these contacts could prove useful later on once the serious negotiations take place during the second week of the Conference. The Speke City Center was the first stop (mercifully) and I was thrilled to find my reservation was in the hotel’s computer system. I made a deposit, signed a form (they took a copy of my passport) and I made my way to my room. My goal was to get on Uganda time ASAP so I made myself stay up until about midnight. And I was fairly productive during that time – I got fully unpacked and started doing research to prepare for the Conference (focusing primarily on the crime of aggression). I got a fairly good night sleep, all things considered.
May 29, 2010
After breakfast at the hotel, I joined a group of UN interpreters in taking a taxi to the Munyonyo Resort (where the conference will take place). I got registered and got my badge. I ran into Kristina Csiki of the Secretariat of the Assembly of States Parties. She is from Sweden by way of Hungary/Romania. It turns out she knows my former student, Madeleine Moise! What a small world! The Munyonyo is a gorgeous resort and I spend the next couple of hours doing work in the lobby/veranda area. It is a GORGEOUS day (sunny but not too hot and a gentle breeze). While there, I ran into Luis Moreno-Ocampo, the ICC Prosecutor. I’ve seen him many times before at conferences but I think this was the first time I’ve seen him alone (there was no one anywhere around him – amazing!). So we were able to have a nice little chat. He’s always struck me as warm and engaging. But (quite understandably) he refused to prognosticate on the chances for an aggression amendment. He instantly dismissed that as outside his bailiwick.
I also had a good chat with Bill Pace, the top guy at the Coalition for the International Criminal Court, the NGO (Non Governmental Organization) umbrella group coordinating all NGO activities at the Conference. We talked about conference space problems and some of the key legal issues, including aggression and weapons for non-international armed conflicts. I offered to help the CICC in any way I could.
I was also able to meet my fellow representative of the International League for Human Rights – Michael Walsh. We had a nice chat and talked about our goals at the conference (he would be focusing on victims’ issues and I would be focusing on aggression). I also met Natalie Pierce, who would be with Roger Clark (one of the world’s leading ICL experts and a principal drafter of the Rome Statute) on the Samoan delegation. Roger was responsible for my invitation to represent ILHR at the Kampala Conference. He would be arriving late due to the British Airways strike (delayed his flight).
May 30, 2010
This day was devoted primarily to coordinating with the CICC. There was a CICC orientation/strategy meeting on Sunday morning. The meeting was quite helpful. Here are the highlights:
We learned that this is the largest gathering of experts on international justice ever (or definitely in our lifetimes): we have here representatives of the ad hoc tribunals, International Organizations, Regional Organizations, 100 countries, 1500 people from NGOs (Non Governmental Organizations) – 600 NGOs have been accredited to the Conference itself.
Ambassador Christian Wenaweser (President of the Assembly of States Parties) gave a good overview of important items on the Review Conference agenda:
There is only one amendment not flowing from 1998 Rome Conference (which adopted the core ICC Treaty) – Belgium’s amendment on weapons (that certain weapons, such as poison gas and dum dum bullets, should be prohibited in internal armed conflict, not just international armed conflicts) will probably be adopted.
Art. 124 (which allows states adopting the Rome Statute to opt out of being subject to prosecution for war crimes for a period of seven years) will probably not be removed from the Rome Statute. It’s only been used by two states, France (which withdrew it before expiration of the seven years) and Columbia (for which it has expired). Thus, it’s not as controversial now as it was during the Rome conference. It turns out it has not done march harm.
The crime of aggression is the most important issue at this Conference. There is no consensus within the CICC (which seems to parallel the situation among the States Parties). We need to help the States Parties to find a solution that gathers the largest amount of political support. That will require a serious effort. Prince Zeid from Jordan is the chief negotiator for this initiative. Two papers will be presented on Tuesday afternoon (6/1). Prince Zeid has had a great career and was first President of Assembly of States Parties. We’re in good hands.
Next, all participants were asked to introduce themselves. I let the CICC know that I was a professor at the UND School of Law and Director of the UND Center for Human Rights and Genocide Studies. At his request, I introduced my ILHR partner, Michael Walsh.
Then there was an introduction to the substantive issues that would likely come up in the stocktaking exercises:
Victims: (1) Participation (victims have a separate juridical existence) ; (2) Protection (witness relocation, etc.); and (3) Reparations (trust fund, etc.).
Cooperation: (1) Implementing Legislation; (2) Supplementary Agreements and Arrangements – for specific matters such as taking prisoners, facilitating interim release; (3) challenges, such as noncooperation with ICC; (4) Cooperation with defense; (5) Cooperation with the UN; (6) Enhancing knowledge and support of the ICC; (7) Financial Pledges; (8) Having more regular discussions about the ICC.
Complementarity: (1) Major failure is that states have not fulfilled their obligations (only a handful of cases have been taken by domestic jurisdictions, and even the ICC has not opened many cases – 13 cases in seven years); and (2) Positive Complementarity -- not just about capacity building but also lack of political will – narrow interpretation of duty to investigate and prosecute relevant human rights violations),
Peace and Justice: (1) Importance of justice in securing peace (managing justice efforts and peace initiatives – negotiating justice); (2) Peace process challenges (effects of justice efforts on peace agreements); (3) Truth commissions and alternative transitional/restorative justice efforts; and (4) Empowering victims.
Additional thoughts for the proposed Amendments (and their chances for getting adopted):
There is much at stake in passing the aggression amendment and making it operational -- under ICL (international criminal law),aggression does not give rise to universal jurisdiction (there is no extraterritorial jurisdiction). And there are comity considerations militating against national prosecutions for aggression – per the principle of comity no state should judge another state. We must be in a position to investigate and prosecute this crime at the international level
Article 8 Proposed Amendment (“Belgian Proposed Amendment”)
Chances for passing look very good. The ICRC (International Committee for the Red Cross) supports the proposal. There seems to be broad consensus among states to support this. A few states have expressed reservations regarding prohibitions on the use of dum-dum bullets – ones that expand and fragment on entering the human body. According to these states, such bullets are used by some states for law enforcement – especially hostage taking – if the bullet stays in one body during a rescue operation, that will spare hostages if the bullet goes through and hits them). But overall, we’re optimistic the amendment will be adopted.
Article 124 Proposed Amendment
This is a “transitional” provision allowing states to exempt themselves relating to war crimes for a period of seven years. It was contemplated explicitly in the Rome Statute that it would be the subject of review at the first Review Conference. Only France and Columbia used it and it no longer applies to either of them. It’s the only provision that allows for reservations in the treaty. Otherwise, no reservations are allowed in the treaty. Should we keep it or should we dispense with it? The CICC does not have a position this time around. It did in 1998 (and was against it). Now it tries to convince countries not to use Art. 124.
Encouraging States to Take Prisoners
There is an initiative to encourage more states to take prisoners. This will also be on the table during the Review Conference.
Work Program – How Formal Debates Take Place and How We Can Have an Impact on Them
Many participants have already participated in Assembly of State Parties debates. How should we go about interacting with State delegations? When you approach them, introduce yourself and the work of your organization. Do it during breaks in the hallways, not during actual debates.
If you have concerns, please be respectful in expressing them to delegates. Be cordial. Gather information on where people are from.
CICC will have meetings to help NGO members to formulate positions and engage in advocacy.
The Review Conference is an ad hoc experience –there is no right time to approach a delegate – early in the morning, late in the afternoon are times that will likely work. But let’s work as a team. There is much to do. We can’t cover all the relevant issues. But we will help with the drafting of resolutions.
We were advised to immerse ourselves in the Rome Statute – take advantage of this expertise around us – ask questions and network. We should form a united coalition of expertise and take advantage of being here.
We should always give national delegates our cards – that way they can contact us directly. We should get their cards too! We need to find out who the relevant actors are.
A CICC Working Group on potential amendments for future review conferences will be created – terrorism, drug trafficking, adding nukes to prohibited weapons (Mexico’s current suggested amendment) – this is a range of provisions for future ASP meetings. We should be thinking about these too.
Monday, May 31, 2010 - Day 1 of the Conference
It’s the opening of the Conference and there is much anticipation and electricity in the air. Security is very tight as the proceedings will open with speeches by U.N. Secretary General Ban Ki-moon, former Secretary General Kofi Annan, ICC Prosecutor Luis Moreno-Ocampo and President Sang-Hyun Song, and President Yoweri Museveni of Uganda. The opening is presided over by Ambassador Christian Wenaweser of Lichtenstein, President of the Assembly o f States Parties (ASP). I was lucky to be among the limited Non-Governmental Organization (NGO) delegation in the actual room where the speeches took place. Both Ban and Annan revealed genuine and impassioned support for the ICC (I thought Kofi Annan’s speech was particularly heartfelt and moving and I wondered if that had something to do with what I imagine is his own sense of responsibility for the 1994 tragedy in Rwanda when he was head of UN Peacekeeping Operations). President Museveni approached the lectern with a sheaf of notes and then, seemingly off the cuff, announced that he did not want to be “imprisoned” by them and proceeded to give a folksy, impromptu speech about just wars (explicitly condemning terrorism). In his own way, he seemed to be showing support for a successful aggression amendment.
On a personal note, I was able to speak with U.S. Ambassador-at-Large for War Crimes Issues, Stephen Rapp. Steve took over running the “Media Case” at the International Criminal Tribunal for Rwanda after my time there. When I was at the Office of Special Investigations, he had become Chief of Prosecutions and was very helpful to me with respect to Rwandan matters. He eventually became the Prosecutor of the Special Court for Sierra Leone (SCSL) and was instrumental in helping my former student, Amanda Grafstrom, secure an internship at the SCSL. We had a nice time catching up and I was proud to tell him that Amanda is now an attorney with the ICTR. He was very pleased. We discussed getting together for a drink or meal at some point during the Review Conference.
The balance of the day consisted of the “General Debate” – countries announcing their positions on various topics related to the ICC. Without exception, all delegates (often represented by the nation’s top diplomat or minister of foreign affairs) announced support for the ICC and a commitment to fight impunity. Given the most important issue to be decided at the Conference, I paid particular attention to each country’s position on aggression. On Day 1, my sense from the general debate was that there was strong support for an amendment defining and operationalizing aggression.
Tuesday, June 1, 2010
This day was largely consumed by a continuation of the general debate. From a substantive perspective, the day largely resembled the second-half of Day 1 – with one notable difference – some countries started to reveal negative perceptions about an aggression amendment. It began with France, whose representative sounded a note of caution with respect to the ICC’s completing work on aggression. The French diplomat argued that the Security Council alone has authority to determine the existence of an act of aggression. Later on, Steve Rapp spoke on behalf of the United States (not a party to the Rome Statute), and staked out a decidedly hostile position to any aggression amendment. He insisted that the ICC had not come to a consensus on many issues related to defining and operationalizing the crime of aggression and moving forward without such consensus could undermine the ICC. And he quoted (seemingly out of context) Human Rights Watch’s position on the issue – that operationalizing the crime for the ICC would embroil the Court in too much political controversy and thereby dilute its efforts on the other core crimes (genocide, crimes against humanity, and war crimes).
By Day 2 it seemed we were getting into a rhythm. We would begin with the morning plenary session. Then there would be lunch around 1 p.m. Lunch is being provided by the Ugandan government and is served, buffet style, within some enormous tents (there is usually some sort of curry dish, preparations of tilapia/chicken/beef, rice, potatoes, vegetables, dessert and coffee – it is quite hearty!). I find this has been invaluable time to speak with delegates about what is going on amongst the countries behind the scenes. It’s also a good time to share ideas about legal issues with the delegates. By Day 2, I was feeling welcomed into one of the more important country’s delegations (that country will have to remain unnamed) and really appreciated spending this quality time with them. As instructed by CICC, I did my best to put forth my views and engage in some subtle advocacy and intelligence gathering. This would become my daily lunch routine.
During the afternoon plenary session, after the general debate, there was a focused meeting on aggression, presided over by Prince Zeid (who is chairing the aggression amendment effort). The draft documents were discussed (the ones prepared by the Aggression Special Working Group that will be the basis of discussion for the proposed aggression amendment). There were also brief presentations on the other amendment issues – consideration of what to do with Article 124 of the Rome State (which allows a State to opt out of jurisdiction over war crimes for a certain period) and Belgium’s proposed amendments to Article 8 that would criminalize the use of certain weapons (such as poison gas and dum dum bullets) in non-international armed conflict, given that they are already prohibited in international armed conflict.
At the end of the day, there was a ceremony wherein a large number of states (including non-States Party, such as the United States) made pledges of contribution and cooperation to the ICC. Such pledges included contributions to the Court’s Victim Trust Fund, and commitments to house prisoners, relocate witnesses, and ratify the ICC privileges and immunities agreement.
Since meeting them on Sunday, I was really enjoying working with and getting to know my New Zealander colleagues Michael Walsh (my fellow IHLR representative) and Natalie Pierce (who was there on behalf of the government of Samoa). We were there thanks to the influence of Roger Clark, one of the giants in international criminal law and a key architect and drafter of the Rome Statute. Roger has done a lot of work for ILHR over the years and has represented Samoa at the Rome conference and in preparatory committee and special working group sessions over the years. Unfortunately, he was on a British Airways flight that was canceled due to a strike. And so he only arrived at the Conference (with his daughter Ashley) on Tuesday morning. Natalie, Michael and I helped them get oriented that morning (registration, i.d. badges, etc.) and it was great having them with us. “Team Clark” was now complete!
Roger Clark introduced me to Ron Slye of Seattle University Law School (who knows Jim Grijalva from his time visiting there) and we had a nice chat about his current work. He is taking a leave from Seattle to work on the Kenyan Truth Commission.
That night, I had dinner with a delegation member, who was also staying at the Speke Hotel. I had come to realize that the time spent speaking with delegations between sessions was crucial for exchanging ideas, clarifying matters, and engaging in advocacy (in my case, putting forth the case for an aggression amendment). That’s where much of the work of multi-lateral treaty negotiations gets done.
Wednesday, June 2, 2010
This was the first of two days devoted to “stocktaking” – a discussion of certain important topics among leading experts and states to determine if the ICC was fulfilling its core mission. I’ve heard participants snicker that the stocktaking exercises were included so that the ICC could feel as if it accomplished something if the proposed amendments (especially aggression) failed (apparently it was almost an afterthought (included late in the process). I found the sessions quite helpful and they succeeded in bringing lawyers, Court administrators and civil society together to get on the same page with respect to some very important issues. The first of these sessions, Wednesday morning, was devoted to victims. What I was able to derive from all the discussion was that there were “three generations” of dealing with victims in the field of international criminal justice. The first was a period of characterized largely by neglect – victims were much less of a focus than perpetrators (and bringing them to justice). After time, experts began to realize that victims were an extremely important part of the process (if not the most important). Then began the second generation: reaching out to victim communities – keeping them informed of the process and seeking their input. Many innovations in this regard came about during the time of the Special Court for Sierra Leone, which institutionalized victim outreach and fostered innovative approaches (the ad hoc tribunals soon followed suit). We are now in the third generation with the ICC. Victims now are not only kept informed – they are given reparations from the Victim Trust Fund and they are allowed to participate in proceedings via provisions of the Rome Statute (they have become separate juridical personalities and their voices can be heard through various stages of the process). They are also given protection (including relocation) during the case and after its conclusion. One of the key points to emerge, however, is that more contributions are necessary – both financial and in kind (for such things as witness relocation).
The afternoon session was devoted to the issue of “peace and justice.” Is there a tension between negotiating for peace and instituting justice during/following mass atrocity? Can there be no peace without justice. This was my favorite of the stock-taking sessions. The panel touched on an issue about which I am planning to write extensively – sequencing transitional justice. From the discussion, it occurred to me that there are two types of sequencing – both external and internal. External sequencing (on which the panel focused almost exclusively), deals with the relationship between peace negotiations and justice – it posits that perhaps it is preferable to wait for justice until peace is secured. Internal sequencing would relate to the order in which justice mechanisms (such as truth commissions, tribal rites and the formal criminal trial) would operate -- each in relation to the other. One of the most fascinating contributions was made by an actual peace mediator. He described how he attempts to convince killers to stop killing. With the ICC, amnesties are no longer possible so it’s perhaps more difficult to bargain. On the other hand, there is a more definite sense of the boundaries – since amnesties are not possible, there is clarity and order in how the negotiations proceed. It was extremely helpful to have this insight (I usually hear about this issue from academics, who do not have this perspective).
In the end, we learned that there were certainly countries that experienced a degree of peace without justice – Mozambique was the prime example (and the delegate from China certainly insisted on this point). But the thought was that in this new era of accountability (Mozambique was well before the “Accountability Revolution” of the 1990s), there can be no peace without justice. Even in the old era, countries that achieve peace without justice subsequently experience much crime and corruption.
That evening, I attended a screening of “Nuremberg: Its Lessons for Today.” The U.S. government produced this film in the late 1940s to inform the German people about the Nuremberg trial. Interestingly, it was never released in the United States. Sandra Schulberg, the daughter of the principal filmmaker, has restored the old film (providing an English voice-over, for one, and including real audio from the actual trial – it was formerly done by voice-over). It’s a fabulous overview of the trial and a powerful reminder of why we are at this Conference. The highlight for me was an introduction to the movie by legendary Nuremberg prosecutor Ben Ferencz. He helped place the movie in context and provided an incredible historic link (he was there!). I also had a chance to chat with Sandra Schulberg – it turns out in 1978 she produced a human-rights related film on North Dakota called “Northern Lights.” It’s the story of a Swedish-born North Dakota farmer who in 1915 establishes the populist “Nonpartisan League” in response to bank foreclosures. Sandra said she would love it if the UND Center for Human Rights and Genocide Studies could sponsor a showing of the film. She said she would come and introduce it and the Nuremberg film to UND and the Grand Forks community. I am excited about the prospect of doing this and we will explore it on my return.
Thursday, June 3, 2010
There were two more stocktaking sessions on Thursday. The first related to the topic of complementarity. We heard from persons working in different complementarity contexts: High Commissioner for Human Rights Navanthem Pillay (saying she did not appreciate the importance of complementarity as much when she was an ICTR judge); ICTY Prosecutor Serge Brammertz (saying the ICTY has become much more complementarity-focused since initiating its completion strategy; the ICC should be thinking about a completion strategy for each individual case it gets); Justice Akiiki Kiiza of the War Crimes Division of the High Court of Uganda (talking about the High Court’s relationship to the ICC in the Lord’s Resistance Army case); Col. Muntazini Mukimapa Toussaint, DR Congo’s Deputy Auditor General (talking about DR Congo’s military court’s used for atrocity crimes and their interaction with the ICC); and the European Commission’s Karel Kovanda, Director For External Relations. Mr. Kovanda stressed four lessons he’s learned about complementarity:
(1) Willingness really matters – with no will, throwing money at the problem will not help
(2) The voluntary nature of assistance (no state can be forced to accept assistance – “you can bring a horse to water . . .”)
(3) Prioritization is very important – fighting impunity must be high on the country’s agenda (even if the country also has to deal with other problems, such as poverty);
(4) We need to develop a toolkit to promote complementarity – best practices, lessons learned (this could developed jointly with experts, NGOs and the EU, etc.)
Much of the remainder of this stocktaking session focused on the concept of “positive” complementarity. In other words, it’s one thing for the Court to cede a case to a domestic jurisdiction. It is quite another for the Court to actually encourage the domestic jurisdiction to take the case. Therein lies the notion of positive complementarity. The Netherlands specified some aspects of positive complementarity: capacity building; sharing evidence and expertise (such as lessons learned, best practices); sharing legal tools (such as Norway’s document database created for the ICC); and building and sharing networks of cooperation. Certain delegations were concerned that “positive complementarity” could turn the ICC into an NGO, and detract from its core functions.
There were interventions by ICC President Judge Sang-Hyun Song and Prosecutor Luis Moreno-Ocampo. Ocampo’s points were noteworthy:
Complementarity and cooperation are what govern ICC relations with states.
Art. 17 of the Rome Statute (setting out the complementarity admissibility test) is the key to helping the Office of the Prosecutor (OTP) understand our relationship with states and we scrupulously observe that provision.
Art. 93(10) provides authority for “positive complementarity” (an interesting proposition if the text is consulted -
But the ICC does not need to create bureaucracies. The OTP agrees with the basic premise of the R2P doctrine. We can share information then the states can integrate into their own systems the ICC model with the assistance they receive from donors. Positive complementarity is just a more efficient use of resources and coordinating with donors and NGOs – it’s about states helping each other with the ICC helping in the coordination.
Examples – the OTP gets information on victims from International Center for Transitional Justice. This helped the OTP understand what victims wanted.
Conclusion – positive complementarity is the OTP’s interpretation of what the OTP needs to do to help State Parties, to share with State Parties. The ICC is the face of the system but sates are the ones that really make it work.
Professor Bill Schabas concluded the session with the observation that Uganda and Congo are examples of how the ICC’s exercise of jurisdiction can prod states into setting up their own judicial mechanisms. The ICC does its own judicial work but clearly also contributes to the development and dynamism within the national justice system.
The weather was quite humid at lunch. I had a good chat with former Special Court for Sierra Leone prosecutor (the SCSL’s original prosecutor) David Crane, now a professor at Syracuse law school. After lunch, we headed back to the conference room for one last stocktaking session.
The final stocktaking exercise was on cooperation. In particular, speakers talked about countries helping the ICC through national implementing legislation (incorporating the ICC’s crimes into domestic law), supplementary agreements with the ICC (such as for ICC privileges and immunities), designating national focal points to address ICC cooperation requests, and complying with ICC requests for assistance (such as evidence collection, arrest warrant execution and surrender). Kenya (which recently became a “situation country” due to post-election violence in 2007-2008) was cited as a good example of a country cooperating well with the ICC. It has enacted domestic legislation to prosecute atrocity crimes and involved government departments, civil society, and human rights organizations in the development of the legislation. This has contributed to its broad acceptance by the public. It has also established an institutional cooperation regime with the ICC. There was also discussion about cooperation by Intergovernmental Organizations (such as the UN and the British Commonwealth). Clearly, without State and Intergovernmental Organization cooperation, the ICC would fail in its mandate.
After the plenary session, I attended the Coalition for the International Criminal Court (CICC) strategy meeting (this is to help NGO representatives, such as myself coordinate with other NGOs and formulate effective strategies for the treaty negotiations). There was a sense that this was a very important meeting as aggression would now occupy everyone for the balance of the Conference. This was the historic task at hand. The meeting was extremely helpful. We were told that Argentina, Brazil and Switzerland would be introducing a proposal that would help bridge the gap between countries that took a very strict view of how (if at all) aggression should be defined and operationalized in the Statute (the more powerful countries, especially those in the so-called “Permanent Five” of the Security Council) and those that preferred a more liberal approach (especially the African countries). This would come to be known as the “ABS Proposal.”
There were disagreements about amendment procedure (the ICC Statute has two amendment provisions that could apply – one that would allow countries, on an individual basis, to opt into any amendment related to the definition of the core crimes (Article 121(5)) and one that would apply to all other amendments – after 7/8 of the State Parties ratified those amendments, they would apply to the entire state membership (Article 121(4)). The proposed aggression amendments seemed to apply both to core crime definitions and non-definitional matters. Which amendment procedure should apply?
Also, the ICC has three case trigger mechanisms – Security Council referral, State Party referral, and prosecutor-initiated (so-called “proprio motu”). Which trigger mechanism should apply? Under the ABS Proposal, both amendment procedures and all three trigger mechanisms would be used in a two-stage approach. First, after a certain small number of parties ratified the proposed amendments (referred to as number “X”), the proposed definition of aggression would go into effect. Also, the Security Council would be able to refer cases to the ICC. This would be pursuant to the Article 121(5) procedure. Then, once 7/8 of the total number of countries ratified the amendments, the State Party referral and proprio motu trigger mechanisms would go into effect. This would be pursuant to Article 121(4).
With this staggered approach, it would be likely that the Security Council would be the sole gatekeeper for triggering an aggression prosecution for some time to come. This would satisfy the more powerful countries. On the other hand, the other countries could work for ratification by 7/8 and hope for the day when the other trigger mechanisms would come into play. It was a brilliant compromise solution by Argentina, Brazil and Switzerland! We were all looking forward to seeing how it would play out in the coming days. But one thing was starting to become clear: the parties were talking and there was a chance for movement in a positive direction. When the Conference began, I felt a sense of pessimism about whether we could leave Kampala with aggression being defined and operationalized. Now there was a sense that we could get this done. It was very exciting!
That evening, I attended a “book launch” for Professor William Schabas’s new book “The International Criminal Court: A Commentary on the Rome Statute.” Rome Statute principal architect and first ICC President Philippe Kirsch was the keynote speaker.
After the speech and brief talk by Bill Schabas, I had a fantastic chat with Ben Ferencz, the Nuremberg prosecutor who handled the Einsatzgruppen trial. We talked about the fact that UND was one of the few remaining institutions in the U.S. to hold a complete collection of the Nuremberg trial archives. Mr. Ferencz told me that he was the one who administered the distribution of the trial document sets. So I thanked him! He also told me he remembered North Dakota Judge Morris from the Nuremberg trials. It was quite a trip down memory lane. We also talked about the UND Center for Human Rights and Genocide Studies Nuremberg digitization project. We discussed the possibility of Mr. Ferencz coming to UND to introduce the archive to the public.
I also had a chat with a Bangladeshi diplomat who told me about his government’s efforts to prosecute those responsible for atrocities committed when Bangladesh separated from Pakistan in 1971. We talked about my work at OSI and effective ways of prosecuting old mass atrocity cases. He said his government would be interested in consulting with me on this further and asked for my card. I also had a nice chat with Roger Clark, who was giving me great perspective on how the Rome negotiations worked in 1998 versus what we were trying to do in 2010. Fascinating stuff!
Friday, June 4, 2010
The morning began with a CICC strategy session. We agreed we should speak to delegates to get their reactions to the proposal and try to create a positive atmosphere for it. We were warned the P5 states might try to freight the proposal with much detail to make it look unattractive. We needed to help keep delegates focused on the main provisions and try to help generate consensus.
The aggression working group sessions this day were quite interesting. The P5 countries seemed to take a hard line on aggression – there must be a Security Council determination of aggression before the ICC could initiate investigations/prosecutions and there should be a restrictive view of the amendment procedure (individual country opt-in) and both the aggressor and victim states would need to opt in for an investigation/prosecution to go forward. A large number of countries advocated a less restrictive approach. And there were eloquent pleas to the assembly from Germany and Japan (both of whose leaders were prosecuted for aggression crimes after World War II) to adopt the aggression amendments.
Most interestingly, the ABS Proposal was officially unveiled this day. It generated some very interesting discussion from the various states. And it seemed to help break us out of the logjam. Prince Zeid (the aggression chair) stated that he would work over the weekend on a new conference paper incorporating ideas from the day’s discussion. Argentina, Brazil and Switzerland would work on a draft amendment to put into language their titillating “Two Stage Proposal.” We left for the weekend feeling there was movement.
I should also note that a portion of the day was devoted to a working group on the other amendments – proposals for Article 8 and 124. I discussed these earlier. There seems to be little disagreement with respect to the so-called “Belgian” Article 8 proposal (adding to internal armed conflict situations certain prohibited weapons, such as poison gas and dum dum bullets). There has been concern raised about using dum dum bullets in hostage rescue operations – if regular bullets are used they would pierce through the hostage taker and possibly kill hostages. Dum dum bullets, on the other hand, fragment inside the perpetrator and spare the hostages. But this does not seem to be a deal-breaker. The bottom line is the working group adopted the Belgian proposal during this session and there should be no problem getting the amendment adopted at the end of the Conference next Friday.
With respect to Article 124 (the war crimes opt-out provision), there are three potential options – deete it, retain it, or amend it. There was some disagreement about whether to delete it. It was mentioned that only France and Columbia had used it. Amnesty International intervened and referred to it as the “License to Kill” article! But some countries felt it might encourage new countries to join the Rome Statute. A compromise proposal then emerged: perhaps we can leave it in for now but with a sunset clause (that would provide for its eventual deletion at a future date). My impression is that it seems as if it will be staying in (either as is or amended). Even if it were amended, it would take 7/8 of the members ratifying for the amendment to go into effect (per Article 121(4)). The upshot of this: it will likely remain as is for years to come.
During one of the breaks that day, I ran into my old ICTR colleague Robert Petit. Until recently, Robert was the International Prosecutor at the Extraordinary Chambers of the Courts of Cambodia (ECCC – there is also a Cambodian co-Prosecutor). Robert and I were actors in the production of Hamlet in Rwanda all those years ago (I played Hamlet and he played Polonius – the proceeds went to help Rwandan orphans). Robert had also spent time with the SCSL and East Timor tribunal. He was now with the Canadian Department of Justice (Crimes against Humanity and War Crimes Section). It was great to catch up with him and we agreed we would try to find some time to grab a drink or a meal.
The other breaks that day were also quite interesting. During one of them, I had a terrific conversation with Assembly of States Parties President Ambassador Christian Wenaweser (from Lichtenstein – he had presided over the opening session of the Conference and had done much work on the crime of aggression prior to the Conference). We talked about his views of the prospects for an aggression amendment. He told me there seemed to be good movement but he was doubtful the ABS proposal would be what was finally adopted. There would be much tweaking between then and the final day of the Conference. (It seems I’m always running into Ambassador Wenaweser around the men’s room! -- he and I joked about that – he is very friendly and has always engaged me in conversation during these meetings).
I had another great conversation during a break with former ICC President Philippe Kirsch. Judge Kirsch is a legend in international criminal law circles (considered by many the “Father of the ICC” – he took the lead in coordinating negotiations for the Rome Statute in 1998 and became the ICC’s first President). I had met Judge Kirsch in Chicago at the John Marshall ICC conference I spoke at (Judge Kirsch was the keynote speaker for that conference). Judge Kirsch had been focused on stocktaking during the Conference (he chaired the session on Cooperation) and was going to be leaving Kampala that day. He was not yet aware of the ABS proposal and so I had the honor of explaining it to him. We had an interesting conversation about it and talked about his views of the prospects for success.
That evening, I had a special guest come in from Arusha, Tanzania. My former student Amanda Grafstrom decided to visit Kampala for the weekend! It was great seeing her that night for dinner and catching up on what she’s doing at the International Criminal Tribunal for Rwanda. She also gave me an update on Cathy Hamilton, my current student who is interning this summer at the ICTR. We had some great Italian food at the restaurant of my hotel (the Speke Hotel). Amanda said there were no good Italian restaurants in Arusha (or none at all, for that matter!) so she really appreciated the good meal. It was a long but exciting week. I looked forward to the weekend.
Saturday, June 5, 2010
Amanda and I walked around Kampala and were joined by two international criminal law experts I’ve befriended here at the Conference: Ellisabeth (Lis) Lees (a barrister from England currently doing an LLM focusing on the crime of aggression) and Dr. Carrie McDougall, an Australian aggression expert – University of Melbourne -- whose Ph.D. dissertation was on the crime of aggression (she also was heavily involved in the Aggression Working Group process leading to Kampala). It was hot outside and the streets were teeming with vendors and pedestrians. There is much traffic in Kampala (and air pollution!) but the people are extremely friendly. In fact, in my experience, I would say Kampala is one of the friendliest and safest African cities to visit. We bought some African arts and crafts (I bought a mask and jewelry for my wife and kids) and had a nice lunch. I was glad that Amanda was able to meet these international criminal law experts and get their perspective on the treaty negotiations here. Amanda had plans with friends that evening and I spent the balance of the day/evening working in my room and dining at an Indian restaurant with Lis and Carrie (Amanda would be leaving the next day).
Sunday, June 6, 2010
I had wanted to spend the day working but Lis and Carrie talked me into going on a one-day safari! We got up very early in the morning and went with a large group to Lake Mburo National Park (we caravanned in two vehicles). Along the way, we stopped at the equator and saw a demonstration of how water swirls in different directions depending on which side of the equator one stands (it really did change directions just walking a few feet either way!). The safari was fun and we saw a variety of animals including zebra, gazelles, eland, warthogs, water buffaloes, and monkeys. We took a cruise on the lake and also saw hippos and crocodiles. We were with a great group of people from many different countries (including Egypt, Sri Lanka, Qatar, and the UK) who know much about international criminal law so the conversations were stimulating and educational. On balance, it was a great day! That evening I had dinner at a fabulous Chinese restaurant that has been in Kampala for decades – Fang Fang. It was a beautiful evening and the restaurant has a terrace. It was a good bit of calm before entering into the storm of the Conference’s final week.
Monday, June 7, 2010
As the new work week began, I realized I had fallen into a fairly predictable routine. It would begin with a quick buffet breakfast outside on the Speke terrace. At 8:30, the shuttle would pick us up and take us through the chaotic traffic and noise of Kampala’s congested streets and outside of the city limits to the Munyonyo Commonwealth Resort, where the Review Conference was being held. We would go through a series of security checks (including an inspection of the shuttle itself and at least two screenings of our person) before arriving at the area of the Victoria Ballroom. Under that, there were meeting rooms where we would have our morning CICC strategy session to get us oriented and directed for the day. From there, we would walk by a stables (where actual beautiful horsed were being trotted around) and wend our way up a hill to the Speke Ballroom, where the Plenary and Working Group sessions would take place. On the bottom level of that building, a “Document Center” would hand out the latest drafts of papers, non-papers, reports and other relevant documentation for the day. A set of stairs would then take participants up to the third floor where the actual ballroom was located. And then work would begin. The room was framed with enormous TV screens. Above the participants were glass booths with interpreters speaking in several different languages. We were all given translation boxes to listen to the interpreters on different channels (depending on the language spoken – I tended to listen to the French in the original, without translation). We would work in the morning, break for lunch (served in the big circus-top tents at the bottom of the hill), resume for the afternoon and then have a CICC strategy meeting in the evening. In between all these meetings and sessions, we would attempt to speak with delegates to get a sense of what was going on and try to explain issues or persuade them as to certain positions. At the end of the day, a shuttle would take us back to the Speke downtown (the earliest would leave at 7 p.m. and the latest one would leave at 9 p.m. – I was typically on the late shuttle). We would then eat a late dinner and try to check e-mail (depending on the spotty internet connection – and I would try to keep up with this Journal!). The next morning, we would wake up early and do it all over again!
By Monday morning, two new aggression proposal papers were floating around: the Chair's revised Conference Room Paper and the Argentina-Brazil-Switzerland (ABS) proposal (presented as a “non-paper”) (there was also a draft report – reflecting the Working Group’s activity from the previous week -- circulated by the Chair, Prince Zeid) . The Chair’s Conference Room Paper tightened the language from the previous draft (reflecting the progress made in narrowing differences between the parties). What stood out most was the limiting of filter options in proposed Article 15bis(4). Where no Security Council determination regarding aggression is made, only two alternatives remained – (1) in the absence of such a determination, the Prosecutor may NOT proceed with the investigation in respect of the crime of aggression; and (2) where no such determination is made within six months of the Prosecutor notifying the Secretary-General of the situation, the Prosecutor may proceed with the investigation with respect to a crime of aggression, provided that the Pre-Trial Chamber has authorized the commencement of the investigation in accordance with Article 15.
Additionally, Argentina-Brazil-Switzerland submitted a Non-Paper embodying the so-called ABS Proposal explanation of the ABS Proposal. And it made clear that the specific number of ratifications necessary to initiate the first phase (i.e., the “X” number) would be one (i.e., if one state ratified, then the definition of aggression and the Security Council trigger mechanism would go into effect). Unfortunately, ABS seemed to be generating a high degree of concern among certain delegations. They were concerned that, absent an amendment to Article 121, an attempt to use simultaneously its paragraphs 4 and 5 would not be possible as those provisions were intended to be mutually exclusive modes of acceptance. But the Swiss delegation seemed to indicate that such an Article 121 amendment could be adopted simultaneously as part of the overall aggression amendments. Japan, in a lengthy and rather technical intervention, doubted the legality of this and proposed separating out the stages – first an amendment to Article 121 and then, at a later time, the Statute could be amended to operationalize and define aggression.
One could sense that the ABS Proposal might be on the ropes. Personally, I wondered how its Stage One, which subjected all States Parties to the aggression definition and the Security Council trigger mechanism after ratification by only one State Party, could be compatible with Article 121(5) when that provision seemed to contemplate subjecting States Parties to amendments on a seriatim basis -- only as each State Party ratified that particular amendment. In other words, it should apply strictly to the particular State Party that ratified it (as well as each State Party that had previously ratified it and would ratify it in the future) and could not, in one fell swoop, apply to the entire ICC membership merely upon the first ratification. The ABS delegates seemed to respond that this would not be a problem since, in any event, the Security Council had authority to refer matters to the ICC as to States Parties or non-State Parties regardless of any aggression amendment. While that may be true, even a generous reading of international law would not support the Security Council’s being able to impose a specific definition and adjudication modality on a separate treaty-based organization (i.e., the ICC, and by extension, on its members). It seems to me that, pursuant to Chapter VII of the UN Charter, the Security Council would have authority to set up a separate ad hoc tribunal (as it did for the former Yugoslavia and Rwanda) to try a crime of aggression. But within its powers under Article 13(b) of the Rome Statute, it could only act pursuant to the other terms of the Rome Statute. And that would include the Article 121(5) amendment procedure. So there was a problem there!
Delegates perceived another potential problem as well. It was not clear what would be the legal effect of the second sentence of Article 121(5) on States Parties who do not accept the aggression amendments versus the effect on non-States Parties. According to the so-called “positive” understanding,” the ICC would be able to prosecute an act of aggression against a State Party that had accepted the amendment, even if the aggressor state had not. Pursuant to the so-called “negative” understanding, the Court would be prevented from prosecuting the crime if the aggression were committed by a state that had not accepted that amendment. In other words, it would provide for no distinction between States Parties that had not accepted the amendment and non-States Parties. This would appear to place a State Party is in a superior position to a non-State Party as the former could shelter its nationals from jurisdiction over the crime in the amendment by simply failing to ratify, something the non-party State would not be in a position to do (recall that Article 12 provides for jurisdiction on the basis of territoriality and nationality). This would be quite an anomalous result!
Canada seemed to offer an alternative – a so-called “menu approach” that would allow states to opt into certain trigger mechanisms and operationalize the aggression amendments individually on the basis of reciprocity and state consent (instead of ABS’s phased operationalization). This would avoid the ABS Article 121(4) versus (5) incompatibility by taking paragraph(4) out of the equation.
Aside from an intervention by Roger Clark on behalf of Samoa ( in which he gave support to the ABS proposal and stated that amendments could be effectuated through Article 121(4)), the most interesting intervention that morning for my money was made by the United State. It weighed in via Bill Lietzau, a Rome Conference veteran who had not been in Kampala the previous week. Interestingly, Lietzau’s tone, as compared to Rapp and Koh’s from Week One, seemed somewhat softer in talking about the possibility of an aggression amendment. He focused more on the definition of aggression and said he hoped that the ICC would incorporate a series of proposed U.S. “understandings” regarding the definition. One of these would elaborate on the meaning of the “manifest” violation of the UN Charter (it must “manifest” with respect to its “character, gravity and scale” – all three must apply). Another would seem to provide an explicit exception for humanitarian intervention and yet another would declare that the proposed amendment would not be considered as constituting the definition of aggression under customary international law. I found it very interesting that he lamented the U.S. absence during the so-called “Princeton Process” (the Aggression Working Group activity between 2002 and 2009). Given that lack of engagement, the U.S. must now live with the definition of aggression that had been formulated (a not so subtle dig at the George W. Bush administration). Interestingly, Lietzau concluded by noting that the United States could be amenable to a “sequential approach” concerning the exercise of jurisdiction. This seemed to be a plug for the ABS proposal. So I left the morning session feeling cautiously optimistic.
During the lunch break, I attended a side panel on aggression that featured Ben Ferencz and Roger Clark (talking about the history of efforts to criminalize aggression (Ferencz) and some of its more technical legal aspects (Clark – who described Ferencz as being more like Pericles, the great Greek orator, and himself as being more like a “plumber”!). At the end of the session, Prince Zeid joined them on the panel and said that he was very pleased with the tone of the discussions during the Working Group session. He described it as one of the most positive he had seen. He was feeling quite optimistic about our chances for success. This reinforced my sense of optimism.
(During lunch, before the panel, I was seated next to Dianne Orentlicher, an American University professor who is now the number two person in Steve Rapp’s office. Dianne has written about incitement so we had an interesting conversation about that subject. While we may have been at opposite ends of the spectrum at the beginning (with my positive take of ICTR jurisprudence on the subject and her having a more negative view), we seem to be at the same point now -- especially in light of my recent “Music and Genocide” article, wherein I was critical of a lax approach that could lead to freedom of expression issues).
The afternoon session began with continued interventions from non-States Parties (including Kuwait and Cameroon – Kuwait’s intervention was particularly poignant in light of being invaded by Saddam Hussein – a textbook act of aggression -- and it asked that under Alternative 2 of proposed Article 15bis (4) of the Conference Room Paper (when the Security Council has not made an aggression determination), the wait time for the Prosecutor to initiate the investigation be shortened from six months to three.
Otherwise, the afternoon session seemed to consist of numerous interventions supportive of the ABS proposal. Again, there seemed to be a positive feeling regarding our chances of success in bringing about the aggression amendments. This spirit was somewhat dampened by France’s final intervention of this “informal” session. It expressed support for Alternative 1 of proposed Article 15bis (4) of the Conference Room Paper (when the Security Council has not made an aggression determination, the case is killed). And it said it was still studying the ABS proposal but certainly did not come out in support of it. Perhaps this would be an omen of negative developments to come?
We concluded the afternoon session by going back into “formal” Working Group mode and the States Parties adopted Prince Zeid’s “Draft Report of the Working Group on the Crime of Aggression” – a summary of what we had done the previous week (Prince Zeid went over it with the delegations paragraph by paragraph and made any requested corrections).
For the post-plenary panel, I attended a discussion hosted by John Washburn and the American non-Governmental Organizations Coalition for the International Criminal Court (known as AMICC – John Washburn actually visited UND very soon before I started working there and has been interested in generating Native American support for the ICC – he has liaised with UND Law Dean Kathryn Rand on this issue). This was a unique and interesting forum so I decided to attend and skip the CICC wrap-up meeting (I would get a report from Lis and Carrie). The AMICC meeting focused on the Obama administration’s position on the ICC. AMICC informed us that the administration would soon come out with a clear, articulated (and comprehensive) policy on the ICC. In the meantime, there were good signs, including the large U.S. presence at the Kampala Conference. We also talked about the chances for U.S. ratification going forward (unfortunate consensus – not likely to happen anytime soon).
I was very pleased to see David Scheffer at the meeting, former Ambassador-at-Large for War Crimes Issues (and the first one in U.S. history!). David was the head of the U.S. delegation at the Rome Conference in 1998 and is now a professor at Northwestern Law School. He was essentially my boss when I was at the ICTR (he was my top-level contact at the State Department) and I have had the honor of speaking on a panel with him. He was with me the day I received my commendation from Janet Reno for my work at ICTR. He has always been very supportive. I had last spoken with him in March at the U.S. Supreme Court when we were both there for oral arguments in the Samantar case (which we found out we won last week – 9-0!). David had also written an amicus brief for Samantar. Before the panel started, I said hello and began by congratulating him on the Supreme Court victory (and he congratulated me as well!). After the panel, we had a nice chat and I floated to him my idea of writing a paper to the effect that the U.S. had an obligation under the Vienna Convention on the Law of Treaties not to act in a manner contrary to the Rome Statute given the U.S.’s significant role in shaping the treaty and its subsequent signature by President Clinton. President Bush’s subsequent “unsigning” of the treaty could not free the U.S. of its VCLT obligation given the U.S. role and the Clinton signing – a kind of equitable estoppels argument. David liked the idea and encouraged me to write it. So, if I get the time, perhaps I will! We were also joined in discussion by Professor Vijay Padmanabhan of Cardozo Law School. Our discussion then centered on the legal validity of the ABS Proposal, which I stated did not comport with Article 121(5)(as explained above). We had an interesting and lively discussion.
Also, at some point during the day, I had run into Dr. Chandra Sriram of the University of East London Law School. She is an expert on transitional justice and does much impressive field work. She recently accepted a job at the prestigious School of Oriental and African Studies (SOAS) at the University of London. Very impressive! I had spent some time with Chandra at Wilton Park and we had stayed in touch. She is at the Conference reporting for the Guardian UK newspaper (actually, she is writing a kind of online blog for them). She had only just arrived so I tried to help her get oriented. It turns out she is staying at the Speke Hotel! So we agreed we would have to get together and catch up.
Tuesday, June 8, 2010
The first morning exercise was a one-hour plenary session devoted to adopting various resolutions/declarations from the stocktaking exercises. Also, the assembly adopted a Norwegian resolution on cooperation in the enforcement of sentences.
The morning informal aggression session that followed was quite short and Prince Zeid urged the delegates to meet bilaterally and try to make progress. Prince Zeid also distributed a new version of the Conference Room Paper. This version seemed to incorporate the ABS Proposal by divvying up the jurisdiction piece into two separate provisions – Article 15bis and 15ter. 15bis refers to the state-referral and proprio motu trigger mechanisms and 15ter deals with the Security Council trigger mechanism.
The big development was that the Canadians had put their proposal into written form. The Canadian written proposal focused on proposed Article 15bis and read as follows:
3. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression.
4. Where the Security Council has not made such a determination within six (6) months after the date of notification and where a State Party has declared its acceptance of this Paragraph, at the time of deposit of its instrument of ratification or acceptance or at any time thereafter, the Prosecutor may proceed with an investigation of a crime of aggression provided that
(i) the Pre-Trial Chamber has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in Article 15;
(ii) [all state(s) concerned with the alleged crime of aggression] [the state on whose territory the alleged offence occurred and the state(s) of nationality of the persons accused of the crime] have declared their acceptance of this Paragraph.
Between the morning and afternoon sessions, there was a strange lull. Certain participants seemed to deal with the mounting tension over the proposal discrepancies by engaging in exercise and leisure activities. I saw one participant on horseback. Ron Slye was seen working out on the elliptical machine in the Resort gym. And David Scheffer was spotted going for a swim. I joined Chandra and some other NGO participants (including Adam Birnbaum, one of our safari group) for a drink at the Resort terrace. We were joined by Dr. Tim Allen (of the London School of Economics, who has done some fascinating research on the violent northern Ugandan Lord’s Resistance Army – LRA, whose leaders have been indicted by the ICC) and Ronald Iya, a northern Ugandan and the last person outside the LRA to have spoken with LRA leader Joseph Kony. We heard some fascinating stories about their dealings with the LRA (including how Dr. Allen’s children were responsible for the LRA reaching out to Dr. Allen to help negotiate a peace agreement – the beginning of the so-called “Juba Process”).
At some point, Steve Rapp came out on the terrace and I had another nice (but brief) chat with him before the afternoon aggression session was about to get under way. (I should also point out that I saw Teresa McHenry from a distance – she is the head of DOJ’s Domestic Security Section, which recently had OSI (my old office) merge into it (the merged unit now has a new name that escapes me – I have participated in various events with her but have not seen her in some time – I hope I will run into her again before the Conference is over).
In the afternoon session, the Canadian proposal was the focal point. Countries seemed balkanized by the Canadian and ABS proposals. European countries (with some exceptions notably the UK, Switzerland and Greece – more on the UK position in a moment) seemed to favor the Canadian proposal uniformly. African and Latin American countries (as well as certain scattered lesser developed countries) favored the ABS approach. The UK was squarely against the Canadian approach – it declared forcefully that bilateral consent for court action is not consistent with the principles of international criminal law. On the other hand, countries such as the Netherlands and Sweden were strongly in support of the bilateral consent notion. I found this very strange! I would have expected the UK, a major military power and part of the P5, to be very favorably disposed to a consent regime. Whereas countries such as Canada, the Netherlands and Sweden, nominally very liberal, not as active militarily (Canada more so, but still . . .), and consistently supportive of tough human rights enforcement mechanisms, would be loath to support a consent regime.
At some point during the afternoon session, Slovenia offered yet another proposal meant to bridge the gap between ABS and Canada. The proposal did not leave me feeling particularly sanguine. It incorporates the Canadian consent provision but adds a clause to the effect that if consent is not forthcoming, the Prosecutor can readdress the Security Council and request a finding of aggression. This seems designed to throw a bone to the ABS crowd but it does not appear to offer anything real (why was the Prosecutor not already in a position to “readdress” the Security Council and why would the Security Council change its mind anyway?). Another provision would provide for a review conference once 7/8 of the States Parties have ratified the amendment. What would be the benefit of this? Perhaps, as Bill Schabas points out, it is meant to invite an amendment to Article 121 of the Statute, permitting an amendment to the subject-matter jurisdiction to enter into force with respect to a State Party that has not accepted the amendment. Frankly, I have trouble seeing how this bridges the gap between ABS and Canada (or, more to the point, between the European and Latin American/African blocs).
Prince Zeid asked Ben Ferencz to address the assembly to help forge consensus. Professor Ferencz urged the ICC to find consensus –even if it meant compromising and accepting bilateral consent. This is a horrible crime and it needs to be criminalized. Let’s not get too caught up in the details (there were several analogies made to World Cup Soccer) and let’s just get something that will work. I must say, despite the rousing applause, I don’t think it was Ferencz’s most inspiring speech (he’s been giving a lot of them lately, after all). And I was frankly surprised he would settle for the most problematic compromises.
An air of pessimism hung over the CICC evening strategy session. There is a feeling that we will not be able to operationalize aggression during the Conference. Perhaps the best we can do is adoption of a definition. Some participants remain optimistic but many feel powerful countries (especially the U.S.) are successfully exerting pressure in a way that will block successful operationalization amendments. Some even cynically speculated that the UK was taking a “principled” stand against Canada to further sow disharmony. This process has been a real rollercoaster for me. I arrived feeling very optimistic. And then, at the very beginning of the Conference, I heard whispers bruiting about that aggression amendments would likely by DOA. Then I started to feel optimism again as we began the negotiations. Now I’m not so sure. I haven’t completely given up hope but things are not looking great.
On the shuttle back I chatted with New England Law School professor John Cerrone. We ended up getting dinner at Fang Fang (split a Peking Duck!) and had a very pleasant conversation. Coming back to the hotel I ran into Chandra and we had a night cap. I checked e-mail, worked some on this Journal and then called it a night. I was quite exhausted.
Wednesday, June 9, 2010
This was a strange day. We had our final Aggression Working Group meeting. There was formal adoption of updated report text and the Chair thanked all assembled for the work they had done to this point. The work would now go to plenary and be chaired by the ASP President (as opposed to Prince Zeid). Prince Zeid noted that much remains to be done in the final three days of the Conference. We must find consensus and a common position. But it will require hard work in hours ahead.
Prince Zeid also notified us that Germany would be the “focal point” for countries to discuss their views/concerns regarding the United States’ set of “understandings” (mentioned in a previous post) regarding the definition of aggression.
Japan took the floor and stated it wanted to flag one issue that it felt merited debate before (in the delegate’s exact words) “we get overheated.” There must be, he said, cooperation with the Court regarding the crime of aggression. Japan said it would like to add language to Annex 3: “It is understood that, upon the exercise of jurisdiction of the crime of aggression, all States Parties have an obligation to cooperate with the Court regarding the crime of aggression irrespective of whether they have ratified the aggression amendments.”
With that statement, and an announcement that there would be an informal plenary at 11 a.m. on Thursday, the final Aggression Working Group came to an end.
Bianca Jagger (Mick Jagger’s ex-wife) was in the room (she’s started a human rights organization and was there with the NGO community) and I got a good snap-shot of her speaking with David Scheffer. I also ran into Harold Koh (State Department Legal Adviser and Dean of Yale Law School) and we talked about Dakota Ruidesil, our former job candidate. Dean Koh had high praise for Dakota and thinks he simply remained at the same job. He said he would be worth waiting for if he decided to apply again for a faculty position. And then he joked: “Could you find a more ideal candidate? His name’s actually ‘Dakota’ – he would be the perfect person to teach at your school”!
The balance of the day was fairly low key. I had a great chat with Roger Clark about what the Rome Conference was like at this stage (relative to the same stage we are in here in Kampala). He said things were equally uncertain and only came together at the very end. There was still hope.
Later on there was a CICC strategy meeting. It was announced that Carrie McDougall had been working on a proposal to bridge the gap between ABS and Canada. The proposal had been floated to various delegations and received a positive response. Austria will be involved and will distribute it (or use it as a model to draft its own proposal and distribute that). There’s an opt-out clause (as opposed to a pure consent or opt-in regime – i.e., the default is consent) and provision for a mandatory review (whether it is with a sunset clause, or not, is not clear). Under the proposal, the text would go in under Article 121(5) – thus it would only apply to States Parties (not states in general). The opt-out only applies to the state-referral and proprio motu (prosecutor initiated investigation) trigger mechanisms (with a Pre-Trial Chamber filter). There is a Security Council green-light provision (i.e., the Prosecutor may proceed with an investigation if, there is no Security Council determination of aggression within six months of the Prosecutor’s notifying the UN General Assembly, and the Pre-Trial Chamber has authorized the commencement of the investigation). Another potential innovation – the provision would be put into a whole new Article 8bis.
There was some discussion about the American “understandings.” As a result of bilateral, the “understandings” have been modified as follows:
First Understanding – This Understanding posits that the proposed Article 8bis definition of aggression only applies to the Rome Statute. It seems no State will accept this requested language, in particular: “ . . .and shall not be interpreted as constituting a statement of the definition of “crime of aggression” or “act of aggression” under customary international law . . .”
Second Understanding – Pursuant to this Understanding, the aggression amendment will not create the right or obligation to exercise domestic jurisdiction. This is consistent with what is already in the proposals floating around and so will likely draw no objection.
Third Understanding – This Understanding would have language to the effect that proposed Article 8bis is consistent with the principles of General Assembly Resolution 3314 defining and dealing with the crime of aggression (many of whose provisions are already explicitly incorporated into 8bis). The U.S. proposed a series of bullet points in this regard. Most of them create no problem because they are consistent with the 3314 language already in proposed 8bis. But there are two exceptions:
Third bullet point -- it is only a war of aggression that is a crime against international peace – no other country will accept that (and U.S. Ambassador-at-Large Steve Rapp has said he realizes that)
Last bullet point – nothing inconsistent with 3314 or be construed as enlarging or diminishing the scope of the UN Charter (the last segment dealing with the UN Charter struck us as a non-starter)
Fourth Understanding – This one has a reference to what is a “manifest” violation of the UN Charter would be -- in order to be considered a criminal act of aggression – the U.S. wanted to elaborate – it cannot be considered as such unless it would be “objectively evident” to any State conducting itself in the matter in accordance with “normal practice” and in “good faith.” This language too will be squarely rejected! (I wrote in my notes: “This one does not have a snowball’s chance in hell!”)
Fifth Understanding – The U.S. wants the following language: “An act cannot be considered a manifest violation of the UN Charter absent a showing that it was undertaken without the consent of the relevant state, was not taken in self-defense, and was not within any authorization provided by the UN Security Council.”
It was pointed out by that this is already in the definition – except for the part about consent. However, the U.S. has already agreed to take out the consent part of this understanding (apparently, the Americans were told they would have to include self-determination too and that was where the rubber met the proverbial road!).
Sixth Understanding – The U.S. would include the following: “In determining whether an act is manifest, all three components of character, gravity, and scale must be sufficient to justify a “manifest” determination. Satisfaction of one criterion could not by itself be sufficiently severe to meet the “manifest” standard.
It was pointed out that this is already self-evident from the existing definition. This proposed Understanding does not change anything or do any damage. (The language in proposed 8bis is in the conjunctive, not the disjunctive.)
After the meeting, I had coffee with Robbie Manson, one of the true experts on the crime of aggression within the NGO community here. Robbie is from the UK and has been a peace activist attorney for many years. He worked on the ICJ nuclear weapon advisory opinion matter (as did Roger Clark!) Robbie also worked on the UK R. v. Jones, et al. case (an important victory for those seeking to criminalize aggression). In that case, in the days preceding the invasion of Iraq by the Coalition forces (including UK forces), groups of war protesters committed acts of civil disobedience on British military bases to disrupt what they thought were unlawful preparations for an aggressive war. Robbie represented some of those protesters. The case went up to the House of Lords on the issue of whether individuals can rely on the alleged prevention of aggression to justify otherwise unlawful actions under English law (Robbie wrote the brief for the appellants). The Law Lords ruled that aggression is a crime under customary international law (even if not under English law). The finding regarding customary international law is extremely helpful for those advocating for the criminalization of aggression here. Robbie and I talked about the UND Center for Human Rights and Genocide studies and told me he would love to come to UND and present. He said he would self-finance it! I told him he was more than welcome! (He said he would let me know when would be good for him).
After this, I walked down to the “People’s Space” – another series of big-top tents by the shores of Lake Victoria. This space has been used during the conference for various public events, including performing arts and a moot court session. I had run into Adam Birnbaum, the Boston attorney from our safari. We have been having some terrific conversations (he’s extremely smart and well-informed). We walked down to the shores of Lake Victoria and talked about the prospects of success at the Conference. I told Adam I was starting to feel glimmers of optimism again. I said I felt it was important to adjust our expectations. I think we’ll be able to get what people are referring to as “Definition Plus” – the crime of aggression will be defined, the elements of the crime will be included, and perhaps we’ll have the Security Council trigger mechanism. And then we would have another review conference scheduled. I think that is a realistic outcome at this point. It may not be the final desired outcome but it would represent an important step along the way. The sun was going down and the beauty of the sunset over the lake seemed to reinforce my sense of optimism. Adam and I snapped some photos (including some of some amazing looking Marabou Storks that were walking around the area quite close to us! They look like skinny old men hunched over and deep in thought!).
After this, I walked back up the hill and caught a shuttle back to the hotel. Once there, I rang Chandra and we went to dinner at Nawab – a fantastic Indian restaurant perched atop the Garden City Mall. It was a spectacular evening with a gentle breeze and the lights of Kampala twinkling below us. I had a couple Nile Specials (local Ugandan beer) and went home feeling quite content.
Perhaps this was the calm before the storm. Prince Zeid told us Thursday would be the deciding day. He told us to prepare to stay very late. There is much anticipation in the air. This could be the day the world decides to make prosecution of the crime of aggression a reality.
Thursday, June 10, 2010
What an unexpectedly delightful morning! It certainly started inauspiciously. I was awakened about 3:30 in the morning by a woman screaming at the top of her lungs in front of the hotel. The screaming continued for some time (I’m not clear what it was about as the expletives were being hurled in Luganda (the native tongue here). Afterward, I tried to fall back asleep but could not because several mosquitoes (or one very pesky one!) were buzzing around in my ears. That was the first time I experienced that on this trip (it has tended to happen with more frequency during my African trips so this is not bad to have it happen for the first time on the penultimate night). In any event, I decided I would try to be productive so I answered e-mails and then started to work on the blog. Of course, just as I was starting to get on a roll with the blog, I finally heard from my wife (we had not had any live communication for a couple of days (normally, we would speak via Skype every day but I have been having trouble with Skype here – so we had to settle for an IM session on Facebook). We IMed for some time and then I rushed to finish my blog (and upload new photos, transfer them to Picassa, and then download them back – otherwise the files are too big). Given how slow the internet connection is, e-mailing everything to Rob and Dave took quite some time. So I had missed the morning shuttles. Fortunately, the wonderful hotel staff (in particular, Prakash, the manager), found a shuttle for me. This gave me enough time to inhale breakfast (literally!)(Wheatabix, papaya and pineapple, and a cup of wonderful coffee). I then got into the most comfortable vehicle I’ve been in since my arrival (air conditioning, nice stereo, etc.). The driver, whose name was Davis, was fast and efficient (honking his horn rapidly and almost continuously to cause other cars to move the side of the road!) and we made it to the Resort in record time (perhaps it helped that we had a second passenger in the front dressed in military garb). In dropping me off, Davis gave me his telephone number and told me to call him for a ride home. He seemed warm and genuine so I took his number and told him I would give him a call when I had a better idea of when we would be finishing that morning.
On my arrival, I went through the usual security check and then on to the documentation center to get the latest drafts of reports, papers, etc. No sooner had I arrived than I was standing right next to DSS Chief Teresa McHenry. We had a nice reunion and started talking about the OSI-DSS merger when Rosette Muzigo-Morrison came up suddenly and gave me a big hug. She’s still at ICTR! It was wonderful to see a good friend from the old days. It made it seem like it was not that long ago. We talked about people we knew in common (and of course, this overlapped a lot with Teresa). Rosette is Ugandan and has remained as warm and friendly as ever. It was a really special moment. From there, I walked into the Speke Ballroom and had a nice chat with David Scheffer (and we had our photo taken). Then Robert Petit and Rosette came by and we had another fantastic ICTR reunion (with photos taken). It was great being around all these old friends. So it was a very nostalgic and convivial start to the day!
As expected, the 11 a.m. informal plenary session began with ASP President Christian Wenaweser (now presiding in place of Prince Zeid, as the “Working Group” sessions had come to an end) announcing that there was a new Conference Room Paper (actually a Non-Paper) being issued.
Ambassador Wenaweser then indicated that the moment of truth was upon us. We are nearing the end of the Conference and we needed to agree soon as to what we could adopt tomorrow. We’ve made every effort to reach consensual agreement. He appealed for our continued support.
He noted that the consultations over the past few days had been important and had made significant contributions to this process. He pointed out that there were different proposals floating around and that he had had many consultations with Prince Zeid about them. But he confessed that there was no consensus for any one of them. So that is why he drafted the new Conference Room Non-Paper that addresses some of the big outstanding issues and was limited to those.
He asked that we look at this Non-Paper with an understanding that this was an updated version of what the Working Group had given us. He tried to capture ideas that would help us move forward and get us closer to final stage of deliberations.
He then stated that he wanted to walk us through this paper and then have us adjourn for bilateral/multilateral meetings. He then informed us that there would be a formal plenary session later on at 5 p.m. What follows is his description of the key features of the Non-Paper:
In 15bis, the Non-Paper has tried to capture an idea that has been developing over the past week – separating the triggers, in particular, state referral and proprio motu from Security Council referral. He noted that the idea of an opt-out under Article 125 of the Rome Statute had met with legal criticism. That is why the Non-Paper included a new Article 15bis (1). It was not an opt-out but a declaration of a State Party’s acceptance under Article 12(1) – this is based on Article 12 (not 125) and based on the way the crime of aggression is already situated in the Rome Statute. The Non-Paper also had a new Article 15bis 1ter declaring that there is no jurisdiction over Non-State Parties. In connection with these new provisions in 15bis, one also needed to look at the changes in the enabling resolution. First, in Paragraph 1, there was a specific reference to Article 12(1) of the Rome Statute. And in Operational Paragraph 1, there was a reference to Article 121(5) – 121(4) now seemed to be out of the picture. Hopefully, Wenaweser noted, this would bring us closer with respect to modalities for entry into force.
Then moving to 15ter, he stated that we had a technical error so he would address this separately. He told us he hoped we’d have copies of the correct version soon. As for 15ter, it was the language we knew from the last Conference Room Paper but also had in brackets the option of an alternative deleting of paragraphs 2, 3, and 4 (relating to the green-light option). What was missing was a footnote that was quite important and new. It belonged to the new alternative in the text – i.e., it went with the possible deletion of paragraphs 2, 3, and 4.
Here was the footnote:
“The suggestion has been made to delete paragraphs 2, 3, and 4. This would dispense with the need for a determination of an act of aggression by the Security Council in order to proceed, bearing in mind that this article should not negatively affect the ability of the Security Council to exercise its competence under Art. 13(b).”
Regarding Annex III of the new Non-Paper, the old Conference Room Paper Report had two references to possible additional understandings. Germany had facilitated an effort to find common ground regarding understandings. Those understandings were now reflected in the new Non-Paper. There were two new understandings in particular contained in paragraphs 7 and 8. One was that aggression was the most serious and dangerous form of the illegal use of force; and thus a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the UN.
The other deals with whether an act of aggression constitutes a manifest violation of the Charter of the UN – in particular, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself. (Apparently, during consultations, the Americans did not do a very good job of persuading other delegations as the merits of their proposed Understandings. The Americans had originally requested that six Understandings be included – they only got two watered-down ones in the end. The American representative supposedly made a very important concession – he let go the Americans’ insistence that the purpose of an intervention be considered in assessing whether an act of aggression had taken place (given potential humanitarian missions) -- without even putting up a fight. Was he asleep at the switch?)
Ambassador Wenaweser stated that this new proposal should be very important for helping bring things to fruition at this Conference.
He asked that we study it carefully and discuss it widely. He would conduct informal consultations on this text all day until 5 p.m.
Over the next four hours, I met with various individuals and discussed the proposal and how it came about. It was an extremely hot and humid day (the most stifling day since I had arrived in Kampala) and I was joking with delegates that the weather fittingly matched the heat of emotions during this intense day. At one point, I was studying the text on one of the couches of the Resort lobby and Bianca Jagger walked by and winked at me! This would probably be as close as I’d ever get to rock ‘n’ roll royalty!
We all convened at 5:30 p.m. and went through some formal exercises related to the work of the Credentials Committee, the Drafting Committee, and the Working Group on Other Amendments. Regarding the draft Amendment to Article 8, the UK had a problem with the wording and that was amended through the delegations’ oral suggestions (the UK head of delegation seemed quite supercilious in complaining about the wording and the President seemed quite irritated with him!). It was adopted as orally amended.
The Article 124 amendment was officially adopted – it would be retained for now but subject to review at the 14th Assembly of State Parties.
The President told us he was handing out a new Non-Paper on aggression. He asked everyone to review it carefully. We would meet again in plenary at 10:30 p.m. On the way out of the Conference Room, Roger Clark called me over and introduced me to Bianca Jagger. So the wink was followed up by a handshake and some brief pleasantries. We’re making progress!
I then went with “Team Roger” to the Cassia Lodge for dinner (Ashley – Roger’s daughter – Natalie and Michael and I were joined this evening by Astrid Reisinger Coracini from Austria (law professor University of Graz) and Elaine (I did not get her last name but she is a Kiwi doing her Ph.D. on aggression in the UK). My driver from the morning, Davis, was waiting for me at the security entrance point and offered to drive all of us to Cassia (he offered to make two trips as it would have been a tight squeeze in his car with all of us in there at once). The Cassia Lodge is situated on a hilltop a few miles from the Munyonyo Resort. It is at the summit of a very steep hill. But what a gorgeous view when one reaches the top! There, laid out before us, was the great sea-like expanse of Lake Victoria, ringed by sloping, verdant hillocks and sparkling dimly in the dying glimmers of sun. It would have been hard for the food to measure up to the scenery but it wasn’t far off. I had Moroccan chicken and it was quite good. But I was so caught up in the atmosphere and the great conversation that I hardly seemed to notice it had disappeared from my plate as night gathered around us and points of incandescent light started to dot the hills below.
We returned to the Munyonyo Resort (having all squeezed into Davis’s Toyota Forerunner – it looked like a fraternity prank!) and our meeting finally started at 11:05 p.m. And soon thereafter, history was made. The so-called “Belgian Amendment” was adopted by consensus and for the first time in its existence, the Rome Statute of the International Criminal Court was amended. I left my seat and went over to the Belgian representative, gave him a hearty handshake and said with heart-felt emotion: “Félicitations”! (I was one of a few participants who did this – the Belgian delegation was seated very close to me). Belgium was also congratulated on the record by a handful of countries including Non-State Parties the United States and Israel. Amnesty International was responsible for a little drizzle on the parade – it diluted its expressions of support with complaints about the Amendment’s not covering non-ratifying members and Non-States Parties and limitation with respect to law enforcement situations.
Next we turned our attention to aggression. The Chair mentioned that a Non-Paper had been handed out and walked us through the key new additions.
Operative Paragraph (OP) 1: For purposes of clarity, there were now technical references to Articles 5(2) and 15bis declaration option.
OP 4 – Provided for review of the aggression amendments seven years after the beginning of the Court’s exercise of jurisdiction over the crime of aggression.
15bis – There was a new element in 1bis on the issue of delayed entry into force (which was favored by many and found strong expressions of support in consultations). This clause provided for delayed entry into force as follows – 5 years after adoption by an individual country and then one year after ratification by 30 States Parties.
15bis, 1ter – lack of clarity concerns were there so the text was modified to introduce reference to the “crime of aggression.” In the 2nd part, the President addressed concerns regarding the possible expiration of such a declaration. There was now a mandatory clause to review that decision within 3 years (with a view toward the declaration’s being withdrawn – a possibility under the Vienna Convention on the Law of Treaties).
15bis, 1quater - the language was cleaned up without changing the substance
Para 4 – presented the “alternatives” – Security Council “green light” or “red light” -- this has been a big focus of concern for a while. Additional language was added to make these alternatives more acceptable
Alternative 1 -- there was put in brackets the possibility that the Security Council could, instead of making a determination of an act of aggression, give the Prosecutor the “green light” to go forward with an investigation.
Alternative 2 – this provided for an enhanced internal filter – the entire Pre-Trial Division (instead of merely a Pre-Trial Chamber) would have to sanction an investigation and, added in brackets, was a provision that would stipulate that prosecution could go forward on authorization of the Pre-Trial Division unless the Security Council were to override this authorization – this would be a one-time case-kill – providing the Security Council with more power than it would have under Article 16, which authorizes only a 12-month suspension that must be renewed every year to have continued effect .
The President shortened the text and used Alternative 2. He deleted language of the previous version that was bracketed and the footnote has disappeared from the text.
This reflected adjustment of language that were made to account for a delayed entry into force
The President admonished us to focus on proposed Article 15bis, paragraph 4. He said he would be available for consultations until the informal plenary meeting scheduled for Friday at 11:30 am. He asked the assembly to process this new text carefully and come back for the final stretch. He said we would be concluding the next day and must arrive at a decision – the remaining gaps must be bridged.
On exiting the area of the Speke Ballroom, at around midnight, Davis was there waiting to drive me home (I started to refer to him as my “guardian angel”!). It seemed hard to believe I would be leaving Kampala late the following evening. Davis asked when he should pick me up and I asked if he could be there at 9:30 a.m. I knew I would have to catch up on the journal and then pack. It was clear I would not be getting much sleep. That was even more apparent when I got to my room. There were mosquitoes buzzing around so someone from the hotel staff sprayed my room. I decided to wait in the hotel lobby while the spray cleared in my room. While in the lobby, minding my own business, the hotel General Manager, Anurag, stopped by and asked me why I was waiting in the lobby at such a late hour. I explained and he asked me to join him for a drink while I waited. So I sipped on a bitter lemon soda (a fantastic beverage I wish we had in the US!) while Anurag, who hails from India, told me about his family and his recent move to Uganda (he had taken this job only a month before and left his family behind in India). I told him about my family and we showed each other family photos. I got back to the room and started to pack. I decided that, in this situation, sleep would be overrated!
Friday, June 11, 2010 -
Final Day of the Conference
I finished packing, paid my bill, and said goodbye to the extremely friendly staff at the Speke Hotel. The reliable Davis was ready to go at the appointed hour and I arrived at the Speke Ballroom for the final historic day of negotiations. It was a very tense day filled mostly with bilateral and multilateral negotiations. I had spoken previously in this Journal about some of the geographic divisions in the negotiations. Generally, the more powerful nations, including most prominently the P5, wanted to limit the ICC’s aggression jurisdiction. The less powerful, including the African/Latin nations, and the Nonaligned Movement, wanted a more liberal jurisdiction regime and greater independence for the ICC. By Friday, much progress had been made in bridging the gaps between these two blocs. But some important sticking points remained. Of these, the thorniest by far was the choice between the two bracketed alternatives remaining in proposed Article 15bis. In other words, in the absence of a Security Council determination of aggression, would the Prosecutor be precluded from proceeding with an investigation (the so-called “red light” option) or would the Prosecutor be allowed to proceed (after waiting for six months) provided the Pre-Trial Division authorized the commencement of the investigation and the Security Council had not explicitly expressed that the investigation should not proceed. (the so-called “green light” option). After a day of false-alarms (plenary meetings convened and then canceled), last-ditch bilateral and multilateral negotiations, and feverish attempts at re-drafting, we finally met in plenary at 5 p.m.
And we had more or less made it to the Promised Land. Miraculously, the battle between the 15bis red versus green light options had been decided – the green light won out. And instead of the Security Council being granted a definitive kill option if the Pre-Trial Division authorized the investigation, it was limited to an Article 16 suspension. In other words, to keep the investigation on ice, the Security Council would need to continue to issue Article 16 suspension resolutions every year (per Article 16, they are only good for one year but can be renewed indefinitely). So this was a major victory for the less powerful bloc. And, for all intents and purposes, we had arrived at an agreement. There was only one issue left to resolve – the length of time for the delay of entry into force. I, along with many of the delegates and other members of the NGO community, would not be able to stick around to see that last detail ironed out. Ambassador Wenaweser called for the assembly to reconvene at 8:30 p.m. My plane out of Kampala was to leave at 9:50 p.m. and Davis and I had agreed to meet at 6:30 p.m. to drive to the airport. I approached Ambassador Wenaweser, told him I felt we were entering the Promised Land, and thanked him for all his efforts in getting us there. He gave me a hearty handshake, thanked me, and asked me to stay in touch. It was a nice way to walk away from the Conference.
Interestingly, just as I was about to leave, the World Cup was starting. The first match between host South Africa and Mexico was being televised in the People’s Space. I went down there with many of my friends and we watched a band play African music and soaked up the good spirit. The Kampala Conference was ending but to all assembled it felt like a new beginning. Not just a beginning of the world coming together to play football in South Africa, but a beginning of the world establishing a legal framework to punish wars of aggression. Think about world history to this point. Think about all the unjustified military attacks repeated over the millennia with complete impunity. Egypt’s subjugation of Nubia. The Roman conquest of Gaul. The Viking raids of the British Isles. The Hunnish plunder of Italy. The Crusaders’ sacking of Constantinople. Napoleonic France’s occupation of Spain. Fascist Italy’s take-over of Abyssinia. Indonesia’s capture of East Timor. Iraq’s invasion of Kuwait. The victims of such aggression had no formal legal recourse. But, with Friday’s accomplishment, justice may be available to future victims of unjust war. Nuremberg’s pledge of accountability for aggression was still alive. And Nuremberg prosecutor Ben Ferencz, who had spent all of his post-Nuremberg life working to criminalize aggression, was there to see that pledge redeemed after more than six long decades. If the march of history is a long trajectory toward eventual Pax Univeralis, the Kampala Conference will no doubt be recognized as one of its key milestones.
As Davis drove through the back streets of Kampala en route to the airport, we listened to the first match of the World Cup on the radio (it was in Luganda so he was translating for me). I could see people gathered in cafes watching the game with rapt attention. There seemed to be a fitting sense of unity in the air. We arrived at the Entebbe airport with more than two hours to spare. As I was about to go through airport’s passport control, I ran into Steve Rapp and we were able to say our proper goodbyes (we even managed to take some photos). After clearing security, I found a restaurant and ordered dinner (chicken, chips and ginger beer). Sitting at one of the restaurant’s tables I found my Norwegian friend Christian Ranheim, Programme Director of the ICC Legal Tools Program (and we had a nice conversation while eating). Before long, there was an announcement that our plane was boarding and it was time to say goodbye to Uganda. A cramped and sleep-deprived eight-hour flight ensued.
On landing in Amsterdam, there was a brief scare. One of the Conference participants announced, as we were deplaning, that she had received a text message form a fellow participant still on the ground to the effect that only the definition of aggression was adopted. My heart sank. I then had an interesting discussion about this while walking through the Schiphol airport with Susana SáCouto, Director of American University’s War Crimes Research Office. We thought the text message must have been a mistake. After our 5 p.m. plenary, we were essentially there – how could everything have been derailed over one final detail regarding delayed entry of force?
On my arrival to the gate for my flight to Oslo (where I would be teaching for the UND Norway summer school program), I was quickly disabused of such an unpleasant notion. Christian Ranheim informed me that all the amendments had passed (including the jurisdiction-related ones -- this was later confirmed by an e-mail from Ron Slye and Facebook posts from my dear Kiwi friends Michael and Natalie – it took the Conference until 1:30 in the morning to finalize everything – poor Natalie and Michael had a 7 a.m. flight!). In the end, the delay of entry into force would be seven years – until 2017 – assuming a 2/3 majority of the Assembly of State Parties would approve the amendments at that point (that was the same delay-period we had seen the day before – I feel pretty confident that 2/3 will vote in favor of the amendments in 2017). What a sense of relief and then elation! I was quite tired on the flight to Oslo but neither the additional flight time nor the rainy weather on arriving in Oslo could dampen my sense of jubilation over what was achieved in Kampala. After 48 hours of no shut-eye (as well as inhaling Kampala’s polluted air for two weeks!), I was very happy to be in my Oslo hotel room. I crawled into bed and had a very deep and satisfying sleep.
Oslo, Norway - Monday, June 14, 2010
I am now much better rested and ready to conclude this Journal. First, let me try to summarize the events of the past two weeks in Kampala. On a more abstract level, it was heartening to see so much of the world gathered together in support of the International Criminal Court. The seeming re-engagement of the United States was particularly encouraging – the U.S. appeared to have the largest delegation at the Conference and was clearly an active participant. Its rhetoric was positive and its efforts to reassert leadership in the development of international law was apparent (even if at times misguided). This bodes well, in my view, for the future of international criminal justice (even if the U.S. does not ratify the ICC treaty for years to come).
On a more concrete level, the stocktaking, even if at times repetitive and not particularly profound, helped put States Parties, civil society and Court administrators (and even Non-State Parties) on the same page with respect to some very important issues. And although Article 124 was retained for now (subject to review, however, at the 14th Assembly of State Parties), the amendments to Article 8 criminalizing the use of poison, poisoned weapons and gases, as well as “dum-dum” bullets as war crimes in internal armed conflict was certainly a positive development. These are horrible weapons that were introduced in the late 19th and early part of the 20th Century. We must eventually get around (and soon, I hope) to criminalizing use of inhumane weapons developed in the second half of the 20th Century, such as nuclear bombs and Directed Energy Weapons (DEWs, including laser, particle beam, and sonic weaponry), as well as other weapons of mass destruction (including bacteriological weapons). In fact, we need a per se prohibition of all weapons that cause superfluous injury or unnecessary suffering or that are inherently indiscriminate – such as land mines and cluster munitions (the current version of the Rome Statute, in Article 8(2)(b)(xx), contains hortatory language only regarding criminalization of such weapons – an amendment under Articles 121 and 123 would be necessary to achieve this).
Of course, the most concrete achievement of the Kampala Conference relates to the crime of aggression. While the definition of the crime may not be ideal (the enumeration of G.A. Resolution 3314 examples was not necessary and could cause problems down the road and it unnecessarily limits the scope of covered activity), it is certainly good enough. The delay of entry into force is unfortunate but I think adoption by 2/3 of the States Parties in 2017 (after 30 Sates Parties ratify by 2016 and the one-year wait period post ratification) is a foregone conclusion. And in the millennial context of all human history, seven years is a relatively short period of time. But after the delay-period is over (even if it lasts somewhat more than seven years), the ICC will have all three trigger mechanisms at its disposal. And while there are some significant limitations with respect to the state-referral and proprio motu triggers, I do not see them as unduly prohibitive. In short, a new era of peace may soon be upon us.
On a personal level, the Conference was incredibly educational and will certainly help make me a more effective teacher (especially with respect to experiential treaty negotiation pedagogy) and scholar in years to come (it was quite instructive to witness, and to some extent participate in, the nuts and bolts of multilateral treaty negotiations). At the same time, it was great to see old friends and make new ones. And to do it in Africa made it even more special – this fascinating continent will always have a special place in my heart. What an unforgettable fortnight!
I would like to thank the University of North Dakota for making all of this possible. Special thanks go to the School of Law and Dean Kathryn Rand for her support on every level. I am also very appreciative for the financial assistance provided by the Office of Instructional Development. I hope this Journal helps open up the world of international criminal justice for the great students of the University of North Dakota. I look forward to speaking with our campus and our community about this historic experience on my return to campus. Until then, as they say in Uganda: “Mweraba” (Goodbye) and “Eggwiiso” (Good luck)!