ICC Review Conference: Early Reports of an Ingeniously Confusing Deal on Aggression
It looks like the ICC Review Conference has reached consensus on a definition of the “crime of aggression” and the mechanisms governing the ICC Prosecutor’s jurisdiction over such a crime. According to the AFP, the new amendment to the Rome Statute provides:
[T]hat the UN Security Council will hold primary responsibility for determining whether an act of aggression has occurred.
But where the Security Council takes no action, the ICC prosecutor or a state party could initiate an aggression case.
The amendment provides for the Security Council to be able to halt any aggression case initiated by the prosecution or by a state party by passing a resolution to that affect.
But such a resolution would need to be renewed every 12 months to stop the prosecution going ahead.
ICC states can exempt themselves from jurisdiction over the crime of aggression by submitting a declaration of non-acceptance to the court. Citizens of countries not party to the court will also be immune from prosecution.
Those exemptions, however, will not apply in cases where the Security Council has determined aggression has occurred.
I await more learned and on the ground reports on the details of the new amendment (Where are you Joanna Harrington?!?). From this report, the amendment sounds like an ingeniously confusing system that gives the Security Council primacy in the initiation of a prosecution, but would still permit an ICC Prosecutor to act against the wishes of the Council. But it would also permit states to exempt themselves, unless the UNSC disagrees. And it will go into effect sometime in 2017, after President Obama’s second term expires, so he won’t have to worry about it. Very nice work by the U.S. team in Kampala. This isn’t exactly what they wanted, but it is not a terrible result either.