Greg Gordon on the Review Conference and Aggression

The following is a guest post by Greg Gordon, Associate Professor of Law and Director of the Center for Human Rights and Genocide Studies at the University of North Dakota.  He attended the Review Conference on behalf of the International League for Human Rights.

A VIEW OF THE AGGRESSION AMENDMENTS FROM KAMPALA

Having been on the ground in Kampala, my take on the ICC aggression amendments is quite different from Kevin’s. Let me begin by saying that we could have very easily had no operationalization of the crime at all. Mere adoption of a definition – a largely hollow gesture – was a distinct possibility. Kevin’s analysis of 15bis is essentially correct but I think some contextualization is in order.

First, the fact that the two non-Security Council trigger mechanisms exist at all is a minor miracle. Many believed we would walk away from Kampala with only “Definition Plus” – with the “Plus” meaning Security Council trigger only. After all, as I said, it was entirely within the realm of possibility that we would have nothing other than a definition (so even “Definition Plus” seemed like a positive outcome – the fortnight was quite an emotional rollercoaster!).

Second, not only were the additional two trigger mechanisms preserved, but we were able to secure the so-called “green light” option (allowing the Prosecutor to investigate in the absence of a Security Council determination of aggression – provided six months has passed, the Pre-Trial Division has given the investigation its blessing, and the Security Council has not issued an Article 16 resolution suspending it for 12 months). That is clearly preferable to the “red light” option which would have killed any investigation ab initio without a Security Council determination of aggression. Moreover, the filter mechanism could have been more onerous and less efficient as it might have had to go through an external body, such as the International Court of Justice or the General Assembly (these were distinct green-light possibilities going into the Conference). Similarly, the Security Council could have been granted one-time, case-kill veto power but was instead limited to its Article 16 power. Believe me, this represented a tremendous amount of work and compromise. The Security Council P5 nations and most European countries were against the entire notion of Article 15bis.

In that regard, it is also important to consider the opt-out regime. I think this was a fait accompli, regardless of what had happened at the Conference, given Article 121(5), which declares: “Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those State Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.” The rub is in the second sentence. Apparently, one or more of the Security Council P5 nations managed to have this clause inserted at the last minute before the close of the 1998 Rome Conference (American fingerprints are all over this!). Among other things, they must have been thinking about protection from any future aggression amendment (expressly contemplated by Article 5(2)).

There was an argument that only Article 121(4) applied to the proposed aggression amendments. Article 124 provides: “Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them.”

Certain parties argued that Article 121(4) applied because Articles 5, 6, 7 and 8 would remain untouched (the definition would be inserted through a new Article 8bis and the crime would become operationalized through various other articles including 15bis and 15ter). Unfortunately, that argument had little traction.

As a result, there was a proposal circulating around called “ABS” (for its originators – Argentina, Brazil and Switzerland) that sought to bridge the gap between paragraphs (4) and (5) by phasing in operationalization as follows – upon one ratification, the Security Council trigger would go into effect one year after the ratification (thus supposedly incorporating paragraph (5)’s approach). Then, once seven-eighths of the States Parties ratified, the other two trigger mechanisms would go into effect. But there were many problems with this. First, it was not clear that Phase 1 was actually consistent with paragraph (5) (I felt pretty certain it was not given that paragraph (5) contemplates acceptance on a state-by-state basis). Second, there was concern about how long it would take to reach the seven-eighths ratification mark. And once that were reached, how would the remaining one-eighth have been treated? Should they have been able to opt out? On top of that, it was not clear how the second sentence of 121(5) should be interpreted in this context. So there were those advocating for a “positive understanding,” which would have conferred jurisdiction if an opt-out State committed an act of aggression on the territory of an opt-in State. And there were those who advocated for a “negative understanding” pursuant to which the former scenario would not confer jurisdiction. In the end, the ABS proposal proved too complicated and left too many loose ends.

Canada floated its own proposal — a so-called “menu approach” that would have allowed 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 for all states). Even the UK had a problem with this ridiculously lax approach. It was based so much on consent that it resembled an inter-state dispute settlement mechanism, seemingly more appropriate for the International Court of Justice than the International Criminal Court. This would not, the UK argued, be consistent with the principles of criminal law (imagine if domestic criminal prosecution were activated strictly on the consent of the accused and based on his selection of charges!).

I believe this bit of context helps in assessing the significance of the opt-out provision that was ultimately adopted. Given Article 121(5), consent could not be taken out of the equation altogether (despite the creative but strained effort to do so in the ABS Proposal). But the end result could have been much worse. For one, there could have been an “opt-in” provision (setting the default at opt-out and requiring an affirmative opt-in declaration for jurisdiction over an individual state). And within that extreme consent regime, individual States could have been granted the right to choose triggers (think Canadian proposal). Seen in that light, a default opt-in requiring an opt-out declaration to preclude exercise of jurisdiction and calling for a formal reconsideration of any such declaration after three years is not as horrible as it may seem at first blush (there is a kind of shame factor in opting out so that may help).

This is especially true when one considers that all these conditions attach to 15bis only (in other words, when Article 13(a) and (c) – state-referral and proprio motu are the triggers). Article 15ter covers Security Council referrals (the Article 13(b) trigger) and that operates wholly outside any consent regime. In other words, the Security Council will be entitled to refer for an aggression investigation/prosecution any State (even if opted-out or not a party to the Rome Statute).

Personally, given how hard the northern countries were trying to scuttle any aggression jurisdiction amendment, I was prepared to be happy with Security Council referral jurisdiction alone. For what it’s worth, I do not think one should compare aggression with the Statute’s other core crimes when it comes to Security Council involvement. Security Council interference with authorizations to investigate/prosecute genocide, crimes against humanity and war crimes is, in my opinion, problematic in all circumstances (although Article 16 may of course still be invoked in reference to an investigation/prosecution of any one of those crimes). But aggression is different. It is the most inter-state-centric of the core crimes. So dealing with it is necessarily more politically charged. It is important to note that not all of civil society was in favor of adopting aggression amendments at the Kampala Conference. For example, Human Rights Watch warned: “Taking up prosecutions of aggression could link the ICC to highly politicized disputes that could undermine the court’s credibility and ability to address genocide, war crimes, and crimes against humanity.” In my view (contrary to the position taken by HRW), that is why Security Council referrals are not problematic in the case of aggression — they provide the Court with instant institutional sanction and resource/political support.

In fact, in the real world, I wonder if an aggression prosecution would be viable without Security Council backing in the first place. In the absence of a major global conflagration (perhaps even rising to the level of World War III), I don’t see an aggression prosecution being brought against one of the P5 (recall that Article 16 is there regardless). And I don’t see a prosecution being brought unless the case is very egregious (recall, the crime has to be a “manifest” violation of the UN Charter and, given the “understandings” appended to the amendments — as noted by the Heritage Foundation’s Brett Schaefer quoted in Julian’s last post – “these understandings should help guide the court in dismissing lesser, frivolous, or politically motivated allegations of aggression…”). So I see the crime being charged very rarely anyway. The classic recent case (relatively) where I could see a realistic aggression prosecution would be the 1990 Iraqi invasion of Kuwait. If such an incursion were to occur today, I think one could count on a Security Council referral (although, interestingly, the Security Council did not refer to Saddam Hussein’s subjugation of Kuwait as “aggression” – in fact, that term has been quite sparely used in Security Council resolutions since adoption of the Charter). I also see the threat of an aggression prosecution as an additional tool for the Security Council in deterring belligerent nations from launching illegitimate attacks (or persuading them to withdraw once an attack has been launched). I know there is a lot of debate about the deterrence value of ICL but here I think it could actually have some teeth.

I realize that there is frustration regarding the delay of entry into force. And I share that frustration. But I think it’s necessary to consider that certain portions of the amendments definitely implicate Article 121(4) and so, if that provision were followed to the letter, we would have conceivably had to wait until seven-eighths of States Parties ratified the amendments. Of course, it’s quite possible that could have taken longer than seven years (or that it might have never happened at all – that’s well over 90 countries – closer to 100 — given the current membership of 111 States Parties). There is also the requirement that 30 States Parties ratify the amendments before they can go into effect. Given the support shown for the amendments by the African/Latin American-Caribbean/Pacific Island/Non-Aligned Movement nations (with scattered European support), I honestly don’t see that being a problem (again, that is only a fraction of the seven-eighths number contemplated in Article 121(4)). Largely for the same reason, I believe the amendments will be approved by a two-thirds majority of the Assembly of States Parties in 2017. What is more, even factoring in the year-long wait time, I can imagine securing the 30 ratifications quickly enough to activate aggression as early as 2017. In the meantime, the ICC can learn to deal more effectively with the core crimes already in play.

So while the aggression deal hammered out in Kampala is far from ideal, it is much better than it could have been. That said, there are some subsidiary concerns. It is important to remember that aggression cases will be triggered through the normal Article 13 mechanisms. With respect to the Security Council trigger, the language in Article 13(b) has the Security Council referring a “situation” (not a specific act or crime). What if, once aggression is activated, a situation like Darfur came along? There is a good argument that the Security Council will be more reluctant to refer mass atrocity situations like that if there were a risk that the Prosecutor would see this as carte blanche to launch an aggression investigation (and one can easily imagine mass atrocity situations with a greater likelihood of being potentially connected to an international armed conflict than the situation in Darfur). Clearly, a chilling effect on Article 13(b) referrals would be an unfortunate byproduct of operationalizing aggression (although I can imagine that any such Security Council resolutions would specify the crimes providing grounds for investigation and this could arguably deter any fishing expeditions).

Another concern arises from the 15bis jurisdiction. Aggression is quite different from the other core crimes. Does the Office of the Prosecutor have sufficient expertise in the area of jus ad bellum to conduct proper investigations? Can the Pre-Trial Division serve as an effective filter mechanism? The ICC is going to need to do a lot of training and hiring to prepare for this new part of its mandate. One would hope it will use the wait-period wisely to get up to speed (potentially another reason, by the way, that the delayed entry into force may not be such a horrible thing).

And there are many other questions that remain unresolved. For example, how will this new crime fit within the complementarity regime? (There is an “understanding” appended to the adopted resolution that the aggression amendments “shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.”) What effect will the amendments have on the prospects for municipal legislation and potential aggression prosecutions down the line?

And there are, of course, many other details over which we could quibble. The flood of new scholarship on this issue will soon be upon us. But it’s important not to lose sight of the big picture. Aggression now has a strong toehold in the framework of international criminal law. And recall that a review conference is scheduled for seven years after the jurisdiction goes into effect. That is a long time from now but I’m betting that by then the world will have become much more acculturated to this new offense and that, if necessary, the crime of aggression will ultimately emerge less “neutered” (to borrow Kevin’s phraseology).

The main point is that Nuremberg’s pledge of accountability for aggression is still alive. And Nuremberg prosecutor Ben Ferencz, who has spent all of his post-Nuremberg life working to criminalize aggression, was there in Kampala to see that pledge redeemed after more than six long decades. As Joanna Harrington noted in her last EJIL blog post: “Those impatient to see the ICC exercise its jurisdiction over the crime of aggression may take comfort that it is now simply a matter of time.” 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.