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The topics to be submitted for discussion at the Kampala Conference

Antoni Pigrau
Professor in the Department of International Public Law, Rovira i Virgili University and member of the ICIP Board
Antoni Pigrau

Antoni Pigrau

The Kampala Conference, at which the 111 States Parties to the Rome Statute can participate and vote, will consider various issues in the form of amendments to the Statute.

Of the amendments that will be submitted for debate, the most important refers to article 5.2 of the Statute, concerning the inclusion of a definition of the crime of aggression. It was impossible to reach agreement on this point in 1998, and the outlook is no better today. The text proposed by Liechtenstein, as President of the Working Group on the crime of aggression (proposal for a new article 8 b)) which has been working during this period, is a text that includes several options. The disagreement lies not in the definition of the crime of aggression itself, as there is agreement on attributing it to "planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations." As regards the contents of the concept of aggression, there is an agreement to use the stipulations of resolution 3314 of the United Nations General Assembly, of 14 December 1974. The controversy is related to the function of the Court (a judicial body) and that of the UN Security Council (a political body), to which the United Nations Charter attributes the competence of determining the existence of an act of aggression (proposal for new article 15b)), and specifically, whether the Court can ascertain the existence of a crime of aggression, or whether this is subject to the need for a prior assessment by the Security Council in this regard. The worst of the options, from the point of view of the Court's judicial independence in investigating similar situations that could be dealt with on an equal terms due to the political nature of the Security Council, is the one that reads: "In the absence of such a determination, the Prosecutor may not proceed with the investigation in respect of a crime of aggression". It should be borne in mind that three of the permanent members of the Council (the United States, Russia and China) are still not States Parties to the Statute. This type of option would be worse than postponing the definition of the crime.

Another of the amendments covered in the same Statute is the review and possible deletion of article 124, which allows a new State Party to opt for excluding from the Court's jurisdiction war crimes related to it for a period of seven years. This possibility has only been used by France (who waived it in 2008) and by Colombia (the seven years expired on 1 November 2009).

The other amendments refer to the inclusion of new types of crime or new crimes in the competence of the International Criminal Court. Belgium has presented an amendment, with the support of Argentina, Austria, Bolivia, Bulgaria, Burundi, Cambodia, Cyprus, Germany, Ireland, Latvia, Lithuania, Luxembourg, Mauritius, Mexico, Romania, Samoa, Slovenia, and Switzerland to extend three types of war crime already stipulated for international armed conflicts to non-international armed conflicts (article 8.2.b, items xvii to xix), referring to the use of poison or poisoned weapons; the use of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, and the use of bullets which expand or flatten easily in the human body.

Mexico has presented a specific amendment on the inclusion of the use of nuclear weapons or the threat to do so as a specific war crime. The Netherlands has proposed a repetition of the procedure used with the definition of aggression, but with regard to a new crime of terrorism. This would involve including a new item e) (the crime of terrorism) and a new section 3 in article 5. A working group will prepare a definition of the concept of terrorism before the crime became operational before the Court and this would only occur when the definition was approved at a subsequent conference of the States Parties.

Trinidad and Tobago has proposed inclusion of a new crime in article 5: international drug trafficking. The proposed definition suggests that the crime, of which there would be various types, would fall within the jurisdiction of the International Criminal Court only when it "poses a threat to the peace, order and security of a State or region".

Finally, Norway has presented an amendment aimed at facilitating international cooperation in adapting penal facilities where people condemned by the Court to have to serve their sentences, in order to avoid them having to be concentrated in the most developed countries, as occurred in the cases of the international criminal courts for ex-Yugoslavia and Rwanda.

Apart from the debate on amendments to the Statute, other political considerations that have made this early phase of the International Criminal Court a complicated one will also be considered.

These included the unfortunate role played by the Security Council in the case of Darfur, in which after submitting the situation for investigation, it received the warrant for the country's president's arrest with astonishment and reluctance, and has to date been unable to exert sufficient pressure on Sudan for that country to co-operate with the Court.

Another of the difficult issues that the States Parties have to discuss is the effect of the unilateral Declaration by the Palestinian National Authority of its acceptance of the Court's competence, which was formalized on 22 January 2009, on a retroactive basis and with effect from 1 July 2002. The acceptance of this declaration issued by the only internationally recognized representative of the Palestinian population and territory is equivalent to that presented by a "State", and according to article 12.3 of the Statute this would extend the competence of the Court to crimes committed in the territory or by Palestinians, and especially to the attacks by Israel on the Gaza Strip in December 2008 and January 2009. Should this be interpreted otherwise, this would mean that there is an area and certain people in the world with no international representation, and therefore that the protection of the International Criminal Court would not be applied to the territory and population of Palestine until the creation of a Palestinian state. In this sense, an interpretive declaration by the State Parties who maintain that they are committed to the creation of a Palestinian State, on making the Palestinian National Authority equivalent to a State, for the purposes of the Statute of the International Criminal Court, would be of great legal value from the point of view of preventing impunity for crimes committed in the Gaza Strip documented in the reports by Amnesty International, Human Rights Watch and the committee of experts appointed by the League of Arab States and the United Nations Human Rights Council.

For more information:
International Criminal Court Website
International Criminal Court Coalition Website
Kampala Conference Website