Thursday, 3 December 2009

Amending the Rome Statute: Recent Developments

The recent session of the Assembly of States Parties of the International Criminal Court provided some clarity about the upcoming Review Conference, and the changes to the Rome Statute that will be proposed. This material is not yet available on the website of the Court, at least as far as I know. If a reader of the blog knows where it can be viewed, please let us know.
Here’s what I’ve managed to learn about this:
Aside from the issue of the crime of aggression, there have been several proposed amendments to the Statute (the draft amendments can be viewed here:
Netherlands: introduce the crime of ‘international terrorism’. The Netherlands’s proposed amendment looks exactly like article 5(2), except that it replaces ‘aggression’ with ‘international terrorism’. Thus, it postpones debate about the actual definition of the crime, but aims to place a marker in the Statute. I understand the Dutch will withdraw the proposal, which did not get much support during the recent meeting of the Assembly of States Parties.
Trinidad and Tobago and Belize: introduce the crime of drug trafficking. It probably did better than ‘international terrorism’, but there is hardly enough support for it to go forward to the Review Conference in Uganda next year.
Prohibited weapons: There were several proposals, from Belgium and Mexico. Mexico sought a prohibition of nuclear weapons. Its amendment was a political statement, and nobody expected it to have any chance of success. Belgium has a number of amendments. The first, and the only one that will go to Kampala, is to reconcile an anomaly in the Statute by which the three prohibited weapons paragraphs in article 8 (8(2)(b)(xvii), (xviii) and (xvix)) only apply to international armed conflict. There seems to be general agreement that this should be extended to non-international armed conflict. It is all quite symbolic, because these paragraphs mainly refer to archaic weapons. Concerns about their use, either in international or non-international armed conflict, belong in the 19th century, not the 21st. The other Belgian amendments attempt to introduce prohibitions of more modern weapons, including anti-personnel mines. There does not seem to be any traction for these amendments.
Here is a good topic for a law review article. We seem to be unable to apply international criminal justice to the issue of prohibited weapons. There are a few harmless provisions in the Rome Statute, but a yawning gap, in the form of article 8(2)(b)(xx). The Belgian attempt to fill the hole in that provision has failed. There will be no annex to the article, despite what the provision says. At the International Criminal Tribunal for the former Yugoslavia, there is a prohbited weapons provision in article 3 of the Statute, but it has never been applied. So what is it about prohibited weapons that makes this so difficult?
African Union: Amend article 16 to allow for deferral by the General Assembly if the Security Council fails to act. This is a codification of the ‘uniting for peace’ resolution that dates back to the Korean War. This amendment isn't on the ICC website. Attention should be paid to this amendment, although not because it is likely to be adopted. It crystallizes the frustrations of African States with the Court. Last year, when they looked for a way to forestall the prosecution of President Bashir, they were told this was a matter for the Security Council. But not only has the Council done nothing, African States realize that their voice is not very important in that forum. There are no permanent members from Africa. The Prosecutor echoes the same frustrating replies to African states when he says that the ‘interests of peace’ are dealt with elsewhere, in bodies like the Security Council. Article 16 is only in the Statute as a concession to the permanent 5 of the Security Council. I think the African Union proposal is a neat way of highlighting the political reality, by which the Court and its institutions seem to have delegated a very important part of its functioning to a body that everybody dislikes.
Norway has a rather technical resolution. There isn’t much desire to consider modifications to the procedure and the operations of the Court at the Kampala conference. The general feeling is that we need a few more years of activity before determinations should be made about ‘fixing’ issues within the Statute. I think lots could be done, like reduce or even eliminate the confirmation hearing, limit the scope of interlocutory appeals, provide for separate election of the Appeals Chamber, and so on. But it won't happen right now.
Crime of aggression: Really, there isn’t much new here. The reports of the Special Working Group and of the Princeton meeting have been on the Court’s website since earlier in the year: The Special Working Group has found adequate solutions to virtually all of the problems associated with authorizing the Court to exercise jurisdiction over the crime of aggression, with one exception. Unfortunately, it is the decisive issue: the role of the Security Council. Although a number of options have been identified, the real obstacle is any willingness of permanent members of the Security Council to compromise. None of them has even blinked so far. The Review Conference could choose to defy the Security Council, and vote an amendment without its concurrence. I think this is unlikely, however. Unfortunately, given that the Review Conference will come down to this single issue, there isn’t much in the way of negotiating to be done. At Rome, delegations could compromise on one issue in return for concessions on another. But the Review Conference is too focused. The result is that there is little incentive for the permanent members of the Security Council to make compromises.

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