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ICC: Delay on a Tough Issue

Agreement on Crime of Aggression May Expand Court’s Portfolio but Raises Challenges for the Future

(Kampala) - Today's agreement by the International Criminal Court (ICC) review conference gives the ICC at least seven years before it would have authority to prosecute the crime of waging aggressive war, Human Rights Watch said. The review conference closed today following two weeks of debate and discussion in Kampala.

After an intense week of negotiation involving scores of governments, the deal would allow the court, in limited circumstances, to assert authority over those believed to be responsible for waging aggressive war. But it depends on further agreement between ICC member countries before it takes effect.

Under today's agreement, states have the option to take a decision after 2017 to agree whether the court may act on the crime of aggression where either the United Nations Security Council refers a matter to the ICC or the alleged aggressor and victim states are parties to the ICC treaty and have not opted out of the ICC's reach over this offense.

"The agreement may extend the court's role to cover the crime of waging aggressive war in the future," said Richard Dicker, director of the international justice program at Human Rights Watch. "This could pose challenges to the ICC's effectiveness by creating expectations that today's compromise won't meet."

Human Rights Watch had long opposed exclusive control of any crime within the court's jurisdiction by external bodies like the UN Security Council - a proposal that had featured in negotiations over the crime of aggression - because it would undermine the ICC's judicial independence. Human Rights Watch had also expressed concerns that an agreement making the crime of aggression operational could link the ICC to highly politicized disputes between states, posing a danger to perceptions of the court's role as an impartial judicial arbiter of international criminal law.

"The agreement may avoid exclusive UN Security Council control over the court's authority when it comes to the crime of aggression," said Dicker. "This required states parties to resist the insistence of permanent members of the Security Council that they exercise control at the expense of the court's independence."

The compromise today would create more limited authority for the court than with regard to genocide, crimes against humanity, and war crimes, the other crimes named in the Rome Statute. The court will have no authority to prosecute the crime of aggression when committed by individuals from a state that is not party to the treaty unless the Security Council refers the matter to the ICC.

"With this agreement, the court, its Assembly of States Parties, and individual state members need to get to work explaining what this decision means and what it does not," Dicker said. "The court's mission and mandate are not well understood, and it will require real effort to convey the reach and the constraints of this crime if activated after 2017."

The review conference opened on May 31, 2010, with a general debate. High-level representatives of member states made statements of support for the ICC and adopted a declaration affirming commitment to the court's mandate.

In two days of "stocktaking sessions" the conference addressed crucial challenges confronting the ICC in its day-to-day work. Debate addressed improving countries' cooperation with the ICC. The court relies on governments to carry out arrests and assist its investigations and prosecutions.

"Last week's stocktaking discussion was a boost for the court," Dicker said. "Nearly 40 states made specific pledges to assist the ICC, and we look forward to seeing those translated into practice."

Discussions also addressed ways to put national courts in a better position to hold perpetrators to account in fair trials. Many counties made commitments at the conference to helping one another in the national prosecution of ICC crimes. Human Rights Watch said this holds out real potential for narrowing gaps in accountability for the worst crimes.

The conference's location in Kampala offered a unique opportunity to forge stronger links between the ICC and those affected by serious crimes in Africa, Human Rights Watch said. Many delegates visited the ICC's offices in Kampala and eastern Congo.

"Holding the review conference in Uganda brought the court's member states closer to its work," Dicker said. "The presence of African civil society at the conference also helped convey its concerns to court officials and government representatives."

The ICC is the world's first permanent court mandated to bring to justice perpetrators of war crimes, crimes against humanity, and genocide when national courts are unable or unwilling to do so. The ICC treaty, known as the Rome Statute, entered into force in 2002, just four years after 120 states adopted the treaty during the Rome Conference.

The court's jurisdiction over genocide, war crimes, and crimes against humanity may be triggered in one of three ways. States parties may refer a situation - a specific set of events - to the ICC prosecutor; the UN Security Council may refer a situation to the prosecutor; or the ICC prosecutor may seek on his own motion authorization by a pre-trial chamber of ICC judges to open an investigation.

The ICC prosecutor has opened investigations in the Democratic Republic of Congo, northern Uganda, the Darfur region of Sudan, the Central African Republic, and Kenya. Based on those investigations, 13 arrest warrants and one summons to appear have been issued. The prosecutor is also looking at a number of other situations in countries around the world. These include Colombia, Georgia, Cote d'Ivoire, Afghanistan, and Guinea. The Palestinian National Authority has also petitioned the ICC prosecutor to accept jurisdiction over crimes committed in Gaza.

An Assembly of States Parties (ASP) was created by the Rome Statute to provide management oversight of administration of the court. It consists of representatives of each state member and is required to meet at least once a year, but can meet more often as required.

The Rome Statute mandates that seven years after the treaty enters into force, the UN secretary-general is to convene a review conference to consider any amendments to the treaty. At its seventh assembly session, in 2008, ICC members agreed to hold this conference in Kampala.

The crime of aggression was included in the Rome Statute, but without a definition or the conditions under which the court could exercise jurisdiction over the crime. A special working group of the assembly was formed in 2003 to prepare proposals for amendments that, if adopted, would make the crime operational.

In addition to considering proposed amendments such as on the crime of aggression, the agenda of the review conference included a general debate, with statements by high-level representatives of ICC member states. It also included two days of debate and discussion as part of a "stock-taking" exercise. At their eighth assembly session, ICC members decided on four topics for stock-taking: cooperation; complementarity, or strengthening national courts to try Rome Statute crimes; the impact of the Rome Statute system on victims and affected communities; and the relationship between peace and justice.

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