Thursday, June 17, 2010

ICC Agreement over the Crime of Aggression: a Success for the Big Five (part 2)

On June 12, 2010, the member states of the International Criminal Court (ICC), observer states, international organizations, NGO’s and other participants concluded the Review Conference of the Rome Statute in Kampala, Uganda. During this two-week conference, 4000 delegates took stock of the ICC work in the last eight years and discussed proposed amendments to its founding treaty. The main challenge of the meeting was the amendment on the crime of aggression. The delegates finally came up with a ‘watered down’ resolution which defines the crime of aggression but fails to give the Court primary jurisdiction over the crime.

Instead, the UN Security Council is given the main role in determining the existence of an act of aggression. In other words, where the Security Council has made such a determination, the Prosecutor of the ICC may start investigations in respect of a crime of aggression. In the absence of such Security Council action, the Prosecutor may start proceedings on his own initiative or upon request from a member state. However, in order to do so, the Prosecutor would have to obtain prior authorization from the Pre-Trial Division of the Court. Furthermore, the Court would not be able to exercise jurisdiction with respect to an act of aggression committed by a non-member state or with regard to member states that have not accepted the Court’s jurisdiction over this crime. The agreement also includes a review clause, meaning that the amendment shall not enter into force until the majority of member states grants formal approval after January 2017.

This compromise agreement obviously shields non-members, such as the United States, China, and Russia, from future ICC investigations. Therefore, one could say that the permanent members of the Security Council came out as winners of the Review Conference. According to analysts at the conference, they showed tremendous resistance to the crime of aggression being subject to the jurisdiction of the Court and were determined to the keep their exclusive power to handle cases of aggression. The US, Great Britain, Russia, China and France have all committed the crime against other sovereign states in the past and the Security Council as a ‘jurisdictional filter’ would prevent their leaders and others they might choose to protect from being prosecuted for acts of state aggression.

The agreement can be considered as a step forward for international justice as the delegates set out the mechanism by which a prosecution for the crime of aggression would be brought before the ICC. The conditions, however, are questionable, as Security Council involvement undermines the independence and legitimacy of the ICC. Furthermore, it provides carte blanche impunity for the nationals of the permanent Security Council members who are responsible for the planning, preparation, initiation or execution of an act of aggression. The US, for instance, attended the conference as an observer state and was particularly eager to prevent the ICC from prosecuting American officials for aggressing on the territory of other states. In the end, it got what it came for.   

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