Overview by Georgios Plevris, Research Associate PILPG-NL
Ms. Athaliah Molokomme, Attorney general of Botswana
Mr. Stefan Barriga, Author of The Traveaux Preparatoires of the Crime of Aggression
Mr. Claus Kress, Author of The Traveaux Preparatoires of the Crime of Aggression
Mr. Don Ferencz, Visiting Professor at Middlesex University School of Law and Convenor of the Global Institute for the Prevention of Aggression
The speakers focused on the historic aspect of the Kampala Resolution and the compromise it took to arrive at it.
The discussion also addressed the most difficult part of the consensus achieved in Kampala regarding the threshold of the crime and its three qualifies: “[…] by its character, gravity and scale constitutes a manifest violation of the UN Charter.”
France and UK voiced their concerns with regard to the opt out clause and ICC jurisdiction for non-ratifying State Parties.
The side event was organized by the delegation of Liechtenstein and addressed current issues of the activation of the jurisdiction of the crime of aggression. Since more than 30 states have submitted instruments of ratification on the Amendments, the spotlight now turns to the process and issues surrounding the activation of the jurisdiction. The speakers focused on the historic aspect of the Kampala Resolution and the compromise it took to arrive at it. Mrs. Athaliah Molokomme stressed out the importance of the Kampala Amendments, its contribution in making the Rome Statute a more universal one, and pointed out that any attempt to renegotiate the jurisdiction of the ICC over the crime vis-à-vis opting clauses will be at the very least troubling. What is imperative at the moment is for the States Parties to communicate how they understand jurisdiction over this crime. The Crime of Aggression is seen as one that offers protection to small and vulnerable countries like Botswana.
Next, Stefan Barriga demonstrated in detail the compromise reached between the ‘consent camp’ and ‘protection camp’ with regard to the opt in/out clause as spelled out in Art. 15 bis of the Kampala Resolution. The core of the deal essentially excludes non-State Parties from ICC jurisdiction with regard to nationality or territoriality of crime perpetration. Examples were given with the kind participation of the audience. For example, if the aggressor is a State Party that has not ratified the Agreement, such as the UK for example, and the victim is also a State Party that has not ratified it (like Sweden), then the ICC has no jurisdiction. On the other hand, if a State Party that has not ratified is the aggressor (like UK) and the victim is a State Party that has ratified such as Liechtenstein, then the ICC has jurisdiction.
An issue that created confusion and debate is seen vis-à-vis Article 121(5), 2nd sentence that reads, “In respect of a State Party which has not accepted the amendments, 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 above sentence created many interpretational issues, and in Kampala it was seen that it should not be red in a literal way when it comes to the special crime of aggression. There was a clear mandate in the original Rome Statute to define and set the scope of jurisdiction vis-á-vis the crime of aggression, and that was exactly what the Kampala Resolution did.
The discussion also addressed the most difficult part of the consensus achieved in Kampala regarding the threshold of the crime and its three qualifies: “[…] by its character, gravity and scale constitutes a manifest violation of the UN Charter”. The threshold sentence reflects the ambition to criminalize violations of the prohibition on the use of force. There are two functions in that threshold; firstly, it is an intensity threshold, meaning that not each and every minor use of force is a crime of aggression, despite it being a violation of international law and of State obligations. Secondly, the threshold requirement recognizes an important fact of international practice: the grey areas of the prohibition on the use of force, such as the use of force by many States in Syria against ISIS, arguments of self-defense and collective defense, and even cases of contested cases of humanitarian intervention. Thus, the aim of the threshold is to protect the ICC from such grey areas. What is reflected in the qualifiers is the fact that customary international criminal law has not developed to the extent where every violation on the prohibition of the use of force amounts to such a threshold. Setting the intensity threshold should not be an arbitrary policy choice.
Many comments and questions were generated in the audience, where many State Parties delegations were present, including Sweden, UK, France and Argentina to name a few. In particular France and UK voiced their concerns with regard to the opt out clause and ICC jurisdiction for non-ratifying State Parties. UK underlined the role of the democratic process in ratifying and accepting amendments to the Rome Statute, and how it would not consider itself bound by the amendment, a stance in accordance with international law. On its side, France raised similar concerns with the UK. More specifically, the French delegate remarked the confusion that exists by the double interpretations on the Amendments that prevail at this time, namely an automatic activation versus the Art. 121(5) of Rome Statute interpretation. The question raised was why should States Parties opt out of an amendment they disagree with and have no intention to ratify? The panel speakers addressed these questions and other comments in their concluding remarks, noting that it will be important for these countries to ratify, because this will allow jurisdiction for when they are-potentially- victims of a crime of aggression. Additionally, if a State does not want to give jurisdiction of the Court on the crime of aggression, they it can also actively and explicitly do so in a declaration of no ratification to the Registrar. Finally, on comments about the jurisdictions over non-state actors, the speakers recognized that there is no appetite to broaden the definition for the crime of aggression to include non-state actors, something that was also observed in the International Military Tribunals’ practice in Nuremberg and Tokyo, who avoided as well such expansionist definitions.