By Sophie Bones, PILPG Law Fellow & Victoria Ernst, PILPG Research Associate
The Assembly of States Parties met for its 13th plenary session on Thursday afternoon. The primary issue on the table was whether to activate the Court’s jurisdiction over the crime of aggression. The Austrian representative informed the plenary that after several rounds of open, informal consultations and multiple draft texts of the proposal, the working group had been unable to come to consensus. She returned the floor to the Vice Presidents (VPs) so they could present a final proposal drafted in response to the comments made by Member States throughout the ASP.
The VP explained that this was the last attempt for consensus and that the draft was not open for negotiation; states needed to accept the draft as it was. The proposal was passed out to delegates. See document number ICC-ASP/16/L.10. The session was suspended for 15 minutes while the delegates reviewed the VPs’ proposal. After 30 minutes, the VPs announced that there was a mistake, made in good faith, in the proposal and that another draft would be circulated to delegates. See document number ICC-ASP/16/L.10*.
Once the session resumed, the VP asked for States Parties to make comments before the ASP acted on the proposal. The UK spoke first and expressed concern over operational paragraph 3, which dealt with the independence of judges. The representative said the placement of the paragraph created legal uncertainty and he requested more time for the ASP to engage with the text and reach consensus. Next, the French representative spoke and said that France would join consensus if one change was made: if operational paragraph 3 was moved to the preamble. Then Lichtenstein, Switzerland, and Japan commented that they would accept France’s proposal for the sake of consensus. However, each representative stressed that they were not thrilled with the proposal and that it represented a significant compromise and deviation from what they had hoped would be adopted. The VPs again suspended the session so delegates could consider France’s proposal.
When the session resumed, Palestine was the first state to speak. The representative was very transparent. He said he was puzzled by the proposal. He expressed that his delegation had many suggestions about the text that he would have proposed if he believed that was an option. However, he noted that moving a paragraph ensuring the independence of judges into the preamble was definitely not a change he thought was necessary, appropriate, or suggested in good faith. Brazil, Cyprus, Slovenia, Samoa, Costa Rica, Switzerland, and Mexico voiced agreement with Palestine’s comments. Switzerland said that, based on the other comments, it needed to change its position and could no longer support the French proposal. Conversely, the UK, Germany, and Denmark voiced support for France’s proposed change. Canada, South Africa, Australia, Japan, and Portugal voiced support for consensus above anything else and agreed that the risk of putting the proposal to a vote when the ASP was so close to consensus was too much of a gamble. France clarified that it made the suggestion because operational paragraph 3 fit better with the paragraphs in the preamble that referenced other parts of the Statute. Portugal also suggested that the operative word in operational paragraph 3 be changed from reaffirm to recall, or that operational paragraphs 3 and 4 be switched, so that the sequencing made more sense. The Samoan representative received applause from the entire assembly when he explained that going to a vote would make the court look weak. He said that leaving the room with anything other than consensus would undermine the ICC and make it impossible for him to continue advocating for other Asian-Pacific states to join the Rome Statute. He admitted he was not a lawyer and did not understand the real difference between operational and preamble paragraphs and believed that consensus was the most important thing.
The VP retook the floor and determined that the French proposal did not have consensus, so the ASP would be voting on the original proposal instead. The UK then suggested that the session break for another 5 minutes so the delegates could consider Portugal’s suggestions. The VP allowed for three minutes. 15 minutes later, the VP asked if anyone wanted to make additional comments. No one requested time. The VP proposed adopting the original proposal, which passed.
The resolution ICC-ASP/16/L.10* is only a page long, the most prominent part of it being the opt-in provision, removing any automatic jurisdiction the court might have had over the crime of aggression. There has been strong pressure from the UK and France in particular to avoid an opt-out provision with the reasoning that it would make a state lose face if they had to actively remove themselves from the court’s jurisdiction over aggression. This is clearly reflected in the final resolution at paragraph 2, which says that:
“the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.”
Thus, States Parties do not have to do anything extra to remove themselves from the jurisdiction of aggression if they have not ratified or accepted the amendments, they will be treated like non-state party.
– The crime has been activated, but jurisdiction is only for those who have ratified/accepted the Kampala Amendments.
– No state that spoke said they were genuinely happy with the text. Most states admitted that there were many issues they wished could have been resolved. But, at the end of the day (literally), consensus on activation was most important. Many states mentioned that not reaching consensus when they were this close would be a historical mistake.
– Many states – Lichtenstein, Cyprus, Switzerland – called on other states to ratify the Kampala amendments.
– Many states – Madagascar, Guatemala, Canada, Brazil, Bangladesh, Columbia, New Zealand, the UK – requested the record reflect that a state that had not ratified the amendments could be subjected to the Court’s jurisdiction.
– Some states – Venezuela and France – were upset that the translators had left already and gave their statements in their own languages.
– Palestine stressed that there cannot be separate interpretations of the crime of aggression and its application – there needs to be one united ASP.
– Samoa was happy with the ASP achieving consensus and said it will continue to encourage other Asian-Pacific states to join the Rome Statute.