Keypoints:
- ICC debate on aggression resumes at UN
- US opposes expanding court jurisdiction
- Africa Legal Aid urges African unity
THE protracted battle over the highly politically charged crime of aggression under the Rome Statute that established the International Criminal Court (ICC) will continue at the UN in New York on Monday as states try to grapple with how the ICC can exercise jurisdiction over an act of state aggression.
When the Rome Statute was drawn up in 1998, it listed four international crimes: war crimes, crimes against humanity, genocide and aggression.
Kampala Amendments failed to settle aggression powers
But on aggression, a definition could not be agreed, and any decision was put on hold until a special review conference held in Kampala in 2010.
However, what emerged was that the ICC could only exercise jurisdiction over a crime of aggression arising from an act that is committed by a state party that has not opted out of the court’s jurisdiction.
In short, the ICC can never exercise its jurisdiction over a crime of aggression committed by a non-state party.
Global powers resist expanded ICC authority
Given that states with the propensity for carrying out aggression against other states are not party to the Rome Statute, they have been putting delegates in New York under intense diplomatic pressure to not widen the ICC’s mandate over the crime of aggression.
The main culprit, according to Justice Info, is the US, ‘with a sharply worded diplomatic note, seen by Justice Info, which expresses “grave concerns” over efforts to “expand the Court’s jurisdiction over the crime of aggression, including over non-states parties”’.
Justice Info adds: ‘The demarche goes on to threaten to use “all appropriate and effective diplomatic, political, and legal instruments to block the ICC’s assertion of such jurisdiction”.’
‘The court lies already under threat of further sanctions from Washington DC, having singled out the prosecutor and four judges, on the basis that the court is targeting a main US ally – Israel – with warrants for arrest.’
Africa Legal Aid rallies African ICC states
Meanwhile, Africa Legal Aid (AFLA), which has been at the forefront of the crime of aggression debate, is urging African delegates from the continent’s 33 members of the ICC attending the UN meeting, which goes on until Wednesday, ‘to stand in solidarity for a fairer, more effective and universally legitimate crime of aggression regime’.
The Hague-based AFLA said in a statement: ‘There is indeed a positive momentum for harmonisation, and there stands a real possibility of securing a two-thirds majority in favour of amending the Kampala Amendments.
‘However, some vocal opponents are trying to prevent this from happening by advancing invalid policy arguments.
‘Twenty-seven years since the crime of aggression entered the Rome Statute, and 15 years since the Kampala Review Conference, this minority now advances arguments aimed at entrenching the status quo – arguments that risk indefinitely suspending the prosecution of the crime of aggression.
‘Chief among these arguments is that only 48 states parties have ratified the Kampala Amendments, deliberately failing to acknowledge that the primary reason for many states, including African states’ delayed ratification, lies in the fact that the current crime of aggression regime is flawed, with jurisdictional and other limitations, which render the prosecution of the crime of aggression fundamentally distinct and unenforceable.’
AFLA urges UN vote if consensus fails
The statement continued: ‘Esteemed representatives of Africa and its people, when you take the floor at the UN Assembly room… please state categorically that should a consensus on harmonisation and amendment fail, you will vote for the joint proposal of Sierra Leone, Costa Rica, Slovenia, Germany and Vanuatu to address and prevent the untold sufferings caused by aggression, so that this mother of all crimes becomes a thing of the past.
‘Indeed, it can be done. Nelson Mandela said it best: “It always seems impossible until it’s done.”’
