The Rome Statute's Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference

Abstract

This past June, in Kampala, Uganda, at the first Review Conference on the International Criminal Court, States Parties forged an historic agreement, amending the Rome Statute to define the crime of aggression, and agreeing on conditions for the exercise of jurisdiction. While the definition had been essentially agreed upon during years of earlier negotiations, delegations in Kampala had to grapple with a host of complex issues related to the exercise of jurisdiction. They resolved that jurisdiction will be triggered both through Security Council referrals, as well as State Party or Prosecutor referrals, and the related "filter" mechanisms to achieve this. This result represented a significant breakthrough that was pragmatic, designed to avoided potential conflict with the U.N. Charter, and designed to protect the Court's independence. The final agreement, however, also contained compromises, excluding the acts of Non-States Parties from jurisdiction, allowing States Parties to opt out of jurisdiction, and delaying the exercise of jurisdiction until at least 2017.

Response to Koh and Buchwald’s Article: Don Quixote and Sancho Panza Tilt at Windmills

“…The opt-out provision in Article 15 bis, paragraph 4, hits the nail on the head by authorizing a state party to declare that it does not accept the Court's jurisdiction for the crime of aggression by simply lodging a declaration to that effect with the registrar. 68 Indeed, contrary to what has been suggested, 69 such a declaration, which is expressly envisaged by the treaty, cannot be treated as a prohibited reservation. 70 The litany of assurances and guarantees given to the United States (a nonparty state!)…”

Law and contestation in international negotiations

“…Jennifer Trahan, for example, noted that that the KRC did not have the authority to determine what constitutes CIL in the first place. 109 Despite challenges to its framing, the US continued to argue that the definition lacked clarity. At this point, the US had advanced a non-paper that focused on the proposed 'manifest violation' standard.…”

“…50 Indeed, by the start of the KRC, there was a consensus that only two points remained for debatethe court's jurisdiction and the possible role of the United Nations Security Council (UNSC) 51 and many states hoped to adopt the definition with minimal changes, worrying that extensive debate would unravel the entire definition. 52 While there was broad willingness to accept the definition as proposed, 53 there was still disagreement at the KRC. Notably, US delegates voiced scepticism, 54 cautioning against rushing to a 'premature conclusion'.…”

“…In particular, the US's status as a permanent UNSC member and major international actor ensured that its arguments were heard. 56 However, the US was not alone in raising concerns at Kampala. The permanent five members of the UNSC pursued a more limited definition of the CoA with a prominent role for the UNSC.…”

Qualifying Cyber Crime as a Crime of Aggression in International Law

“…In 2010, however, the Review Conference of the Rome Statute gave the Special Working Group on the Crime of Aggression (SWGCA) the mandate to prepare a proposal about crime of aggression, known as the Kampala amendments on the crime of aggression. 31 Regarding the Kampala amendments, Article 8 bis, Paragraph 1 of the Rome statute defines the crime of aggression as "the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations." 32 In the meantime, the act of aggression is "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations."…”