- The Foundry: Conservative Policy News from The Heritage Foundation - http://blog.heritage.org -
The ICC Review Conference Rollercoaster
Posted By Brett Schaefer On June 10, 2010 @ 12:00 pm In International | Comments Disabled
Typically, international conferences like the Review Conference of the International Criminal Court are predictable, even boring. The months (or, in this case, years) prior to the conference are spent in meetings, sifting through various positions and policy red lines among the delegations, so that differences are minor by the time the conference kicks off, making the path to a consensus agreement clear.
The most important priority for the conference organizers and many of the delegates is that the conference be viewed as a “success.” On rare occasions, conferences deadlock on major issues, and the delegates eventually agree on a less ambitious final agreement than was originally envisioned. Inevitably, this watered-down outcome is nevertheless presented as a triumph.
Extremely rare is an international conference than cannot be viewed as anything other than a failure. The 2009 U.N. Climate Change Conference in Copenhagen  was one: Not only were the delegates unable to agree to a binding agreement, but they failed to achieve consensus support for the non-binding Copenhagen Accord .
What is happening in Kampala is the reverse of the typical pattern for international conferences. Instead of a gradual convergence around a common proposal or text as countries compromise or abandon positions that lack broad support, in Kampala we have seen new proposals for the amendment on the crime of aggression pop up like mushrooms.
The African and Latin American delegations and the pro-ICC NGOs are very much opposed to the Canadian and Slovenian proposals, which they see as greatly weakening the independence and authority of the ICC. They worry that, absent aSecurity Council determination of aggression, the proposals would require an “aggressor” state to have ratified the Rome Statute and the amendment on the crime of aggression. They believe this is extremely unlikely for most potential aggressors and would therefore curtail the ICC’s powers.
A number of other states, mostly European, supported the Canadian amendment because it builds on customary international law based on state consent and reciprocity. Shockingly, one country even defended the Canadian proposal as an appropriate recognition of national sovereignty. (References to national sovereignty at the U.N. are nearly as rare as U.N. resolutions praising Israel.)
The proliferation of proposals for the amendment on the crime of aggression is a clear sign that fundamental differences remain. The most contentious issue remains whether a U.N.Security Council determination of aggression should be the sole trigger for an ICC investigation of an alleged crime of aggression. Currently, there is no bridge over this divide.
As the conference winds down and time constraints come into play, the pressure to have a “successful” conference could lead to a compromise. The compromise most likely to arise is an agreement expressing the lowest common denominator: adopting only the flawed definition of the crime of aggression without any accompanying means for the ICC to exercise authority over that crime, or adopting the definition with a sole Security Council trigger, since that option is contained in all the proposals. In either case, it would be important for the U.S. to successfully get the delegates to adopt its “understandings”  on how that definition should be interpreted if it is to mitigate the problems potentially posed by the definition of the crime of aggression.
However, a good bet right now is that no consensus will be reached on the crime of aggression by the end of the conference and nothing will be adopted.
Either result should be considered a positive outcome from the perspective of the United States.
Article printed from The Foundry: Conservative Policy News from The Heritage Foundation: http://blog.heritage.org
URL to article: http://blog.heritage.org/2010/06/10/the-icc-review-conference-rollercoaster/
URLs in this post:
 Image: http://www.foundry.org/wp-content/uploads/ICC.png
 2009 U.N. Climate Change Conference in Copenhagen: http://www.denmark.dk/en/menu/Climate-Energy/COP15-Copenhagen-2009/cop15.htm
 Copenhagen Accord: http://www.denmark.dk/en/menu/Climate-Energy/COP15-Copenhagen-2009/Selected-COP15-news/A+Copenhagen-Accord-it-is.htm
 “understandings”: http://corner.nationalreview.com/post/?q=ODk5MjE2MWMyMjQyOTk5Mjg0NmU5Mjg3ZjM1NWE5MmU=
 Cross-posted: http://corner.nationalreview.com/post/?q=MjVlOGQ1ZTgyYzJiM2U5YjhhNjNmNDdlMjgyZDVlNWQ
 The Corner: http://corner.nationalreview.com/
Copyright © 2011 The Heritage Foundation. All rights reserved.