From Rome to Kampala : The first 2 amendments to the Rome Statute

By Gérard Dive, Benjamin Goes and Damien Vandermeersch

The date of 17 July 1998, the day of the adoption of the Rome Statute of the International Criminal Court, will always be marked as one of the major events in the history of international law of the 20th Century. Entered into force on July 1st 2002, the Statute paved the way for the establishment of the first permanent criminal Court in human history. Today, ten years after its entry into force, the Statute has been ratified or acceded by 121 States, additional ratifications or accessions being foreseen in the near future. The First Review Conference held in Kampala from 31 May to 11 June 2010 concluded its work by adopting the two first amendments to the Rome Statute: the first one relating to the list of war crimes falling within the jurisdiction of the Court in case of armed conflict not of an international character (the so-called “Belgian Amendment”); and the second, permitting to trigger the jurisdiction of the Court for the crime of aggression in the following years. Seizing the opportunity of the celebration of the tenth anniversary of the entry into force of the Rome Statute, the Belgian Interdepartmental Commission for Humanitarian Law, established in 1987 with the support of the ICRC, has taken the initiative of organizing an international study day in Brussels, on June 5th 2012, entirely dedicated to the two first amendments to the Rome Statute. This book presents the fruitful results of the works, thoughts and remarks displayed during this event by an impressive gathering of some of the most authorised international experts in the field.

• Language: English
• Publisher: Bruylant
• Release date: Feb 19, 2013
• ISBN: 9782802741015

Book preview

couverturepagetitre

© Groupe De Boeck s.a., 2012

EAN : 978-2-8027-4101-5

Cette version numérique de l’ouvrage a été réalisée par Nord Compo pour le Groupe De Boeck. Nous vous remercions de respecter la propriété littéraire et artistique. Le « photoco-pillage » menace l’avenir du livre.

Pour toute information sur notre fond et les nouveautés dans votre domaine de spécialisation, consultez notre site web :

www.bruylant.be

Éditions Bruylant

Rue des Minimes, 39 • B-1000 Bruxelles

Tous droits réservés pour tous pays.

Il est interdit, sauf accord préalable et écrit de l’éditeur, de reproduire (notamment par photocopie) partiellement ou totalement le présent ouvrage, de le stocker dans une banque de données ou de le communiquer au public, sous quelque forme et de quelque manière que ce soit.

Table of contents

Foreword

Introductory statement by Deputy Prime Minister and Minister of Foreign Affairs Didier REYNDERS

Definition, elements and entry into force of the crime of aggression by Eric DAVID

The understandings regarding the amendments to the Rome Statute of the International Criminal Court on the crime of aggression by Cedric RYNGAERT

Exercise of Jurisdiction and Entry Into Force of the Amendments on the Crime of Aggression by Stefan BARRIGA

History of negotiations: from Rome to Kampala and the future; the procedure for drafting the amendments, where we stand today by Paul RIETJENS

The First Amendment to the Rome Statute: Bringing Article 8 of the Rome Statute in line with International Humanitarian Law by Anne-Marie LA ROSA

Appendix 1

Appendix 2

Annex – Examples of State Practice on the Prohibitions on the use of Gas, Poison and Expanding Bullets in Non-International Armed Conflicts

Concluding Statement by Deputy Prime Minister and Minister of Social Affairs and Public Health Laurette ONKELINX

Questions and Answers

Annex 1 – Programme

Annex 2 – List of Participants

Foreword

¹

The date of 17 July 1998, the day of the adoption of the Rome Statute of the International Criminal Court, will always be marked as one of the major events in the history of international law and relations of the 20th Century. Kofi A. Annan, at that time Secretary-General of the United Nations, wrote: The Rome Statute […] is a landmark instrument that should be signed and ratified, as a matter of the highest priority, by as many States as possible². Entered into force on July 1st 2002, after its ratification by more than 60 States, the Statute paved the way for the establishment of the first permanent criminal Court in human history, permitting the prosecution of the most serious crimes of concern for the international community³ with a vocation for universal jurisdiction.

Today, ten years after its entry into force, the Statute has been ratified or acceded by 121 States, additional ratifications or accessions being foreseen in the near future.

Nevertheless, from its very adoption, the Statute’s founding fathers were aware of its incomplete nature: article 5-2 of the Statute explicitly requested additional work to be done by a Review Conference or an Assembly of States Parties in order for the Court to exercise its jurisdiction on the crime of aggression, one of the four categories of crimes falling within the Court jurisdiction, the three other categories being the crime of genocide, crimes against humanity and war crimes⁴.

Moreover, the Diplomatic Conference in Rome decided to adopt a dual list of war crimes, the one relating to armed conflict not of an international character being shorter than the one relating to international armed conflict.

It is not surprising that, being a success, the First Review Conference held in Kampala from 31 May to 11 June 2010 concluded its work by adopting the two first amendments to the Rome Statute: the first one relating to the list of war crimes falling within the jurisdiction of the Court in case of armed conflict not of an international character (the so-called Belgian Amendment); and the second, permitting to trigger the jurisdiction of the Court for the crime of aggression in the following years.

If the results of the First Review Conference show that the Statute has successfully met its first challenge, many other challenges await for the Court.

Even though States Parties have now to ratify the two first amendments, numbers of influential States including three permanent members of the United Nations Security Council have yet to ratify the Statute itself.

Moreover, the Court has embarked, with the States Parties, in a lessons learned exercise while approaching the final decisions to be rendered in the Court’s first cases. Intriguingly, the fact that the Court is under increasing political and budgetary pressure, despite the lessons learned exercise having just begun, and at a time when the judicial action of the Court is just about to reach the age of maturity, could place the institution in real danger.

Seizing the opportunity of the celebration of the tenth anniversary of the entry into force of the Rome Statute, the Belgian Interdepartmental Commission for Humanitarian Law, established in 1987 with the support of the ICRC, has taken the initiative of organizing an international study day in Brussels, on June 5th 2012, entirely dedicated to the two first amendments to the Rome Statute.

This international study day was designed to assist in the drafting of ratification bills at the national level by offering a sound analysis of the amendments and to prepare the international community in anticipation to the last steps to be reached in order for the Court to exercise its jurisdiction on the crime of aggression.

This book presents the fruitful results of the works, thoughts and remarks displayed during this event by an impressive gathering of some of the most authorised international experts in the field.

The editors would like to take this opportunity to thank all the persons whose work and dedication permitted the event to be a success.

This year, all over the world, dozens of events are organised to celebrate the establishment of the International Criminal Court. This testimony is living evidence that the International Criminal Court constitutes, for so many, a key stone in the building process of a better world based on peace and justice.

G. DIVE

B. GOES

D. VANDERMEERSCH

1-  This foreword reflects the personal opinion of the editors and commits only themselves.

2-  ANNAN, Kofi A., Preface, in The International Criminal Court. Elements of Crimes and Rules of Procedure and Evidence, Ed. Roy E. Lee, Transnational Publishers, 2001, Ardsley, NY, p. xviii.

3-  Rome Statute, article 5-1.

4-  Rome Statute, article 5-1, (a) to (c).

Introductory statement

H.E. Mr Didier REYNDERS

 Belgian Deputy Prime Minister and Minister

 of Foreign Affairs

Ladies and Gentlemen,

It is a great honour for me to welcome you today and open this study day on the occasion of the 10th anniversary of the entry into force of the Rome Statute instituting the International Criminal Court. Belgium has decided to devote this day to the development of the Statute, from Rome to Kampala.

Ten years ago, the Rome Statute, which numbered 69 States Parties at that time, came into force. Today, it numbers almost twice as many, 121 to be precise. This illustrates the growing support and consensus regarding the fight against impunity. It is a sign that the world wants justice but also unfortunately that it still needs justice and accountability.

The current situation in Syria, where grave and systematic violations of human rights are committed on a daily basis, is a sad reminder of how essential it is for these unacceptable and unbearable crimes to be stopped. In this context, I want to underline that a referral to the ICC is a possibility, if the Security Council decides so, but that there are also other options to hold those responsible to account.

Justice should be served, not only to punish the perpetrators but also to provide accountability to the victims. At the same time, international accountability should be a deterrent for future serious crimes and signal to potential perpetrators that they will not be able to escape impunity.

The Rome Statute establishes the first and only permanent international criminal court with supranational jurisdiction and sets up a coherent system to end impunity for serious crimes under international law.

It is the outcome of a work begun within the United Nations from its foundation.

The road leading to Rome was a long one and was completed in several stages. We can see today that it has been a worthy endeavour.

Allow me to briefly look back to the process having led to the current system. I will then provide an overview of the Belgian commitments to international justice. Finally, I will make a few remarks on the first two amendments to the Rome Statute that you will discuss today.

I. – Historical context: the beginnings of international criminal justice up to the adoption of the Rome Statute and the consolidation of the activities of the International Criminal Court.

It is first of all worth remembering the establishment of the international criminal tribunals for the former Yugoslavia and for Rwanda, created by decision of the Security Council in order to judge the perpetrators of crimes committed in the early 1990’s in Southeastern Europe and Central Africa.

Later on, other types of hybrid justice mechanisms, called third-generation experiences for international criminal justice, were established by the Security Council in cooperation with the States concerned (Sierra Leone, Cambodia and Lebanon).

The purpose of the ICC is to replace those temporary and ad hoc mechanisms.

In the meantime, this young institution has already entered the consolidation phase of its activities. It investigates in seven different countries and has already opened 15 cases. Two situations have been referred to the Court by a Security Council resolution, namely Darfur and Libya. The other five situations were submitted to the Court either by the State concerned (DRC, Uganda and the Central African Republic), or by decision of the Prosecutor for the situations in Kenya and Ivory Coast.

The ICC recently concluded, in first instance, its first trial involving Thomas Lubanga and is on the point of doing likewise for Germain Katanga and Mathieu Ngudjolo Chui, all charged with serious crimes committed in Ituri, DRC, between 2002 and 2003. I personally welcomed the conviction of Thomas Lubanga last March for recruiting and using child soldiers. This was an important moment and success for the ICC.

Despite the fact that the Rome Statute has not been ratified by a certain number of States, including three permanent members of the Security Council, the ICC asserts itself today as the indispensable instrument for combating impunity and strengthening peace and security. We can only welcome this. The fact that Security Council resolution 1970 referring the situation in Libya to the ICC was adopted unanimously – so with the support of China, Russia and the US – was a significant development.

II. – 

Belgium’s commitments

Let me now turn to my country’s commitments. From the very beginning, Belgium has been involved in the UN Charter system, founded on the principles of justice and international law. It has been conspicuous in its action on behalf of the rule of law, and more particularly in the combat against the most odious crimes: the crimes of genocide, crimes against humanity and war crimes.

Belgium has been actively cooperating, since their establishment, with the various international or hybrid jurisdictions set up to judge the perpetrators of crimes committed in the former Yugoslavia, in Rwanda, in Sierra Leone, in Lebanon and in Cambodia.

It was among the first States to ratify the Rome Statute and supported, from the outset, the ICC.

Convinced of the usefulness of the ICC and of the system surrounding it, Belgium has provided it with unfailing support, whether through the channel of judicial cooperation or through political and diplomatic support for its activities.

Furthermore, Belgium played a key role in the adoption of the first amendment to the Statute by the first review conference, on 10 June 2010 in Kampala.

Today, we have undertaken the steps to ratify the two amendments adopted in Kampala which complement the Court’s jurisdiction with regard to the crime of aggression and war crimes committed in time of armed conflicts not of an international character, amendments to which this study day is devoted. Belgium has formally announced this commitment on the occasion of the 31st International Conference of the Red Cross and Red Crescent which was held in Geneva from 28 November to 1 December 2011.

Allow me now to go through the content of those two amendments.

III. – The first two amendments to the Statute adopted by the Kampala Review Conference

The achievement in Rome in 1998, consisting of the adoption of the Statute establishing the ICC, was not complete. In particular, the thorny issue of the definition of the crime of aggression, included in the list of crimes within the jurisdiction of the Court, together with the exercising of the Court’s jurisdiction, were left in abeyance.

Two years ago, almost to the day, those questions found an answer through the adoption of a definition and rules of implementation of the jurisdiction of the Court by the first Review Conference.

Kampala was also the opportunity to complement the Rome Statute as far as war crimes are concerned by working towards a harmonisation of the definition of such crimes, whether they are committed in the course of international or non-international armed conflicts.

With the increasing number of armed conflicts not of an international character, and with the rules of repression of crimes committed in the context of such conflicts lagging behind those applicable to situations of international armed conflicts, it is essential to fill the existing gaps and work towards a harmonisation of the rules applicable to these 2 types of situations.

Belgium has participated very actively in the preparatory work for the definition of the notion of the crime of aggression. Furthermore, Belgium has been the instigator of the proposed amendment to Article 8 aimed at harmonising the notion of war crimes committed in the context of a situation of armed conflicts of an international character or not. That proposal was sponsored by many States from different geopolitical regions which I would like to thank once again on behalf of my government: Argentina, Austria, Bolivia, Bulgaria, Burundi, Cambodia, Cyprus, Germany, Ireland, Latvia, Lithuania, Luxembourg, Mauritius, Mexico, Romania, Samoa, Slovenia and Switzerland.

With the adoption of the first amendment to the Rome Statute, the work has in fact only begun. Indeed, other amendments are necessary for a more comprehensive harmonisation of the repression of crimes committed in situations of armed conflicts both of an international character or not.

Ladies and Gentlemen,

You will focus today on the first two amendments. The objective is to allow an exchange of views and a sharing of information concerning the ratification procedures for those amendments.

The hopes arising from the adoption of the Rome Statute and the actual establishment of the ICC, ten years ago, may not be disappointed. It is part of our and everyone’s responsibility.

I wish you all fruitful and interactive exchanges during today’s conference. Your concrete contributions and discussions will be another step in the fight against impunity. I encourage you to pursue your efforts and commitments to build international justice further and reach the true universal jurisdiction. I sincerely hope that your respective Governments will continue to work with us on this priority area for Belgium.

I thank you for your attention.

Definition, elements and entry into force

 of the crime of aggression

Eric DAVID

 Prof. em., Free University of Brussels.

1.- This article addresses the definition of the crime of aggression (I.), its constituent elements (II.) and the entry into force of these amendments to the ICC Statute (III.) as they were adopted in Kampala (Uganda) during the 1st review conference of the Statute between 31 May and 11 June 2010.

I. – Definition of the crime of aggression

2.- It is always surprising for a casual observer of the ICC Statute to read in Art. 5 of the Statute that

"The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime […]" (emphasis added)

The question which comes immediately to the reader’s mind is: what? Aggression has not yet been defined? And what about the definition adopted in 1974 by the UNGA after 20 years of efforts in A/Res. 3314 (XXIX) (consensus)? Of course, numerous political considerations can explain why the 1998 Diplomatic Conference in Rome decided to postpone the adoption of this definition. Just imagine what History would have been if this definition had been adopted and if, the day before the US intervention in Iraq, in 2003, Iraq would have recognised the jurisdiction of the ICC in accordance with Art. 12, par. 3, of the Statute? It is true that if wishes were horses then beggars might ride …

3.- However that might be, the definition of new Art. 8bis of the ICC Statute adopted in Kampala is not a copy-paste of the definition set out by Res. 3314 (XXIX). Certainly there are many similarities (A.) but there are also differences (B.).

A. –

Main similarities between Art 8bis and Res. 3314

4.- In its essence, the definition in Art. 8bis states:

"[…] ‘act of aggression’ means the use of armed force by a State against the sovereignty, territorial integrity or political independence