Summer 2014 IJP Interns with ICC President and Judge Song Sang-Hyun

Panel Discussion on the Activation of the Kampala Amendments

IJP Interns with ICC Judge Song Sang-Hyun
IJP Interns with ICC Judge Song Sang-Hyun

Last Thursday, we celebrated International Justice Day, designated on July 17th of each year to mark last day of the negotiations of the Rome Statute in 1998. As part of our International Justice Day celebrations, the International Justice Project had the honor of attending an interactive panel discussion hosted by the Permanent Mission of the Principality of Liechtenstein focused on the activation of the Kampala Amendments on the Crime of Aggression.

The Rome Statute specifically envisions International Criminal Court (ICC) jurisdiction over the crime of aggression, but only after additional steps are taken to amend the Statute. Negotiated in 2010, the Kampala Amendments provide a definition for the crime of aggression and establish a framework for how the Court will exercise its jurisdiction over this crime. The ICC’s jurisdiction over the crime of aggression can only be activated after 2017.

In order for jurisdiction over the crime of aggression to take effect, at least 30 States Parties must ratify the Amendments. Lichtenstein, the host of the meeting, was the first country to ratify them on May 8, 2012. At the beginning of the panel, 14 States Parties had ratified the amendments. At the conclusion of the discussion, a representative of Austria announced his country’s decision to ratify the amendments as well, bringing the total to 15 ratifications—exactly half of what is needed.

The panel consisted of the Honorable Judge Sang-Hyun Song, President of the International Criminal Court; H.E. Mr. Andrej Logar, Permanent Representative of the Republic of Slovenia to the United Nations; H.E. Mr. Christian Wenaweser, Permanent Representative of the Principality of Liechtenstein to the United Nations; and Professor Beth van Shaack, Professor of Law at Santa Clara University-School of Law. The discussion was moderated by Mr. David Tolbert, President of the International Center for Transitional Justice.

Judge Song opened the discussion with a brief overview of the progress of the ICC through the years, demonstrating how the ICC transformed from a paper court to the busy, fully-functioning institution it is today. In the course of this history, Judge Song referred to the completely new paradigm of justice that the ICC represents, and described how the Court changed the way in which the world thinks in relation to atrocity crimes. He described the Kampala Amendments as an important opportunity to reaffirm international unity in this regard.

Ambassador Wenaweser gave a short summary of the Kampala Amendments, including an overview of the proposed elements of the crime. The first section of the amendments defines individual criminal liability for the crime of aggression as

the planning, preparation, initiation or execution by a person in 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.

The amendments go on to define an “act of aggression,” and to discuss jurisdictional implications.

Ambassador Wenaweser addressed concerns that the inclusion of the crime of aggression could distract the Court’s attention from other serious crimes. He argued that the ICC has focused on genocide, war crimes, and crimes against humanity since its inception, which an expansion of its jurisdiction would not change. Wenaweser added that, due to the inherent difference in nature of the crime of aggression from the three crimes the Court currently has jurisdiction to prosecute, the potential for distraction is in fact minimal.

Beth Van Schaack injected a “note of caution” into the discussion, expressing relief that activation of the Kampala Amendments would be delayed until at least 2017. The extra time, she explained, provides an opportunity to further discuss issues such as the definition of “manifest violation of the UN Charter” in the crime’s definition, and which acts specifically would constitute a crime of aggression. She also voiced concern that the definition as it stands might inappropriately politicize the Court, or even deter humanitarian interventions that should fall under the Responsibility to Protect framework.

The moderator, David Tolbert, encouraged Judge Song to speak about further steps that need to be taken before the Court would be ready to prosecute instances of the crime of aggression. Judge Song specifically mentioned the growth and strengthening of the Office of the Prosecutor’s (OTP) capacity. With yet another crime under the Court’s jurisdiction, the OTP would need greater support since its workload would increase and budgetary and organizational issues would arise.

When the floor opened for discussion, representatives from Spain and Poland expressed support for the amendments. The Parliament of Poland approved the ratification bill of the Kampala Amendments on February 21, 2014, and the President of the Republic of Poland is expected to sign the depositary instrument soon. The Parliament of Spain is expected to finish its examination of the Kampala Amendments this August, with the potential for ratification in late 2014.

A representative from the United States voiced several concerns with the Kampala Amendments, such as the risk that the amendments could deter legitimate military and self-defense actions by countries, the politicization of the court, and situations where the ICC has jurisdiction over non-parties to the Rome Statute for crimes of aggression. The United States urged those present to engage in more open discussion over potential problems before making a final decision on ratification.

The discussion ended with closing remarks from the panelists, concluding the highly informative session that covered multiple facets and different viewpoints of the Kampala Amendments. Attendees received an update on the status of the ongoing ratification and implementation of the amendments and had the opportunity to speak with the panelists at the conclusion of the panel.

Panel DIscussion

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