Written by: Professor William Schabas [1]

The Kampala Review Conference of the Rome Statute provides a much-needed shot of legal adrenaline to the International Criminal Court. Several of the achievements at Kampala were relatively minor and inconsequential. Fortunately, they are dwarfed by the stunning accomplishment of the amendments of aggression, adopted in extremis early Saturday morning. Until about 1030 PM Friday night, I could not find anybody prepared to wager a significant sum of money on the likelihood of a positive outcome.

While much credit is due to the impressive diplomatic skills, and determination, of Christian Wenaweser, Prince Zeid and Stefan Barriga, who were the architects of the negotiations, personalities alone do not account for the result. At the Rome Conference, and for some years afterwards, I used to say that the Court was protected by a guardian angel. But this was just a metaphor for the fact that the Court, and international criminal justice, is – to paraphrase Victor Hugo – ‘an idea whose time has come’. And nothing can stop it. For some years, with the Court’s activity in the doldrums, I had lost sight of the guardian angel. But he/she was certainly in evidence last Friday and Saturday.

This time, though, the idea is a narrow one, and it is built around the crime of aggression. One striking difference with the Rome Conference was the relative absence of the NGOs at Kampala. They were there in a formal sense, especially at the beginning of the Conference, when the proceedings looked more like an academic seminar or a political meeting than a treaty negotiation. But many of them were quite indifferent to the incorporation of aggression into the Statute. I am struck by the resemblance of their attitude to the American position, which treats aggression as a bit tangential from the core mission of the Court, which is to promote human rights through the prosecution of the other core crimes, namely genocide, crimes against humanity and war crimes. Even the High Commissioner for Human Rights, who actually attended part of the Kampala Conference, has yet to issue a statement signaling the achievement of incorporating the crime of aggression in the Rome Statute.

Nothing could be more mistaken, however. The wise judges at Nuremberg described aggressive war as the supreme crime, encompassing the evil of all the others. What Kampala does is refocus our attention onto the importance of the prohibition of war – on the jus ad bellum. This is an important and helpful correction, and it is to be hoped that the message of Kampala will slowly percolate through the human rights discourse.

Those who are keen on the aggression issue are very troubled by the seven-year delayed entry into force. It would be a mistake to exaggerate the significance of this. Entry into force of amendments to treaties always takes time. The amending procedure is quite arcane, and even without the seven-year rule this would take a long time in any case. Although the amendment requires thirty ratifications and a positive decision by the States parties, this should not pose a serious problem, and both conditions should be fulfilled by 1 January 2017 or shortly thereafter.

Then, the result will be much better than had the Conference to what many thought was the appropriate amending process. Because the amendment will apply to all States parties, and not just those who have ratified it, provided of course they have not made an opt-out declaration. There may be some of these, but there is no cause for pessimism here. There will be a high political price to pay for any government that considers making an opt-out declaration. It is a price that many will prefer not to pay.

Nor should we lose sight of the incentive that the amendments create for States that have not joined the Court. According to article 15bis, a non-party State is immune from the Court’s jurisdiction over the crime of aggression. The Court cannot punish crimes committed by its nationals or on its territory. Some States will welcome this because it will insulate their nationals, but many will realize that they are being deprived of the deterrent power of the Rome Statute, in that aggression committed on their territory and against them totally escapes the jurisdiction. Hopefully, some of them will appreciate the interest in joining the Court because of this added layer of protection.

I am reminded of the importance that the first President of the Court, Philippe Kirsch, attached to the work on the crime of aggression. My recollection is that he felt it was important not only to show to States that the reference to aggression in article 5(1) had some substance behind it. He also explained that incorporating aggression in the Statute would help convince some States to join the institution. He was right at the time, and his vision has now borne fruit.

Those who are unhappy with the Court’s new mandate will try to pick holes in the legality of the amendments. It is true that they reflect some creative approaches, but everything passes what Roger Clark calls the ‘straight face test of advocacy’. Legal academics who support the Court, and the amendments, can assist judges in the future with reassurances that the amendments actually work. The Statute as adopted in Rome had its share of ambiguities. The Kampala Conference was able to find a workable way forward.

Beyond the adoption of the aggression amendments, there is really not much else to say about the Kampala Conference. It is of course positive to have repaired an oversight in the war crimes provisions. However, the amendment to article 8 is symbolic, and it is doubtful that it will ever lead to prosecutions. There have, to date, never been any international prosecutions for the use of such weapons. It is occasionally pointed out that Saddam Hussein used poison gas at Halabja, but it is absurd to suggest that the failure to recognize the use of such weapons as an international crime means that there is an impunity gap for such atrocities. They can be prosecuted as crimes against humanity and even genocide. Years from now, people will point the prohibited weapons issue at Kampala with irony, noting that the States Parties were able to address the prohibition of relatively archaic weapons that are rarely if ever used in modern combat, but that they could not deal with the important issues: anti-personnel mines, cluster munitions, depleted uranium weapons and, of course, nuclear weapons.

The Conference agreed to leave article 124 alone. The importance of this provision was always exaggerated, especially by the human rights NGOs. Amnesty International called it a ‘licence to kill’, but never attempted to provide evidence that could back up such a hyperbolic claim. Arguably, article 124 helped smooth the ratification of two States parties. If it can do this trick again over the next five years, then it will be worth leaving it in the Statute. And if it cannot prompt further ratifications, then how can it be claimed that any harm was done?

What the Conference failed to do was talk about the Court and its performance. There may have been good policy reasons for doing so. Perhaps Kampala was not the right place for a stocktaking on the activities, results and operations of the Court. But this subject cannot be avoided forever.