ICC might strike deal on aggression

June 8, 2010 12:00 am

, KAMPALA, June 8 – International Criminal Court member states will strike a deal on the crime of aggression at the court\’s ongoing review conference, a court official said Monday.

However the UN Security Council will likely retain the exclusive right to launch an investigation for several years, Christian Wenaweser, who heads the court\’s Assembly of State Parties, said.

"The option to do nothing is pretty much off the table," Wenaweser said.

"The language of the definition specifically says what can be prosecuted is an act of such character and gravity and scale that it would constitute a manifest violation of the UN charter," Stephen J. Rapp, US ambassador-at-large for war crimes issues, told journalists.

Rapp said Washington was seeking a more precise definition of some terms.

"We\’re looking for some understandings on what manifest means, that it must be something that\’s serious and that it can\’t involve some kind of humanitarian action, basically," he said.

"But with that kind of understanding and a few others I think it\’s possible that the way that this definition is put in with those understandings could be acceptable," Rapp said.

Extending the court\’s jurisdiction to the crime of aggression, which amounts to criminalising the starting of a war of aggression, is one of the most contentious issues at the Uganda conference reviewing the ICC\’s work.

Switzerland, Brazil and Argentina on Monday tabled a proposal that, according to Wenaweser, broadly defines a likely eventual agreement.

Under the proposal, the Security Council would be given immediate power to refer an aggression case to the ICC, but any decision that gives an individual state or the ICC prosecutor the capacity to initiate such a case will be deferred for several years.

Even permanent members of the UN Security Council, which have consistently expressed some unease regarding the crime of aggression, have acknowledged that it is likely to be added to the court\’s list of prosecutable offenses, according to Wenaweser.

But, he added, the notion that that the ICC prosecutor will immediately be given unfettered authority to investigate aggression among the court\’s member states is not realistic.

"That is also something that nobody really expects at this point," Wenaweser said.

Rapp suggested the Security Council could retain its referral powers for a long time.

"At the moment we are intrigued by several proposals that suggest this matter might be given to the Security Council for the next several years and only in the future would there be the possibility of other alternatives," he told journalists Monday.

"Now that\’s a constructive approach. We think that other alternatives won\’t be necessary if the Security Council does its job."

Rapp said the Security Council would have more clout than the ICC prosecutor in such cases.

"You would really need the Security Council. If you\’re really going to talk about getting somebody arrested, if you\’re really going to talk about getting cooperation, the prosecutor standing alone in The Hague would have not a big chance against an invading army."


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