ICC: Conclusions of the second resumption of the 7th Session of the Assembly of States Parties to the Rome Statute

New York, 16 February 2009

The second resumption of the seventh session of the Assembly of States Parties (ASP) of the Rome Statute took place from 9 to 13 February 2009, at United Nations Headquarters in New York. The ASP was attended by States Parties, observer States, international organisations and non‑governmental organisations, including a delegation from No Peace Without Justice (NPWJ).
The session has been devoted mainly to the Special Working Group on the Crime of Aggression, which after five years of deliberation produced draft provisions on the definition of the crime of aggression and the conditions for the exercise of jurisdiction by the Court over this crime. While the crime of aggression appears in the Rome Statute’s list of crimes, Court cannot yet exercise jurisdiction over this crime because of the lack of a definition and the need for a clarification of the conditions that would govern the Court’s exercise of jurisdiction.
The draft provisions under consideration include a definition of the act of aggression, which is based on United Nations General Assembly resolution 3314 (XXIX), with a threshold, an open-ended lists of acts that would qualify as an act of aggression and wording on the requisite leadership element to establish individual criminal responsibility for the act. The definition being proposed in that document would not include acts of terrorism performed by non-State actors.
Regarding the second aspect, discussions held during the session showed that States parties are still in disagreement over the role of the Security Council, which under the United Nations Charter has the power to determine matters relating to acts of aggression. The permanent members of the Security Council - China, France, Russian Federation, the United Kingdom and the United States - had consistently taken the position that determining acts of aggression belonged exclusively to the Council and that the ICC Prosecutor may only initiate an investigation in respect of a crime of aggression if the Security Council has previously made a determination that such a crime has been committed by a State.
Other options under consideration foresee that in the absence of such a determination by the Security Council the Prosecutor may only proceed with an investigation if:
 (a) The Security Council has adopted a resolution under Chapter VII of the 
       Charter requesting the Prosecutor to proceed with an investigation;
 (b) The Pre-Trial Chamber has authorized the commencement of the
       investigation in accordance with the procedure contained in article 15;
 (c) The United Nations General Assembly has determined that an act of      
      aggression has been committed; or
 (d) The International Court of Justice has determined that an act of 
        aggression has been committed.
Furthermore, some delegations posit that the absence of a determination of an act of aggression by the Security Council should not prevent the Prosecutor from proceeding with an investigation.
Members agreed to undertake additional work on the crime of aggression and a suggested outline of the Court’s jurisdiction over the crime at an informal intersessional meeting tentatively scheduled for 8 to 10 June 2009 and at the eighth session of the Assembly in November in order to further refine the proposals which would be submitted for consideration by the Review Conference, scheduled to take place in Kampala, Uganda, in the first semester of 2010.
The session was also the opportunity for the Assembly to hold informal consultations on the scope of the Review Conference and on the establishment of an independent oversight mechanism for the Court, foreseen in article 112, paragraph 4, of the Statute.
NPWJ considers that holding the Review Conference in Uganda will help to strengthen and underscore the importance of the Court becoming a truly field-based institution and will give an opportunity to strengthen the fight against impunity by supporting those within and outside of Government who oppose amnesties or any other form of impunity for serious crimes under international law and who wish to see a real accountability process realised.
NPWJ looks forward the ICC and the Government of Uganda to capitalise on this opportunity and work closely with national civil society for a renewed in-country public information and sensitisation campaign on the work of the Court, the relationship between its organs and its governance structures, to complement the outreach work being undertaken by the ICC itself.
Documentation for the session is available on the website of the ICC.
For further information, contact Alison Smith on asmith@npwj.org or +32-2-548-39 12.