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报告摘要

Meeting Summary: International Criminal Court and its Review Conference

Introduction

The meeting was held at Chatham House on Thursday, 29 April 2010, and was part of the International Law Discussion Group. The session focused on the International Criminal Court (ICC) Review Conference set to take place in Kampala, Uganda, from May 31 to June 11, 2010. The discussion was led by Elizabeth Wilmshurst, an Associate Fellow at Chatham House, and featured Rolf Einar Fife, the Legal Adviser to the Norwegian Ministry of Foreign Affairs, who was also a delegate at the 1998 Rome Conference where the Rome Statute was adopted.

The meeting emphasized that the views expressed are those of the speakers and not necessarily those of Chatham House or its affiliates. All participants included representatives from government, embassies, NGOs, academia, and practising lawyers.

Why is a Review Conference Being Held Now?

The Rome Statute was adopted in 1998 and entered into force in 2002. A Review Conference is compulsory seven years after the Statute's entry into force, as outlined in Article 123(1) of the Rome Statute. This requirement was a compromise at the Rome Conference, where some states wanted to include terrorism and drug trafficking as crimes, while others insisted on including the crime of aggression. To secure the passage of the Statute, states agreed to a mandatory review to address the crime of aggression in the future.

The main challenge is not the definition of aggression, but the mechanism for triggering prosecution, which involves determining the legality of state actions. This raises concerns about politicisation, as the Security Council is the only body with the authority to refer cases under Chapter VII of the UN Charter. However, some participants suggested that the General Assembly or the International Court of Justice (ICJ) might be better alternatives to ensure impartiality.

There is a general consensus that the definition of aggression should be limited to the least controversial elements to avoid divisive debates and to maintain the Court's credibility. It was proposed that the States Parties could define aggression in The Elements of Crimes, but leave the triggering mechanism for future consideration.

Purpose of the Review Conference

The Review Conference has two main objectives:

Consideration of amendments to the Rome Statute, particularly the definition of the crime of aggression.
Stock-taking of the ICC's achievements and challenges over the past decade.

Possible Amendments

The crime of aggression is a central topic for discussion.
It is considered a core international crime, similar to genocide, war crimes, and crimes against humanity.
There is limited scope for amendments due to the need to maintain the Court's credibility and sustainability.
The definition of aggression should be clear, robust, and timeless, avoiding political or ideological bias.
The triggering mechanism for prosecution remains a contentious issue, with divergent opinions on whether it should be political (e.g., Security Council referral) or judicial (e.g., ICJ or ICC Office of the Prosecutor).

Stock-Taking: Lessons Learned

The Review Conference will assess the impact on victims, peace processes, and state cooperation.
The complementarity principle has had unexpected effects, encouraging domestic reforms to align with the Rome Statute.
Norway serves as an example of how the Rome Statute has prompted national legislative reforms, including the establishment of a special unit for international crimes within its prosecution service.
The ICC's success lies in removing cultures of impunity, rather than in statistical measures of case numbers.
Perception issues and allegations of bias have been raised against the ICC, which may be intentional efforts to discredit the Court. The ICC's approach will depend on the triggering mechanism and resource constraints, as the Court can only address a limited number of cases due to budgetary and logistical limitations.

Conclusion

The Review Conference in Kampala is a critical opportunity for the ICC to reassess its role and address concerns about politicisation and credibility. It is especially significant due to the concentration of states parties in Africa, and it is hoped that it will foster dialogue and reduce perceptions of bias. The core mandate of the ICC remains the prosecution of genocide, war crimes, and crimes against humanity, and any amendments should not risk undermining the support for these core crimes.