From 4 to 14 December 2017, the States Parties to the International Criminal Court (ICC) met in New York City to activate the Court’s jurisdiction over the crime of aggression. This marks a crucial step for international criminal justice. Since Nuremberg, no international criminal tribunal has been empowered to prosecute aggressive war-making. The activation was expected to be comparable to a mere turning on of lights, as the most controversial issues, such as the definition of the crime, were already settled at the 2010 Kampala Conference. Seven years later, however, this expectation turned out to be a naïve dream. It is regrettable that especially those states that sat in judgment in Nuremberg were the fiercest opponents to the activation of the Court’s jurisdiction over the crime of aggression. This article aims to reveal the dubious attempts by France and the UK to hamper the decision-making process at the 16^th Assembly of States Parties (ASP) in New York.

Negotiating position in conflict with the genesis of the Kampala compromise

States Parties, including France, emphasized in their opening statements that they did not want to reopen negotiations. In the end, they failed to keep that promise. France and the UK brought back to the negotiating table what had been rejected in Kampala. Both states pushed for the adoption of a jurisdictional opt-in system for state referrals or proprio motu investigations. Hence, the ICC shall exercise jurisdiction over nationals of a State Party or on its territory only if that state opts in by accepting or ratifying the aggression amendments. Seven years ago, the final compromise between the opt-in supporters and defenders of the existing no-consent regime of Article 12(2)(a) ICC Statute was reached by establishing an opt-out system in Article 15bis(4). Accordingly, the ICC may exercise jurisdiction over a crime of aggression, arising from an act of aggression of a State Party, unless that state has made an opt-out declaration. Nothing in Article 15bis(4) suggests, however, that a prior ratification by the aggressor state is required. Such an interpretation rather conflicts with the described genesis of the Kampala compromise. Unfortunately, historical interpretation is a strong argument only as long as people can remember the genesis of a norm. The time lapse was a key advantage for strengthening the France/UK position. They could make a second attempt to push the compromise toward their preferred jurisdictional regime. This time, the opt-in regime finally found its way into the adopted resolution. Except for Security Council referrals, the ICC can prosecute crimes of aggression only where committed in conflicts between ratifying States Parties.

No intention to compromise until the very end

The opt-in regime was adopted because France and the UK had no intention to compromise while States Parties overall were committed to reach consensus. Consensus is the way to strengthen the Court, they said. In the end, consensus was the way to give the minority, France and the UK, a de facto veto right. Due to the constant resistance by France and the UK, supporters of the opt-out camp even offered a pragmatic proposal that undermined the rationale of the opt-out system. In Kampala, the idea behind forcing states to formally opt out was to raise the political barrier. In contrast, the pragmatic proposal would have established a softer opt-out regime with various ways to avoid prosecutions without losing face. To illustrate that point, the proposal exempted from declaring an opt-out those states that had previously expressed their position of non-acceptance in the Report on the Facilitation. Thus, there was no need for the firm defenders of the opt-in regime (France, UK, Canada, Colombia, Norway) to make any embarrassing statement in the future. Moreover, the proposal allowed simple statements of non-acceptance upon adoption or after one year of consideration without the moderating spirit (or peer pressure) of these international get-togethers. Despite these concessions, France and the UK struck out all pragmatic provisions from the draft resolution and replaced them with their opt-in regime on the very last day of the ASP. Criticizing other proposals for being one-sided is one thing. Bringing up a proposal based on one’s initial position after nine days of intensive negotiations is simply hypocritical. But France and the UK were probably aware of their stronger negotiating position. As long as others strived for consensual activation, they could come up with exaggerated claims.

Against the reaffirmation of judicial independence

Although both proposals, the pragmatic proposal as well as the pure France/UK one, eventually failed to reach consensus, France and the UK continued to play the game. When the Vice-President of the ASP made one last attempt and presented a draft resolution that was supposed to be acceptable for all sides, France and the UK were presumptuous enough to request “minor changes”. Why? Even though the draft was based on their preferred opt-in system, it contained a shocking operative paragraph: A paragraph that reaffirmed the judicial independence of the Court. Montesquieu would have been proud of his home country. To highlight the absurd discussions on removing this paragraph, even South Africa, a state that had previously reiterated its intention to leave the Court, spoke up for the judicial independence of the ICC. In the face of strong opposition from other states, France and the UK had to cave in on that point.  Yet given that this draft resolution was not open to negotiations, merely suggesting any modifications could have jeopardized the activation. Hence, one may wonder whether France and the UK were truly committed to activating the jurisdiction over the crime of aggression.  Throughout the ASP, they ignored what had been agreed on in Kampala, they were unwilling to compromise and pushed the limits of their de facto veto right. Fortunately, states still managed to achieve activation, but it came at a price. The ICC will be limited to prosecuting crimes of aggression committed in conflicts between the 35 ratifying states. None of them is known for its current interest in perpetrating acts of aggression towards other states.