This PGA Roundtable Briefing was held at the Permanent Mission of the Kingdom of the Netherlands to the United Nations in New York and brought together PGA Member Legislators from Afghanistan, Argentina, Kenya, Sierra Leone, Nigeria and Senegal. The Roundtable Briefing was officially opened by the Permanent Representative of The Netherlands to the United Nations, H.E. Frank Majoor who noted favourably the highly successful work of PGA in connection with enhancing the universality of the Court.
The PGA Members participating in this event received an extensive Briefing on the recently concluded Inter-sessional Meeting on the Crime of Aggression and on the historical and political background to these deliberations from Amb. Christian Wenaweser of Liechtenstein, current President of the Assembly of State Parties of the ICC and Chair of the Special Working on the Crime of Aggression up until February 2009, as well as from H.R.H. Prince Zeid of Jordan, Ambassador of Jordan to the United States and Chair of Inter-sessional held at the Princeton Club in New York from June 8-10, 2009 that successfully concluded the work on a proposal for the Elements of the Crime of Aggression. Thereafter, an extensive and fruitful question and answer session ensued with the PGA MPs present as well as a useful exchange of general views, observations and clarification on the ICC and its general terms of reference.
Ambassador Wenaweser observed that the importance of defining the Crime of Aggression was undiminished since it is actually one of the four crimes under the jurisdiction of the ICC according to article 5 of the Rome Statute in 1998. The efforts to define this Crime of Aggression and its jurisdiction procedure will require an amendment to the Rome Statute. While all States, even those not States Parties to the Rome Statute have been invited and have contributed substantially to the negotiations up to date, it will be a responsibility only for the States Parties attending the Review Conference of the Rome Statute to make the final decisions.
Noting that the Crime of Aggression was correctly viewed as 'the supreme international crime' a proposal for a definition has been agreed in the last year and has been included as proposed Article 8 bis to be submitted to the Review Conference for its consideration. The definition of the crime of aggression (committed by an individual) is closely linked to the Act of Aggression (committed by a State against another State) as defined by the United Nations General Assembly Resolution 3314 (XXIX) of 14 December 1974.
Conversely, in light of the intimate relation between the determination that an act has occurred, hence the proscription of the use of force under the UN Charter has been breached, Ambassador Wenaweser observed that it had proved difficult to find yet a procedure to for the ICC to exercise its jurisdiction over the crime, especially due to the primary responsibility of the United Nations Security Council in this area. He was nevertheless hopeful that the forthcoming Assembly of States Parties and the debates at the Review Conference in Uganda in May-June 2010 will conclude in a consensus on this crucial issue for the maintenance of international peace.
In connection with the Review Conference, Ambassador Wenaweser highlighted the importance of keeping the focus on two main issues (1) the Crime of Aggression definition and (2) Article 124 which is a provisional clause mandated to be reviewed at the First Review Conference by which the ratifying States could invoke to exempt application of the war crimes jurisdiction of the Court.
He noted also that there would be a general stock taking on certain issues in Kampala, such as the progress made by States Parties in implementing legislation on the Rome Statute, as well as discussion on a Belgian and Mexican proposals to extend the definition of Article 8 of the Rome Statute concerning weapons used for the purpose of commission of war crimes.
The Ambassador also recalled that the Review Conference would not be the last opportunity in the future to seek revisions to the Rome Statute as this could occur thereafter at the regular sessions of the States Parties. Not withstanding its slight deficiencies, Ambassador Wenaweser stated that the Rome Treaty was a treaty of remarkable quality and that some of the concerns currently arising in connection with it could also be addressed in practice, without an actual need to amend the treaty. It would be essential in Kampala therefore to preserve the fundamental pillars of the Treaty already in place.
HRH Prince Zeid dwelt at some length on the key role to be played by parliamentarians in connection with political support for the independence and integrity of the ICC and the Rome Statute. It was essential to sit with Parliamentarians around the world on this issue - in particular Foreign Affairs and Justice Committees. His own experience in Jordan corroborated this - he often came upon the exhortation from Parliamentarians in Jordan 'if only we could have been consulted on this earlier'. More generally, Prince Zaid noted with approval the practice of including Parliamentarians in delegations to the United Nations General Assembly, and in the forthcoming Review Conference - a practice which PGA has and will continue to encourage.
Prince Zeid observed that Article 27 of the Rome Statute was, in many ways, the golden article and that the Rome Treaty was the most enlightened one in human history. 108 (109 to date) countries have voluntarily agreed that their current Heads of State cannot be immune from prosecution for the crimes set out in the Rome Statute, in spite of this right in customary international law. The fact that in the political world what is important is to have latitude and freedom of action made the accomplishment of Article 27 all the more extraordinary. The Crime of Aggression is not only the supreme 'umbrella' crime, but also a leadership crime - hence the great sensitivity surrounding it. Great progress had been made in defining it, even if there was some way to go. The situation is made more difficult by the Permanent Members of the UN Security Council wanting to retain what they see as a primary or exclusive right of the Security Council to determine what constitutes a crime of aggression (as provided for in the UN Charter) and the high threshold they wished such a crime to have. It was just the nature of things, therefore, that any agreement on the Crime of Aggression in Kampala would probably only be reached in the final hours of the Review Conference in Uganda next year.
Participating parliamentarians interacted with both Ambassadors reiterating their commitment to the fight against impunity, and pledged to call on their respective Ministries of Foreign Affairs to keep the Parliament and the judiciary informed of what should be a State, rather than one government's, position on the crime of aggression, to motivate their active involvement and their position protecting the principles of judicial independence and preventative action enshrined in the Rome Statute.
