PRESS CONFERENCE BY chairman of working group on crime of aggression

While progress had been made on the definition of aggression, a much more difficult question remained in connection with the Court’s jurisdiction over that crime, the Chairman of the Working Group tasked with presenting proposals on the crime of aggression for the Review Conference on the Rome Statute of the International Criminal Court told correspondents at a Headquarters press conference this afternoon.

Speaking to the press at the conclusion of the Group’s fifth resumed session, the Chairman of the Working Group on the Crime of Aggression of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Christian Wenaweser, said that aggression had been included as a crime within the Court’s Statute, along with genocide, war crimes and crimes against humanity.  However, the 1998 Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court had not agreed on the definition of the crime of aggression and the conditions under which the Court could exercise its jurisdiction.  For that reason, in 2002, a special Working Group, open to all States, had been created to elaborate proposals for a provision on aggression.

The first opportunity for the Assembly of States Parties to amend the Rome Statute would be the Review Conference, to be held in 2009 or 2010.  In this connection, Mr. Wenaweser said that, while it looked like there were two years before the Group could make its proposals, in fact, it had “something like two weeks left” to negotiate, as it met for only five to seven days a year.

Regarding the definition of aggression, he said that General Assembly resolution 33/14 of 1974 defined aggression to some extent, but it did not fulfil the purposes of such a definition for a criminal statute.  The Working Group had made good progress in that regard, however.  The definition was likely to refer to resolution 33/14, but it was not clear whether the acts listed in that text would be part of the definition.  The definition would probably make it clear that aggression was a leadership crime.  It was also likely to contain a threshold clause stating that an act in question must in its character, gravity and scale constitute a manifest violation of the Charter.  Some people also wanted to include the intended object and the purpose of an act, such as establishing military occupation or annexing the territory of another State.

Regarding the role of the Security Council, he said that some of the States felt that it was the only body that had the authority to find that an act of aggression had occurred.  According to Article 39 of the Charter, the Council could make a determination on whether or not an act of aggression had been committed by a State, and those States felt that the International Criminal Court could not proceed with investigations and prosecutions in the absence of such a determination.  Others believed that, given the highly political nature of decisions of the Security Council, there must be an alternative, giving the Court as an independent body a way to proceed even in the absence of a determination from the Security Council.

Responding to several questions about the definition of aggression, he said that aggression was defined as an act committed by a State against a State, but since the Rome Statute was a criminal one, it related to individual criminal responsibility.  In the end, it was not a case against a State –- there would be an individual in the courtroom.  It was clear that aggression was a leadership crime.  Thus, under the definition that the Group was working on, such a leader should be in a position to effectively exercise control over the military or political action of a State.

Asked how the future definition of aggression would apply to Ethiopia entering the territory of Somalia and bombings of alleged Al-Qaida terrorists in Somalia by the United States, he said that it depended on the level of threshold to be introduced and whether one could credibly argue self-defence.  Otherwise, it would appear to be quite clear under most definitions.

Responding to a question on whether non-members of the Court contributed to the discussion, he said that the Working Group was open to all the States who had signed the Final Act in Rome, which was “pretty much everybody”.  Regarding the United States, he said that, while able to participate at the same level as everybody else, it chose not to at this point.

Asked whether any cases had been put aside until the definition had been completed, he said that the definition was not retroactive.  Thus, if it entered into force in 2009, everything that had happened before that date, would not fall under its jurisdiction.

Regarding the procedure to be followed, he said that the Group consisted of international lawyers, who dealt with many technical issues.  However, it was “all very legal and very complex and very fascinating, but in the end it’s a political question”.  The Group he was chairing would conclude its work some 12 months prior to the Review Conference.  After that, a political discussion would follow.  The issue would not be decided by legal advisers -- it would be decided at a higher level.

Asked about the political sticking points in negotiations, he said that, while almost everybody agreed that the Security Council should have “a first shot” at saying whether an act of aggression had taken place, the difficult part was what should happen if the Council did not make a determination of aggression.  Of course, the matter was aggravated by the fact that the Council “pretty much never” made such a determination, or at least had not done so in the past.  There were also proposals to give the right to make a determination to other bodies, including the General Assembly or the International Court of Justice.  In fact, the General Assembly had done that in the past.

On compatibility of national laws with the provisions of the International Criminal Court, he said that was one of the difficult issues.  The role of the Court was to come in when the national jurisdiction failed to do so.  In the case of aggression, it became more complicated than in connection with other crimes, because most States did not criminalize aggression in their national laws.

Could countries that had been invaded bring charges at the Court, bypassing the Security Council? a correspondent asked.  Mr. Wenaweser replied that it would depend on the way the role of the Council was defined.  A State could certainly go to the Court, but the Court might be unable to do anything in the absence of the determination by the Council.

Asked if the International Criminal Court had legitimacy in the eyes of the world, after the Prosecutor had indicted four or five people in four years, he said that, in a sense, he agreed that there was an issue of perception that needed to be satisfied.  But one had to understand that it was much more difficult to build a case, for example, in Darfur, where there was no cooperation and where access was very limited.  Also, the function of the Court was not only to bring people to justice, but also to strengthen the national judicial systems.

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For information media • not an official record