Closing Intervention at the Review Conference of the International Criminal Court

Harold Hongju Koh
Legal Advisor
Kampala, Uganda
June 11, 2010

Thank you, Mr. President.

The United States delegation has worked extremely hard these last two weeks to resume our country’s engagement with the International Criminal Court, the Assembly of States Parties and the many private organizations involved in the sound development of the Court and international criminal justice. We are grateful for the extraordinary hospitality that we have enjoyed here in Kampala and the many hours of candid and illuminating conversations that we have enjoyed with everyone here: in the plenary, in the informals, at the side events, and in countless private meetings.

The United States associates itself with the critical point of principle expressed in the views just presented by the Governments of France and the United Kingdom regarding the primacy of the Security Council under Article 39 of the U.N. Charter in determining the existence of an act of aggression and the Council’s primary responsibility with regard to matters of international peace and security.

We believe that the Review Conference has made a wise decision to delay implementation of the crime of aggression to permit examination of the practical implications of the two methods being proposed for the operationalization of this crime. We note with interest your new PP6, which states first, that affirmative decisions must be taken after 1 January 2017 with regard to both Security Council referrals and referrals proprio motu and by states; and second, that those decisions must be made by the same majority of States parties as is required for the adoption of an Amendment to the Rome Statute. As our deliberations here these past two weeks have plainly shown, there is an important difference between the procedures that should be used for constitutional decisions of the ICC and for routine decisions of this body. Decisions regarding organic amendments to the Rome Statute should take place in periodic, constitutional gatherings such as the Review Conference—where the precedents set by this Review Conference strongly indicate that the rule of decision is consensus-- and not as part of contested votes held amid the shifting representation and ordinary decisionmaking that occurs at regular meetings of the Assembly of States Parties, where there are many distractions, and complex questions of constitutional architecture cannot be as fully and thoughtfully evaluated.

For that reason, and based on our broad discussion with many delegations here, we understand that there is broad support for any decisions to be taken after 1 January 2017 regarding potential adoption of jurisdictional conditions for the exercise of the crime of aggression to be taken at a future Review Conference, where the decisions must be taken at least by the same majority of States Parties as is required for the adoption of an amendment to the Rome Statute or preferably by consensus. We also believe that at such a Review Conference, the States Parties should be allowed to consider any related amendments proposed for the Statute with the aim of strengthening the Court. We read the wording of paragraphs 3 of new Articles 15 bis and 15 ter to allow for this sensible approach. In sum, examining the need for amendments and other organic changes to the Rome Statute at Review Conferences, rather than at ordinary Assembly of States Parties meetings will be the wisest, most prudent strategy for developing the ICC as a sound international institution.

Thank you.