REVIEW CONFERENCE OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT KAMPALA, 31 MAY 11 JUNE 2010 OFFICIAL RECORDS

Transcription

1 REVIEW CONFERENCE OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT KAMPALA, 31 MAY 11 JUNE 2010 OFFICIAL RECORDS

2 Note Symbols of documents of the Assembly of States Parties to the Rome Statute of the International Criminal Court are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a document of the Assembly of States Parties to the Rome Statute of the International Criminal Court. Resolutions of the Assembly bear the letters Res., while its decisions bear the letters Decision. Secretariat, Assembly of States Parties International Criminal Court P.O. Box CM The Hague The Netherlands asp@icc-cpi.int Tel: +31 (0) Fax: +31 (0) RC/9/11 International Criminal Court publication ISBN No Copyright International Criminal Court 2010 All rights reserved Printed by Ipskamp, The Hague

3 Contents Page Part I Proceedings... 1 A. Introduction... 1 B. Consideration of issues on the agenda of the Review Conference Adoption of the Rules of Procedure States in arrears Credentials of representatives of States at the Review Conference General debate Stocktaking of international criminal justice... 4 (a) The impact of the Rome Statute system on victims and affected communities... 4 (b) Peace and justice... 5 (c) Taking stock of the principle of complementarity: bridging the impunity gap... 5 (d) Cooperation Consideration of proposals for amendment of the Rome Statute... 6 (a) Review of article 124 of the Rome Statute... 6 (b) Proposals for a provision on the crime of aggression... 6 (c) Other proposals Strengthening the enforcement of sentences Other matters... 7 (a) High-level declaration... 7 (b) Pledges... 7 (c) Drafting Committee... 7 (d) Trust Fund for the participation of the least developed countries and other developing States in the work of the Conference... 7 Part II Resolutions and Declarations adopted by the Review Conference... 8 A. Resolutions... 8 RC/Res.1 Complementarity... 8 RC/Res.2 The impact of the Rome Statute system on victims and affected communities... 9 RC/Res.3 Strengthening the enforcement of sentences RC/Res.4 Article RC/Res.5 Amendments to article 8 of the Rome Statute RC/Res.6 The crime of aggression B. Declarations RC/Decl.1 Kampala Declaration RC/Decl.2 Declaration on cooperation E iii

4 Annexes I. Report of the Credentials Committee II. II(a) II(b) Reports of the Drafting Committee Draft amendments to article 8 of the Rome Statute and to the elements of crime Draft amendments to the Rome Statute of the International Criminal Court on the crime of aggression III. Report of the Working Group on the crime of aggression IV. Report of the Working Group on other amendments V. Stocktaking of international criminal justice V(a) The impact of the Rome Statute system on victims and affected communities V(b) Peace and justice V(c) Taking stock of the principle of complementarity: bridging the impunity gap V(d) Cooperation VI. VII. Statements by States Parties in explanation of position after the adoption of resolution RC/Res.5, on the amendments to article 8 of the Rome Statute A. Statement by Belgium B. Statement by France Statements by States Parties in explanation of position before the adoption of resolution RC/Res.6, on the crime of aggression Statement by Japan VIII. Statements by States Parties in explanation of position after the adoption of resolution RC/Res.6, on the crime of aggression IX. A. Statement by Brazil B. Statement by France C. Statement by Japan D. Statement by Norway E. Statement by the United Kingdom Statements by non-states Parties in explanation of position after the adoption of resolution RC/Res.6, on the crime of aggression A. Statement by China B. Statement by Cuba C. Statement by the Islamic Republic of Iran D. Statement by Israel E. Statement by the Russian Federation F. Statement by the United States of America X. List of documents iv 11-E

5 Part I Proceedings A. Introduction 1. In accordance with article 123 of the Rome Statute, the Secretary-General of the United Nations, on 7 August 2009, convened the Review Conference of the Rome Statute (hereinafter the Conference ). The Secretary-General invited all States Parties to the Rome Statute to participate in the Conference. Other States that had signed the Statute or the Final Act were also invited to participate in the Conference as observers. 2. In accordance with the decision of the Assembly at its eighth session, 1 the Review Conference was held in Kampala, Uganda, from 31 May to 11 June 2010, for a period of ten working days. 3. The Bureau of the Assembly, having been elected at the seventh session of the Assembly of States Parties for a term of three years, served as the Bureau of the Conference and was composed as follows: President: Mr. Christian Wenaweser (Liechtenstein) Vice-Presidents: Mr. Jorge Lomónaco (Mexico) Mr. Zachary D. Muburi-Muita (Kenya) Rapporteur: Mr. Marko Rakovec (Slovenia) 2 Other members of the Bureau: Australia, Brazil, Burkina Faso, Estonia, Gabon, Georgia, Japan, Jordan, Nigeria, Norway, Romania, Samoa, South Africa, Spain, Trinidad and Tobago, United Kingdom of Great Britain and Northern Ireland and Venezuela (Bolivarian Republic of). 4. In accordance with rule 69 of the Rules of Procedure, invitations to participate in the Conference as observers were also extended to representatives of intergovernmental organizations and other entities that had received a standing invitation from the General Assembly of the United Nations pursuant to its relevant resolutions, 3 as well as to representatives of regional intergovernmental organizations and other international bodies invited to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome, June/July 1998), accredited to the Preparatory Commission for the International Criminal Court or invited by the Conference. 5. Furthermore, in accordance with rule 70 of the Rules of Procedure, nongovernmental organizations invited to the Rome Conference, registered to the Preparatory Commission for the International Criminal Court, or in consultative status with the Economic and Social Council of the United Nations, whose activities were relevant to the activities of the Court or that had been invited by the Conference, attended and participated in the work of the Conference. 1 Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Eighth session, The Hague, November 2009 (ICC-ASP/8/20), vol. I, part II, resolution ICC-ASP/8/Res.6, para Mr. Marko Rakovec (Slovenia) acted as Rapporteur for Ms. Simona Drenik (Slovenia). 3 General Assembly resolutions 253 (III), 477 (V), 2011 (XX), 3208 (XXIX), 3237 (XXIX), 3369 (XXX), 31/3, 33/18, 35/2, 35/3, 36/4, 42/10, 43/6, 44/6, 45/6, 46/8, 47/4, 48/2, 48/3, 48/4, 48/5, 48/237, 48/265, 49/1, 49/2, 50/2, 51/1, 51/6, 51/204, 52/6, 53/5, 53/6, 53/216, 54/5, 54/10, 54/195, 55/160, 55/161, 56/90, 56/91, 56/92, 57/29, 57/30, 57/31, 57/32, 58/83, 58/84, 58/85, 58/86, 59/48, 59/49, 59/50, 59/51, 59/52, 59/53, 61/43, 61/259, 63/131, 63/132, 64/3, 64/121, 64/122, 64/123, 64/124, and decision 56/ E

6 6. In addition, in accordance with rule 71 of the Rules of Procedure, the following States were invited to be present during the work of the Conference: Bhutan, Democratic People s Republic of Korea, Equatorial Guinea, Grenada, Kiribati, Lao People s Democratic Republic, Lebanon, Maldives, Mauritania, Micronesia (Federated States of), Myanmar, Niue, Palau, Papua New Guinea, Rwanda, Somalia, Swaziland, Tonga, Turkmenistan, Tuvalu and Vanuatu. 7. The list of delegations to the Conference is contained in document RC/INF The Conference was opened by the President of the Conference, Mr. Christian Wenaweser (Liechtenstein). At the 1 st meeting, on 31 May 2010, a high-level segment was held, in which statements were delivered by Mr. Ban Ki-moon, United Nations Secretary- General; by Judge Sang-Hyun Song, President of the Court; by Mr. Luis Moreno-Ocampo, Prosecutor of the Court; by former United Nations Secretary-General, Mr. Kofi Annan; and by H.E. Yoweri Museveni, President of Uganda. H.E. Mr. Jakaya Kikwete, President of the United Republic of Tanzania, delivered a statement during the general debate. 9. At its 2 nd meeting, on 31 May 2010, in accordance with rule 14 of the Rules of Procedure, the following States were appointed to serve on the Credentials Committee: Costa Rica, Estonia, Ireland, Lesotho, Netherlands, Republic of Korea, Serbia, Suriname and Uganda. 10. The Director of the Secretariat of the Assembly, Mr. Renan Villacis, acted as Secretary of the Conference. The Conference was serviced by the Secretariat. 11. At its 1 st meeting, the Conference observed one minute of silence dedicated to prayer or meditation, in accordance with rule 32 of the Rules of Procedure. 12. At its 2 nd meeting, the Conference adopted the following agenda (RC/1): 1. Opening of the Conference. 2. Silent prayer or meditation. 3. Adoption of the Rules of Procedure. 4. Adoption of the agenda. 5. Credentials of representatives of States at the Review Conference: a) Appointment of the Credentials Committee; b) Report of the Credentials Committee. 6. Organization of work. 7. General debate. 8. Stocktaking of international criminal justice. 9. Consideration of proposals for amendment of the Rome Statute: a) Review of article 124 of the Rome Statute; b) Proposals for a provision on the crime of aggression; c) Other proposals. 10. Strengthening the enforcement of sentences. 11. Other matters. 12. Closure of the Conference. 13. The annotated list of items included in the provisional agenda was contained in a note by the Secretariat (RC/1/Add.1). 14. At its 2 nd meeting, on 31 May 2010, the Conference agreed on a programme of work and decided to meet in plenary session as well as in the working group format. Pursuant to rule 67 of the Rules of Procedure, and on the recommendation of the Bureau, the Conference established a Working Group on the crime of aggression and a Working Group on other amendments E

7 15. H.R.H. Prince Zeid Ra'ad Zeid Al-Hussein (Jordan) was appointed to chair the Working Group on the crime of aggression. Mr. Marcelo Böhlke (Brazil) and Ms. Stella Orina (Kenya) were appointed to chair the Working Group on other amendments. 16. Also at its 2 nd meeting, the Conference, on the recommendation of the Bureau and pursuant to rule 67 of the Rules of Procedure, established a Drafting Committee, with the mandate to make recommendations aimed at ensuring the linguistic accuracy of and consistency between the various language versions of draft amendments to the Rome Statute as well as the respective draft elements of crime, prior to their adoption in plenary sessions of the Conference. 17. At its 9 th meeting, on the recommendation of the Bureau, the Conference appointed Ms. Concepción Escobar Hernández (Spain) as Chairperson of the Drafting Committee and appointed the following States as members of the Drafting Committee: France, Gabon, 4 Jordan, Russian Federation, Slovenia, Spain and the United Kingdom of Great Britain and Northern Ireland. Following the invitation by the President of the Conference, China served as a member of the Committee. The Conference agreed that membership in the Committee would be limited to up to three delegations per language, that meetings of the Committee would be open to any interested delegation, including observers, and that the input of non- States Parties would be welcomed. B. Consideration of issues on the agenda of the Review Conference 1. Adoption of the Rules of Procedure 18. At its 2 nd meeting, on 31 May 2010, the Conference adopted the Rules of Procedure of the Review Conferences, which had been endorsed by the Assembly at its sixth session States in arrears 19. At the 9 th and 10 th meetings, held on 8 and 10 June 2010, respectively, the Conference was informed that article 112, paragraph 8, first sentence, of the Rome Statute was applicable to eight States Parties. Five States Parties had submitted a request for an exemption from the loss of voting rights, which the Conference approved at its 9 th and 10 th meetings. 3. Credentials of representatives of States Parties at the Review Conference 20. At its 12 th meeting, on 11 June 2010, the Conference adopted the report of the Credentials Committee (see annex I to this report). 4. General debate 21. At the 1 st, 2 nd, 3 rd and 4 th meetings, on 31 May and 1 June 2010, statements were made by the representatives of Argentina, Australia, Austria, Bangladesh, Belgium, Bolivia (Plurinational State of), Botswana, Brazil, Bulgaria, Burkina Faso, Canada, Central African Republic, Chile, China, Colombia, Congo, Costa Rica, Côte D'Ivoire, Cuba, Czech Republic, Democratic Republic of the Congo, Denmark, Ecuador (also on behalf of UNASUR, Union of South American Nations), Egypt (also on behalf of the Non-Aligned Movement), El Salvador, Estonia, Fiji, Finland, France, Gambia, Georgia, Germany, Ghana, Greece, Guinea, Guatemala, Hungary, Holy See, India, Indonesia, Ireland, Iran (Islamic Republic of), Italy, Japan, Jordan, Kenya (also on behalf of the African States Parties), Kuwait, Lesotho, Liechtenstein, Luxembourg, Mauritius, Mexico, Montenegro, 4 Gabon had been designated by the Bureau at its ninth meeting, held on 29 April 2010, to be part of the Drafting Committee. 5 Official Records Sixth session 2007 (ICC-ASP/6/20), vol. I, part III, ICC-ASP/6/Res.2, para. 58 and annex IV, reissued as RC/3. 11-E

8 Namibia, Netherlands, New Zealand, Nigeria, Norway, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Samoa, Senegal, Sierra Leone, Slovakia, Slovenia, South Africa, Spain (also on behalf of the European Union), Suriname, Sweden, Switzerland, The former Yugoslav Republic of Macedonia, Trinidad and Tobago, Turkey, Uganda, United Kingdom of Great Britain and Northern Ireland, United Republic of Tanzania, United States of America, and Venezuela (Bolivarian Republic of). Statements were also made by the representative of Palestine and by representatives of the African Union, the Asian-African Legal Consultative Organization, the International Committee of the Red Cross, the International Criminal Tribunal for Rwanda, the International Humanitarian Fact-Finding Commission, the League of Arab States, and the Organisation internationale de la Francophonie, and by representatives of the following non-governmental organizations: Action des Chrétiens Activistes des Droits de l Homme à Shabunda, Amnesty International, Coalition for the International Criminal Court, Comisión Andina de Juristas, Fédération internationale des ligues des droits de l Homme, Human Rights Network-Uganda (HURINET-U), Human Rights Watch, No Peace Without Justice, and Women s Initiative for Gender Justice. A statement was also made by the Chair of the Committee on Budget and Finance, Mr. Santiago Wins. 5. Stocktaking of international criminal justice 22. At its 5 th, 6 th, 7 th and 8 th meetings, on 3 and 4 June, respectively, the Conference conducted a stocktaking exercise of international criminal justice, focusing on four topics; The impact of the Rome Statute system on victims and affected communities; Peace and justice; Complementarity; and Cooperation. The topics were considered in panel discussions or roundtable format. (a) The impact of the Rome Statute system on victims and affected communities 23. At its 5 th meeting, on 2 June 2010, the Conference held a panel discussion on The impact of the Rome Statute system on victims and affected communities. The discussions of the panel focused on victims participation and reparations, including protection of witnesses; the role of outreach; and the important role of the Trust Fund for Victims, which was reaffirmed. The importance of victims participation and the need to reinforce the position of victims as stakeholders and beneficiaries of the Rome Statute were recognized and reaffirmed. The need for appropriate protection of victims and witnesses, as well as intermediaries was highlighted. In addition, it was agreed that a robust outreach programme was necessary in order to make the Court known, understood and reachable for the affected populations, with a special focus on remote communities. 24. At the 9 th meeting, held on 8 June 2010, the Conference adopted a resolution on the impact of the Rome Statute system on victims and affected communities (see Part II.A), recognizing the victims right to equal and effective access to justice, protection and support; adequate and prompt reparation for harm suffered; and that access to relevant information concerning violations and redress mechanisms are essential components of justice. The resolution further encouraged the Court to continue to optimize its strategy in relation to victims, as well as its field presence in order to improve the way in which it addresses the concerns of victims and affected communities, paying special attention to the needs of women and children. It also underlined the need to continue to optimize and adapt outreach activities. In addition, it called upon States Parties, international organizations, individuals and other entities to contribute to the Trust Fund for Victims to ensure that timely and adequate assistance and reparations can be provided to victims in accordance with the Rome Statute E

9 (b) Peace and justice 25. At the 6 th meeting, on 2 June 2010, the Conference considered the topic Peace and justice under the format of a panel discussion. Several written contributions had been made available as background material for the discussions, as well as some other additional contributions. A moderator and four panelists made short presentations, followed by an interactive segment with States, international organizations and civil society. Among the conclusions of the debate, the discussions made clear that the establishment of the International Criminal Court had brought about a paradigm shift, in which amnesty was no longer an option for the most serious crimes under the Rome Statute. There was now a positive relationship between peace and justice although tensions between the two remained that needed to be acknowledged and addressed. Other issues debated at the panel were the sequencing of peace and justice, the role of mediators in peace processes, the effects of international justice, non-judicial mechanisms, and the views of victims. 26. At its 9 th meeting, held on 8 June 2010, the Conference took note of the summary of the moderator (see annex V(b)). (c) Taking stock of the principle of complementarity: bridging the impunity gap 27. At its 7 th meeting, on 3 June 2010, the Conference held a panel discussion on complementarity, in which six panelists were invited to speak on Taking stock of the principle of complementarity: bridging the impunity gap. The panelists indicated their views on the principle of complementarity. The need for assistance in strengthening the capacities of States to implement their obligation under article 17 of the Statute to investigate and prosecute the crimes within the jurisdiction of the Court, which would contribute to closing the impunity gap, was noted. The implementation of the principle of complementarity was considered and experiences and efforts at the national, regional and international levels to assist States to enhance their ability to comply with their obligations under the Statute were highlighted. 28. At its 9 th meeting, on 8 June 2010, the Conference adopted a resolution by which it, inter alia, recognized the need for additional measures at the national level and for the enhancement of international assistance to effectively prosecute perpetrators of the most serious crimes of concern to the international community and encouraged the Court, States Parties and other stakeholders to further explore ways in which to enhance the capacity of national jurisdictions to investigate and prosecute serious crimes (see Part II.A). (d) Cooperation 29. At its 8 th meeting, on 3 June 2010, the Conference held a roundtable discussion on the issue of cooperation. Five panelists had been invited to address the following issues: implementing legislation, supplementary agreements, challenges encountered by States Parties in relation to requests for cooperation, cooperation with the United Nations, and enhancing knowledge and awareness of the Court. 30. At its 9 th meeting, held on 8 June 2010, the Conference took note of the summary of the roundtable discussion (see annex V(d)). Furthermore, the Conference adopted a Declaration on Cooperation (see Part II.B), in which it emphasized that all States under an obligation to cooperate with the Court must do so. Particular reference was made to the crucial role that the execution of arrest warrants played in ensuring the effectiveness of the jurisdiction of the Court. Moreover, the Conference encouraged States Parties to continue to engage in seeking to enhance their voluntary cooperation and to provide assistance to States seeking to enhance their cooperation with the Court. 11-E

10 6. Consideration of proposals for amendment of the Rome Statute (a) Review of article 124 of the Rome Statute 31. At its 11 th meeting, on 10 June 2010, the Conference took note of the Report of the Working Group on other amendments (annex IV). The Conference also adopted resolution RC/Res.4 by which it decided to retain article 124 in its current form and to further review its provisions during the fourteenth session of the Assembly of States Parties to the Rome Statute. (b) Proposals for a provision on the crime of aggression 32. At its 13th meeting, on 11 June 2010, the Conference adopted the Report of the Working Group on the crime of aggression (see annex III). At the same meeting the Conference adopted resolution RC/Res.6 (see Part II.A) by which it amended the Rome Statute so as to include a definition of the crime of aggression and the conditions under which the Court could exercise jurisdiction with respect to the crime. The actual exercise of jurisdiction is subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute, and one year after the ratification or acceptance of the amendments by 30 States Parties, whichever is later. By the same resolution, the Conference adopted amendments to the Elements of Crimes related to the crime of aggression as well as understandings thereof. 33. The Conference based the definition of the crime of aggression on United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, and in this context agreed to qualify as aggression, a crime committed by a political or military leader which, by its character, gravity and scale constituted a manifest violation of the Charter. 34. As regards the Court s exercise of jurisdiction, the Conference agreed that a situation in which an act of aggression appeared to have occurred could be referred to the Court by the Security Council, acting under Chapter VII of the United Nations Charter, irrespective of whether it involved States Parties or non-states Parties. Moreover, while acknowledging the Security Council s role in determining the existence of an act of aggression, the Conference agreed to authorize the Prosecutor, in the absence of such determination, to initiate an investigation on his or her own initiative or upon request from a State Party. In order to do so, however, the Prosecutor would have to obtain prior authorization from the Pre-Trial Division of the Court. Also, under these circumstances, the Court would not have jurisdiction in respect to crimes of aggression committed on the territory of non-states Parties or by their nationals or with regard to States Parties that had declared that they did not accept the Court s jurisdiction over the crime of aggression. (c) Other proposals Amendment to article 8 of the Rome Statute and the Elements of Crimes 35. At its 12 th meeting, on 10 June 2010, the Conference adopted the report of the Working Group of other amendments (see annex IV), and resolution RC/Res.5 (see Part II.A), by which it amended the Rome Statue to bring under the jurisdiction of the Court the war crimes of employing poison or poisoned weapons, employing asphyxiating, poisonous or other gases, and all analogous liquids, materials and devices, and employing bullets which expand or flatten easily in the human body, when committed in armed conflicts not of an international character. 36. By the same resolution, the Conference adopted the relevant elements to be added to the Elements of Crimes in respect of the war crimes included in article 8, paragraph 2 (e), of the Rome Statute E

11 7. Strengthening the enforcement of sentences 37. At its 9 th meeting, on 8 June 2010, the Conference adopted a resolution on strengthening of the enforcement of sentences (see Part II.A). The Conference called upon States to indicate to the Court their willingness to accept sentenced persons in their prison facilities and confirmed that a sentence of imprisonment may be served in prison facilities made available though an international or regional organization, mechanism or agency. 8. Other matters (a) High-level declaration 38. At its 4 th meeting, on 1 June 2010, the Conference adopted the Kampala Declaration, (see Part II.B), pursuant to the decision of the Assembly of States Parties at its resumed eighth session. The Kampala Declaration afforded States the opportunity to reaffirm their commitment to the Rome Statute and its full implementation, as well as its universality and integrity. States reiterated their determination to put an end to impunity for perpetrators of the most serious crimes of international concern, emphasized that justice is a fundamental building block of sustainable peace and declared that they would continue and strengthen their efforts to promote victims rights under the Statute. States also decided to henceforth celebrate 17 July, the day of the adoption of the Rome Statute in 1998, as the Day of International Criminal Justice. (b) Pledges 39. At its 3 rd meeting, on 1 June 2010, the Conference held a pledging ceremony pursuant to the decision of the Assembly at its resumed eighth session, 6 in which States affirmed their commitment to national implementation of the Rome Statute, their willingness to provide assistance or support to such efforts by other States, or their commitment to cooperate with the Court. The Conference held a pledging ceremony where the co-focal points for pledges, H.E. Mr. Ernst Hirsch Ballin (Netherlands) and H.E. Mr. Gonzalo Gutiérrez (Peru) presented the pledges received to the President of the International Criminal Court, Judge Sang-Hyun Song, and the President of the Conference, H.E. Mr. Christian Wenawesser. The co-focal points announced that 112 pledges had been received from 37 States and regional organizations representing all regions of the world. 40. The pledges presented covered a variety of topics such as entering into agreements or arrangements with the Court on the enforcement of sentences, relocation of witnesses or other cooperation issues, becoming a party to the Agreement on Privileges and Immunities of the International Criminal Court, promoting universality of the Rome Statute, financial support to the Trust Fund for Victims and the Trust Fund for the participation of least developed countries and other developing States in the sessions of the Assembly of States Parties, a well as the designation of national focal points. (c) Drafting Committee 41. The Drafting Committee held four meetings, on 9, 10, and 11 June 2010, to consider the draft amendments to the Rome Statute contained in the documents listed in annex II and ensure the linguistic accuracy of and consistency between the various language versions. (d) Trust Fund for the participation of the least developed countries and other developing States in the work of the Conference 42. The Conference expressed its appreciation to Australia, Croatia, Finland, Germany, Ireland, Luxembourg, Netherlands and Poland for their contributions to the Trust Fund for the participation of the least developed countries and other developing States in the work of the Conference. 43. The Conference noted with satisfaction that 25 delegations had made use of the Trust Fund to attend the Conference. 6 Official Records Resumed eighth session 2010 (ICC-ASP/8/20/Add.1), part II, ICC-ASP/8/Res.9, para E

12 Part II Resolutions and Declarations adopted by the Review Conference A. Resolutions Resolution RC/Res.1 Adopted at the 9th plenary meeting, on 8 June 2010, by consensus RC/Res.1 Complementarity The Review Conference, Reaffirming its commitment to the Rome Statute of the International Criminal Court, Reaffirming its determination to combat impunity for the most serious crimes of international concern as referred to in the Rome Statute, Reaffirming further that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation, Welcoming the efforts of the Court to investigate and prosecute those bearing responsibility for the most serious crimes of international concern, Stressing the need to achieve universality of the Statute as a means to end impunity and acknowledging that assistance to strengthen domestic capacity may have positive effects in this regard, 1. Recognizes the primary responsibility of States to investigate and prosecute the most serious crimes of international concern; 2. Emphasizes the principle of complementarity as laid down in the Rome Statute and stresses the obligations of States Parties flowing from the Rome Statute; 3. Recognizes the need for additional measures at the national level as required and for the enhancement of international assistance to effectively prosecute perpetrators of the most serious crimes of concern to the international community; 4. Notes the importance of States Parties taking effective domestic measures to implement the Rome Statute; 5. Recognizes the desirability for States to assist each other in strengthening domestic capacity to ensure that investigations and prosecutions of serious crimes of international concern can take place at the national level; 6. Takes note of the report of the Bureau on complementarity and its recommendations as a background paper for discussions at the Review Conference; 7. Welcomes the fruitful discussions on the issue of complementarity held during the Review Conference; 8. Encourages the Court, States Parties and other stakeholders, including international organizations and civil society, to further explore ways in which to enhance the capacity of national jurisdictions to investigate and prosecute serious crimes of international concern as set out in the Report of the Bureau on complementarity, including its recommendations; 9. Requests the Secretariat of the Assembly of States Parties, in accordance with resolution ICC-ASP/2/Res.3, and, within existing resources, to facilitate the exchange of information between the Court, States Parties and other stakeholders, including international organizations and civil society, aimed at strengthening domestic jurisdictions, and requests the Secretariat of the Assembly of States Parties to report to the tenth session of the Assembly on progress in this regard; 10. Requests the Bureau to continue the dialogue with the Court and other stakeholders on the issue of complementarity and invites the Court to present to the Assembly at its tenth session, as appropriate, a report in this regard E

13 Resolution RC/Res.2 Adopted at the 9th plenary meeting, on 8 June 2010, by consensus RC/Res.2 The impact of the Rome Statute system on victims and affected communities The Review Conference, Recalling the Preamble of the Rome Statute which reminds that millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, Reaffirming the importance of the Rome Statute to the victims and affected communities in its determination to put an end to impunity for the perpetrators of the crime of genocide, crimes against humanity and war crimes, thus contributing to their prevention, Recalling United Nations Security Council resolutions 1325, 1820, 1888 and 1889 on women, peace and security, as well as resolutions 1612 and 1882 on children in armed conflict, and in this context, underlining the need to address the specific needs of women and children as well as to put an end to impunity for sexual violence in conflict, Further recalling, inter alia, the 1985 United Nations General Assembly Resolution 40/34 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, and the 2005 United Nations General Assembly Resolution 60/147 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Recognizing that victims rights to equal and effective access to justice; protection and support; adequate and prompt reparation for harm suffered; and access to relevant information concerning violations and redress mechanisms are essential components of justice, Emphasizing the importance of outreach to victims and affected communities in order to give effect to the unique mandate of the International Criminal Court towards victims, 1. Encourages States to consider implementing those provisions of the Rome Statute relevant to victims/witnesses, where applicable, through national legislation or appropriate measures; 2. Further encourages the Court, in dialogue with victims and affected communities, to continue to optimize the Court s strategic planning process, including the Court s Strategy in relation to victims, as well as its field presence in order to improve the way in which it addresses the concerns of victims and affected communities, paying special attention to the needs of women and children; 3. Underlines the need to continue to optimize and adapt outreach activities, in light of the different phases of the judicial cycle, and to encourage further efforts to ensure that victims and affected communities have access to accurate information about the Court, its mandate and activities, as well as about victims rights under the Rome Statute, including their right to participate in judicial proceedings and claim for reparations; 4. Encourages governments, communities and civil organizations at the national and local level to play an active role in sensitizing communities on the rights of victims in accordance with the Rome Statute in general and victims of sexual violence in particular, to speak against their marginalization and stigmatization, to assist them in their social reintegration process and in their participation in consultations, and to combat a culture of impunity for these crimes; 5. Expresses its appreciation to the Board of Directors of the Trust Fund for Victims for its continuing commitment towards easing the suffering of victims; 11-E

14 6. Stresses the importance of an ongoing dialogue between the Secretariat of the Trust Fund for Victims, the Court and States Parties, with a view to ensuring the transparency of the management of the Trust Fund and its Secretariat and further stresses the importance in this regard of regular exchanges with the international community, including donors and civil society, so as to promote the activities of the Trust Fund and contribute to its visibility; 7. Calls upon States Parties, international organizations, individuals, corporations and other entities to contribute to the Trust Fund for Victims to ensure that timely and adequate assistance and reparations can be provided to victims in accordance with the Rome Statute, and expresses its gratitude to those that have done so E

15 Resolution RC/Res.3 Adopted at the 9th plenary meeting, on 8 June 2010, by consensus RC/Res.3 Strengthening the enforcement of sentences The Review Conference, Recalling the Rome Statute of the International Criminal Court, Conscious of the key role of States in the enforcement of the Court s sentences of imprisonment, Recalling that the Court s sentences of imprisonment shall be served in prison facilities provided by States that have indicated their willingness to accept sentenced persons, in accordance with the Statute, Mindful of the need for broader participation of States in the enforcement of sentences in order to allow for such enforcement in all relevant regions and sub regions and taking note of the unanimous view expressed by States Parties to this effect, Emphasizing the need for enhanced international cooperation with a view to enabling more States to voluntarily accept sentenced persons on the basis of widely accepted international treaty standards governing the treatment of prisoners, 1. Calls upon States to indicate to the Court their willingness to accept sentenced persons in accordance with the Statute; 2. Confirms that a sentence of imprisonment may be served in a prison facility made available in the designated State through an international or regional organization, mechanism or agency; 3. Urges States Parties and States that have indicated their willingness to accept sentenced persons, directly or through competent international organizations, to promote actively international cooperation at all levels, particularly at the regional and sub regional levels; 4. Requests the Secretary-General of the United Nations to bring this resolution to the attention of all members of the United Nations, with a view to encouraging that the above objectives may be considered, as appropriate, in the relevant programmes of assistance of the World Bank, the regional banks, the United Nations Development Programme, and other relevant multilateral and national agencies. 11-E

16 Resolution RC/Res.4 Adopted at the 11th plenary meeting, on 10 June 2010, by consensus RC/Res.4 Article 124 The Review Conference, Recognizing the need to ensure the integrity of the Rome Statute, Mindful of the importance of the universality of the founding instrument of the International Criminal Court, Recalling the transitional nature of article 124, as decided by the Rome Conference, Recalling that the Assembly of States Parties forwarded article 124 to the Review Conference for its possible deletion, Having reviewed the provisions of article 124 at the Review Conference in accordance with the Rome Statute, 1. Decides to retain article 124 in its current form; 2. Also decides to further review the provisions of article 124 during the fourteenth session of the Assembly of States Parties to the Rome Statute E

17 Resolution RC/Res.5 Adopted at the 12th plenary meeting, on 10 June 2010, by consensus RC/Res.5 Amendments to article 8 of the Rome Statute The Review Conference, Noting article 123, paragraph 1, of the Rome Statute of the International Criminal Court which requests the Secretary-General of the United Nations to convene a Review Conference to consider any amendments to the Statute seven years after its entry into force, Noting article 121, paragraph 5, of the Statute which states that any amendment to articles 5, 6, 7 and 8 of the Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance and that in respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party s nationals or on its territory, and confirming its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted the amendment applies also in respect of States that are not parties to the Statute, Confirming that, in light of the provision of article 40, paragraph 5, of the Vienna Convention on the Law of Treaties, States that subsequently become States Parties to the Statute will be allowed to decide whether to accept the amendment contained in this resolution at the time of ratification, acceptance or approval of, or accession to the Statute, Noting article 9 of the Statute on the Elements of Crimes which states that such Elements shall assist the Court in the interpretation and application of the provisions of the crimes within its jurisdiction, Taking due account of the fact that the crimes of employing poison or poisoned weapons; of employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; and of employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions, already fall within the jurisdiction of the Court under article 8, paragraph 2 (b), as serious violations of the laws and customs applicable in international armed conflict, Noting the relevant elements of the crimes within the Elements of Crimes already adopted by the Assembly of States Parties on 9 September 2000, Considering that the abovementioned relevant elements of the crimes can also help in their interpretation and application in armed conflict not of an international character, in that inter alia they specify that the conduct took place in the context of and was associated with an armed conflict, which consequently confirm the exclusion from the Court's jurisdiction of law enforcement situations, Considering that the crimes referred to in article 8, paragraph 2 (e) (xiii) (employing poison or poisoned weapons) and in article 8, paragraph 2 (e) (xiv) (asphyxiating, poisonous or other gases, and all analogous liquids, materials and devices) are serious violations of the laws and customs applicable in armed conflict not of an international character, as reflected in customary international law, Considering that the crime referred to in article 8, paragraph 2 (e) (xv) (employing bullets which expand or flatten easily in the human body), is also a serious violation of the laws and customs applicable in armed conflict not of an international character, and understanding that the crime is committed only if the perpetrator employs the bullets to uselessly aggravate suffering or the wounding effect upon the target of such bullets, as reflected in customary international law, See Depositary Notification C.N Treaties-6, dated 29 November 2010, available at 11-E

18 1. Decides to adopt the amendment to article 8, paragraph 2 (e), of the Rome Statute of the International Criminal Court contained in annex I to the present resolution, which is subject to ratification or acceptance and shall enter into force in accordance with article 121, paragraph 5, of the Statute; 2. Decides to adopt the relevant elements to be added to the Elements of Crimes, as contained in annex II to the present resolution E

19 Annex I Amendment to article 8 Add to article 8, paragraph 2 (e), the following: (xiii) Employing poison or poisoned weapons; (xiv) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xv) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions. 11-E

20 Annex II Elements of Crimes Add the following elements to the Elements of Crimes: Article 8 (2) (e) (xiii) War crime of employing poison or poisoned weapons Elements 1. The perpetrator employed a substance or a weapon that releases a substance as a result of its employment. 2. The substance was such that it causes death or serious damage to health in the ordinary course of events, through its toxic properties. 3. The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) (xiv) War crime of employing prohibited gases, liquids, materials or devices Elements 1. The perpetrator employed a gas or other analogous substance or device. 2. The gas, substance or device was such that it causes death or serious damage to health in the ordinary course of events, through its asphyxiating or toxic properties The conduct took place in the context of and was associated with an armed conflict not of an international character. 4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Article 8 (2) (e) (xv) War crime of employing prohibited bullets Elements 1. The perpetrator employed certain bullets. 2. The bullets were such that their use violates the international law of armed conflict because they expand or flatten easily in the human body. 3. The perpetrator was aware that the nature of the bullets was such that their employment would uselessly aggravate suffering or the wounding effect. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. 1 Nothing in this element shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law with respect to the development, production, stockpiling and use of chemical weapons E

21 Resolution RC/Res.6 Adopted at the 13th plenary meeting, on 11 June 2010, by consensus RC/Res.6 The crime of aggression The Review Conference, Recalling paragraph 1 of article 12 of the Rome Statute, Recalling paragraph 2 of article 5 of the Rome Statute, Recalling also paragraph 7 of resolution F, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998, Recalling further resolution ICC-ASP/1/Res.1 on the continuity of work in respect of the crime of aggression, and expressing its appreciation to the Special Working Group on the Crime of Aggression for having elaborated proposals on a provision on the crime of aggression, Taking note of resolution ICC-ASP/8/Res.6, by which the Assembly of States Parties forwarded proposals on a provision on the crime of aggression to the Review Conference for its consideration, Resolved to activate the Court s jurisdiction over the crime of aggression as early as possible, 1. Decides to adopt, in accordance with article 5, paragraph 2, of the Rome Statute of the International Criminal Court (hereinafter: the Statute ) the amendments to the Statute contained in annex I of the present resolution, which are subject to ratification or acceptance and shall enter into force in accordance with article 121, paragraph 5; and notes that any State Party may lodge a declaration referred to in article 15 bis prior to ratification or acceptance; 2. Also decides to adopt the amendments to the Elements of Crimes contained in annex II of the present resolution; 3. Also decides to adopt the understandings regarding the interpretation of the abovementioned amendments contained in annex III of the present resolution; 4. Further decides to review the amendments on the crime of aggression seven years after the beginning of the Court s exercise of jurisdiction; 5. Calls upon all States Parties to ratify or accept the amendments contained in annex I. See Depositary Notification C.N Treaties-8, dated 29 November 2010, available at 11-E

22 Annex I Amendments to the Rome Statute of the International Criminal Court on the crime of aggression 1. Article 5, paragraph 2, of the Statute is deleted. 2. The following text is inserted after article 8 of the Statute: Article 8 bis Crime of aggression 1. For the purpose of this Statute, crime of aggression means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. 2. For the purpose of paragraph 1, act of aggression means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; State; (c) The blockade of the ports or coasts of a State by the armed forces of another (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein E