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Reaching the Kampala Compromise on Aggression: The Chair's Perspective

Published online by Cambridge University Press:  22 November 2010


This contribution sets out the path towards consensus at Kampala. Before the Review Conference, two main issues remained unresolved: the question whether some form of consent by the alleged aggressor state should be required, and the role of the UN Security Council. Few had expected a consensus on a comprehensive package. The outcome of Kampala reflects significant compromises, but also a significant step to advance international criminal law.

HAGUE INTERNATIONAL TRIBUNALS: The Kampala Compromise on the Crime of Aggression
Copyright © Foundation of the Leiden Journal of International Law 2010

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1 The Working Group on the Crime of Aggression in the framework of the Assembly of States Parties and at the Kampala Conference was chaired by HRH Zeid Ra'ad Zeid Al Hussein (Jordan), while I had chaired the work of the Special Working Group. Stefan Barriga, deputy permanent representative and legal adviser at the Liechtenstein Mission in New York, played a crucial role in assisting the work in both groups. All the texts circulated in Kampala were consulted by this inner circle, with informal input from many others.

2 Report of the Special Working Group on the Crime of Aggression, February 2009, ICC-ASP/7/20/Add.1.

3 In discussions held in particular in Glen Cove and in Mexico City, in February and April 2010.

4 It is important to note, though, that some delegations at the Kampala conference consistently objected to the formula ‘definition only’ as an outcome, sometimes even arguing that it would be worse than a problematic full package on the issue.

5 The ‘not now’ argument, as we started calling it, which was advanced by persons of very different affiliation.

6 9 June 2010.

7 Presented to the plenary in the morning of 10 June.

8 This was also reflected in the new preambular paragraph 1 of the enabling resolution, which makes reference to Art. 12(1) of the Rome Statute.

9 The ‘green light option’ for the Security Council filter, and an option that would involve the whole Pre-Trial Division rather than just a Pre-Trial Chamber.

10 The final version of the Understandings no longer contained language on a ‘positive’ or ‘negative’ understanding of Art. 121(5), as this issue was addressed in the opt-out regime introduced in the text.

11 10 June, 11 p.m.

12 We reintroduced the green light option to the Security Council filter and combined the red light option with the Pre-Trial Division, for balance.

13 I.e. alternative 2 in the previous non-paper of the president.

14 We used the term ‘delayed entry into force’ in the non-paper, although it would have been more correct to use the term ‘delayed activation’, which was in essence what the discussed proposals sought to achieve.

15 In the absence of an agreement in Kampala, the next session of the Assembly of States Parties could have been seized with the issue.