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Overview: 16th Session of the Assembly of States Parties to the Rome Statute

The 16th session of the Assembly of States Parties (ASP) to the Rome Statute took place from 4-14 December 2017 in New York. The ASP meets once a year and represents the ICC's management oversight and legislative body. It provides an avenue for state parties to consider inter alia proposals to amend the Rome Statute, the activation of the Court's jurisdiction over the crime of aggression, and the budget of the Court.

Here is a quick overview of significant developments at this year's ASP:

- The crime of aggression

The ASP adopted a resolution activating the ICC's jurisdiction over the crime of aggression. According to the resolution, the ASP "[d]ecides to activate the Court’s jurisdiction over the crime of aggression as of 17 July 2018".

The crime of aggression was included in the substantive jurisdiction of the ICC when the Court was established in 1998. However, the Court's jurisdiction would remain inactive until such time that member states were able to agree upon a definition for the crime and the conditions for the exercise of jurisdiction. This was achieved at the Kampala Review Conference in 2010. According to paragraph 2 of the resolution:

"... the amendments to the Statute regarding the crime of aggression adopted at the Kampala Review Conference enter into force for those States Parties which have accepted the amendments one year after the deposit of their instruments of ratification or acceptance..."

'Those State Parties' that have not ratified the amendment, are effectively treated as non-state parties for purposes of the crime of aggression. The wording of paragraph 2 also indicates that the parties have endorsed the narrow view on the ICC's ability to exercise jurisdiction:

"... in the case of a State referral or propio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments"

Thus, it appears nationals of non-state parties will be exempt from the ICC's jurisdiction even when they have committed the crime of aggression on the territory of a state party. The fact that this is not the case for any of the other ICC crimes (see Art. 12(2) of the Rome Statute) is likely to be controversial.

For more in-depth thoughts on the ASP resolution on aggression, see Dapo Akande's post over at EJIL: Talk! Kevin Jon Heller has also shared some thoughts over at Opinio Juris.

- New war crimes

The ASP adopted three amendments to Article 8 of the Rome Statute, thereby recognising three new war crimes:

- Employing weapons, which use microbial or other biological agents, or toxins, whatever their origin or method of production

- Employing weapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays

- Employing laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices

- South Africa's Minister of Justice confirms plans for ICC withdrawal

In his opening statement, the South African Minister confirmed that the South African government intends to withdraw from the Rome Statute. I have shared some thoughts on this decision and South Africa's new International Crimes Bill in a separate post here.

- Two African, five female judges appointed

Six new judges where elected at the ASP (two African judges highlighted):

AITALA, Rosario Salvatore (Italy, male)

AKANE, Tomoko (Japan, female)

ALAPINI-GANSOU, Reine Adelaide Sophie (Benin, female)

BOSSA, Solomy Balungi (Uganda, female)

IBÁÑEZ CARRANZA, Luz del Carmen (Peru, female)

PROST, Kimberly (Canada, female)

Judges serve a term of 9 years.

More information about the 16th session of the ASP can be found on the ASP and ICC websites.

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