Earlier this week, just before President Obama addressed the nation on why the US is involved in Libya, I was privileged to hear Diane Amann give a talk at an International Law Colloquium at George Washington University Law School. Her talk, which was titled The Value of Peace and the Crime of Aggression, explores the contradictions involved in pursuing "a peace envisioned as the absence of war, yet often pursued through military intervention."
She began by pointing out that, even though President Obama had received the Nobel Prize for Peace, the US is now involved in three different conflicts, and previewed how President Obama would defend the US role in Libya. Indeed, as I listened to Obama's speech that evening, Diane's talk repeatedly echoed in my mind; she had presciently predicted his approach almost to a word!
The main part of her talk focused on the crime of aggression. She reviewed the adoption in Kampala last year of amendments to the Rome Statute that define the crime and how the ICC will exercise its jurisdiction over this crime. She described the eloquence of Ben Ferencz, the 90-plus year old former Nuremberg prosecutor, at the Kampala conference as he urged development of the crime of aggression. In addition, she discussed the US approach to securing peace around the world, and then analyzed the proposed aggression amendments in the context of this history. It was fascinating to hear her explore the paradoxes in American policy as we use force to achieve peace and as we hail mechanisms for international accountability while seeking to avoid such accountability ourselves.
The article is part of a work in progress that I very much look forward to reading!
Showing posts with label Crime of aggression series. Show all posts
Showing posts with label Crime of aggression series. Show all posts
Major Staff Turnover Anticipated at the ICC
The ICC is poised to experience a major turnover in its professional staff in 2012. These upcoming elections and appointments will constitute the most significant and dramatic changes in the ICC's leadership corps since the inaugural elections in 2003.
On the judicial side: the terms of six of the Court's 18 judges (depicted above) will expire next year. (The ICC Statute staggered the terms of office of the first batch of judges so that one third would serve 9 year terms. It is this group of judges whose terms are now ending.) The nomination period for the open positions shall run from June 13 to September 2, 2011. Candidates will be elected at the tenth session of the Assembly of States Parties (ASP) (December 12-21, 2011) to be held at United Nations Headquarters. The Court also needs a new President and new Vice Presidents. This radical overhaul of the bench will come just as the first trials before the Court are coming to a close and the ad hoc tribunals are shutting their doors.
The Judicial Division is composed of 18 judges in three divisions. The Pre-Trial Division is
composed of 6 judges. Some of the responsibilities of the Division are carried out by two Pre-Trial Chambers of 3 judges each or by a single judge. As the name implies, the Pre-Trial Division carries out a number of functions prior to the initiation of trial: - authorizing the prosecutor's proprio motu investigation,
- ruling on admissibility challenges, including on complementarity and gravity grounds,
- reviewing decisions by the prosecutor not to proceed in the event of the referral of a situation,
- upholding the rights of the accused and protecting victims and witnesses in the investigative phase,
- authorizing investigations on the territories of states parties,
- issuing warrants for arrest,
- confirming the charges against an accused, and
- (eventually) serving as a filter to charges of aggression (if the ASP decides to activate the aggression amendments in 2017).
The Trial Division, composed of 8 judges with criminal law experience, is charged with
conducting fair and expeditious trials to determine the individual responsibility, vel non, of the accused and to award any reparations due to the victims. Finally, the Appeals Division, consisting of the President of the Court and four other judges, is responsible for adjudicating any appeals emerging from the Pre-Trial Division or the Trial Division.Among those ICC judges whose terms are ending are three women:
Fatoumata Dembélé Diarra of Mali, the First Vice President of the Court and a member of the Trial Division (above right), Elizabeth Odio Benito of Costa Rica and a member of the Trial Division (immediate right), and Sylvia Steiner of Brazil, who is a member of the Pre-Trial Division (above left).
The current prosecutor's term ends in June 2012, and the ASP has established a representative search committee to find his replacement pursuant to the same schedule as the judicial elections. The Committee is being coordinated by H.R.H. Zeid Ra’ad Zeid al-Hussein, Permanent Representative of Jordan to the United Nations. The Committee hopes to have a short list of candidates by the end of this summer.
As they consider their nominations, the ASP will do well to recall the qualifications of judges and the prosecutor, which are set forth in part in Articles 36 and 42 of the ICC Statute, respectively. In particular, Article 36(8)(a) directs the ASP to in the selection of judges, to
take into account the need, within the membership of the Court, for: ... (iii) A fair representation of female and male judges.
Not surprisingly, NGOs are calling for a merits-based set of nominations rather than politicized vote-trading. To this end, the Coalition for an ICC has created a high-level expert panel to assess the candidates put forward by States Parties. See here for more on this campaign. (Diane's prior post on the CICC panel convened to vet judicial candidates is here.)
The ASP is going to experience an overhaul as well, with the election of new members of the Bureau (the executive committee of the ASP), a new President, and 6 new members for the Committee of Budget and Finance. (Ambassador Simona Mirela Miculescu (left), Permanent Representative of Romania to the United Nations, recently assumed the position of Vice-President of the Assembly).The crime of aggression will likely become operational during the terms of office of this group. (The ASP can make a decision as early as 2017 to activate the Court's jurisdiction over the crime). No doubt this too will impact states parties' choices of candidates as it is these individuals who must be trusted to adjudicate this new and controversial crime.
Stay tuned...
Libya and the Codification of the Crime of Aggression
There has been a lot of attention in the press and blogosphere about the worrisome situation in Libya, the (in)adequacy of the United States' and United Nations' response thereto, and the Security Council's unanimous referral of the situation to the International Criminal Court via Resolution 1970 on February 26, 2011. (See our prior coverage here). On March 2, 2011, the ICC Prosecutor announced that he had opened his investigation into potential crimes committed in Libya (see his press conference here). The President of the ICC, Judge Sang-Hyun Song (S. Korea), thereafter assigned the situation to Pre-Trial Chamber I.
In undertaking his investigation into international crimes committed since February 15th, the
ICC Prosecutor has already signaled that he will consider the commission of crimes against humanity—a constellation of acts made criminal under international law when they are committed within the context of a widespread or systematic attack against a civilian population with knowledge of that attack. Certainly the strafing of peaceful demonstrators with helicopter gunships, the indiscriminate bombing of residential neighborhoods by warplanes (left, photo credit), and the unleashing of mercenaries and snipers on the ground collectively rise to the level of such an attack. This is especially true given that at least a thousand people have been killed and thousands others have been injured and/or displaced. (Although, I should note that Judge Kaul, who does not sit on this PTC, will likely disagree here).
War crimes may also have been committed, depending on whether the situation in eastern Libya or elsewhere rises to the level of armed conflict. Common Article 3, whose prohibitions are listed
as war crimes in Article 8(2)(c) of the ICC Statute, is applicable once there is an "armed conflict" occurring "on the territory of" a party to the Geneva Conventions. The determination of when violence rises to the level of an "armed conflict" depends on the level of violence and the degree of organization of the parties. Certainly, the formation of an increasingly hierarchized and united armed opposition—populated and led by courageous defectors from Libyan armed forces' officer corps—goes far toward finding the necessary degree of organization. In addition, there are indications that swaths of the country are under the control of opposition groups forging a transitional government (the Libyan National Council) after governmental authorities collapsed.
All this implies that the heightened threshold of Protocol II, which also governs non-international armed conflicts and whose prohibitions may be prosecuted as war crimes pursuant to Article 8(2)(e) of the ICC Statute, may also be satisfied. That treaty becomes applicable when there is a non-international armed conflict
The crime of aggression is not immediately implicated in the Libyan situation. For one, the aggression amendments will not come into force until 2017 at the earliest. Moreover, the definition of the crime does not envision the act of aggression being committed by or against non-state actors that are not linked to a state. Nonetheless, the crime of aggression may bear on responses by the international community to the crisis in Libya.
Indeed, military options are not off the table, according to recent comments by President Obama and other world leaders. In particular, it has been proposed that the international community—or some subset thereof—should impose a no-fly zone over the country in an effort to prevent Libya's increasingly erratic and vicious leader from committing further violence against his own people. The Gulf Cooperation Council and Arab League reportedly support such a measure as do several vocal members of Congress. France and Britain are working on a draft Security Council resolution that would authorize such a response, although it is unclear if Russia and China would support this measure, which sounds of military intervention. This raises the prospects that a group of states, such as NATO or some other coalition of the willing, might move forward without explicit Council approval. This is exactly the kind of scenario that worries detractors of the codification of the crime of aggression in the ICC Statute.
The imposition of a no-fly zone without prior Council approval might run afoul of the prohibition of aggression as it has been defined in the aggression amendments. Article 8bis(2) of the amendments defines “act of aggression” broadly as
In undertaking his investigation into international crimes committed since February 15th, the
ICC Prosecutor has already signaled that he will consider the commission of crimes against humanity—a constellation of acts made criminal under international law when they are committed within the context of a widespread or systematic attack against a civilian population with knowledge of that attack. Certainly the strafing of peaceful demonstrators with helicopter gunships, the indiscriminate bombing of residential neighborhoods by warplanes (left, photo credit), and the unleashing of mercenaries and snipers on the ground collectively rise to the level of such an attack. This is especially true given that at least a thousand people have been killed and thousands others have been injured and/or displaced. (Although, I should note that Judge Kaul, who does not sit on this PTC, will likely disagree here).War crimes may also have been committed, depending on whether the situation in eastern Libya or elsewhere rises to the level of armed conflict. Common Article 3, whose prohibitions are listed
as war crimes in Article 8(2)(c) of the ICC Statute, is applicable once there is an "armed conflict" occurring "on the territory of" a party to the Geneva Conventions. The determination of when violence rises to the level of an "armed conflict" depends on the level of violence and the degree of organization of the parties. Certainly, the formation of an increasingly hierarchized and united armed opposition—populated and led by courageous defectors from Libyan armed forces' officer corps—goes far toward finding the necessary degree of organization. In addition, there are indications that swaths of the country are under the control of opposition groups forging a transitional government (the Libyan National Council) after governmental authorities collapsed.All this implies that the heightened threshold of Protocol II, which also governs non-international armed conflicts and whose prohibitions may be prosecuted as war crimes pursuant to Article 8(2)(e) of the ICC Statute, may also be satisfied. That treaty becomes applicable when there is a non-international armed conflict
which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.It explicitly excludes situations
of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.There thus may be reasonable grounds to conclude the existence of a full-scale civil war, albeit an unbalanced one according to comparative military assessments, which would lay the groundwork for war crimes charges.
The crime of aggression is not immediately implicated in the Libyan situation. For one, the aggression amendments will not come into force until 2017 at the earliest. Moreover, the definition of the crime does not envision the act of aggression being committed by or against non-state actors that are not linked to a state. Nonetheless, the crime of aggression may bear on responses by the international community to the crisis in Libya.
Indeed, military options are not off the table, according to recent comments by President Obama and other world leaders. In particular, it has been proposed that the international community—or some subset thereof—should impose a no-fly zone over the country in an effort to prevent Libya's increasingly erratic and vicious leader from committing further violence against his own people. The Gulf Cooperation Council and Arab League reportedly support such a measure as do several vocal members of Congress. France and Britain are working on a draft Security Council resolution that would authorize such a response, although it is unclear if Russia and China would support this measure, which sounds of military intervention. This raises the prospects that a group of states, such as NATO or some other coalition of the willing, might move forward without explicit Council approval. This is exactly the kind of scenario that worries detractors of the codification of the crime of aggression in the ICC Statute.
The imposition of a no-fly zone without prior Council approval might run afoul of the prohibition of aggression as it has been defined in the aggression amendments. Article 8bis(2) of the amendments defines “act of aggression” broadly as
the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State...The amendments go on to list the following as acts of aggression:
a) The invasion or attack by the armed forces of a State of the territory of another State ...;Simply policing the no-fly zone might constitute a breach of Libya's territorial integrity, and for a no-fly zone to be effective, it would likely be necessary to neutralize Libya's air defense capabilities, which would involve air strikes. To be sure, such acts would only be prosecutable as the crime of aggression if they are deemed to constitute a "manifest" violation of the U.N. Charter with reference to their character, gravity and scale as per Article 8bis(1). As we have discussed at length in our crime of aggression series, no explicit exception was carved out for bona fide humanitarian interventions or for considerations of a state's motives for engaging in military action. However, important understandings adopted in Kampala imply that a consideration of the "consequences" of military action might shield actions from being characterized as an act of aggression. This would depend, of course, on the views of
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; ...
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...
- the prosecutor (exercising prosecutorial discretion),
- the Pre-Trial Division (which would need to approve aggression charges), and
- the Security Council (which also acts as a filter to aggression charges and can defer prosecutions for a renewable period of a year).
Aggression, Humanitarian Intervention & Women
(From IntLawGrrl Beth Van Schaack, another in our series of posts on essays forthcoming in "Women and International Criminal Law," a special issue of the International Criminal Law Review)For this special issue dedicated to Judge Patricia M. Wald, an IntLawGrrls alumna, I contributed an article on the potential for the new crime-of-aggression provisions in the Statute of the International Criminal Court to chill bona fide exercises of humanitarian intervention, given that:
► The crime is expansively drafted to potentially cover all uses of sovereign force,
► Delegates rejected efforts by the United States to include an express exception for military operations launched to prevent the commission of other crimes within the jurisdiction of the ICC, and
► Other proposals that would have prevented humanitarian interventions from being considered “acts of aggression” were not fully explored or implemented.Drawing on elements of feminist theory, the article acknowledges that feminists may never fully come to terms with a notion of humanitarian intervention given the doctrine’s valorization of militarism. This is especially true in light of the fact that women are so often excluded from decisions about uses of force. The article nonetheless argues that if we want to hold out the possibility of humanitarian intervention being deployed in defense of women, elements of the new provisions (such as the terms “manifest,” “character,” “gravity,” and “consequences”) should be interpreted to exclude situations involving the nascent responsibility to protect doctrine.
Entitled "The Crime of Aggression and Humanitarian Intervention on Behalf of Women," this article is part of a larger project to analyze the rarely-considered gender aspects of the crime of aggression and to explore whether or not the amendments adding the crime of aggression to the ICC Statute would represent an advancement for women, as discussed here.
This work was inspired by the Bayeux Tapestry—the longest piece of embroidery on record—which tells in detail how William the Conqueror contested the coronation of King Harold II upon the death of King Edward the Confessor. After arriving in England, William's troops pillaged the locals in preparation for battle. Among other atrocities that we would today designate as war crimes, they burned a home, sending the mother depicted at left and her child fleeing.
Go On! International Conflict & Negotiation Colloquium at Stanford
Anyone in the Bay Area should check out the Stanford Center on International Conflict & Negotiation's International Conflict Resolution Colloquium. The Colloquium is being convened by Professors Allen Weiner (Law--right); David Holloway (Political Science); and Lee Ross (Psychology).All Colloquium sessions meet from 4:30 p.m. to 5:45 p.m. on Thursday in Room 90 of the Law School.
The schedule is below:
► January 6: Allen Weiner (above right)
Senior Lecturer in Law, Stanford Law School
Barriers to Conflict Resolution: The Israeli-Palestinian Conflict
► January 13: Richard Goldstone (right)
Former South African Constitutional Court Justice, Visiting Professor, Stanford Law School
South Africa’s Transition to Democracy: The Role of the Law
► January 20: James Fishkin (right)
Director, Center for Deliberative Democracy,
Janet M. Peck Chair in International Communication, Stanford University Deliberative Democracy and Conflict Resolution
► January 27: Christopher R. Hill (left)Dean, Josef Korbel School of International Studies, University of Denver,
former United States Ambassador to Iraq
The Iraqi Conflicts
► February 3: Beth Van Schaack (right)Associate Professor, Santa Clara Law School
Negotiating at the Intersection of Power and Law:
The International Criminal Court and the Definition of Aggression
► February 10: Omar Dajani (left)Professor of Law, McGeorge School of Law, University of the Pacific
Shadow or Shade – The Roles of International Law in Palestinian-Israeli Peace Talks
► February 17: James T. Campbell (right)Edgar E. Robinson Professor in United States History
Settling Accounts? History, Narrative, and Historical Reconciliation
► February 24: Avishai Margalit (left)George F. Kennan Professor in the School of Historical Studies at the Institute for Advanced Study
Sectarianism
► March 3: Christopher Greenwood (right)
Judge, International Court of Justice
International Conflict Resolution and the International Court of Justice
Hope to see you there!
Will the Codification of the Crime of Aggression Benefit Women?
The image at left is part of the magnificent Bayeaux Tapestry, which chronicles the 1066 Norman conquest of England. (Our family visited the exquisite Tapestry this summer, which is housed in the Musée de la Tapisserie de Bayeux in Normandy. I recommend walking through the exhibit once with the kids' audio tour, which was in some ways cooler than the adults'.)The Tapestry—the longest piece of embroidery on record—tells in detail how William the Conqueror contested the coronation of Harold upon the death of King Edward the Confessor. After arriving in England, William's troops pillaged the locals in preparation for battle. Among other atrocities that we would today designate as war crimes, they burned a home, sending this mother and her child fleeing.
This image of women impacted by war serves as inspiration for a new piece I have just posted on SSRN. The article is entitled “The Grass That Gets Trampled When Elephants Fight”: Will the Codification of the Crime of Aggression Protect Women?" after an African proverb:
When elephants fight the grass gets hurt.
The article analyzes the outcome of the International Criminal Court Review Conference in Kampala with an eye toward
- the rarely considered gender aspects of the crime of aggression,
- whether or not the provisions adopted represent an advancement for women, and
- how aspects of feminist theory might interpret the new regime.
humanitarian law that serve to protect civilians and other vulnerable groups. (Refugees in Chad at right, photo credit).It also remains to be seen whether the codification of the crime of aggression will serve any deterrent purpose whatsoever when governmental leaders contemplate using force—offensively or defensively—in their international relations, especially in situations that do not implicate exigent sovereign threats. To the extent that the new provisions do exert a restraining effect, the expansive way in which the crime has been defined may end up chilling those uses of force that are protective and thus more discretionary, such as uses of force employed pursuant to the nascent doctrine of responsibility to protect. The crime may thus result in more ex post prosecutions at the expense of ex ante efforts at preventing and repressing violence. Whether this over-deterrence argument should be raised on behalf of women, however, requires an acceptance of the legitimacy, if not lawfulness, of humanitarian intervention with or without Security Council approval and a coming to terms with a certain valorization of militarism and its inherent masculinities—a perspective that is alien to much feminist thinking.
The International Criminal Court has yet to demonstrate that it can fulfill its current mandate. Operationalizing the crime of aggression without allocating additional resources to enable the Court to prosecute this controversial, largely unprecedented, and qualitatively different crime may distract the Court from responding more effectively to the “atrocity crimes” that now finally address gender-based violence more directly. The crime may also encourage the Court to focus on leaders in capital cities rather than the warlords next door, whom victims more directly associate with atrocities and without whose prosecution it may be impossible to achieve complete justice for women. Given the potential to reach top political leaders, the crime may be also subject to abuse. The amendments approved in Kampala will eventually permit states parties to refer each other to the ICC as alleged violators of the prohibition against aggression. Misuse of this referral authority could render the Court little more than just another forum for states to manipulate and exploit in order to advance their interests. Such an outcome would politicize and de-legitimate the Court.
At this early stage in the life of the Court and in the absence of any concrete experience investigating or prosecuting the new crime of aggression, these bases for criticism and praise are inherently speculative. Applying a feminist perspective to the codification of the crime of aggression yields no easy conclusions. Rather, reasoning through the central question of whether the codification of the crime in the ICC Statute will be good for women produces a dizzying spiral of dialectical reasoning. And so, as a feminist, I approach the crime with a profound ambivalence.
I welcome your comments on the paper...
Kampala as cause to celebrate
(Part 3 of a 3-part series)Celebration proved the closing theme of the 4th International Humanitarian Law Dialogs.
The final speaker at the recent upstate New York conference was William A. Schabas, Professor of International Human Rights Law and Director of the Irish Centre for Human Rights at the National University of Ireland-Galway. He asked whether the International Criminal Court Review Conference this summer in Kampala, Uganda (above left; credit), was "a moment of celebration or a disappointment." Schabas then answered his own question:
The final speaker at the recent upstate New York conference was William A. Schabas, Professor of International Human Rights Law and Director of the Irish Centre for Human Rights at the National University of Ireland-Galway. He asked whether the International Criminal Court Review Conference this summer in Kampala, Uganda (above left; credit), was "a moment of celebration or a disappointment." Schabas then answered his own question:
I think it is a great accomplishment.
The 1998 Rome diplomatic conference, Schabas recalled, had ended with a compromise on the extent of crimes the ICC may hear. Immediately operative were 3 core international offenses: genocide, crimes against humanity, and war crimes. Left for another day was a 4th: the offense of offensive warmaking, called crimes against peace in the Nuremberg era and known today as the crime of aggression. Article 5 of the Rome Statute grants the ICC jurisdiction over aggression, but postpones actual prosecution until adoption of a provision "defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime."
Negotiators worked on both definition and conditions for the next dozen years before the Assembly of States Parties adopted a package of proposed amendments, designed to give the ICC power to adjudicate allegations of aggression, at Kampala.
"At Kampala, it was not obvious even till the final minutes of the conference that it was going to succeed," said Schabas. "These were adopted in the final minutes of the conference, by consensus. If somebody had called for a vote, the votes probably weren’t there." (credit for photo from Schabas' Kampala blog, depicting him, center, "discussing the amendments to article 8 with the Bulgarian delegation")
The central achievement was the definition of aggression in proposed Article 8 bis. "It will not be immune to judicial interpretation," Schabas said, and predicted "a liberal approach to its application."
Strong supporters of criminal punishment for aggression have expressed concerns that the Kampala package affords too many ways to avoid implication in that crime. (For details on the intricacies of these amendments, see our crime of aggression series.)
Agression, Schabas allowed, "may never be prosecuted, which may not necessarily be a bad thing. It simply confirms a deterrent effect."
Schabas sought to allay concerns about obstacles to entry into force, including a requirement of ratification by 30 states and further review in 2017. "I don’t think they’re actually going to be very difficult – not anywhere near as difficult as the obstacles appeared in 1998, of getting the 60 ratifications." (This latter milepost was reached in April 2002, so that the Rome Statute entered into force fewer than 4 years after its adoption. Today 113 of the United Nations’ 192 member states belong to the ICC. Nonparties include China, India, Russia, Turkey, and, as discussed in yesterday’s post, the United States.)
Negotiators worked on both definition and conditions for the next dozen years before the Assembly of States Parties adopted a package of proposed amendments, designed to give the ICC power to adjudicate allegations of aggression, at Kampala."At Kampala, it was not obvious even till the final minutes of the conference that it was going to succeed," said Schabas. "These were adopted in the final minutes of the conference, by consensus. If somebody had called for a vote, the votes probably weren’t there." (credit for photo from Schabas' Kampala blog, depicting him, center, "discussing the amendments to article 8 with the Bulgarian delegation")
The central achievement was the definition of aggression in proposed Article 8 bis. "It will not be immune to judicial interpretation," Schabas said, and predicted "a liberal approach to its application."
Strong supporters of criminal punishment for aggression have expressed concerns that the Kampala package affords too many ways to avoid implication in that crime. (For details on the intricacies of these amendments, see our crime of aggression series.)
Agression, Schabas allowed, "may never be prosecuted, which may not necessarily be a bad thing. It simply confirms a deterrent effect."
Schabas sought to allay concerns about obstacles to entry into force, including a requirement of ratification by 30 states and further review in 2017. "I don’t think they’re actually going to be very difficult – not anywhere near as difficult as the obstacles appeared in 1998, of getting the 60 ratifications." (This latter milepost was reached in April 2002, so that the Rome Statute entered into force fewer than 4 years after its adoption. Today 113 of the United Nations’ 192 member states belong to the ICC. Nonparties include China, India, Russia, Turkey, and, as discussed in yesterday’s post, the United States.)
Nor, in Schabas' opinion, does it seem likely that political leaders of states parties will exercise the possibility of opting out of exposure to ICC pursuit should they be accused of aggression.
Endorsing a prediction that, as posted, ICC Judge Hans-Peter Kaul made earlier in the Dialogs, Schabas said:
Endorsing a prediction that, as posted, ICC Judge Hans-Peter Kaul made earlier in the Dialogs, Schabas said:
I think that within 6 years, 4 months, and a few days we will have a court with jurisdiction over aggression, capable of prosecuting the crime.
This is an important step for international criminal justice, Schabas maintained, along a trail blazed by Robert H. Jackson, Chief U.S. Prosecutor at the Trial of the Major War Criminals held in Nuremberg after the Allies defeated Nazi Germany:
Jackson saw the link between war and other crimes, that war is at the center of it, that war is responsible for it. To the extent that the adoption of that amendment revives this, that is good.
On the trail that Jackson blazed lies the question of state responsibility. According to Schabas, it’s a question that was entertained in the proposal of U.S. President George H.W. Bush and British Prime Minister Margaret Thatcher, following Iraq’s invasion of Kuwait, to set up a tribunal competent to hear charges of aggression. But that proposal never was implemented, and the question of state responsibility was not addressed by the international criminal fora that were set up after Cold War.
Why might some be less eager today to prosecutor perpetrators of aggression?
Why might some be less eager today to prosecutor perpetrators of aggression?
Schabas proffered 2 possible answers:
► 1st: "We have become a be more militarized than we should be." As posted yesterday, in an earlier Dialogs speech Stephen J. Rapp, U.S. Ambassador-at-Large for War Crimes Issues, had stressed, as a reason for caution in implementing the current Kampala aggression amendments as they now stand, that military intervention is at times necessary. Schabas replied:
► 1st: "We have become a be more militarized than we should be." As posted yesterday, in an earlier Dialogs speech Stephen J. Rapp, U.S. Ambassador-at-Large for War Crimes Issues, had stressed, as a reason for caution in implementing the current Kampala aggression amendments as they now stand, that military intervention is at times necessary. Schabas replied:
Sometimes, yes. But nor would I exaggerate the importance of that, because war brings atrocities, inevitably.
►2d: Some civil society organizations seemed not to appreciate the significance of making aggression a crime punishable by the ICC. Schabas recalled: "I saw a banner that said, ‘Civil Society Welcomes Stocktaking,’" another aspect of the Kampala Conference. "Civil society should have welcomed the amendment on aggression."
Echoing Judge Kaul’s description of atrocities as the "excrement" of war, Schabas said of the 
crime-of-aggression package: "That’s the big piece. It shows that," despite some growing pains at the ICC, "we have a court that is healthy and productive and moving forward."
(Part 1 of this 3-part series on the 4th IHL Dialogs is here; Part 2 is here.)
crime-of-aggression package: "That’s the big piece. It shows that," despite some growing pains at the ICC, "we have a court that is healthy and productive and moving forward."(Part 1 of this 3-part series on the 4th IHL Dialogs is here; Part 2 is here.)
ICC prospects post-Kampala
(Part 1 of a 3-part series)International Criminal Court Judge Hans-Peter Kaul succinctly summed up discussion at the 4th International Humanitarian Law Dialogs:
The just-concluded IHL Dialogs, cosponsors of which include IntLawGrrls and the American Society of International Law, feature prosecutors from most of the international criminal tribunals convened in the last 60 years. Joined at the Chautauqua Institution, a lovely upstate New York setting, by members of the academic, practitioner, advocacy, and diplomatic communities, these prosecutors spend a few days discussing hot topics in international criminal law.There will soon be an Article 8 bis to the Rome Statute.
The hottest ICL topic this year is the crime of aggression.
As readers of our series on the subject well know, this summer the ICC Assembly of States Parties ended a 2-week Review Conference in Kampala, Uganda, with the consensus approval of a package of proposed amendments to the ICC Statute, which had been adopted at Rome, Italy, in 1998, and which entered into force on July 1, 2002. A centerpiece of the Kampala package is proposed Article 8 bis, to which Judge Kaul referred. Article 8 bis defines the criminal prohibition; other proposed articles chart the paths by which the ICC may investigate and prosecute uses of force alleged to fall within that prohibition.
Post-Kampala questions are many:
► What do the proposed texts actually mean?
► How will they work?
► Which, if any, states will ratify the amendments?
► When, if ever, will the amendments become the law of the ICC?
The IHL Dialogs left some of these questions open. The meaning and working of the amendments, for example, inevitably will be subject to judicial interpretation and pronouncement. But a clearer answer seemed to emerge on the question whether these amendments will enter into force. In a word: "Yes."
Kaul predicted that Germany (which features the ICC on its diplomatic website) would move rapidly to ratify the package. Others foresaw that other countries would follow suit.
Kaul, who was born in Germany during World War II, lamented “the downfall of the Germans to the Nazis.” Nazi invasions in 1939, he said, constituted “a textbook example of a war of aggression.”
In an address available in full here, he lauded the postwar precedent set when an International Military Tribunal comprising judges and prosecutors from 4 Allied countries put scores of Nazis on trial at Nuremberg, not only for war crimes and crimes against humanity, but also for “crimes against peace,” the forerunner to the offense now known as aggression. Kaul, the ICC's current 2d Vice President, the leader in 1998 of the German diplomatic delegation at Rome, and the author in 2005 of an American Journal of International Law article on the ICC, said:
(credit for photo of a German World War I memorial declaring “Nie Wieder Krieg"– “Never Again War”; the same slogan appeared on a post-World War II photo Kaul displayed during his talk at Chautauqua)
Today, I am myself among the many Germans who believe: the most important point of Nuremberg was the conclusion that aggressive war, which had been a national right throughout history, should henceforth be punished as an international crime.
That’s not to say that every participant at the IHL Dialogs – which ended with a Chautauqua Declaration applauding the adoption of a definition and the “determination to press for appropriate mechanisms for its enforcement” – agreed with everything agreed upon at Kampala.
► Former Nuremberg Prosecutor Benjamin B. Ferencz, long a vocal proponent of holding individuals criminally liable for the crime of aggression, asked of the Kampala package:
► William R. Pace, Convenor of the Coalition for the International Criminal Court, noted both the complexity of the definition and the options given states to avoid having the ICC pass judgment on the legality of wars waged at their behest.Is it eyewash or progress? It’s both.
► Kaul, meanwhile, stated that as a Judge of the International Criminal Court, “it is not my role to delve into the intricacies or maybe weaknesses of the proposal adopted.”Kaul did venture to take issue with an oft-stated concern, that making the crime of aggression ban fully operational will detract from pursuit of atrocities.
Former Nuremberg Prosecutor H.W. William Caming had observed during the Dialogs that “the planning, participating and waging of wars of aggression” was branded by Chief U.S. Prosecutor Robert H. Jackson as “the ultimate crime from which the crimes against humanity and war crimes extend.”
Kaul echoed Jackson’s view, arguing that prosecution of aggression would enhance prosecution of atrocities:
Declaring that the Kampala package had “energized” proponents of international criminal justice, Kaul ended on this note:War crimes, they are the excrement of war.
Leaders from all over the world, including Washington, are called upon to reflect ... on which policy they may henceforth follow.
(This 3-part series on the crime of aggression and the 4th IHL Dialogs continues tomorrow with Part 2, on the policy from Washington. Part 3 celebrates the Kampala result)
The Aggression Negotiations
Several IntLawGrrls attending the ICC Kampala Review Conference provided blow-by-blow accounts of the negotiations on the crime of aggression and the stocktaking. I've recently completed a paper that provides a thick description of the negotiations and an analysis of the final jurisdictional package (based in part on research presented in our crime of aggression series). The full paper is posted here.
The paper recounts the perennial difficulty of reaching consensus on when and how to prosecute the crime of aggression, which stemmed from the recognition that the crime by its nature involves both state action and individual conduct. From virtually the beginning of the
negotiations, it was argued that an aggression prosecution should not go forward absent some definitive showing that a state had committed a predicate act of aggression. Where delegations diverged was in deciding on which body should be empowered to determine this consensus: the oligarchic Security Council, in keeping with its role under the U.N. Charter as the arbiter of peace and security, or some other body, including perhaps the Court itself. Because state action was deemed to be so central to an aggression prosecution, delegates also raised the question of whether it was necessary for some state—the putative aggressor state(s), the victim state(s), or all of the above—to have consented to the Court’s jurisdiction in some fashion before a prosecution could proceed. Although these two issues—the role of the Security Council and state consent—were present in Rome where the ICC Statute was promulgated, they emerged in starker relief in Kampala.
States opposed to Security Council control of aggression prosecutions congregated around two irreconcilable positions: one—idealistic if not hopelessly naïve—seeking a fully independent Court, capable of exercising a universal form of jurisdiction over the crime of aggression, and another—more cautious—insisting that jurisdiction be premised on some manifestation of state consent and endeavoring to find a compromise that would satisfy Council members. States in these two camps were natural allies against the position of the permanent five members of
the Council (P-5): Council control of aggression prosecutions. Nonetheless, the P-5's interlocutors' struggled to overcome their collective action problems and find common ground on a jurisdictional package that did not involve the Security Council, notwithstanding a host of creative solutions put forward in Kampala.
For their part, the P-5 had difficulty asserting their full influence as well. Indeed, with China, Russia, and the United States all observers during the negotiations, and the United States a latecomer at that, it was left to France and the United Kingdom (the P-2) to formally defend postwar privileges. And yet, legal arguments in favor of Council exclusivity in the aggression realm proved unconvincing in light of contemporary United Nations practice. Policy arguments, in turn, were never persuasively developed and were in any case undermined by the Security Council’s checkered history of responding to breaches of the peace. States that in the past might have been convinced to endorse a strong, if not exclusive, role for the Council instead espoused voluntarist attitudes that undercut the preferences of the P-5.
In the end, the coalition of states favoring strong aggression provisions abandoned its ideals and backed an unimpeachable regime of state consent with retrograde elements—one that completely insulates the nationals of non-states parties from prosecution and allows states parties to opt out of the crime entirely—in order to defeat one controlled by the Security Council. This concession attests to the extreme—if not irrational—antipathy felt by many states toward the Council. Speaking through the P-2, the P-5 reluctantly joined the consensus. This was notwithstanding that the results achieved in Kampala have once again subtly eroded the primacy of the Security Council, as states revealed a preference for a consent-based regime and a willingness to extend international criminal jurisdiction to their own nationals and over their own foreign policies. Notwithstanding the suggestion in the ICC Statute that there should be greater harmonization between the ICC and the Security Council in the aggression context, the Security Council was not ultimately accorded any additional powers vis-à-vis aggression prosecutions. Indeed, the aggression amendments may have actually diminished the efficacy of the Council’s pre-existing referral power and created the potential for greater conflict between the Council and the Court. The outcome in Kampala thus presents a microcosm of the continual thinning of state sovereignty and the indelible shift in the balance between power and law in contemporary international relations.
The article, entitled Negotiating at the Interface of Power & Law: The Crime of Aggression, engages the aggression amendments and the process by which they were adopted in three Parts. Part II introduces the central themes at issue, presents a short history of the multilateral efforts to codify the crime and its jurisdictional regime, and describes the negotiating dynamics in Kampala. Part III provides a thick description of the arc of the most recent negotiations and recounts states’ recurring efforts to mix and match jurisdictional elements to reach a consensus outcome and avoid either a contentious vote or continued deferral of the entire project. Part IV discusses the validity of the substantive arguments made by negotiating states and their rhetorical impact and offers a critique of the negotiation process. The Article closes with a discussion of the way in which the negotiations and the final amendments invoked and rebalanced the central themes of power politics, state consent, and judicial independence within public international law.
I welcome your comments!
The paper recounts the perennial difficulty of reaching consensus on when and how to prosecute the crime of aggression, which stemmed from the recognition that the crime by its nature involves both state action and individual conduct. From virtually the beginning of the
negotiations, it was argued that an aggression prosecution should not go forward absent some definitive showing that a state had committed a predicate act of aggression. Where delegations diverged was in deciding on which body should be empowered to determine this consensus: the oligarchic Security Council, in keeping with its role under the U.N. Charter as the arbiter of peace and security, or some other body, including perhaps the Court itself. Because state action was deemed to be so central to an aggression prosecution, delegates also raised the question of whether it was necessary for some state—the putative aggressor state(s), the victim state(s), or all of the above—to have consented to the Court’s jurisdiction in some fashion before a prosecution could proceed. Although these two issues—the role of the Security Council and state consent—were present in Rome where the ICC Statute was promulgated, they emerged in starker relief in Kampala.States opposed to Security Council control of aggression prosecutions congregated around two irreconcilable positions: one—idealistic if not hopelessly naïve—seeking a fully independent Court, capable of exercising a universal form of jurisdiction over the crime of aggression, and another—more cautious—insisting that jurisdiction be premised on some manifestation of state consent and endeavoring to find a compromise that would satisfy Council members. States in these two camps were natural allies against the position of the permanent five members of
the Council (P-5): Council control of aggression prosecutions. Nonetheless, the P-5's interlocutors' struggled to overcome their collective action problems and find common ground on a jurisdictional package that did not involve the Security Council, notwithstanding a host of creative solutions put forward in Kampala.For their part, the P-5 had difficulty asserting their full influence as well. Indeed, with China, Russia, and the United States all observers during the negotiations, and the United States a latecomer at that, it was left to France and the United Kingdom (the P-2) to formally defend postwar privileges. And yet, legal arguments in favor of Council exclusivity in the aggression realm proved unconvincing in light of contemporary United Nations practice. Policy arguments, in turn, were never persuasively developed and were in any case undermined by the Security Council’s checkered history of responding to breaches of the peace. States that in the past might have been convinced to endorse a strong, if not exclusive, role for the Council instead espoused voluntarist attitudes that undercut the preferences of the P-5.
In the end, the coalition of states favoring strong aggression provisions abandoned its ideals and backed an unimpeachable regime of state consent with retrograde elements—one that completely insulates the nationals of non-states parties from prosecution and allows states parties to opt out of the crime entirely—in order to defeat one controlled by the Security Council. This concession attests to the extreme—if not irrational—antipathy felt by many states toward the Council. Speaking through the P-2, the P-5 reluctantly joined the consensus. This was notwithstanding that the results achieved in Kampala have once again subtly eroded the primacy of the Security Council, as states revealed a preference for a consent-based regime and a willingness to extend international criminal jurisdiction to their own nationals and over their own foreign policies. Notwithstanding the suggestion in the ICC Statute that there should be greater harmonization between the ICC and the Security Council in the aggression context, the Security Council was not ultimately accorded any additional powers vis-à-vis aggression prosecutions. Indeed, the aggression amendments may have actually diminished the efficacy of the Council’s pre-existing referral power and created the potential for greater conflict between the Council and the Court. The outcome in Kampala thus presents a microcosm of the continual thinning of state sovereignty and the indelible shift in the balance between power and law in contemporary international relations.
The article, entitled Negotiating at the Interface of Power & Law: The Crime of Aggression, engages the aggression amendments and the process by which they were adopted in three Parts. Part II introduces the central themes at issue, presents a short history of the multilateral efforts to codify the crime and its jurisdictional regime, and describes the negotiating dynamics in Kampala. Part III provides a thick description of the arc of the most recent negotiations and recounts states’ recurring efforts to mix and match jurisdictional elements to reach a consensus outcome and avoid either a contentious vote or continued deferral of the entire project. Part IV discusses the validity of the substantive arguments made by negotiating states and their rhetorical impact and offers a critique of the negotiation process. The Article closes with a discussion of the way in which the negotiations and the final amendments invoked and rebalanced the central themes of power politics, state consent, and judicial independence within public international law.
I welcome your comments!
4th Chautauqua Declaration
As a cosponsor of the 4th International Humanitarian Law Dialogs, just concluded at the Chautauqua Institution in upstate New York, IntLawGrrls is proud to reproduce in full the 4th Chautauqua Declaration signed yesterday by a host of prosecutors from present and past international criminal courts and tribunals, depicted above. They are: top row left to right, Andrew T. Cayley of the Extraordinary Chambers in the Courts of Cambodia, Serge Brammertz of the International Criminal Tribunal for the former Yugoslavia, Fatou Bensouda of the International Criminal Court, James Johnson of the Special Court for Sierra Leone, and Bongani Majola of the International Criminal Tribunal for Rwanda; and bottom row left to right, Robert Petit of the Extraordinary Chambers in the Courts of Cambodia, David M. Crane of the Special Court for Sierra Leone, Benjamin B. Ferencz and H.W. William Caming of the International Military Tribunals at Nuremberg, and Richard J. Goldstone of the International Criminal Tribunals for Rwanda and the former Yugoslavia. (Seated next to Goldstone is Stephen J. Rapp, a former prosecutor at the Special Court for Sierra Leone. Now the U.S. Ambassador for War Crimes Issues, he did not sign.)Here's the Declaration:
In the spirit of humanity and peace the assembled current and former international prosecutors and their representatives here at the Chautauqua Institution ...
Recognizing the continuing need for justice and the rule of law as the foundation to international security, and cognizant of the legacy of all those who preceded us at Nuremberg and elsewhere:
Recognize the tenth anniversary of the Robert H. Jackson Center and its important mandate to preserve, promote, and advance the legacy of Justice Robert Jackson through education, exhibits, and events, which emphasize the current relevance of Jackson’s ideas on individual freedom and justice;
Honor the life of our colleague and friend Whitney R. Harris, a prosecutor of the International Military Tribunal at Nuremberg who passed away this year; commend his drive and force in ensuring that the spirit of Nuremberg continued; and note the awarding posthumously to Whitney Harris the first annual Joshua Heintz Humanitarian Award for distinguished service to mankind;
Applaud the efforts of the states parties to the Rome Statute, and other delegations in Kampala this year in their willingness to openly take stock in the progress of international criminal law in general and the concrete recommendations to ensure justice for victims of international crimes; and for reaching consensus on a definition of the crime of aggression and for their determination to press for appropriate mechanisms for its enforcement and prosecution;
Noting that after thirty years of impunity the first judgment has been rendered in respect of the crimes of the Khmer Rouge in Cambodia;
Reflecting upon the fifteenth anniversary of the genocide at Srebrenica and the continuing need for the accountability of those responsible;
Expressing concern at the continuing plight of civilians caught up in armed conflict and particularly for those crimes committed against women and children;
Now do call upon the international community to:
Keep the spirit of the Nuremberg Principles alive by:
Ensuring the enforcement of the laws of armed conflict and in particular those relating to the protection of civilians;
Calling upon parties in armed conflict to respect international law applicable to the rights and protection of women and girls;
Ensuring that gender crimes are investigated and prosecuted appropriately;
States refraining from the use or threat of armed force and settling their disputes by peaceful means and in accordance with the United Nations Charter and international law;
Supporting and adequately funding the tribunals and courts in their work to maintain the rule of law at both the international and domestic level;
Implementing their obligations under international law in the sharing of information, investigating, prosecuting or transferring to an appropriate judicial body those who violate international criminal law to ensure accountability of all persons, including sitting heads of state;
Considering the adoption of a Convention on the Suppression and Punishment of Crimes Against Humanity; ...
Go On! IntLawGrrls @ 4th IHL Dialogs
(Go On! is an occasional item on symposia and other events of interest)Delighted to announce that IntLawGrrls again will cosponsor the International Humanitarian Law Dialogs at the Chautauqua Institution in upstate New York, not far from another cosponsor, the Robert H. Jackson Center.
The theme of this year's 4th annual Dialogs, to be held August 29 to 31, is timely given the outcome of the International Criminal Court Review Conference in Uganda. IntLawGrrls wrote a Kampala series of posts about that conference, as well as a crime of aggression series about a key conference outcome, the adoption of provisions designed to make the crime punishable by the ICC.
The Dialogs' theme, in short, is: Crimes Against Peace - Aggression in the 21st Century.Exploring it will be prosecutors from international criminal fora, plus many international criminal law scholars. (Prior IntLawGrrls posts.) Last year was a great opportunity to meet such colleagues at Chautauqua, a picturesque lakefront venue. It was also the source of 2 IntLawGrrls guest contributions: a trilogy of posts by Judge Patricia M. Wald (here, here, and here), plus a post by Judge Marilyn J. Kaman (here).
Many present and former international prosecutors are expected to take part this year. In addition to those mentioned as specific speakers in the program that follows, prosecutors set to attend 
include the following from the:
include the following from the:► International Criminal Court, Deputy Prosecutor Fatou Bensouda (left);
► International Military Tribunal at Nuremberg, former prosecutor H.W. William Caming;
► Special Court for Sierra Leone, Chief Prosecutor Brenda Hollis (below right), recently in the news for calling a supermodel to testify at the ongoing Hague trial about diamonds received from defendant Charles Taylor, former 
President of Liberia, and former Chief Prosecutor David M. Crane, the founder of the Dialogs who's now a Professor of Law at Syracuse University, another cosponsor, and the founder of the Dialogs;
President of Liberia, and former Chief Prosecutor David M. Crane, the founder of the Dialogs who's now a Professor of Law at Syracuse University, another cosponsor, and the founder of the Dialogs;► Extraordinary Chambers in the Courts of Cambodia: Co-Prosecutor Andrew T. Cayley and former Co-Prosecutor Robert Petit; and
► International Criminal Tribunals for Rwanda and for the former Yugoslavia, former Chief Prosecutor Richard J. Goldstone.
► International Criminal Tribunals for Rwanda and for the former Yugoslavia, former Chief Prosecutor Richard J. Goldstone.
Sessions on the current program include:
Sunday, August 29► Showing of War Don Don, an award-winning HBO Documentary film about a Special Court trial in Sierra Leone, moderated by filmmaker Rebecca Richman Cohen (left).
Monday, August 29
► Keynote speech by Benjamin B. Ferencz, formerly a prosecutor at the International Military Tribunal at Nuremberg and a lifelong activist on behalf of international criminal justice, introduced by Professor Michael P. Scharf of Case Western Reserve University School of Law, another cosponsor.
► Updates from all the current prosecutors, moderated by Professor John Q. Barrett, St. John's University School of Law.
► Keynote speech by Judge Hans-Peter Kaul, 2d Vice President of the International Criminal Court, introduced by Leila Nadya Sadat, an IntLawGrrl guest/alumna who contributed to our Kampala series, and Director of the Whitney R. Harris Institute at the Washington University School of Law, another Dialogs cosponsor.
► Dialog on the crime of aggression, with Ferencz, John Washburn, Convener of the American Non-Governmental Organizations Coalition for the International Criminal Court, and William R. Pace, Convenor of the Coalition for an International Criminal Court, moderated by Professor David J. Scheffer of Northwestern University School of Law, formerly U.S. Ambassador-at-Large for War Crimes.
► Keynote address by Stephen J. Rapp, currently the U.S. Ambassador-at-Large for War Crimes, and formerly the Chief Prosecutor at the Special Court for Sierra Leone, introduced by David Sullivan of Enough Project, another cosponsoring organization.
► Keynote address by Stephen J. Rapp, currently the U.S. Ambassador-at-Large for War Crimes, and formerly the Chief Prosecutor at the Special Court for Sierra Leone, introduced by David Sullivan of Enough Project, another cosponsoring organization.
Tuesday, August 31, 2010► Year in Review -- International Criminal Law, by IntLawGrrl Valerie Oosterveld (left), a Professor at the Faculty of Law, University of Western Ontario, and frequent contributor to our Kampala series.
► Keynote speech by Professor William Schabas, Irish Centre for Human Rights, National University of Ireland, Galway.
► Issuance of the 4th Chautauqua Declaration & Conclusion of Dialogs, hosted by IntLawGrrl Diane Marie Amann (yours truly, also a Kampala series contributor), Professor of Law at the University of California, Davis, wearing my hat as a Vice President of the American Society of International Law, another cosponsor of the IHL Dialogs.
For more information, contact Carol Drake at cdrake@roberthjackson.org.
Question on the ICC aggression filter
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We've been blogging extensively on the recent International Criminal Court Review Conference in Kampala and the new crime-of-aggression provisions adopted there. This post will focus on one important jurisdictional component of these provisions, which yet must be ratified by ICC states parties before they become actual amendments to the Rome Statute of the International Criminal Court.That component is the aggression filter.
Filtering claims
Pursuant to the new provisions, when an investigation is triggered by either a State Party referral or a proprio motu investigation by the Prosecutor pursuant to Articles 13(a) and (c) respectively, the crime of aggression will be subject to two alternative filters, which operate in tandem:
- Pursuant to the new Article 15bis(6), once the Prosecutor has determined there is a "reasonable basis to proceed with an investigation" into potential crimes of aggression (based upon an internal preliminary investigation), the Prosecutor will first determine whether the Security Council (right) has made a determination as to whether the putative Aggressor State has committed
an act of aggression. If so, the Prosecutor can pursuant to Article 15bis(7) proceed with a formal investigation and, if warranted, seek an arrest warrant and confirmation of charges. The Security Council’s determination is not binding on the Court, which will determine the existence of an act of aggression anew at trial under the terms of the Statute and the penal burden of proof. The Council’s determination, however, will undoubtedly exert considerable evidentiary pull. - If the Council has not made the necessary determination within 6 months of receiving notification from the Prosecutor, the Prosecutor can subsequently request permission from the Pre-Trial Division (sitting en banc) to open a formal investigation into potential crimes of aggression pursuant to Article 15bis(8). This process will proceed under the same provision (Article 15) that governs the Prosecutor’s request to launch an investigation proprio motu. At this time, the Prosecutor will present the Pre-Trial Division with any supporting material, including victim testimony.
Since these provisions were pulled together under hectic circumstances at Kampala, delegates did not consider how the
procedures governing the initiation of proprio motu investigations in Article 15 will need to be adapted to the aggression determination by the Pre-Trial Division.Most importantly, Article 15 does not give any participatory rights to States. During the preliminary investigation phase, prior to when the Prosecutor goes before the Division, Article 15(2) invites the Prosecutor to seek additional information and written or oral testimony from States, U.N. organs, non-governmental organizations and other reliable sources to determine the “seriousness” of the information received. Once the Prosecutor goes before the Division, however, only victims are entitled to make representations to the Chamber, according to Article 15(3).
Indeed, States have few participatory rights in the ICC Statute, which is perhaps understandable given that with respect to the original crimes, the Court exercises jurisdiction over individuals and not States.
One key area where States do have participatory rights is in connection with asserting the privilege of complementarity. States are entitled to challenge the jurisdiction of the Court pursuant to Articles 18 and 19(2)(b) on the grounds that they are investigating or prosecuting the matter themselves (or have done so). The putative territorial State or nationality State can also contest jurisdiction if the Article 12 preconditions for jurisdiction are not met (requiring either the territorial or nationality State to be a party to the Statute), per Article 19(2)(c).
Because the Article 15 process launches the formal investigation, it normally occurs prior to the identification of particular defendants. As a result, no provision allows an accused to
participate in this process. Thus, absent some amendment or procedural rule to govern the aggression context, neither States nor defendants are entitled to raise arguments on behalf of the supposed aggressor State at the time that the Pre-Trial Division is to make the aggression determination.Burdens of proof
In terms of the applicable burden of proof under Article 15, the Prosecutor must demonstrate a “reasonable basis to proceed” with a proprio motu investigation according to Rome Statute Article 15(4). At the moment, this burden of proof appears to apply at the time of the Pre-Trial Division’s aggression determination. States did not contemplate altering this burden, although they might have. Under the newly adoption provisions, the aggression determination will be subject to two additional pre-trial tests:
- at the time an arrest warrant is sought (when it must be shown that there are reasonable grounds to believe the person committed the crime per Article 58) and
- when the charges are confirmed (when it must be shown that each charge is supported with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged per Article 61(5)).
Of course, a defendant charged with aggression will likely raise arguments and present evidence refuting the existence of an act of aggression at trial. This may not occur, however, where there are substantial conflicts of interest between the defendant and the aggressor State, or where the defendant chooses to emphasize other defenses.
It seems that the preliminary decision on the existence of an act of aggression will be subject to an interlocutory appeal under Article 82 of the Rome Statute — either as a decision on jurisdiction (Article 82(1)(a)) or as a
The preliminary aggression determination can also be appealed post-verdict (Article 81).decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings (Article 82(1)(d)).
States, however, are not given any rights to appeal, except by Rome Statute Article 57(d)(3) with respect to decisions by the Pre-Trial Chamber to allow for in situ investigations in non-cooperating States.
So, the aggression determination may never be subject to appeal if a convicted accused chooses to appeal other aspects of the Prosecutor's case against him or her.
Question of State participation
Read together, the provisions governing the aggression filter provide no meaningful opportunity for the impugned State to be heard. This raises questions of fundamental fairness.
It could be argued that there are no direct or binding implications to an ICC determination that a State has committed an act of aggression. The ruling, for example, will carry no res judicata effect in any subsequent inter-state adjudication.
This argument, however, belies the expressive force of a judicial determination. Such a decision inevitably will carry great moral weight in dealings and negotiations between the relevant parties and the international community. It will, moreover, have evidentiary significance in any subsequent inter-state dispute. Finally, a declaration of rights standing alone may be a remedy, as recognized in Principle 22(d) of the U.N. 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 (2005). Such a declaration is often conceived of as a remedy in international adjudications.
As such, as the IICC Assembly of States Parties considers how to integrate the new aggression provisions into the ICC Statute, it would do well to focus on this question:
Given that a finding of State aggression is central to adjudicating the crime of aggression, in cases involving aggression charges, when and how may implicated States exercise a meaningful opportunity to be heard?
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