Diane Amann talk at GW

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!

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!

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:

► 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;

► 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.

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.

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

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.

Investigations triggered by the Security Council pursuant to Article 13(b) are not subject to any filter within the new Article 15ter. Following the activation of any of the three trigger mechanisms, the U.N. Security Council can utilize Article 16 of the Rome Statute to defer the case for a year (renewable) with a Resolution adopted under Chapter VII of the U.N. Charter.
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)).

At trial, the Trial Chamber will be obliged to definitively determine whether the putative aggressor State committed the predicate act of aggression pursuant to the beyond reasonable doubt standard of Article 66 of the Rome Statute. This is because the act of aggression is an element of the crime of aggression. At this time, pursuant to Article 73, presumably, representatives of the State will be invited to provide evidence — although as the proposed provisions stand they are not entitled to do so.
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

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)).

The preliminary aggression determination can also be appealed post-verdict (Article 81).
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?

Understanding Aggression II

(Another in IntLawGrrls' series of posts in connection with the ICC Kampala Conference)

This post follows on the heels of a prior post discussing "understandings" attached to the crime of aggression at the ICC Review Conference in Kampala this month.
On June 8, 2010, Bill Leitzau, Deputy Assistant Secretary of Defense (Detainee Policy) of the United States (shown at right on the right meeting with the Chair of the Working Group on the Crime of Aggression, Prince Zeid Ra'ad Zeid al-Hussein, and the President of the Assembly of States Parties, Christian Wenaweser) informally circulated five sets of understandings addressed to different aspects of the definition of aggression and its application by the Court. In addition to the complementarity understandings already discussed, one set of understandings attempted to tether the definition of aggression and its interpretation more closely to certain aspects of General Assembly Resolution 3314 and in particular its threshold provisions. In particular, the United States proposed language (which became part of Understanding X) to the effect that

it is understood that, consistent with the principles set forth in General Assembly resolution 3314, only the most serious and dangerous forms of illegal use of force are considered to constitute aggression

and

it is only a war of aggression that is a crime against international peace.

As an interpretive guide, the United States proposed language (which became known as Understanding Y) stating that all three components of character, gravity, and scale must be sufficient to justify a “manifest” determination.
With a second set of understandings, the United States sought to gain acknowledgement that the U.N. Charter recognizes that certain uses of force remain lawful, notwithstanding Article 2(4) of the Charter. Accordingly, one proposed understanding read:

nothing in this resolution or the [aggression] amendments … should be interpreted or applied in any manner inconsistent with General Assembly resolution 3314, nor should they be construed as in any way enlarging or diminishing the scope of the Charter of the United Nations, including its provisions concerning cases in which the use of force is unlawful.

More pointedly, another proposed understanding stated, with reference to the Rome Statute of the ICC:

It is understood that, for purposes of the Statute, an act cannot be considered a manifest violation of the United Nations Charter absent a showing that it was undertaken without the consent of the relevant state, was not taken in self-defense, and was not within any authorization provided by the United Nations Security Council.

A third set of understandings explicitly or implicitly attempted to carve out an exception for the doctrine of humanitarian intervention. First, the United States sought recognition of the fact that

a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the purposes for which force was used and the gravity of the acts concerned or their consequences.

The reference to “purposes” provided an opening to argue for the legality of humanitarian interventions. Another proposed understanding drew upon a definition of “manifest” from the Vienna Convention on the Law of Treaties and was more explicit in addressing humanitarian intervention:

It is understood that, for purposes of the Statute, an act cannot be considered to be a manifest violation of the United Nations Charter unless it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith, and thus an act undertaken in connection with an effort to prevent the commission of any of the crimes contained in Articles 6 [genocide], 7 [crimes against humanity] or 8 [war crimes] of the Statute would not constitute an act of aggression.

In an informal Working Group session, minor changes were proposed and made to Understanding Y. The other proposed understandings proved to be more controversial. The Chair of the Working Group, Claus Kress, did not put forward for discussion the understandings mentioning either the Charter or humanitarian intervention.
There was a scuffle about Understanding X, and it was revised to mirror more closely the threshold language from Resolution 3314. In addition, the language that would have mandated a consideration of the "purposes" for which force was used generated significant discussion. A few states led by Iran argued that the introduction of the subjective element of “purpose” threatened to compromise the entire process and amend the U.N. Charter by the back door. Detractors questioned what other purposes besides self-defense were lawful under the Charter. The United States ultimately acceded to the removal of the term “purposes.” At the close of the meeting, however, the United States reserved the right to re-open the question of a more explicit mention of humanitarian intervention.
Professor Kress forwarded the new language of Understanding Y to the Chair of the Working Group. It appeared in a Conference Room Paper as follows:

Understanding Y

It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself.

Professor Kress reserved Understanding X for further negotiation. The next day, Professor Kress announced by way of an email via the Assembly of States Parties that Iran and the United States (ironically both Non-State Parties that have butted heads over aggression charges, most recently before the International Court of Justice in the Oil Platforms Case) had accepted a final text. This was embodied in a new Conference Room Paper as follows:

Understanding X

It is understood that aggression is the most serious and dangerous form of the illegal use of force; and that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations.

The United States never did raise the issue if humanitarian intervention again in any formal setting (photo above is the plenary room from the perspective of the United States' chair), so it remains to be seen whether the Court, if faced with a putative humanitarian intervention, will consider the use of force to constitute a "manifest" violation of the United Nations Charter.
We have discussed this issue in more detail here.

Understanding Aggression I

(Another in IntLawGrrls' series of posts in connection with the ICC Kampala Conference)

Following our extended series on the crime of aggression and the recently concluded ICC Review Conference, this post discusses several "understandings" added to the final package of amendments concerning the definition of the crime of aggression and its impact outside the Court.
By the time the Review Conference opened in Kampala, delegates had arrived at a consensus definition of the crime of aggression that was loosely based on General Assembly Resolution 3314 but contained subtle yet significant departures from that text. As it turned out, the definition was the only component of the initial Conference Room Paper that was entirely unbracketed. Even the so-called P-2 (France and the United Kingdom) had accepted the definition prior to Kampala, although in a later intervention, France insisted that its approval was tied to the existence of a Security Council filter.

In prior diplomatic meetings and again in Kampala, the United States made overtures to revisit the definition of aggression, but achieved little traction. Delegates were simply too invested in the definition and its provenance to reopen the debate at such a late date. In its second formal intervention (above, photo mine), the United States stated its view that the definition itself was “flawed” and that the apparent consensus on the definition of the crime may actually mask significant disagreements. At the same time, it acknowledged that it might be possible to address these concerns without revisiting the definition itself.

From that point, the United States focused on achieving key “understandings” to be inserted into the amendment package at Annex III, which contained a number of other draft and consensus understandings. These understandings sought to

1. reshape the definition and its future interpretation to a certain degree,
2. tie the definition more closely to Resolution 3314—from which it derived—and to the UN Charter framework governing lawful uses of force, and
3. preserve an opening for claims about the legality of humanitarian interventions and other arguably legitimate yet potentially unlawful uses of force.

Professor Claus Kress (right) of the German delegation was asked to chair the process to consider these proposed understandings. After a series of informal discussions, he brought forward three sets of proposals for further consideration and debate in a special working group session on June 9, 2010, explaining his “minimalist” approach on the fact certain the other understandings “met with significant reluctance.” The three considered were

1. language on complementarity and jurisdictional competence (deemed Understanding 4bis),
2. an understanding addressed to the threshold for prosecution (deemed Understanding X), and
3. an understanding mandating the cumulative interpretation of the factors of character, gravity, and scale in determining whether an act of aggression had occurred (deemed Understanding Y).

Following up on our prior discussion on complementarity and the crime of aggression, I'll address the first proposed understandings in this post, and the latter two in a subsequent post.

The complementarity understandings addressed potential implications of the definition of the crime outside the Court. This text built on existing language in the Conference materials concerning the propriety of the exercise of domestic jurisdiction over the crime of aggression in the event an amendment to the Statute was adopted, particularly in light of the principle of complementarity. The first Conference Room Paper on the Crime of Aggression (released June 6, 2010) contained draft text to the effect that

It is understood that the amendments address the definition of the crime of aggression and the conditions under which the Court shall exercise jurisdiction with respect to this crime for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. The amendments shall therefore not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.

The United States proposed three changes to this language:

1. the addition of a reference to “act of aggression” in the first sentence alongside “crime of aggression;”
2. the inclusion of an assertion that the aggression amendments do not constitute a definition of these terms under customary international law; and
3. a separation of the third sentence into a separate understanding (and a removal of the word “therefore”) to reflect the fact that it raises a different issue than the first two sentences of this text (definition versus jurisdictional competency).

In an intervention in a plenary session, the United States explained that the point of the first two of these proposed changes was to further emphasize that the amendments would be adopted solely for the purpose of prosecutions under the Rome Statute and that there is a divergence of views among states about as to whether the definitions of “crime of aggression” in Article 8-bis(1) and “act of aggression” in Article 8bis(2) reflect statements of customary international law. The ultimate goal was to undermine any tendency to reference these definitions as evidence of the progressive development of customary international law. The last change was meant to signal a separate point: that that states are not obliged to incorporate the crime of aggression into their domestic codes, or launch domestic prosecutions for the crime, upon ratification or acceptance of the aggression amendments.

The proposed language in 4bis met with little discussion or resistance, although ultimately the words "customary international law" were not included. Professor Kress forwarded the new language of Understanding 4bis to the Chair of the Working Group and it later appeared as follows in a Conference Room Paper:

4bis: Domestic jurisdiction over the crime of aggression

It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.

In the final package of amendments, the two elements of 4bis (definition and jurisdiction) were bifurcated into separate understandings.

There is no express requirement within the treaty that State Parties harmonize their domestic penal codes with the Rome Statute. The only mandatory language regarding domestic legislation concerns state cooperation (Part 9) and the obligation to assert jurisdiction over offenses against the administration of justice (Article 70(4)). The preambular language referencing domestic jurisdiction arguably recalls pre-existing obligations for all “States” (not just State Parties) to prosecute international crimes, but creates no new obligations for domestic implementation or prosecution. By this view, the principle of complementarity creates only a rebuttable presumption of inadmissibility, unless no credible domestic prosecution—for an international crime or its domestic analog—is going forward. Nonetheless, as part of the process of ratification, states have tended to update their penal codes to be consistent with the ICC Statute so that they may take advantage of the principle of complementarity.

Very few states have a definition of aggression on the books. (The best study of this topic was done by Astrid Reisinger Coracini of the University of Graz (left), who attended the Kampala Conference on behalf of Austria.) Most of these definitions appear, perhaps not surprisingly, in the penal codes of the states of central Asia and Eastern Europe. Most statutes pre-date the ICC and are loosely premised on the definition of crimes against the peace in the Nuremberg/Tokyo Charters, are denominated as waging or planning a “war of aggression," or contain no definition whatsoever. Most do not subject the crime to universal jurisdiction, but rather premise domestic jurisdiction on principles of territoriality or nationality. Beyond the immediate post-WWII period, there is very little domestic jurisprudence on the crime of aggression, as we've discussed.

It thus remains to be seen whether states will incorporate the crime of aggression into their domestic penal codes, notwithstanding the Understandings adopted in Kampala.

The EU and the ICC

(Delighted to welcome back guest/alumna Carmen Márquez Carrasco, currently a Visiting Professor at Columbia University's Institute for the Study of Human Rights, who contributes this post, another in IntLawGrrls' series of posts in connection with the just-concluded Kampala Conference)

The International Criminal Court Review Conference has constituted a significant milestone for the ICC, not only because of the adoption of the first amendments to the Rome Statute on Article 8 and on the definition of the crime of aggression and the jurisdictional filters (text detailed in post below), but, as posted by IntLawGrrl Valerie Oosterveld, because of the relevance of certain stocktaking discussions for the future work of the ICC.
Indeed, the Conference provided a unique opportunity for states and international organizations such as the European Union to reflect on the achievements of the Court and to reaffirm their commitments to combat impunity for the most serious atrocities.
The European Union and its 27 member states (above right) (map credit) count themselves among the most ardent supporters of the Rome System. (Overviews of the instruments and measures adopted, within the framework of the EU's Common Foreign and Security Policy, are here and here.)

In particular, the European Parliament for years has been committed to enhancing the development of international criminal justice, and has been closely following and supporting the activities of the ICC. Additionally, the Parliament has adopted various resolutions on ICC-related issues. Activities in this regard have been promoted by the Parliament Subcommittee on Human Rights, now under the very active Chair, Heidi Hautala (left) of Finland. (photo credit)
In its Annual Report on Human Rights in the World in 2008, the Parliament launched important appeals in relation to the ICC. It called on all EU Presidencies to raise the importance of cooperation with the ICC in all EU summits and dialogues with third countries, and on the European Council and the European Commission to continue their vigorous efforts to promote universal ratification of the Rome Statute and national implementing legislation.

A number of initiatives marked EU preparation for the Review Conference, which ran from 31 May to 11 June.

On 23 March, ICC Prosecutor Luis Moreno-Ocampo addressed a joint hearing of the EU's Foreign Affairs Committee, the Development Committee, and the Subcommittee on Human Rights. An additional exchange of views took place in the Subcommittee with the ICC President, Judge Sang-Hyun Song, on 27 April. And on 19 May seminar, “The EU and the ICC: Beyond the Review Conference”, was held in Brussels, Belgium, organized by the Spanish Presidency of the EU and the Coalition for the ICC, with the cooperation of General Secretariat of the Council of the EU and the EU Commission.
Support for the universality and integrity of the Statute, as well as for the stocktaking exercise, also was expressed through a relevant Resolution of the European Parliament adopted on 19 May. In the same line, EU Council Conclusions on the Review Conference followed on the 25 May.
In accordance with the above-referred legal and institutional framework, during the general debate at the Kampala Conference the EU Spanish Presidency (logo at right) and member states announced tangible commitments to the Rome Statute by making EU pledges to the ICC, around four issues:
► Promoting the universality and preserving the integrity of the Rome Statute;
► Fighting against impunity as a core value to share with EU partners when entering into agreements with third parties;
► Providing financial support to the ICC, civil society, and third-country partners; and
► Updating and reviewing of the EU instruments in support of the ICC after the meeting in Kampala, where appropriate.

Universality and implementation of the Rome Statute play an indispensable role in that regard. Both have been reviewed within the framework of the stocktaking exercise, with a significant contribution from the EU and EU countries. Among several measures, this contribution included the announcement during the Kampala conference of a substantial financial contribution to the Trust Fund for Victims.
Also, the first amendment of the Rome Statute, adopted on 9 June, was sponsored by an EU member State, Belgium, and co-sponsored by many other member states. It further enjoyed the strong support of the European Parliament. By dint of the Belgian proposal, the amended Article 8 of the Rome Statute brings under the jurisdiction of the Court the war crime of employing certain poisonous weapons and expanding bullets, asphyxiating or poisonous gases, and all analogous liquids, materials and devices, when committed in armed conflicts not of an international character.
The Review Conference was an occasion for the EU to demonstrate both a flexible approach to the issues under discussion and the necessary unity to forge consensus (encouraged by the Council and the European Parliament) on the crucial topic of the definition of the crime of aggression and the conditions for the exercise of jurisdiction over that crime. The approach succeeded despite the difficulties involved in the position of France and Britain as permanent members of the U.N. Security Council. In addition, important understandings were made possible with the United States so as to avoid detrimental results for both the EU and the Obama Administration, as discussed here by Bill Marmon, managing editor of European Affairs.
The outcome of the ICC Review Conference is an international success, and this is to Europe’s credit. In general terms, the EU attained its goals (with the possible exception of the failure to delete Article 124 of the Rome Statute, a deletion that had been pursued by the European Parliament).

Pragmatism, accompanied by a spirit of constructive compromise, is not a bad thing after all.

ICC amendment text

(Another in IntLawGrrls' series of posts on the Kampala Conference)

The International Criminal Court has posted the official text of aggression amendments (French version here) to the 1998 Rome Statute that the Assembly of States Parties adopted by consensus in the final hour of the Review Conference that ended this weekend in Kampala, Uganda.

Contents

Contained in "Annex I - Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression," are:

► Addition of Article 8 bis, "Crime of aggression," containing the definition set forth at the bottom of this post;

► Addition of Article 15 bis, "Exercise of jurisdiction over the crime of aggression (State referral, proprio motu)";

► Addition of Article 15 ter, "Exercise of jurisdiction over the crime of aggression (Security Council referral)"; and

► Sundry amendments to other articles necessitated by these changes.

Also in this document are:

► "Annex II: Amendments to the Elements of Crimes," which further defines Article 8 bis, "Crime of aggression"; and

► "Annex III: Understandings regarding the amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression," containing subtitles "Referrals by the Security Council," "Jurisdiction ratione temporis," "Domestic jurisdiction over the crime of aggression," and "Other understandings."

Definition

If ratified according to procedures set forth in the amendments, Article 8 bis will constitute this definition of the crime of aggression (further elaborated, as noted above, in the amendments to the Elements of Crimes):

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;
c) The blockade of the ports or coasts of a State by the armed forces 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;
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.

Kampala pix redux

From alumna Margaret deGuzman, a guest post contributing more photos -- captions at bottom -- from the just-ended the ICC Conference, another in IntLawGrrls' series on events in Kampala)







At left, Benjamin B. Ferencz, former U.S. prosecutor before the post-World War II International Military Tribunal at Nuremberg and indefatigable advocate for international criminal justice, adance.

IntLawGrrl Beth Van Schaack (right), who served as academic advisor with the U.S. delegation in Kampala, and me.

Conference session; at far left of the podium is Prince Zeid Ra'ad Zeid al-Hussein of Jordan, Chair of the Working Group on the Crime of Aggression.

Preparation for whitewater rafting on the Nile River. Familiar faces include Case Western Law Professor Michael P. Scharf, 3d from left. To his right: Robert Petit, former International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia; me; Duke Visiting Assistant Law Professor Noah Weisbord; and Professor William A. Schabas, Director of the Irish Centre for Human Rights in Galway.

Assessing the ICC conference

(Another in IntLawGrrls' series of posts on the Kampala Conference)

KAMPALA, Uganda - The International Criminal Court Review Conference has ended in Kampala, with the adoption of a resolution adding the crime of aggression and conditions for the exercise of that jurisdiction to the Rome Statute.

How the final day unfolded
Friday began with numerous bilateral and group meetings among states -- for example, the Latin American and African groups met, together with the states of the Non-Aligned Movement, several times to consider the ever-changing proposals meant to resolve the issue of the conditions for the exercise of jurisdiction of the ICC over the crime of aggression. While some state discussions focused on determining if there was support for the "non-papers" issued the evening prior and throughout the day, other discussions aimed at trying to come up with creative solutions to bridge differences among states.
Originally, a plenary was set for 11:30 a.m. to consider the crime of aggression. However, that was delayed until 2 p.m., as intense inter-state discussions were still going on. At 2:00 p.m., the President – Ambassador Christian Wenaweser of Liechtenstein -- took the floor for only a few minutes to indicate that he had provided some delegations with a very informal paper, and that copies of that paper were now available to all states. He then delayed the plenary until 5:00 p.m. and, then again, at 9 p.m.
The plenary finally got under way at 11 p.m., when the President introduced his final package proposal, an effort to accommodate the bottom lines of all delegations. He then suspended the plenary again to allow states to consult.
Finally, at 12:10 a.m. yesterday, after the marathon day, the plenary took place. A resolution amending the Rome Statute was adopted by consensus. As posted, it sets out the crime of aggression and the conditions for the exercise of jurisdiction. These conditions allow the ICC to exercise jurisdiction over the crime of aggression without the need for prior U.N. Security Council authorization. However, this grant of independent jurisdiction is subject to significant caveats. Specifically, it:
► Does not extend to acts of aggression committed on the territory of or by nationals of non-state parties (unless the Security Council refers the matter to the ICC).
► Is subject to declarations of non-acceptance by states parties; and
► Will not come into effect at all until 2017 at the earliest, and even then only if States Parties positively decide to activate this new aspect of the ICC’s jurisdiction.

Also in Kampala
The crime of aggression was not the only focus of the Review Conference. Other aspects:
► The Rome Statute was also amended to include within the jurisdiction of the Court the war crimes of employing poison or poisoned weapons, employing asphyxiating, poisonous or other gases and analogous liquids, materials and devices, and employing bullets which expand or flatten easily in the human body, when committed in internal armed conflicts.
► There were stocktaking exercises focused on victims issues, peace and justice, complementarity and cooperation.
► Article 124 (a transitional provision) was retained, but will be revisited in 2015. A resolution on the enforcement of sentences was adopted and, finally, the Kampala Declaration was adopted, reaffirming states’ commitment to the universality, integrity and full implementation of the Rome Statute.

History-making?
Was the close of the Review Conference the historic moment many hoped it would be?
International criminal law now has a definition for the crime of aggression, as well as recognition of additional serious war crimes committed in internal armed conflicts. The jurisdictional regime for the crime of aggression does have built-in caveats and delays – which may seem less like success – but it certainly was not clear until the very final minutes of the Review Conference that any agreement was possible at all. Certain of the stocktaking discussions are likely to inform the work of the Court and the ICC’s Assembly of States Parties for years to come. Finally, increased cooperation on sentence enforcement may stem from the efforts of Norway at the Review Conference.
Thus I would argue that the answer to the question above is a qualified “yes”.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

Legal academics like myself will be eternally grateful to the Review Conference for providing us with such complicated and at times incoherent provisions. They will provide us with fodder for journal articles, books and conferences for many years to come.

-- Our colleague, William A. Schabas (left), respecting the compromise agreement on the crime of aggression cobbled together this weekend, at the very end of the 2-week International Criminal Court Review Conference at Kampala, Uganda, aspects of which many LawGrrls discussed in a series of posts, and pictures from which are posted below. Bill's comments appeared in a post detailing the compromise, part of his own superb daily blog on the conference. (The official ICC press release is here.)

Kampala pix

(Another in IntLawGrrls' series of Kampala Conference posts)

Courtesy of IntLawGrrl Beth Van Schaack, the photo above of the All Africa Gala, part of the entertainment at the Review Conference of the Rome Statute of the International Criminal Court just concluded in Kampala, Uganda.
Beth also sends more photos: left, conference intervention by Stephen J. Rapp, U.S. Ambassador at Large for War Crimes Issues; left, press conference by ICC Prosecutor Luis Moreno-Ocampo;


right, screen depicting intervention by Harold Hongju Koh, U.S. State Department Legal Adviser.