Posted: 26 May 2010 05:42 PM PDT
by Julian Ku
Do we have an emerging consensus that the ICC States-Parties should refrain from adding the crime of aggression to the ICC Statute at its upcoming conference in Kampala? Michael Glennon, the CFR, Harold Koh, David Kaye, and now Richard Goldstone have all come out against adding the crime of aggression. Here is Goldstone:
Based on my experience as an international prosecutor, and speaking as a strong supporter of the International Criminal Court, I think it would be a mistake to add the crime of aggression to the Court’s docket now. The issue should be deferred again.
By any measure, the I.C.C. has gotten off to a strong start in generating international support and demonstrating its potential to address the problem of impunity for serious international crimes.
But it also has encountered charges of politicization and is still learning, as an institution, how to exercise effectively its jurisdiction over genocide, crimes against humanity and war crimes.
One of the greatest challenges I faced as prosecutor at the International Criminal Tribunal for the former Yugoslavia (I.C.T.Y.) was convincing the Serbian public that the court was not a politically motivated conspiracy against Serbia. This challenge would have been immensely greater — perhaps impossible — if the Tribunal’s jurisdiction had included the crime of aggression. That would have required me to investigate and potentially prosecute the decision to go to war — which is inherently a profoundly political decision.
Prosecuting that decision would have inflamed Serbian suspicions of a conspiracy; choosing not to prosecute would have incited countervailing charges that the Tribunal was not fulfilling its mandate. Such a debate would have diverted attention and energy from the imperative of fairly and effectively providing justice and accountability for the grave crimes then being committed against civilians in the former Yugoslavia.
Now is not the time for the I.C.C. to risk embroiling itself in similar controversy. The issues that would arise from dealing with allegations of aggression would give ammunition to critics who claim it is a politicized institution.
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Prosecuting Aggression On Monday, members of the International Criminal Court gather in Kampala, Uganda, to consider whether to amend the Court’s statute to allow it to exercise jurisdiction over the crime of “aggression.” Previous articles on these pages have argued that the crime is too vague and should be rejected (Michael J. Glennen, April 6), and that criminal responsibility for the illegal use of armed force would make international law more credible (Noah Weisbord, May 4).
By Richard Goldstone
Based on my experience as an international prosecutor, and speaking as a strong supporter of the International Criminal Court, I think it would be a mistake to add the crime of aggression to the Court’s docket now. The issue should be deferred again.
By any measure, the I.C.C. has gotten off to a strong start in generating international support and demonstrating its potential to address the problem of impunity for serious international crimes.
But it also has encountered charges of politicization and is still learning, as an institution, how to exercise effectively its jurisdiction over genocide, crimes against humanity and war crimes.
One of the greatest challenges I faced as prosecutor at the International Criminal Tribunal for the former Yugoslavia (I.C.T.Y.) was convincing the Serbian public that the court was not a politically motivated conspiracy against Serbia. This challenge would have been immensely greater — perhaps impossible — if the Tribunal’s jurisdiction had included the crime of aggression. That would have required me to investigate and potentially prosecute the decision to go to war — which is inherently a profoundly political decision.
Prosecuting that decision would have inflamed Serbian suspicions of a conspiracy; choosing not to prosecute would have incited countervailing charges that the Tribunal was not fulfilling its mandate. Such a debate would have diverted attention and energy from the imperative of fairly and effectively providing justice and accountability for the grave crimes then being committed against civilians in the former Yugoslavia.
Now is not the time for the I.C.C. to risk embroiling itself in similar controversy. The issues that would arise from dealing with allegations of aggression would give ammunition to critics who claim it is a politicized institution.
Moreover, as a young institution, the Court still has much work to do in effectively investigating and prosecuting the crimes over which it already exercises jurisdiction. Cooperation from member states and the relationship between peace and justice are just two vital issues that require sustained attention at Kampala and beyond.
Grappling with aggression now also threatens to open rifts among members of the Court. Despite years of complex negotiations, deep disagreements persist over key issues related to amending the statute on aggression, such as state consent and how cases would be initiated. Attempting to force a decision absent consensus would vitiate one of the strongest assets the Court has had — the solidarity of its members in the face of efforts to undermine the project.
Kampala is not the last opportunity to amend the statute. The Court’s members should wait at least until the I.C.C. is more established institutionally and a broader consensus emerges on the relevant issues.
Richard Goldstone is distinguished visitor from the judiciary at the Georgetown University Law Center and former prosecutor at the U.N. Criminal Tribunals for the former Yugoslavia and Rwanda.
By David Kaye
The addition of the crime of aggression to the I.C.C.’s jurisdiction is a dangerous move. For although there are strong reasons for criminalizing aggression, the result would politicize the Court, undermine its independence, and limit the support from governments that is essential to its work.
The case for a crime of aggression is rooted in well-established international law, and an international tribunal with the power to investigate and prosecute aggression could serve as a deterrent against future resorts to force.
Sadly, however, we don’t live in a world where such an outcome is likely. More likely, decisions to investigate uses of force would be highly politicized.
I.C.C. members are now considering several options to trigger the authority to investigate: (1) authorization by the U.N. Security Council; (2) by the U.N. General Assembly or (3) International Court of Justice; (4) by a I.C.C. prosecutor after approval by a chamber of judges.
Each option is fraught with political dangers. In the Security Council, it would be impossible to avoid the claim of impunity for the five permanent members with vetoes (United States, Britain, France, Russia and China). And they would undoubtedly seek to extend their protection to their allies, or trade votes to protect their spheres of influence.
The General Assembly, a body that is already highly politicized and split along geographic and other lines, would be no better. The International Court of Justice lacks the investigative competence to review claims of illegal use of force. And placing the power to investigate claims of aggression in the hands of the I.C.C. prosecutor, already deluged with accusations of politicization, would be a disaster for the Court.
That is not to say that politics aren’t already at work. The United States is not a party to the I.C.C. Yet the Obama administration has offered to work with the prosecutor to determine where its support would be most useful. Aggression jurisdiction would undermine the support of the U.S. and other powerful countries.
Human rights groups are already calling for the Kampala conference to defer its negotiation of a crime of aggression. The Open Society Institute and 40 other organizations from around the world urged governments to postpone the discussions, while Human Rights Watch issued a report that, among other things, expressed concerns that aggression could “diminish” the role of the I.C.C. in international justice.
The governments in Kampala should take the long view and ask themselves whether this Court, at this time, is ready to sacrifice broad support and independence for moral clarity.
David Kaye directs the international human rights program at the University of California, Los Angeles, School of Law.
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http://usun.state.gov/briefing/statements/2010/139000.htm
Statement by Harold Hongju Koh, Legal Advisor, United States Department of State, Regarding Crime of Aggression at the Resumed Eighth Session of the Assembly of States Parties of the International Criminal CourtHarold Hongju Koh
Legal Advisor , U.S. Department of StateNew York, NYMarch 23, 2010AS DELIVERED
Thank you, Mr. Chairman, and thank you for your outstanding leadership. On behalf of the United States, let me recognize and pay tribute to those who have been involved in this review process. The extensive work that you have done stands as an important contribution to our collective thinking over the many decades on the critical issue of the Crime of Aggression. We are especially grateful for the gracious way that you have welcomed us back to conversation with the States Parties, and we have benefited greatly from your experience.
When the U.S. Observer delegation addressed the Assembly of States Parties (ASP) last November, we noted that, having been absent from previous ASP meetings, one of our main aims was to listen and learn, to gain a better understanding of the issues being considered by the ASP and of the workings of the International Criminal Court. We listened carefully in The Hague and again during this resumed session. We have learned from the listening and we have benefited from your many thoughtful observations and insights.
At the same time, as Ambassador Rapp noted in The Hague, although the United States had not attended previous ASP meetings, we have hardly been silent in the face of crimes against the basic code of humanity. For decades we have worked, and we will continue to work, with other States to ensure accountability on behalf of victims of such depredations. Our historic commitment to the cause of international justice remains strong. As Ambassador Rapp said this morning, we believe we have a keen interest in — and much to contribute to —the success of the cases before the ICC. Although the United States is not a party to the Rome Statute, the Obama Administration has been actively looking at ways that we can assist the ICC in fulfilling its historic charge of providing justice to those who have endured crimes of epic savagery and scope. We would like to meet with the Prosecutor to examine specific ways that the United States might be able to support the prosecutions already underway.
But as we have indicated in our conversations with many of you over these past few months, we are concerned that this moment of new engagement between the United States and the Court takes place at a time when this body is considering amendments that could divert the ICC from its core mission and politicize this young institution. Wisely, a number of those amendments have been set aside for the time being, but our concern remains with respect to the proposal to adopt the amendments on the Crime of Aggression.
Yesterday and today, we have listened carefully to the wide range of comments, and we have been struck by the diversity of views that have been expressed with regard to the two questions posed by the Chair. As a number of other States have commented, we have not heard a clear consensus on either the wisdom of state consent to prosecution or on which filter mechanism would best serve the States Parties’ interests.
As we have informed the Chair, with respect to the first question he posed, even if one were to look to consent as a basis for exercising jurisdiction, we believe that the crime of aggression fundamentally differs from the other three crimes under the Court’s jurisdiction—genocide, war crimes, and crimes against humanity. As the International Law Commission recognized when it looked at this issue in 1996, a state whose leaders are accused of aggression must consent to jurisdiction to be tried in another state’s courts. We believe that it follows that the International Criminal Court’s jurisdiction over such cases, when it derives from national jurisdiction, must similarly require the consent of the State that is accused of aggression.
With respect to the Chair’s second question, our views are well-known: that investigation or prosecution of the crime of aggression should not take place absent a determination by the UN Security Council that aggression has occurred. The UN Charter confers on the Security Council the responsibility for determining when threats to peace and security, including aggression, have taken place. We are concerned by the confusion that might arise if more than one institution were legally empowered to make such a determination in the same case, especially since these bodies, under the current proposal, would be applying different definitions of aggression.
Mr. Chairman, while the two questions you have posed are important, and have yielded a wide range of answers, we respectfully submit that they are not the only questions that must be answered before Kampala. We recognize the difficulties of raising these questions now, having not participated in the previous discussions. But I hope you all appreciate that we do not believe the Court’s interests would be best served if we were to remain silent. We have heard from many of you questions about the proposals concerning the crime of aggression that should be taken up between now and Kampala.
The first set of questions are raised by the terms of the definition itself—the manner in which the State act of aggression, the threshold clause, and the individual crime of aggression are set out in the proposed amendments—including the degree to which they may depart from customary international law.
A second set of questions relates to how such a crime would potentially affect the Court at this point in its development. Mindful of the challenges the ICC now faces in securing justice for those who committed crimes against humanity, genocide, and war crimes, we are concerned—as many of you are—about the new burdens this would place on the Court. How would the still-maturing Court be affected if its Prosecutor were mandated to investigate and prosecute this crime, which by its very nature, even if perfectly defined, would inevitably be seen as political-- both by those who are charged, as well as by those who believe aggressors have been wrongly left uncharged? To what extent would the availability of such a charge place burdens upon the Prosecutor in every case, both those in which he chooses to charge aggression and those in which he does not?Third, would adopting the crime of aggression at this time advance or hinder the key goals of the stocktaking exercise: complementarity, cooperation and universality? As my colleague Ambassador Rapp has said, the United States appreciates the important work that has been undertaken by the focal points who are preparing the stocktaking exercise at Kampala. But with respect to complementarity, do we want national courts to pass judgment on public acts of foreign states that are elements of the crime of aggression? Would adding at this time a crime that would run against heads of state and senior leaders enhance or obstruct the prospects for state cooperation with the Court? And will the States Parties enhance the prospects for universality of the Court by moving to adopt this politicized crime at a time when there is genuine disagreement on such issues?
This raises the fourth and most important set of questions: Has a genuine consensus yet emerged to finalize a definition of the crime of aggression, or do we need further work and discussion? And what outcome in Kampala will truly strengthen the Court at this critical moment in its history?
Mr. Chairman, this decision would bring about an organic change in the Court’s work. Because this is such a momentous decision for this institution, we should leave no stone unturned in search of genuine consensus. My delegation looks forward to discussing these important issues with as many of you as possible over these next few days here in New York, and in the remaining period between now and the Kampala Review Conference.
Thank you, Mr. Chairman.
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