Reconciling the crime of aggression and complementarity: unaddressed tensions and a way forward.

AuthorVeroff, Julie

NOTE CONTENTS INTRODUCTION I. THE HISTORY AND FUNCTION OF COMPLEMENTARITY II. COMPLEMENTARITY AND THE CRIME OF AGGRESSION: THE LEAD UP TC KAMPALA A. Pre-Kampala Aggression Negotiations 1. Deliberations on the Draft International Law Commission Statute (1995) 2. Draft International Law Commission Code of Crimes (1996) 3. Initial Deliberations on the Rome Statute (1998) 4. Meeting of the Special Working Group on the Crime of Aggression (2004) B. The 2010 Kampala Review Conference C. Post-Kampala Developments III. TENSIONS BETWEEN COMPLEMENTARITY AND THE CRIME OF AGGRESSION A. Problems if States Do Not Incorporate 1. Incomplete Concurrence 2. Diminished Uptake of an International Antiaggression Norm B. Problems if States Do Incorporate 1. Justiciability, Evidentiary, and Other Jurisprudential Roadblocks to Prosecutions 2. Threats to International Political Stability, Conflict Resolution, and Humanitarian Intervention 3. Domestic Alterations to the Definition of Aggression IV. A WAY FORWARD A. The Substance: Four Possible Interventions 1. Establish Exclusive ICC Jurisdiction or Primacy over the Crime of Aggression 2. Supplement Understanding 5 with a Diplomatic Overture from the Chief Prosecutor To Discourage Domestic Incorporation 3. Prosecute for Violations of Ordinary Criminal Law, Not the Rome Statute 4. Generate a Multifactor List To Guide Domestic Prosecutions B. The Form: An Intersessional Gathering CONCLUSION INTRODUCTION

In 2010, the Assembly of States Parties (ASP) (1) to the Rome Statute of the International Criminal Court (ICC) finally agreed on a definition for the crime of aggression after years of deliberations. (2) The ASP adopted the Rome Statute, the treaty creating the ICC, in 1998, but the crime of aggression proved too contentious. The ASP failed to reach a consensus on its definition or jurisdictional regime. Rather than allow that division to derail the entire treaty, the ASP punted on the issue of aggression by writing a promise into the Rome Statute that it would eventually return to it. (3) Until that time, the ICC could exercise jurisdiction only over war crimes, crimes against humanity, and genocide. (4) More than a decade passed before the ASP, meeting in Kampala, Uganda, fulfilled its promise and amended the Rome Statute to define the crime of aggression and the conditions for the ICC's jurisdiction over it.

The Kampala Amendments to the Rome Statute defined the crime of aggression as "the planning, preparation, initiation or execution" by a high-level official "of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations." (5) When committed by the armed forces of one state against another state, examples of acts that would qualify as "aggression" include invasion or attack, bombardment, blockade of ports or coasts, and sending mercenaries to carry out acts of armed force. (6) The ASP also agreed to jurisdictional rules governing the crime and adopted a set of Understandings (7) touching on Security Council referrals, temporal jurisdiction, domestic jurisdiction, and the nature of an aggression determination. (8)

There were many difficult issues on the table in Kampala, as one might expect from a gathering that followed more than twelve years of debate. Yet the ASP devoted scant attention to a critically important issue: whether and how aggression fits within the ICC's complementarity regime. Complementarity positions the ICC as a court of last resort. Domestic prosecutions are strongly preferred over ICC prosecutions in all but a very narrow set of circumstances.

The crime of aggression could give rise to three types of domestic prosecutions. First, a state could prosecute its own nationals, such as the principals of a former regime. This type of prosecution is unlikely to provoke the concerns that animate this Note. Second, a state with no real connection to an act of aggression could prosecute under extraordinary bases of jurisdiction, such as universal jurisdiction. This type of prosecution has the potential to cause acute political problems, but is unlikely to occur given evidentiary and procedural barriers. Finally, an aggressed state could prosecute the nationals of an aggressor state. This last type of prosecution--in which one state accuses another state of aggression--will likely prompt the most international debate and warrants concern. Such prosecutions could destabilize conflict management and resolution efforts, deter states from undertaking certain military forms of humanitarian intervention, and even undermine the ICC's legitimacy and stability. (9)

At the same time, deviating from the standard complementarity framework for the crime of aggression by discouraging domestic prosecutions would create its own set of problems, such as incomplete concurrence between domestic and ICC proceedings. Moreover, the victim state's ability to prosecute the nationals of an aggressor state may be critical to deterring aggression. Relying primarily or solely on the ICC to prosecute aggression would likely result in fewer prosecutions than would take place if states could also prosecute. By extension, the deterrent power created by the crime's inclusion in the Rome Statute might be weakened and the uptake of an international antiaggression norm slowed.

In sum, the ASP faces a difficult choice laden with tradeoffs: if it situates the crime of aggression within the ICC's longstanding complementarity regime, it risks destabilization and threats to the ICC's legitimacy. But if the ASP rejects complementarity for the crime of aggression and limits or bans domestic prosecutions in favor of ICC prosecutions, it might spark complicated procedural issues and weaken the crime's deterrent effect and normative power.

The other Rome Statute crimes--genocide, war crimes, and crimes against humanity--do not pose similar challenges vis-a-vis complementarity. Individuals may be held liable for these atrocity crimes without formally implicating the state. In contrast, the crime of aggression inextricably intertwines individual liability with state action. (10) First, by definition, only high-level leaders can commit aggression. (11) Second, the crime necessarily involves at least two states. (12) Finally, liability for aggression hinges on a finding that a state committed an act of aggression. These conditions dramatically raise the political stakes of a domestic prosecution for aggression, but need not be present for atrocity prosecutions. (13)

The unique tension between aggression and complementarity demands the international community's attention. In 2004, the Special Working Group on the Crime of Aggression (14) advised the ASP that the question of fit between aggression and complementarity "merited being revisited" once the ASP agreed on a definition of aggression and the conditions for the ICC's exercise of jurisdiction. (15) The ASP, however, has failed to heed this call. Even after the Kampala Review Conference, the important and complex issues surrounding complementarity and the crime of aggression have remained undertheorized and underdiscussed.

The Kampala Amendments are scheduled to come into force in 2017. (16) The tensions between the crime of aggression and complementarity are therefore not front of mind for government lawyers and policymakers. But the States Parties should not delay. Without more sustained attention to the crime of aggression's fit with complementarity, we risk deeply concerning prosecutions by domestic courts and bewildering procedural questions at the ICC. These prosecutions could significantly affect international peace and security, the prevention of mass atrocities, conflict resolution, and the legitimacy of the ICC. The future of the United States' relationship with the ICC is also at stake. The relationship is sufficiently fragile that even one badly managed aggression prosecution could undo the slow and steady improvements to the ICC-U.S. relationship made under the Obama Administration. (17) The tensions between complementarity and aggression are not easily reconciled and require attention now.

This Note's objectives are twofold. First, it aims to assist U.S. policymakers by articulating a sensible system of complementarity vis-a-vis the crime of aggression. Second, it seeks to spark dialogue on this relatively unacknowledged problem before 2017.

The Note proceeds in four Parts. Part I describes the history and values underpinning complementarity to frame the subsequent analysis of how complementarity should apply to the crime of aggression. Part II draws on the official records on the adoption of the crime of aggression--the travaux preparatories--to illustrate how the International Law Commission (ILC), the Special Working Group on the Crime of Aggression, and delegations at Kampala paid little attention to the complementarity issue.

Part III discusses the stakes involved. It argues that the States Parties face a genuine and acute dilemma in navigating complementarity's application to the crime of aggression. If the States Parties do domestically incorporate and prosecute for aggression, they could jeopardize international political stability. But if the States Parties do not domestically incorporate the crime of aggression, they will be unable to prosecute for aggression, and the ICC may have to navigate incomplete concurrence between proceedings in domestic courts and proceedings at the ICC.

Part IV offers a way forward. It proposes four possible interventions and assesses their political viability and potential impact. The States Parties should (1) establish exclusive ICC jurisdiction or primacy over the crime of aggression; (2) urge the ICC's Chief Prosecutor to issue an official statement discouraging domestic incorporation; (3) encourage domestic prosecutions for ordinary crimes instead of aggression; and (4) generate a multifactor list to guide domestic...

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