Integrating the crime of aggression into international criminal law and public international law.

Position:Annual Benjamin Ferencz Session - Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law - Discussion

This panel was convened at 3:00 p.m., Thursday March 24, by its moderator, Michael Newton of Vanderbilt University School of Law, who introduced the panelists: Beth Van Schaack of Santa Clara University and the U.S. delegation to the ICC Review Conference; Teresa McHenry of the U.S. Department of Justice, Criminal Division, Human Rights and Special Prosecutions; Claus Kress of the University of Cologne; and Michael Scharf of Case Western Reserve School of Law.


I want to welcome you all to the Benjamin Ferencz Session during which we will focus on the results of the Review Conference convened by the Assembly of States Parties to the International Criminal Court in Kampala, Uganda. We are here to honor an extraordinary man, who is seated in the front of the room along with his son Don, and we have assembled an extraordinary panel to dissect the recent developments in the field of international criminal law. The recent amendments to the Rome Statute of the International Criminal Court adopted in Kampala have sharpened debate over the tensions between traditional principles of public international law and processes of criminal adjudication, especially where concurrent jurisdiction exists between domestic and international courts. Professor Beth Van Schaack served on the U.S. delegation in Kampala and will discuss the key results of the diplomatic discussions, as well as projecting their lasting significance. Theresa McHenry joins us from the U.S. Department of Justice and will speak in her personal capacity on the challenges to come as the Court attempts to balance its new statutory authority with the fabric of existing domestic jurisdiction consistent with the complementarity principle. Claus Kress chaired the understandings negotiations in Kampala and can enlighten us regarding that process, the legal authority that should be accorded to the understandings, and their role in forging the consensus that emerged. Lastly, Michael Scharf will focus on a particular aspect of the aggression debates that has been heretofore under-analyzed. He will discuss the fabric of universal jurisdiction and assess the impact of the Kampala compromises on the future of that statutory structure.

Let me set the stage for this conversation among friends and eminent experts by briefly reviewing the context and content of the discussions in Kampala. When we reflect on the lifelong dedication of Benjamin Ferencz that began as he stood up to deliver the opening statement in the Einsatzgruppen trial more than half a century ago, there is a word picture that comes to mind unbidden and immediately: perseverance, selflessness, duty, passion, innovation, intelligence, unflagging energy, vision, innovation, all commingled with a whiff of occasional controversy. The Planethood Foundation that he and Don started some years ago has inaugurated the Global Institute for the Prevention of Aggression to be convened in London that will help implement Ben's vision and to cement the accomplishments in Kampala. Many of the same concepts that have shaped Ben's lifelong pursuit of justice were readily apparent in Kampala. The legal results involved a complex choreography of politics and the necessary compromises between the allocation of adjudicative authority between international and domestic forums. This is especially important in the context of the understandings that the governments assembled in Kampala adopted to augment the statutory refinements that formally amended the Rome Statute. The implementation of those understandings by a Court that is facing real defendants and real cases and applying a Statute to which no reservations are permitted will be fascinating to watch in the coming years. The discussions highlighted the enduring tension between expediency and efficiency that are inherent in our shared goals for justice--both for individual victims and the societies affected by armed conflicts--and fundamental fairness. Just as the name Benjamin Ferencz stirs a complex set of occasionally overlapping responses and impressions, the umbrella concept of Kampala in some sense masks the underlying complexity of the crosscurrents of intellectual, organizational, and international development achieved during the Review Conference.

The Kampala Conference represented a kaleidoscope of idealism and aspiration that was framed against the innovations needed to achieve an elusive diplomatic goal in a manner that would facilitate the institutional emergence of the International Criminal Court rather than hasten its incapacity. Kampala was epochal because it represented the culmination of years of discussion, planning, and preparation. The discussions related to the stock-taking debates provided opportunity to cement the core understandings and practices of the Court as it matures, all the more so because of the penetrating reevaluations and critiques that accompanied the consensus reaffirmations. At the same time, Kampala was evolutionary, particularly insofar as the aggression debates and the accompanying changes to the Rome Statute moved closer to the goal that Benjamin Ferencz has sought throughout his adult life--the comprehensive criminal sanction of wars of aggression. The debates were complex in their own right, which is why it is such a pleasure to have this panel of friends and experts shed light on these important developments.

MICHAEL A. NEWTON, Professor of the Practice of Law, Vanderbilt University School of Law,


By Beth Van Schaack

When delegates representing the nations of the world finalized the Statute of the International Criminal Court (ICC) in 1998, the definition of the crime of aggression and its jurisdictional regime eluded consensus. Delegates thus left for posterity a cryptic reference in Article 5 stating that any provisions governing the crime were to be consistent with the UN Charter. In 2010, in Kampala, Uganda, the Assembly of States Parties (ASP)--along with a number of observer states and NGOs--finalized the task that was left to them and adopted a consensus package of amendments adding the crime of aggression to the Court's subject matter jurisdiction. If thirty states parties ratify the new provisions, and the ASP decides to activate them, the Court could be empowered to prosecute the crime of aggression as early as 2017.

In the negotiations, the definition of the crime and the operative jurisdictional regime proved contentious, both individually and in their interaction. Delegates always conceived of the crime of aggression as having two components: state action and individual conduct.

The state act of aggression serves as a predicate to a finding that a particular individual committed the crime of aggression. The formulation of the state action element--which implicates classical rules governing the legality of the use of force and the province of the Security Council within the UN system--drew criticism because it seems to imply that every breach of the prohibition of the use of force constitutes an act of aggression. Yet both the UN Charter and GA Resolution 3314--the inspiration for the ICC Statute's definition of aggression--envision a continuum of unlawful uses of force, only some of which rise to the level of aggression per se. According to the final treaty amendments, only those acts of aggression that constitute a "manifest" violation of the UN Charter are potentially prosecutable as the crime of aggression. This qualifier establishes two thresholds: one of gravity, ensuring that only the most egregious or willful violations of the UN Charter will be prosecuted, and one of legal certainty, ensuring that there is some global consensus as to the unlawfulness of the state's act.

As has been done in prior treaty drafting exercises, states with lingering concerns about the particulars of the crime's definition sought interpretive Understandings to guide the Court in adjudicating the new crime. An important element of the U.S. agenda in this process was to sponsor language that would bar, or at least discourage, the prosecution of a use of force deployed to prevent the further commission of atrocity crimes within the ICC's jurisdiction.

Although a specific proposal in this regard was not adopted, the final Understandings do introduce a gravity threshold for finding the predicate state act of aggression. The Understandings also reinforce the idea that aggression is the most serious and dangerous form of the illegal use of force, and mandate a consideration of the "character" and "consequences" of a state's conduct in determining whether an act of aggression has been committed. The Kampala Understandings proved to be critical in forging the final consensus on the substantive portion of the aggression amendments. Notwithstanding these Understandings, it remains to be seen whether the new provisions will over-deter uses of force deployed in defense of others, or result in more unilateral uses of force by hindering coalition-building.

Because the full reach of the definition of aggression seemed destined to remain indeterminate, the necessity of a jurisdictional filter for the crime took on great importance in the negotiations. The debate centered on which body would be empowered to make the determination that a state committed an act of aggression. Contenders included the oligarchic Security Council, the arguably more democratic but nonetheless politicized General Assembly, the leisurely International Court of Justice, or the ICC itself.

Ultimately, the principle of judicial independence prevailed. Following a state party referral or the initiation of an investigation by the Prosecutor acting proprio motu, the Security Council and Pre-Trial Division will operate in tandem. The Council will have the first opportunity to make the predicate determination; in the event that this...

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