Friday, April 13, 2018

Activating the Crime of Aggression at the ICC in 2018

The development of the Crime of Aggression has involved a lengthy deliberation among civil society and governments which culminated in its approval by the Assembly of State Parties at the International Criminal Court in 2017. Delegates could not reach a consensus on the definition, breadth, or application of the crime of aggression at the creation of the Rome Statute in 1998; however, delegates compromised at the time to include the crime of aggression in the Rome Statute Article 5 of the crimes within the jurisdiction of the Court after the negotiation of a definition.  At a Review Conference in 2010 in Uganda, delegates negotiated the definition and purview of the crime to facilitate State Party ratifications of amendments to the Rome Statute at an Assembly of State Parties (ASP) thereafter.

The Kampala Review Conference disagreed about a provision—specifically whether State Parties should enable the Court’s jurisdiction over aggression through either opting out if unwilling to accept a broadly inclusive application of the provision or opting in to choose the jurisdiction of the Court with the new amendments to the Statute. The US, as an observer delegation rather than a State Party delegation, had advocated for the opt-in option and broad Security Council referral control during the Preparatory Commission following the Rome conference. At the Kampala Conference, most countries felt that a consensus had been achieved on definition and breadth of the amendments. However, it later appeared that some disagreements over jurisdiction remained. During the 2017 ASP, delegates further negotiated between the majority advocating for a “broad view” by which states can elect to opt out of the ICC’s jurisdiction for the aggression amendments and the strong minority advocating for a “narrow view” of ICC jurisdiction requiring states to opt in to the provision. Ultimately, delegates voted to adopt the aggression amendments at the 2017 ASP along the narrow view—State Parties must opt in to accept the amendments to enable their enforcement in the state territory and over the nationals of those State Parties.

Defining the Crime of Aggression is actually not a new concept. United States delegates had advocated during the Rome Conference for the inclusion of the Crime of Aggression in the Rome Statute with the requirement that the Security Council must refer cases to the Court as a final effort to solidify the crime in the initial text; however, there was no consensus for the requirement at the time. Concern about ICC jurisdiction over acts of aggression proved to be one critical reason that the Bush administration would not sign the Rome Statute. The administration was concerned that US military activities internationally could be considered crimes of aggression.

This was a departure from previous US positions on the crime of aggression. US efforts to prosecute the crime of aggression extend back to the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East (Tokyo). In The Journal of International and Comparative Law, Jennifer Trahan described, “The Nuremberg Tribunal deemed ‘crimes against peace’ to be ‘the supreme international crime, only differing from other war crimes in that it contains within itself the accumulated evil of the whole.’ Trahan also pointed to the prohibition of aggressive use of force enshrined in U.N. Charter Article 2(4), which precludes use of force against the “territorial integrity” or “political independence” of any state, unless authorized by U.N. Security Council Chapter VII enforcement actions or Article 51 arguments of individual or collective self-defense.[1]

The new definition of the crime of aggression is as follows:
“‘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]
The amendments then include a list of actions that would qualify as an “act of aggression”: “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… [including any] of the following acts, regardless of a declaration of war, shall… 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.”[3]
If any acts fell under these categories but were authorized by the Security Council or were for individual or collective self-defense, they would not qualify as crimes of aggression.[4]

To initiate any investigation on a crime of aggression, a referral can originate from the Security Council, a State Party, or the Office of the Prosecutor with Pre-Trial Chamber approval.[5] The aggression amendments do not allow the ICC jurisdiction over Non-States Parties, or their nationals, unless the case is referred by the Security Council for Non-State Parties. Therefore, this stipulation offers the Permanent Five Security Council members who are not State Parties—namely the US, Russia, and China—de facto immunity from the Court’s jurisdiction because of their vetoes.[6] (For clarity, the ICC only tries individuals, so such cases and resultant trials only involve the culpability of the most senior level leadership.) The aggression amendments will enter into force for State Parties that have ratified them by July 17, 2018, which is also the 20th anniversary of the ICC’s founding treaty, the Rome Statute.[7]

There are some potential complications that will need to be considered. Are states that ratify the Rome Statute after the adoption of the amendments subject to the amendment or must they additionally ratify it? Can non-State Parties by a special declaration accept the Court’s jurisdiction in relation to these amendments?[8] For these questions and other grey areas, the ICC judges have the discretion to determine the breadth and limitations of the aggression amendments. Despite limitations to the Court’s jurisdiction over the crime of aggression, the beginning of the Court’s jurisdiction over this critical fourth crime on the 20th anniversary of the creation of the Rome Statute marks a momentous milestone and progress for the Court.

Written By Amanda Schmitt

[1] Trahan, Jennifer. “An Overview of the Newly Adopted International Criminal Court Definition of the Crime of Aggression.Journal of International and Comparative Law, Vol. 2, Iss. 1, Article 3. March 2016. 33.
[3] The Rome Statute. ICC. 7-8.
[4] Trahan, Jennifer. “An Overview of the Newly Adopted International Criminal Court Definition of the Crime of Aggression.” 39.
[5] Trahan, Jennifer. “An Overview of the Newly Adopted International Criminal Court Definition of the Crime of Aggression.” 41.
[6] Trahan, Jennifer. “An Overview of the Newly Adopted International Criminal Court Definition of the Crime of Aggression.” 41.
[7]Historic activation of jurisdiction over crime of aggression at International Criminal Court.” Coalition for the International Criminal Court. December 15, 2017.

Monday, April 02, 2018

The Palestine-Israel Situation at the ICC: an update of the Prosecutor’s preliminary examination in Palestine

On January 16, 2015, the Prosecutor of the International Criminal Court (ICC), Mrs, Fatou Bensouda, launched a preliminary examination into the situation in Palestine to determine whether there is a reasonable basis to proceed with a formal investigation. Specifically, the Prosecutor will, on the basis of evidence available, consider jurisdiction, the admissibility of alleged crimes, domestic prosecution of them, their seriousness and the interests of justice. If these criteria are met, since the Prosecutor is addressing the situation on her own initiative, she might ask the Pre-trial Chamber to authorize a formal investigation. Such an investigation could lead to an arrest warrant and eventually a trial.

While the Prosecutor has not made a final decision on the crimes to be pursued and persons to charge, she has declared that she has assessed a large amount of relevant materials and has made significant progress in her analysis of both factual and legal matters that are crucial to the determination of a formal investigation. Crimes that are likely to be examined are war crimes and crimes against humanity committed by both Israelis and Palestinians in the West Bank and East Jerusalem since 13 June 2014.

The Office of the Prosecutor (OTP) has put its focus on the settlement activities in the West Bank and East Jerusalem, in particular as they involve the alleged transfer of people into and from those occupied territories.

With regard to the 2014 Gaza conflict, the OTP has considered reported incidents which appear to be the most serious in allegedly harming civilians and/or are representatives of the main types of conduct considered by the Office, including the alleged targets and objects hit by attacks and the geographical areas which appear to be most seriously affected by attacks. The Prosecutor is required to conduct a fully independent, impartial and thorough examination under the strict guidance of the Rome Statute (the Court’s founding treaty) and she will examine potential crimes committed by both Israelis and Palestinian individuals equally, using the same criteria and procedures.

The Rome Statute established an international organization composed of states. On 29 November 2012, the UN General Assembly adopted Resolution 67/19 granting Palestine “non-member state” status. On 2 January 2015, Palestine deposited its instrument of accession to the Rome Statute with the UN Secretary-General (UNSG). In its capacity as depositary and on the basis of the General Assembly resolution, the UNSG accepted Palestine’s accession to the Rome Statute. As a result, Palestine became the 123rd State Party to the ICC, giving the ICC jurisdiction over crimes committed on the territory of Palestine. The Office acknowledged the Secretary General’s decision and concluded that ICC jurisdiction over the Palestine situation began on 29 November, 2012.

There is no timeline provided in the Statute for a final decision on preliminary examination. However, based on the recent proceedings and announcements, it seems that the Prosecutor is more likely than not to be authorized to initiate a formal investigation. If this happens, it could place the Prosecutor in direct and open opposition to the US. The Trump administration position on the ICC as an organization is unclear, but will probably be hostile, given its attitude towards international institutions, which will be strengthened by recent changes in senior officials, and its expected very strong reactions to the ICC’s involvement in Afghanistan and potentially in Palestine. Parts of the U.S. public will share these reactions. Under these circumstances, we provide the general public with this brief blog as background information for the Palestine/Israel situation at the ICC.

For more information, please refer to the two documents published recently by AMICC that provide both a brief overview and a detailed full background of the Prosecutor’s preliminary examination.

Written by Yixuan Ouyang