{"id":17946,"date":"2022-07-14T13:00:54","date_gmt":"2022-07-14T11:00:54","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/de\/?p=17946"},"modified":"2022-10-10T10:11:22","modified_gmt":"2022-10-10T08:11:22","slug":"the-icc-at-20-and-the-crime-of-aggression","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/the-icc-at-20-and-the-crime-of-aggression\/","title":{"rendered":"The ICC at 20 and the Crime of Aggression"},"content":{"rendered":"

As the International Criminal Court (ICC) enters its third decade, the Court is at an inflection point. So, too, is the criminalization of aggression. However, while the catalyst for these pivotal moments is the same, the trajectories are different. Optimally, that divergence would be narrowed<\/a> by an amendment<\/a> to<\/a> the Rome Statute\u2019s jurisdictional provisions on aggression. Realistically, however, the route forward on aggression is likely to bypass the ICC. Provided that certain conditions<\/a> are met to address the problem of selectivity, ensure the institution\u2019s moral standing, and bolster the aggression ban, a special international tribunal would be the most promising alternative option. But those conditions may not be attainable. In that scenario, states should support Ukraine\u2019s exercise of territorial jurisdiction over the crime.<\/p>\n

The ICC at an Inflection Point<\/strong><\/p>\n

Following the jubilation at Rome (p. 180<\/a>) and a strikingly quick progression<\/a> to the Statute\u2019s entry into force, it did not take long for the ICC\u2019s difficulties to mount. In the Court\u2019s first two decades, convictions have been few<\/a> and<\/a> controversial<\/a>, key arrest warrants have<\/a> gone<\/a> unfulfilled<\/a> and widely ignored<\/a>, high-profile cases<\/a> have<\/a> collapsed<\/a>, investigations appear to have<\/a> been<\/a> undermined<\/a>, cooperation has<\/a> been<\/a> withheld<\/a>, neocolonial<\/a> bias<\/a> has been alleged, states have<\/a> withdrawn<\/a> or threatened<\/a> to, and the world\u2019s most powerful state has<\/a> brazenly<\/a> attacked<\/a> the institution (with the Court initially cowering<\/a> in response). When the third chief prosecutor, Karim Khan, began his term in June 2021, the Court was in a seemingly<\/a> intractable<\/a> malaise<\/a>. Among the predicaments were two<\/a> completed<\/a> preliminary examinations held in indefinite suspension, not because Khan\u2019s predecessor Fatou Bensouda had deemed investigations unwarranted, but because proceeding would strain<\/a> an overextended institution.<\/p>\n

One of those situations (p. 68<\/a>) involved alleged war crimes and crimes against humanity in Ukraine, where there was an armed conflict in Donetsk and Luhansk, and a belligerent Russian occupation of Crimea. The suspension did not last long.<\/p>\n

On 24 February 2022<\/a>, Russia escalated<\/a> its<\/a> aggression<\/a> into<\/a> a full-scale invasion. Almost immediately, the new Prosecutor announced<\/a> his intention to request Pre-Trial Chamber authorization to open an investigation, noting that a State Party referral would obviate that procedure. Within days, he received an initial 39 (later 43) referrals<\/a>\u2014 a show of support without precedent in ICC history. Soon, States Parties began to make ad hoc contributions<\/a>, again at unprecedented levels. Even the United States, having only recently<\/a> walked back<\/a> sanctions on Bensouda and her colleague Phakiso Mochochoko, was prompted to adopt an openly<\/a> supportive<\/a> posture<\/a>. This is anything but a moment for triumphalism and there is much to critique<\/a>. Nonetheless, with Khan prominent<\/a> in investigating war crimes, crimes against humanity, and possibly genocide<\/a> in Ukraine, a renewed sense of institutional purpose is palpable.<\/p>\n

The Crime of Aggression and the ICC<\/strong><\/p>\n

And yet, there is a gap. The crime of aggression\u2014the crime without which none of the others would be occurring \u2014 is beyond<\/a> the ICC\u2019s reach. This is not due to a drafting oversight. Powerful states, including<\/a> those<\/a> now<\/a> calling<\/a> for Russian leaders\u2019 accountability, insisted<\/a> on a crime-specific jurisdictional straitjacket precisely so that the Court would be unable to sit in judgment of an aggressive war perpetrated by a permanent member of the Security Council. The point<\/em> was to create the incapacity that now precludes ICC scrutiny of Russia\u2019s resort to war.<\/p>\n

Aggression has long been a fraught issue at the ICC. In the 1990s, a significant number<\/a> of states<\/a>, particularly from the Non-Aligned Group, insisted on its inclusion in the Rome Statute, while a minority, including the United States<\/a>, resisted. The ensuing compromise was an amorphous recognition of aggression\u2019s criminality \u2014 a placeholder without definition or effect.<\/p>\n

It did not take long for the gap to matter. Nine months after the Statute entered into force, the United States and United Kingdom led what a British Foreign Office lawyer characterized as a criminally aggressive war<\/a> against Iraq. The general limits on ICC jurisdiction allowed only an examination of alleged war crimes by UK troops \u2014 crimes that successive prosecutors declined to investigate, first due to insufficient gravity<\/a> and later with reference to complementarity<\/a>. However, the emptiness of the Statute\u2019s nod to the criminality of aggression underpinned a more glaring omission.<\/p>\n

Battles over the place of aggression continued, first in negotiations regarding an amendment incorporating the crime (agreed in Kampala in 2010<\/a>) and then in negotiations over whether to activate it (agreed<\/a> in New York in 2017<\/a>; effective in 2018). At each stage, progress was precarious and concessions were extracted. The result was a crime that (absent Security Council referral) can come before the ICC only when both states in the relevant dyad have ratified both the ICC Statute and the aggression amendments.<\/p>\n

Despite that jurisdictional deficiency, the Kampala and New York agreements included vital achievements. Failure at either stage would have cast doubt on the enduring criminality of aggression after half a century of dormancy. Consensus support among ICC States Parties instead reaffirmed the crime\u2019s customary status. Meanwhile, codified elements<\/a> introduced specificity. These hard-won gains affirmed aggression\u2019s justiciability, bolstered domestic<\/a> and regional<\/a> codification, and contributed to the recognition<\/a> of<\/a> aggression<\/a> as<\/a> a<\/a> massive<\/a> human<\/a> rights<\/a> violation<\/a>.<\/p>\n

Nonetheless, just as the invasion of Iraq in 2003 exposed immediately the implications of the placeholder reference to aggression in the original Statute, so Russia\u2019s aggression against Ukraine has spotlighted the moral bankruptcy of the post-2018 jurisdictional framework.<\/p>\n

Paths Forward<\/strong><\/p>\n

Here, too, there is an inflection point. Ukraine<\/a> and<\/a> other<\/a> states<\/a> have initiated domestic investigations of aggression. Separately, creative efforts<\/a> to<\/a> establish<\/a> one<\/a> or<\/a> another<\/a> form<\/a> of<\/a> special<\/a> international<\/a> tribunal<\/a> for prosecuting the crime are underway.<\/p>\n

Ukraine\u2019s<\/a> preference<\/a> appears<\/a> to be for an international tribunal evocative<\/a> of Nuremberg<\/a>. Amending the ICC Statute to allow for<\/a> General Assembly referrals (Haque<\/a>) would offer that weight, while ensuring a framework for future cases. It would be the optimal path. However, the very politics that created the existing ICC framework are highly likely to maintain it \u2014 an amendment would require support from seven-eighths of States Parties (art. 121(6)<\/a>). Alternatively, a special tribunal underpinned by broad (ideally General Assembly) endorsement and combined with<\/a> an effective campaign for Kampala amendment ratification and domestic codification could function in the current case and invigorate efforts to strengthen the ban. Like the ICC, such a tribunal could credibly obviate status immunities<\/a>.<\/p>\n

If such efforts fail, domestic avenues will be pursued. Ukrainian courts have already issued aggression convictions in two cases arising prior to the 2022 escalation, albeit with limited transnational resonance due to one<\/a> involving an in absentia<\/em> trial and the other<\/a> omitting the leadership element of the crime. As further investigations advance, third states should support Ukraine\u2019s domestic pursuit of well-founded aggression cases with investigative assistance, the transfer of evidence, the recognition of lawful arrest warrants, expressive endorsement, and otherwise.<\/p>\n

Doing so would emphasize the grounding of Ukraine\u2019s response in international law and rebuff attempts to characterize it as victor\u2019s justice (on that concern, see here<\/a>). Indeed, the response of third states can play a key role both<\/a> in checking the pretextual abuse of international criminal law by domestic institutions and in boosting the appropriate exercise of that authority, which is important for aggression just as<\/a> it is for any other international crime<\/a>. The overwhelming majority of states have recognized<\/a> that Ukraine has the law on its side. The upshot ought to be not only that Ukraine may fight and kill in self-defense, but that it may bring that law to bear on those responsible (in a similar vein: p. 278<\/a>).<\/p>\n

Support for domestic proceedings would also manifest state practice and opinio juris<\/em> in favor of victim states\u2019 territorial jurisdiction and the non-applicability of functional immunities in aggression cases. On both fronts, skeptics have emphasized aggression\u2019s definitional character as an interstate<\/a> act (para. 222<\/a>). However, this is also true of war crimes by state forces in an international armed conflict. Ordinarily, it is understood that when interstate violations are also international crimes, the responsible individuals can<\/a> and should be held accountable, including in domestic court (para. 241<\/a>). Support for Ukraine exercising territorial jurisdiction would reject the artificial isolation<\/a> of aggression in this respect. Status immunities are likely<\/a> to block arrest warrants for President Vladimir Putin or Foreign Minister Sergey Lavrov for as long as they remain in office. However, that protection will cease when they leave and does not apply even now to others<\/a> at the leadership<\/a> level.<\/p>\n

Support for Ukraine\u2019s exercise of domestic jurisdiction over the crime of aggression may also spotlight the empowering (and not only constraining) effect of criminalizing aggression on the codifying state. That could stimulate codification efforts. Plainly, criminalizing aggression would not itself prevent the codifying state from resorting to aggressive war (art. 353<\/a>). However, the clearly codified risk of criminal accountability can shift the dynamics of government decision-making at the margins (pp. 2-3<\/a>), empowering antiwar voices and potentially provoking higher-level resistance or resignation<\/a>. The prospect of their own criminal liability can also strengthen leaders of potential coalition partners in resisting the pressure of allies to participate in aggressive wars.<\/p>\n

Finally, affirmation of the viability of domestic jurisdiction over the crime could bolster aggression\u2019s justiciability in non-criminal contexts, such<\/a> as<\/a> those<\/a> involving<\/a> human<\/a> rights<\/a> and<\/a> refugee<\/a> protection<\/a>. Recognition of aggression\u2019s legal relevance in those areas is growing, but precedent establishing how domestic institutions should go about evaluating the jus ad bellum <\/em>is sparse.<\/p>\n

Ultimately, if a well-structured international tribunal proves nonviable, it would be a mistake to discard the domestic alternative. International support for Ukraine in that respect would have immediate and long-term benefits.<\/p>\n","protected":false},"excerpt":{"rendered":"

As the International Criminal Court (ICC) enters its third decade, the Court is at an inflection point. So, too, is the criminalization of aggression. However, while the catalyst for these pivotal moments is the same, the trajectories are different. Optimally, that divergence would be narrowed by an amendment to the Rome Statute\u2019s jurisdictional provisions on […]<\/p>\n","protected":false},"author":15,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[7085,3823,7105,5804],"authors":[7045],"article-categories":[3572],"doi":[],"class_list":["post-17946","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-aggression","tag-icc","tag-international-criminal-justice","tag-rome-statute","authors-tom-dannenbaum","article-categories-symposium"],"acf":{"subline":""},"meta_box":{"doi":"10.17176\/20220714-233327-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/17946","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/15"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=17946"}],"version-history":[{"count":2,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/17946\/revisions"}],"predecessor-version":[{"id":18445,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/17946\/revisions\/18445"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=17946"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=17946"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=17946"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=17946"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=17946"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=17946"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}