A Note on Crimes of Aggression

Sep 162010
 

Earlier this summer, I blogged about the addition of crimes of aggression to the International Criminal Court’s jurisdiction.  The ICC adopted the resolution after years of controversy, and since the resolution’s adoption, there has been increased debate on the new crime’s potential effectiveness.

The ICC’s ability to prosecute a crime of aggression revolves around a very loose definition, and determining when such a crime has been committed will be primarily (but not exclusively) decided by the United Nations Security Council.   This creates a host of issues, including whether any state or person will actually face the charge; whether actions such as humanitarian missions could be considered acts of aggression; and whether the crime will become politically charged by the political actors on the Security Council.

I find the definition to be too malleable, and obstacles standing in the way of effective enforcement are immense.  I could write at length explaining this, but in the interest of delivering a concise blog, I thought it might be helpful to at least highlight other resources/opinions on the matter.

First, the Council on Foreign Relations has published a brief look at the crime, which is summarized:

The idea of holding national leaders to account for waging wars of aggression has moral appeal and historical pedigree.  But whether the International Criminal Court can try such cases is a thornier issue.

The full text can be found here.

Another contrarian view can be found at the Foreign Policy Blog, in a posting written by David Bosco.   He chronicles a potentially controversial, yet pragmatic position.

Finally, if you are interested in a longer, more detailed study of the problem, you should consider Oscar Solera’s writings.  Mr. Solera has written extensively about adopting a standard for a crime of aggression, and earlier this year, before the ICC Conference, published a paper, The Definition of the Crime of Aggression: Lessons Not Learned.   For those invested in the topic and unfamiliar with Mr. Solera’s writings, I highly recommend it.

And We’re Back…

Jun 212010
 

I’ve been MIA for the past week, but as I sort through my backlog, I thought I’d post the following brief items.  I am back to regular posting this week.

First, while it is old news, the International Criminal Court has added the crime of agression to their jurisdiction (Effective January 1, 2017).  The ICC defines a crime of agression as the

“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.”

The ICC will rely on a determination by the UN Security Council as to whether such a crime has been committed; however, the ICC Prosecutor may initiate an investigation without a Security Council determination with permission from the Court’s Pre-Trial Division.  Detailed information can be found at the ICC’s website.  The United States Department of State insists that no US national may be prosecuted for the crime.

Second, today the US Supreme Court upheld a criminal law that banned support to terrorist organizations. Justice Roberts wrote the majority opinion, which can be found on the Court’s website.

Crimes of Aggression

Jun 012010
 

As I noted last week, the International Criminal Court’s Review Conference of the Rome Statute has begun meeting in Kampala, Uganda.  Among the more controversial items on the Conference’s agenda is the potential addition of Crimes of Agression to the ICC’s jurisdiction.

The controversial addition has already made waves, including among human rights advocates.  According to Mike Corder’s AP Article, organizations including Human Rights Watch oppose adding Crimes of Agression:

But top jurists and a prominent human rights organization warn that prosecuting the as-yet-undefined crime of aggression could open the world’s first permanent war crimes tribunal to accusations of politicization.

Richard Goldstone, former prosecutor at the U.N. war crimes courts for the former Yugoslavia and Rwanda, wrote in an opinion piece for the New York Times that “now is not the time” for the court to tackle the thorny legal question.

“The issues that would arise from dealing with allegations of aggression would give ammunition to critics who claim it is a politicized institution,” he wrote.

New York-based Human Rights Watch agreed, saying in a statement that “making the crime of aggression operational could link the ICC to highly politicized disputes between states that could diminish the court’s role — and perceptions of that role — as an impartial judicial arbiter of international criminal law.”

Despite its prominence, adding Crimes of Agression to the ICC’s jurisdiction is not the only item on the Conference’s Agenda.  For more information, visit the Conference’s home page.

Another resource is Human Right’s Watch’s “Global Justice” coverage of the Conference.

Finally, the ICC will be live blogging directly from the conference.