Crime of Aggression
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Complementarity and the Crime of Aggression

Roger S. Clark |*|


The Special Working Group on the Crime of Aggression, whose work was aimed at completing the definition of aggression for the purposes of the Rome Statute of the International Criminal Court, discussed complementarity only briefly. That discussion suggests, correctly in the author's opinion, that the complementarity doctrine applies to this crime essentially as it does in respect of the other crimes within the jurisdiction of the International Criminal Court ('ICC'). Aggression, however, raises acutely an issue that was glossed over in the Rome negotiations and in most of the secondary literature: does 'a State which has jurisdiction', as referred to in Article 17 of the Statute, include a state which asserts competence on the basis of a universal jurisdiction theory? In short, can a court, sitting neither in the aggressor state nor the victim state assert 'able and willing' jurisdiction such as to trump the jurisdiction of the ICC. This chapter discusses these issues and raises the question whether, under international customary law, there is jurisdiction over the crime of aggression in third-party states based on a universal jurisdiction theory. Beyond that, it seems clear that complementarity applies to prosecutions in either a victim state (which has territoriality or effects jurisdiction), or an aggressor state (where there is territoriality or nationality jurisdiction).

1 Introduction

Article 5 of the Rome Statute of the International Criminal Court states that 'the crime of aggression' is one of the four crimes within the jurisdiction of the Court. It adds that the Court shall only exercise its jurisdiction over the crime 'once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime'. |1| Devising an appropriate 'provision' (or provisions) was the function of the Court's Special Working Group on the Crime of Aggression ('SWGCA'). The Special Working Group completed its work in February 2009. |2| Its proposals |3| for enabling the Court to exercise jurisdiction over the crime of aggression were the main item on the agenda at the 2010 Review Conference on the Court's Statute, held in Kampala, Uganda. The Review Conference duly adopted amendments designed to activate the Court's jurisdiction over the crime of aggression, based on the SWGA's draft, but with significant developments to the parts of the draft concerned with the 'conditions' for exercise of jurisdiction. |4| The amendments will become effective one year after their ratification or acceptance by thirty States Parties and after a further resolution adopted by a two-thirds majority of all the parties to the Rome Statute, that resolution to be adopted after 1 January 2017 (whichever is later). Two paragraphs in the 'Understandings' attached to the adopting resolution |5| are of potential relevance to the present topic and will be discussed later in this chapter. |6|

The Special Working Group paid careful attention to ensuring that the definition of the crime of aggression 'fits' within the basic structure and existing specific provisions of the Statute. 'Complementarity' is one of the areas of this 'fit' to which the Special Working Group addressed its attention, albeit only briefly. This chapter examines the main issues that arise for the Court's complementarity regime once the Court is able to exercise its jurisdiction over the crime of aggression. |7|

2 Complementarity in the Rome Statute

A leading study of complementarity |8| notes that the Rome Statute does not contain a definition of complementarity and then continues:

    But, the plain texts of paragraph 10 of the preamble and Article 1 compel the conclusion that the ICC is intended to supplement the domestic punishment of international violations, rather than supplant domestic enforcement of international norms. The complementarity principle is intended to preserve the ICC's power over irresponsible States that refuse to prosecute those who commit heinous international crimes. It balances that supranational power against the sovereign right of States to prosecute their own nationals without external interference. |9|

As other contributors to this book have noted, the relevant substantive provisions of the Statute implementing the principle are those in Articles 17, |10| 18 |11| and 19 |12| dealing with admissibility, and, in some respects, Article 20, which deals with ne bis in idem. Complementarity is, most critically, a doctrine that deals with concurrent jurisdiction. It is only when both the International Criminal Court and a nation-state are competent to adjudicate on the particular set of facts that the doctrine comes into play to provide appropriate rules of the road.

Article 17 of the Rome Statute teases out the basic rule of complementarity as one of 'admissibility'. It provides, in relevant part, that:

    1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

    (a) The case is being investigated or prosecuted by a State |13| which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution [footnote added];

    (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.

    (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3. |14|

A subject that has received surprisingly little discussion in the literature, both in respect of aggression and in respect of the other crimes within the jurisdiction of the ICC, is the meaning of the fundamental phrase here: 'a State which has jurisdiction', and, in particular, what it means in respect of universal jurisdiction. |15| Section 3 of this chapter addresses that issue. I then turn in Section 4 to what the Special Working Group and the Review Conference had to say on complementarity.

3 The meaning of 'a State which has jurisdiction over it'

A key phrase in both subparagraph (a) and subparagraph (b) of Article 17(1) is 'a State which has jurisdiction over it'. |16| In the context of aggression, there are three possible 'States' to which this might refer: an aggressor state, |17| a victim state |18| and a third (or 'bystander') state. 'Has' is perhaps interesting here. Packed into this three letter word are substantial issues of both national and international law. In the first place, it must refer to the ground-level requirement that the national law of the relevant state authorizes the prosecution and adjudication of the case |19| and to an absence of procedural obstacles to domestic prosecution such as the immunity of foreign leaders from prosecution. |20| But does it also include some concept of the legitimacy of the exercise of jurisdiction by reference either to considerations in the Rome Statute itself or to some questions of general international law? As a matter of basis of jurisdiction, there does not, at first sight, appear to be anything 'special' about aggression concerning aggressor state or victim state jurisdiction. They are relatively straightforward examples of a state having nationality/territorial and effects/objective territoriality (or perhaps either 'passive personality' or 'protective') jurisdiction. |21| The more difficult case is that of universal jurisdiction by a bystander state. Two questions arise: (1) does Article 17 even contemplate that the Court might defer to a bystander state on complementarity grounds; and (2) is aggression properly the subject of universal jurisdiction under customary law (there being no treaty source for universal jurisdiction over aggression). The first question applies to all of the crimes within the jurisdiction of the Court; the second is specific to aggression.

3.1 Does a 'State which has jurisdiction' include one claiming universal jurisdiction?

As to the first question on how Article 17's 'has jurisdiction' should be interpreted concerning universal jurisdiction, the position is frankly mysterious. |22| One might have thought that the issue would be the subject of some useful preparatory work somewhere. If it is, the work has not come to my attention. I represented the Government of Samoa in the negotiations in New York and Rome leading to conclusion of the Statute. I asked on several occasions for an explanation about whether complementarity applied to a state contemplating acting on a basis of universal jurisdiction. I do not recall ever having received a useful answer. The subsequent literature is also surprisingly sparse. |23| For example, in the leading Commentary of the Statute edited by Otto Triffterer, neither of the authors of the commentary on Article 17, |24| nor the author on Article 18, |25| addresses the issue. On the other hand, the author of the commentary on Article 19 discusses 'State which has jurisdiction over a case' |26| in these words:

    Since all States under international law may exercise universal jurisdiction over the crimes within the Court's jurisdiction, it is likely that paragraph 2 (b) meant only to include those States which had provided their own courts with jurisdiction under national law over the case under the relevant principle of jurisdiction, whether based on territory, the protective principle, the nationality of the suspect or the victim or universality. |27|

The assumption here is that complementarity applies to situations in which it is appropriate to exercise universal jurisdiction. This is at least consistent with the plain meaning of 'has' as a general matter and there is no obvious reason to depart from it. It is also consistent with a policy of 'proactive complementarity' under which states are encouraged to prosecute, thus preserving the limited resources of the Court. |28| It does not, however, address the second question, to which we now turn, whether universal jurisdiction is appropriate for aggression, as opposed to the other three offences within the jurisdiction of the Statute.

3.2 Is universal jurisdiction over aggression recognized in contemporary international law?

As to the question of the propriety of exercising universal jurisdiction over another state's aggression, there is fairly widespread agreement that aggression is a crime under international law. |29| But does that translate into a crime for which there is universal jurisdiction? It is very doubtful that under current customary law it can be asserted unequivocally that aggression 'is' subject to universal jurisdiction. |30| The non-governmental authors of the 'Princeton Principles on Universal Jurisdiction' contend that there is universal jurisdiction over a person 'duly accused of committing serious crimes under international law'. |31| 'For the purposes of these Principles', they contend, 'serious crimes under international law include: (1) piracy; (2) slavery; (3) war crimes; (4) crimes against peace; (5) crimes against humanity; (6) genocide; and (7) torture'. |32| Yet one has to have some doubts about how far the inclusion of crimes against peace in this list is supported by state practice. Other authorities are much more equivocal. |33| The only prosecutions for the crime against peace that arguably relied on a universal jurisdiction theory were those at Nuremberg and Tokyo in the 1940s and these were before tribunals best described as 'international' or 'victor's' (or both). I know of no disinterested prosecution for aggression. On the other hand, Astrid Reisinger-Coracini's careful research has located what she describes as 'statutory provisions relating to aggression as a crime under international law in some twenty-five countries, predominantly Eastern European and Central Asian states'. |34| Some, but by no means all, of those twenty-five (and there may be a few others) contemplate universal jurisdiction. But as practice, this is pretty thin!

Then there is the work of the International Law Commission ('ILC') on the Draft Code of Crimes against the Peace and Security of Mankind. This is not the place for a comprehensive discussion of the work of the International Law Commission on this topic, commencing in the 1940s and concluding in 1996. |35| The work had proceeded on the basis that the crimes considered by the Nuremberg and Tokyo tribunals - war crimes, crimes against humanity and crimes against peace - were part of a more general category, the details of which would emerge from rational analysis. That hope ultimately proved illusory and the work-product in 1996 included essentially the Nuremberg crimes, amplified by the addition of genocide (which had emerged from crimes against humanity) and crimes against United Nations and associated personnel. Article 16 of the Draft Code defines the crime of aggression; Article 17 the crime of genocide; Article 18 crimes against humanity; Article 19 crimes against United Nations and associated personnel; and Article 20 defines war crimes.

For present purposes, the interesting issue is the jurisdictional theories addressed by the Commission. Article 8, entitled 'Establishment of jurisdiction', provides:

    Without prejudice to the jurisdiction of an international criminal court, each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set out in articles 17, 18, 19 and 20, irrespective of where or by whom those crimes were committed. Jurisdiction over the crime set out in article 16 shall rest with an international court. However, a State referred to in article 16 is not precluded from trying its nationals for the crime set out in that article. |36|

The way Article 16 on aggression is treated here amounts to a strong assertion that general international law supports universal jurisdiction for the other crimes to which the Draft Code refers and an equally strong assertion that aggression is different - jurisdiction rests with an international court or the courts of the aggressor state. Indeed, by implication in its reference to nationality jurisdiction by the aggressor, it even casts doubt on whether there is jurisdiction in the courts of the victim state, a doubt certainly not shared by the SWGCA. |37|

The United States did not participate in the work of the SWGCA. However, it sent a large delegation to the final meetings of the Assembly of States Parties that took place before the Review Conference, expressing doubts there and in a number of informal meetings early in 2010 about the jurisdictional principles applicable to the crime of aggression. At its insistence, the following paragraphs were asserted in the 'understandings' annexed to the resolution adopting the aggression amendments, beneath the heading 'Domestic jurisdiction over the crime of aggression':

    4. It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.

    5. It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State. |38|

Paragraph 4 can hardly be regarded as saying anything more than Article 10 of the Rome Statute says about leaving principles of international customary law free to develop for purposes other than the Statute. (This is not to say that the Statute does not, inevitably, contribute to the development of customary law.) It is perhaps best understood as an effort to insist on the hardly earth-shattering proposition that, whatever customary law is on the meaning of 'act of aggression' and 'crime of aggression', it might not be exactly the same as in the 2010 amendment. Paragraph 5 is likely to have more practical effect. It is plainly aimed at discouraging States from exercising jurisdiction over the crime of aggression based on universal jurisdiction, and possibly even on the basis of being a victim state. |39| It is, however, hardly a forceful proposition about the right to exercise these jurisdictions, other than to assert that the right does not rest on the amendments - it has presumably to be found in existing customary law.

Universal jurisdiction for the crime of aggression is, thus, a work in progress and we are just at the beginning. State practice is in its infancy, with very little legislation in place. I have not, however, located any states objecting to the legislative assertion of jurisdiction. Now that the 2010 Review Conference has adopted provisions on the crime for addition to the Statute, it will be important to see what state practice emerges when it comes to national implementation. One suspects that, as has been the case with the other three crimes within the jurisdiction of the ICC, thoughtful States wishing to appear 'able and willing' will include aggression amongst their domestic criminal proscriptions. |40| Some will contemplate jurisdiction on a nationality or territoriality basis; some will enact legislation incorporating universal jurisdiction - or keep in force existing legislation which already does so. A decade or two from now, we may have some idea whether there is widespread acceptance of universal jurisdiction, notwithstanding the doubts of the International Law Commission and the Kampala understanding. In the meantime, complementarity is likely to play out most in respect of States that assert jurisdiction based on nationality or territoriality. |41|

4 Applying the complementarity regime- discussions in the Special Working Group

There is no obvious reason why the complementarity regime should not apply in principle to the crime of aggression. The Working Group devoted some attention at its inter-sessional meeting held in Princeton in 2004 to stressing that such was indeed the case. |42| The report of that 2004 meeting records, cautiously, that, as a result of the discussion, there was agreement that 'Articles 17, 18 and 19 [of the Rome Statute] were applicable in their current wording and the points made merited being revisited once agreement had been reached on the definition of aggression and the conditions for exercise of the Court's jurisdiction'. |43| In fact, no further formal discussion of the issue took place.

The Report notes (quite accurately) that 'only some States had national legislation criminalizing aggression'. |44| I am not sure exactly what the point was that the Working Group was making here, although it is certainly an accurate assessment. |45| In this respect, aggression is not that different from crimes against humanity, legislation for the suppression of which is rather sparse. |46| In any event, one of the likely impacts of the addition of the crime of aggression to the functional jurisdiction of the Court is that more States are likely to take steps towards legislation, precisely to obtain the benefits of the Rome Statute's complementarity regime.

Among the points raised were that 'the issue of complementarity and admissibility was closely related to the definition of aggression and the role of the Security Council'. |47| Someone in the Working Group raised the following specific question (which was not answered) on the role of the Security Council: 'whether a State could look into a case when the Council was dealing with it.' |48| To recall a point that has been considered earlier, |49| the answer to that question might turn on whether a state was investigating an act of aggression by its own leadership, or one by some other state's leaders, particularly if the investigating state contemplates jurisdiction on a universal basis. What a state does in respect of its own leaders hardly raises the kind of sovereignty and 'international peace and security' issues that might otherwise come to the fore. On the other hand, where someone else's leaders are in the dock, there may be significant implications for areas in which the Security Council has a stake. Is some variant on complementarity as between a state and the Security Council an issue in such a case? Or is it better simply to classify the issues as related to the Security Council's 'primary responsibility for the maintenance of international peace and security'. |50| The Rome Statute and the Special Working Group's deliberations are silent on where these questions lead and one can only speculate that the Security Council might try to make it up as it went along. |51|

The Security Council theme was pursued further with a reference to the most intractable part of the negotiations on the crime of aggression - just what role the Security Council might have vis-a-vis the ICC itself in respect of a prosecution. Consider these paragraphs in the 2004 Report:

    23. It was stated that the crime of aggression was different from the other crimes under the Court's jurisdiction since it might require a prior determination by the Security Council that aggression had taken place; such a decision however would not be needed for the application of national legislation on aggression. Other delegations expressed the view that national legislation should be consistent with applicable international law.

    24. A view was expressed that should a prior determination of an act of aggression be deemed necessary, it would then be up to the Court to decide on the responsibility of individuals for the crime. |52|

This is rather an interesting thought is it not? Does a domestic court, exercising the state's complementarity rights, need to defer in some way to the Security Council before proceeding with deciding upon the existence of an act of aggression by that state or another state? |53| There are, of course, various possible scenarios: the perpetrators are domestic actors being prosecuted in their own courts for what they did elsewhere; the accused are alleged to be aggressors from another state who are responsible for an attack on the forum state; or the forum state is claiming universal jurisdiction and the relevant actors have no connection with the forum state (aside perhaps from presence and the criminal proceedings) and the events all took place elsewhere. Ultimately, the Special Working Group came up with no language to respond to the problem. It is left to the states to work it out for themselves, presumably either in their legislation to give effect to the aggression amendment, or by simply leaving it to the domestic Courts with no guidance from the legislature.

A second aspect of the 'complementarity' discussion in 2004 involved Article 20 of the Statute and ne bis in idem respect of the crime of aggression. Article 20 of the Rome Statute provides as follows:

    1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.

    2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court.

    3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:

    (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

    (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice. |54|

It will be noticed that there is a subtle difference in the wording of the three paragraphs, especially in the way they describe the subject matter of previous trials. Paragraph 1, which deals with previous trials before the ICC itself, speaks of 'conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court' (emphasis added). It contains no reference to any particular articles of the Statute. No person may be tried again by the Court in such a situation. Paragraph 2 deals with trials in another court (presumably a domestic one, but the principle may apply also to trial in another international tribunal) when the Court has already addressed the matter. It forbids trial for a 'crime referred to in article 5 for which that person has already been convicted or acquitted by the Court' (emphasis added). Article 5 contains (by name) the list of crimes within the jurisdiction of the Court - genocide, crimes against humanity, war crimes and the crime of aggression. Thus the accused may still be charged with a 'crime' (such as murder) other than those listed in Article 5 but targeting the same conduct. Paragraph 3, on the other hand, deals with whether the Court can enter the fray when the matter has already come before another court. It refers to trial in another court (again, presumably a domestic one, but the principle may apply also to trial in another international tribunal) for 'conduct' (as opposed to a crime) which is 'also proscribed under article 6, 7 or 8'. In addition to the reference to 'conduct' in Paragraph 3, there is also the reference to the three existing articles of the Statute containing specific definitions of crimes - genocide (Article 6), crimes against humanity (Article 7) and war crimes (Article 8). The ICC can trump prior domestic proceedings that were not genuinely concerned with avoiding impunity, no matter how the crimes charged in the domestic court were characterized.

The Special Working Group was able to reach agreement that some tidying up would be required as a result of these differences in wording (the origin of which is obscure) should the definition of aggression be added to the Statute. Paragraph 2 was not a problem since the reference to 'article 5' already included a reference to aggression by virtue of its being on the list. If it was intended, however, that Paragraph 3 should apply also to the crime of aggression, it would be necessary for it to be amended to include the number of whatever new article was added to provide a detailed definition of the crime of aggression. Accordingly, the 2004 Report concluded that '[o]nce an agreement was reached on the provisions related to the crime of aggression, reference to the relevant provision should be incorporated in the chapeau of article 20, paragraph 3'. |55| This was executed in the final Report of the Special Working Group and in Kampala. |56|

There were, nonetheless, some other aspects of Article 20 that puzzled members of the Special Working Group. For example, 'the question was raised as to whether a person convicted or acquitted by the Court with regard to war crimes, crimes against humanity or genocide could subsequently be tried by the Court for the crime of aggression'. |57| This is of more than theoretical interest. Given that the institution of a prosecution for the crime of aggression is likely to be surrounded by even more possibilities for procedural delay than in the case of the other crimes - including efforts to gear up the Security Council to respond |58| - there may conceivably be situations where the Court just goes ahead with the other crimes and then is faced late in the day with a 'go-ahead' in respect of the crime of aggression. The answer to whether the Court can now proceed turns on what is to be made of the words 'conduct which formed the basis of crimes' in Article 20(1). |59| On the one hand, it might be argued that what the leader did was all of a piece; he or she engaged in conduct amounting to aggression, in the course of which other crimes within the jurisdiction of the Court were committed, and the leader was responsible for them also. If it was all the same 'conduct', then the opportunity to try the leader for the crime of aggression is now lost. Or, it might be argued that one lot of 'conduct' was, say, war crimes and crimes against humanity; a separate lot of 'conduct' was the aggression. The Working Group seems to have settled for the latter. |60| A prosecution for aggression may, it would seem, still be pursued in the ICC after the termination (successful or unsuccessful) of proceedings against the same defendant for other crimes within the jurisdiction of the Court.

One other comment by the Working Group, consistent with what has just been said, is worth quoting in full:

    During the discussion, it was noted that paragraphs 2 and 3 of article 20 had to be understood in the context of complementarity and admissibility. The difference in wording between paragraphs 1 and 3 ('conduct') and paragraph 2 ('crime') was noted. Unless the conditions set out in article 20, paragraph 3(a) or (b) were met, the Court was precluded from trying an individual for conduct that a national court had previously prosecuted. However, an individual tried for a crime by the Court could be tried for a different crime, even if based on similar facts, at the national level. |61|

The Delphic Oracle added that, '[n]onetheless, it was noted that the crime of aggression in the context of ne bis in idem was not unique vis-à-vis the other crimes falling under the Court's jurisdiction and that it was preferable to leave the matter for judicial interpretation on a case- by-case basis, which would take into account the respective elements of the crime'. |62| In the language spoken by ordinary people, this means that the drafting of Article 20 is such that some questions are left inevitably to the judges. The members of the Special Working Group were comfortable with that in respect of the other crimes within the jurisdiction of the Court and saw no reason why aggression should be treated differently. Whichever organ of the Court must finally work through the puzzle, there is no question that ne bis in idem has some complementarity implications for the Court in relation to the crime of aggression.

5 Conclusion

Complementarity is about the relationship between the ICC and a state where both 'have' jurisdiction. Having jurisdiction over the crime of aggression presents the same kinds of questions that arise in respect of other crimes within the jurisdiction of the Court, but also some additional practical and theoretical ones that are perhaps unique to this crime.

As a practical matter, it is most unlikely that any domestic court in the world will assert jurisdiction in the absence of some constitutional or statutory basis. Potential immunity problems are rife in prosecutions for aggression and the relevant law is underdeveloped.

Article 17 of the Rome Statute, the core provision implementing complementarity, contains the phrase 'State which has jurisdiction'. That phrase is itself unexplained in the Statute and the preparatory work is not illuminating. As applied to the crime of aggression, it could mean an aggressor state, a victim state or a third-party state asserting some form of universal jurisdiction. Not only is Article 17 itself open to interpretation - in particular, does it encompass universal jurisdiction - but there are also questions raised in the literature about whether, under general international law, jurisdiction over the crime of aggression extends either to a victim state or to a third state asserting universal jurisdiction. I believe that 'has jurisdiction' includes cases in which states are operating on the basis of universal jurisdiction, supported by both domestic and international law. Whether the crime of aggression supports universal jurisdiction under international law is an area ripe for much more state practice and development.

Finally, the addition of the article defining the crime of aggression to the group of articles referred to in Article 20(3) of the Rome Statute will ensure that no ne bis in idem effect will be given to a domestic prosecution for the crime of aggression that was carried out either for the purpose of shielding the person concerned from responsibility, or that was not conducted independently or impartially or conducted in a manner that was inconsistent with an intent to bring the person to justice.

[Roger S. Clark, 'Complementarity and the Crime of Aggression', in Carsten Stahn and Mohamed El Zeidy (eds), The International Criminal Court and Complementarity: From Theory to Practice, Cambridge University Press (2011), 721-744 ]


* Roger S. Clark is the Board of Governors Professor of Law, Rutgers School of Law, Camden, New Jersey. [Back]

1. Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90 ('Rome Statute'), Art. 5(2). [Back]

2. Report of the Special Working Group on the Crime of Aggression, Doc. ICC-ASP/7/ SWGCA/2 (2009) ('2009 Report'). [Back]

3. Ibid., Annex I. For an excellent account of the proceedings of the Special Working Group, see S. Barriga, 'Against the Odds: The Results of the Special Working Group on the Crime of Aggression', in G. Roberto Bellelli (ed.), International Criminal Justice (2010). There is some groundbreaking discussion of the present issue in N. Strapatsas, 'Complementarity and Aggression: A Ticking Time Bomb?', in C. Stahn and L. van den Herik (eds.), Future Perspectives on International Criminal Justice (2009). [Back]

4. See Resolution RC/Res.6, adopted by consensus on 11 June 2010. [Back]

5. Ibid., Annex III, paras. 4 and 5. [Back]

6. Infra notes 38-9. [Back]

7. This Chapter deals only with complementarity between domestic jurisdictions and the ICC. There is some significant scholarship exploring complementarity issues between states where one of them is claiming universal jurisdiction. See especially C. Ryngaert, 'Applying the Rome Statute's Complementarity Principle: Drawing Lessons from the Prosecution of Core Crimes by States Acting under the Universality Principle', (2008) 19 Crim. L.F. 153. Those issues may become relevant to aggression in due course but, as will be suggested, infra notes 26-36, there is considerable doubt whether aggression is currently a crime subject to universal jurisdiction. [Back]

8. M. El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (2008). [Back]

9. Ibid., 157-8 (footnotes omitted). As applied to the crime of aggression, there are typically three classes of states that might claim jurisdiction: the aggressor state (claiming territorial or nationality jurisdiction), the victim state (claiming effects or 'objective territoriality' jurisdiction) and a (disinterested) third state (claiming universal jurisdiction). The first of these, the aggressor, is the one most likely to fit El Zeidy's characterization of'irresponsible' and 'unwilling' to exercise its jurisdiction. The other two are more likely to be frustrated and 'unable' to exercise jurisdiction, either because of inability to acquire custody of the perpetrators, because of immunity issues, or because their jurisdictional theory strikes some other international law obstacle. (I do not believe that the reference in the last sentence of the quoted material to the 'right of States to prosecute their own nationals' means that El Zeidy would deny the right to prosecute non-nationals on territorial or other grounds. The whole context of his discussion suggests otherwise.) [Back]

10. Rome Statute, Art. 17, entitled 'Issues of admissibility'. [Back]

11. Ibid., Art. 18, entitled 'Preliminary rulings regarding admissibility'. [Back]

12. Ibid., Art. 19, entitled 'Challenges to the jurisdiction of the Court or the admissibility of a case'. [Back]

13. 'A State' indicates that complementarity applies to states parties to the ICC Statute and non-parties alike. See infra note 25. [Back]

14. Rome Statute, Art. 17(1). Para. 1 concludes with'(d) The case is not of sufficient gravity to justify further action by the Court'. This appears to be an issue of admissibility that, unlike the three preceding subparagraphs quoted above, is distinct from complementarity. See generally M. El Zeidy, 'The Gravity Threshold under the Statute of the International Criminal Court', (2008) 19 Crim. L.F. 35. Paras. 2 and 3 define 'unwillingness' and 'inability'. Art. 20(3), on ne bis in idem, is discussed infra notes 54-62. [Back]

15. What is meant by 'a State which has jurisdiction' is not mentioned in the account of the negotiations by their coordinator, John Holmes. See J. T. Holmes, 'The Principle of Complementarity', in R. S. Lee (ed.), The International Criminal Court: The Mak- ing of the Rome Statute, Issues, Negotiations, Results (1999), 41. In a later piece, he comments:

    Of course, in reality there is a need for the ICC, since States may be unwilling to exercise jurisdiction over international crimes, despite a duty to do so, especially when the nexus between the State and the crime is limited. Universal jurisdiction exists with respect to many of the crimes included in the Statute, but States have been reluctant to exercise it.

J. T. Holmes, 'Complementarity: National Courts versus the ICC', in A. Cassese, P. Gaeta and J. R. W. D. jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), 667-8 (citing W. A. Schabas, 'Follow Up to Rome: Prepar- ing for Entry into Force of the ICC Statute', ( 1999) 20 HRLJ 157). Speaking of genocide, war crimes and crimes against humanity in the cited piece, Schabas seems to assume that complementarity applies to universal jurisdiction. He comments, at 160, that:

    It is to be hoped that States will consider themselves embarrassed and even humiliated when the Court attempts to exercise jurisdiction under the principle of complementarity. Their failings, whether it be in the exercise of territorial, or personal, or even universal, jurisdiction, will become an indelible stain on the historical record. [Back]

16. 16 Art. 19(2)(b), using similar language, permits a challenge to jurisdiction or admissibility by 'a State which has jurisdiction over a case'. Art. 18(1), which deals with preliminary rulings regarding admissibility, uses slightly different language. It requires the Prosecutor at an early stage to 'notify all states parties and those states which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned' (emphasis added). Art. 18(2) states that within a month 'a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in Art. 5...' (emphasis added). 'Would normally exercise' (Art. 18(1)) is perhaps a nod in the direction of territorial or nationality jurisdiction; 'within its jurisdiction' (Art. 18(2)) is neutral. [Back]

17. Probably following significant regime change. [Back]

18. Absent a successful extradition request (made almost certainly to a third state to which the alleged perpetrator had travelled), a victim state would probably have not only to fend off the aggression but also get its hands on the perpetrators by advancing to the capital or capturing leading military in the field. See Strapatsas, supra note 3. [Back]

19. This will almost certainly be pursuant to legislation criminalizing aggression in the particular jurisdiction. See X. Philippe, 'The Principles of Universal jurisdiction and Com- plementarity: How Do the Two Principles Intermesh?' (2006) 88 Int'l Rev. of the Red Cross

375,387. R. v. Jones, Decision of the House of Lords in [2006] UKHL 16 is suggestive of the way in which national courts approach such problems. Just before hostilities began in the Second Gulf War in 2003, several people entered military bases in the United Kingdom, committing damage in an endeavour to disrupt preparations for war. Charged with offences including criminal damage, aggravated trespass and attempted arson, they sought to justify their actions on the basis that the pending actions by the US and UK governments would amount to the crime of aggression. They might therefore, they argued, lawfully use force in an attempt to prevent that offence from taking place. The House held that, while aggression was recognized in customary international law as a crime, it was not a crime in English law absent action by the legislature and was thus not available as a justification. The power that English courts once had to create common law crimes no longer existed. See R. S. Clark, 'Aggression: A Crime Under Domestic law?', 2006 NZLJ 349. The House of Lords is apparently denying (1) that the substance of the crime exists in English law (as opposed to international law) and (2) that it has common law jurisdiction over the (international) crime. It is theoretically conceivable that a court might reach the opposite conclusion to either or both of these propositions without any legislative basis, but highly unlikely. The House of Lords does not offer any thoughts about victim state or universal jurisdiction here and did not need to - given the procedural stance in Jones, the relevant criminal activities would have been taking place in England. [Back]

20. Pål Wrange comments:

    At the domestic level, there would be certain difficulties, such as the question of immunities of foreign leaders. Procedural immunity is enjoyed by some types of officials as long as they hold office, and it will prevent a State from prosecuting, even for international crimes (International Court of Justice (ICJ), Arrest Warrant case). While immunity does not apply before the International Criminal Court, the renunciation of immunity inter partes in the Rome Statute probably does not have effect on domestic prosecutions. Domestic prosecutions might also apply national immunities protecting officials from prosecutions before their own courts. Such domestic immunity would however not be a valid excuse to not prosecute cases falling under the Rome Statute.

P. Wrange, 'The Principle of Complementarity under the Rome Statute and its Interplay with the Crime of Aggression', in Summary of Conference on International Criminal Justice held in Turin, Italy, 14-18 May 2007, Doc. ICC-ASP/6/INF.2 (2007), 37. The reference to the Arrest Warrant (aka 'Yerodia') case is to Case Concerning the Arrest Warrant of 11 April 2000, (Democratic Republic of the Congo v. Belgium), ICJ, Judgment, 14 February 2002. See also Wrange's discussion of potential problems of 'act of state' and 'executive privilege', Ibid. If there is immunity, there is an inability to prosecute, and the case should go to the ICC where immunities do not apply (Rome Statute, Art. 27). The problems that Wrange notes afflict prosecutions in aggressor states, victim states and universal state jurisdictions, but perhaps not equally. In the aggressor state, it is at least possible that the immunity problems will have been removed in Rome Statute implementation legislation. That is, however, (absent a change of regime) the place where prosecution is least likely to occur. In the victim state or a third state, there will be the problem of whether one formerly eligible for immunity ratione personae as a head of state or senior official continues to have immunity ratione materiae after leaving office for involving the state in an act of aggression. The Pinochet case in the UK stands as authority for the proposition that there are some activities, like torture, that are not part of a leader's function for the purposes of producing immunity ratione materiae, R v. Bow St. Metropolitan Stipendiary Magistrate, Ex p. Pinochet Ugarte (No. 3), [2000] 1 AC 147. It is not clear whether this is consistent with dicta of the ICJ in para. 61 of the Yerodia case, supra, and with the direction in which the International Law Commission ('ILC') is proceeding in its project on Immunity of State Officials from Foreign Criminal Jurisdiction. See generally, R. A. Kolodkin, Special Rapporteur, Preliminary Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/601 (2008). These authorities suggest that at least some examples of immunity ratione materiae continue to apply after the actor leaves office. Pointing in the direction of no immunity is the way in which the US short-circuited such arguments in the case of General Noriega after his capture in Panama, United States of America v. Noriega, 117 F. 3d 1206 (11th Cir. 1997). The Court doubted that he was ever the lawful head of state and was prepared in any event to defer to the executive's evident position that he had no immunities (by prosecuting), especially given that his drug dealing activities in question were aimed at personal enrichment not the benefit of Panama. [Back]

21. The Special Working Group on the Crime of Aggression commented:

    Given that the conduct of a leader responsible for the crime of aggression would typically occur on the territory of the aggressor State, the question was raised whether the crime could also be considered to be committed where its consequences were felt, namely on the territory of the victim State. The answer to that question had important consequences for the application of article 12, paragraph 2 (a), which linked the Court's jurisdiction to 'the State on the territory of which the conduct in question occurred'. Broad support was expressed for the view that concurrent jurisdiction arises where the perpetrator acts in one State and the consequences are felt in another, while some delegations required more time to consider the issue. While some delegations expressed the possible need for clarifying language, possibly in the elements of crime, several stated that the Rome Statute was sufficiently clear and that 'over-legislating' should be avoided. The reference to 'conduct' in article 12 encompassed also the consequences of the conduct. The decision in the Lotus case supported this reasoning.

Report of the Special Working Group on the Crime of Aggression, Doc. ICC-ASP/7/SWGCA/1, 26 November 2008. On the narrowest possible reading of The Case of the 55 'Lotus' (France v. Turkey), PCIJ, Judgment of 7 September 1927, Turkey could exercise criminal jurisdiction on an 'effects' basis where negligence on a French vessel caused deaths on a Turkish vessel, both vessels being on the high seas. Compare possible different inferences on effects jurisdiction for aggression from the work of the ILC, infra note 36. [Back]

22. Efforts to hand pirates over to Kenya suggest that states sometimes find it advantageous to let others do the dirty work with universal jurisdiction. See Council Decision 2009/293/CFSF of 26 February concerning the Exchange of letters between the European Union and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy and detained by the European Union-led naval force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya and their treatment after such transfer, OJL 79 25.3.2009, pp. 49-59. Of course, aggression is not piracy and the stakes may be higher, but appropriate hypothetical cases may be imagined. In declining at Rome to include terrorism offences in the jurisdiction of the Rome Statute, the negotiators effectively chose to leave prosecution of those offences primarily in the hands of large powers with adequate resources - and especially the United States - where at least some of the prosecutions would be on a universal jurisdiction basis. Should the major players be left to prosecute the leadership of smaller powers who commit aggression while the leaders of the major powers are prosecuted in the ICC - if at all? [Back]

23. The issue does not appear to be discussed in El Zeidy, supra note 8. It is probably assumed in Philippe, supra note 19, but is nowhere expressly stated. On the other hand, Jann Kleffner, making no mention of aggression and writing in the context of the other crimes in the Rome Statute, is certainly assuming that 'jurisdiction' includes 'universal jurisdiction' when he makes some important policy arguments. He comments, first, that '...since the entry into force of the Rome Statute, States have for the first time established a permanent enforcement organ for (some of) the crimes for which universal jurisdiction had initially been developed. An argument can therefore be made that the ICC, rather than national courts of third States, would be the proper organ to act on behalf of the international community.' J. K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (2008), 282. He makes the opposing (and more persuasive) argument as follows:

    An exclusive reliance on the Court would be likely to result in significant gaps through which perpetrators could escape justice. This may be the case, for instance, if the ICC does not prosecute ICC crimes, either because they do not meet the gravity-threshold or because cases are so numerous that the ICC cannot handle them all, while States with a stronger nexus to the crime are unwilling or unable to do so. Subsidiary universal jurisdiction may still have a role to play in these scenarios. In fact, in such a scenario, the ICC Statute provides for some avenues which, albeit limited, can be used to mitigate against the current challenges to the effectiveness of investigations and prosecutions on the basis of universal jurisdiction by allowing the Court to render assistance to a State Party conducting an investigation [Rome Statute, Art 93 (10) (a)].

Ibid., 283 (footnotes omitted). The 'numerous' cases problem may well apply to aggression. F. Razesberger, The Intemational Criminal Court: The Principle of Complementarity (2006), 33-8, in a discussion which also does not mention aggression, accepts that complementarity may apply in cases of universal jurisdiction. The same is true of the following: J. Stigen, The Relationship between the International Criminal Court and National Jurisdictions: The Principle of Complementarity (2008), 190-6; C. C. Aravena, 'The Admissibility Test Before the International Criminal Court Under Special Consideration of Amnesties and Truth Commissions', in J. K. Kleffner and G. Kor (eds.), Complementary Views of Complementarity: Proceedings of the International Rounddtable on the Complementary Nature of the International Criminal Court (2006), 115, 116; M. Boot, Nullem Crimen Sine Lege and the Subiect Matter Jurisdiction of the International Criminal Court: Genocide, Crimes against Humanity, War Crimes (2002), 52. The issue is raised elegantly (but not resolved definititely) in F. Lattanzi, 'Concurrent Jurisdictions between Primacy and Complementarity', in R. Bellelli (ed.), International Criminal Justice: Law and Practice from the Rome Statute to its Review (2010), notes 42--6. [Back]

24. S. A. Williams and W. A. Schabas, 'Art. 17, Issues of Admissibility', in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article (2nd edn, 2008), 605. [Back]

25. D. D. Ntanda Nsereko, 'Art. 18, Preliminary Rulings regarding Admissibility', in Triffterer, supra note 24, 627. Judge Nsereko's discussion of the notification requirement in Art. 18(I) underscores that complementarity issues can arise both in respect of State Parties to the Statute and non-parties. See also supra note 13. [Back]

26. The issue here is who might make a challenge to admissibility. Can a 'volunteer' (such as a state with no other connection to the events than finding the accused on its territory and claiming universal jurisdiction) make such a claim? It will be noted that there are actually two issues not resolved by the language of Art. 19. Does a volunteer have 'standing' to raise the admissibility issue and insist that it wants to proceed; and what are the criteria by which the court will determine whether to accede to its claim as a matter of 'substance' or not? [Back]

27. C. K. Hall, 'Challenges to the Jurisdiction of the Court or the Admissibility of a Case' in Triffterer, supra note 24, 637, 649 note 41. Hall's references are perhaps telling. He writes:

    There have been three comprehensive global studies that have described state practice concerning universal jurisdiction over crimes under international law. See 'Harvard Research in International Law', (1935) 29 Am.J. Int'l L. Supp. 435; Amnesty International, Universal Jurisdiction: The Duty of States to Enact and Implement Legislation (2001), Second Edition forthcoming; J-M Henckaerts/L. Doswald-Beck, Customary International Humanitarian Law, Vol. I, 604-607; Vol. II, 3383-3940, (2005).

None of these sources deals with the crime of aggression. While at least the later ones support universal jurisdiction for breaches of humanitarian law, it is not clear how far they go to support Hall's proposition that all states 'may exercise jurisdiction over the crimes within the Court's jurisdiction'. Hall was one of the authors of the Amnesty International study that he cites; it contains nothing indicating that there is universal jurisdiction over aggression - the word aggression is barely mentioned and then only in passing. [Back]

28. W. W. Burke-White, 'Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice', (2008) 49 Harv. Int'l L. J. 53. At one point, Burke-White appears to be supporting complementarity via universal jurisdiction. He writes:

    The Dutch prosecution of Guus Kouwenhoven illustrates a further scenario in which a division of labor can exist between the ICC and national governments as part of a policy of proactive complementarity, namely where a third state undertakes a prosecution under universal jurisdiction to complement the work of the ICC.

Ibid., I 02. In fact the Dutch prosecution seems to be a case of nationality or territoriality jurisdiction over a Dutch citizen. [Back]

29. E. S. Podgor and R. S. Clark, Understanding International Criminal Law (2008), 160. [Back]

30. Something could, in principle, be a crime under international law without that necessarily carrying with it a right to exercise universal jurisdiction. It may entail simply an obligation to penalize it at the national level, or merely a right to do so. Or it may contemplate trial in an international tribunal as well as a territorial one. Art. VI of the Convention on the Prevention and Punishment of the Crime of Genocide, GA Res. 260A (Ill) (1948), asserted that persons charged with genocide 'shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction'. Somewhere along the line, customary law accepted a right to exercise universal jurisdiction over the crime. The sixth preambular paragraph to the Rome Statute reads: 'Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes ...

Writing shortly after Rome, Slade and Clark said this about the paragraph:

    It is delightfully ambiguous. Does the State obligation of which it speaks 'to exercise its criminal jurisdiction over those responsible for international crimes' refer to jurisdiction over crimes within the territorial 'jurisdiction' of the State? Or is it referring to a much broader 'jurisdiction' of the 'universal' kind, regardless of where the events occurred? In this respect, perhaps, it perhaps reflects the ambiguity of some negotiators about whether the International Court should derive its jurisdiction on some theory of universal jurisdiction or whether it should be narrower, based on the consent of the territorial State or the State of nationality.

T. N. Slade and R. S. Clark, 'Preamble and Final Clauses; in Roy S. Lee (ed.), The International Criminal Court, The Making of the Rome Statute: Issues, Negotiations, Results (1999), 421,427. [Back]

31. Princeton Project on Universal Jurisdiction, The Princeton Principles on Universal Jurisdiction (2001 ), Principle I (2). Principle 3 asserts that with respect to serious crimes under international law 'national judicial organs may rely on universal jurisdiction even if their national legislation does not specifically provide for it'. There appears to be no existing example of such reliance; R v. Jones, supra note 19, suggests the contrary. [Back]

32. Princeton Project on Universal Jurisdiction, supra note 31, Principle 2(I). [Back]

33. I could find no reference to aggression in the most important recent study of universal jurisdiction, L. Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (2003 ). C. Ryngaert, Jurisdiction in International Law (2008) has a very erudite discussion of the universality principle at 100-26 in which he discusses numerous candidates for universal jurisdiction, especially over what he calls 'core crimes' - but, once again, aggression does not even make it into the discussion. See also supra note 27. [Back]

34. A. Reisinger-Coracini, 'Evaluating Domestic Legislation on the Customary Crime of Aggression under the Rome Statute's Complementarity Regime,' in C. Stahn and G. Sluiter (eds.), The Emerging Practice of the International Criminal Court (2008), 725,734 (footnote omitted). In a communication with the author, Dr. Reisinger-Coracini noted that nearly all of the twenty-five assert at least territorial jurisdiction; some assert a passive personality/protective principle; and a few, including Bulgaria, Croatia, Moldova and Hungary (the latter in respect of incitement to aggression only), assert universal jurisdiction. In July 2009, a Green MP, Kennedy Graham, introduced a member's bill entitled 'International Non-Aggression and the Lawful Use of Force Bill' into the New Zealand Parliament. While it was defeated in a vote of fifty-eight to sixty-four in September of that year, it has generated considerable interest elsewhere and has been widely circulated by the NGO Parliamentarians Global Action of which Dr Graham was once Secretary-General. See It took a cautious jurisdictional approach, applying only to the actions of New Zealand leaders. See also K. Graham, 'Crimes of Aggression: A Question of National Integrity', (2009) 36(6) New Zealand International Review 18. [Back]

35. Draft Code of Crimes against the Peace and Security of Mankind, Yearbook of the International Law Commission, Vol. II (Part Two) (1996). See R. Rayfuse, 'The Draft Code of Crimes against the Peace and Security of Mankind: Eating Disorders at the International Law Commission', (1997) 8 Crim. L.F. 43. [Back]

36. Draft Code of Crimes, supra note 35, Art. 8. See also Art. 9, which proceeds on a similar basis of distinction: 'Without prejudice to the jurisdiction of an international criminal court, the state party in the territory of which an individual alleged to have committed a crime set out in Arts. 17, 18, 19, or 20 is found shall extradite or prosecute that individual'. The discussion of these articles by the ILC in Yearbook of the International Law Commission, Vol. I ( 1996), 49-53 supports my agnosticism about universal jurisdiction for aggression. The ILC's exclusion of universal jurisdiction over aggression is especially telling in the context of the Commission's then concurrent work on state responsibility. In its commentary on the obligations of states arising from a breach of a peremptory norm, the Commission notes widespread agreement that peremptory norms (ius cogens) extend at least to the prohibitions of aggression, slavery and the slave trade, genocide, racial discrimination, and apartheid. See J. Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (2002), 246. Ius cogens norms are often equated with those over which there is universal criminal jurisdiction for the individuals responsible, but the ILC, certainly in relation to aggression, did not make that connection. [Back]

37. Cf. the comments in the Special Working Group on the Crime of Aggression, supra note 21. The ILC does not appear to have been all of one mind. In the final discussion of the jurisdictional issues in the ILC, the Special Rapporteur on the Draft Code commented:

    [T]he text clearly raised a number of problems. Mr. Kabatsi had proposed that a court of the country of the author of the crime of aggression should be considered competent. In that case, why not a court in the victim country? Given the large number of proposals made, the Commission was in danger of adopting an unsatisfactory provision if it was too hasty in its decisions. A small informal group should look into the question.

Yearbook of the International Law Commission, Vol. I (1996), 50 (summary records). Nothing further happened on the record other than the final adoption of the text as described above. Strapatsas, supra note 3, points out that there is some post-World War II practice of states, such as Australia, claiming jurisdiction on the basis of being a victim state and, in the case of China, actually exercising it. He gives short shrift to the argument that there is no victim state jurisdiction. [Back]

38. Understandings, supra note 5. [Back]

39. In arguing in Kampala for such an understanding, Harold Koh, Legal Adviser to the US State Department, asserted in a Statement dated 4 june 2010:

    Even if states incorporate an acceptable definition into their domestic law, it is not clear whether or when it is appropriate for one state to bring its neighbor's leaders before its domestic courts for the crime of aggression. Such domestic prosecutions would not be subject to any of the filters under consideration here, and would ask the domestic courts of one country to sit in judgment upon the state acts of other countries in a manner highly unlikely to promote peace and security. [Back]

40. See Commonwealth Secretariat, Model Law to Implement the Rome Statute of the International Criminal Court and Report of the Commonwealth Expert Group on Implementing Legislation for the Rome Statute of the International Criminal Court (2005), 2:

    One of the indicators of a State's inability to prosecute is the absence of adequate laws under which to prosecute and accordingly it is in the interests of a State wishing to retain responsibility for the prosecution of crimes under the Statute to have effective and full legislation, which includes provisions for the domestic prosecution of the crimes.

If I were drafting such legislation, I would also include, at least, subsidiary or fallback universal jurisdiction over all the Rome crimes including aggression for a slightly different reason: it is always possible that an alleged foreign miscreant will turn up on the national territory who is, for understandable practical reasons such as a lack of resources, not desired by the ICC, and who cannot be extradited or even deported elsewhere. The options then become impunity or universal jurisdiction. [Back]

41. Immunity is another wild card along with jurisdiction - it too is a work in progress. See supra note 20. [Back]

42. Report of the Inter-sessional Meeting of the Special Working Group on the Crime of Aggression, held at the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, at Princeton University, New Jersey, United States, 21-23 June 2004, Doc. ICC-ASP/3/25 (2004) ('2004 Report'). No verbatim or summary records were kept of the meetings of the Special Working Group, but there are elegant narrative reports from all of its substantive sessions. These provide a very useful set of preparatory work. The committee has operated on the basis of consensus and has resolved most of the technical, criminal law, issues. Some political issues (notably the role of the Security Council and the appropriate method for adopting the aggression amendments to the Statute) await final determination at the 2010 Review Conference. [Back]

43. Ibid., para. 27. [Back]

44. Ibid., para. 22. [Back]

45. For the best study on which states currently have legislation criminalizing aggression, see Reisinger-Coracini, supra note 34. [Back]

46. See the practice summarized in Chapter 6 of Amnesty International's study on universal jurisdiction, supra note 27. Indeed, states have not exactly been overwhelming in legislating to give effect to their suppression obligations under the Geneva Conventions in respect of war crimes. More states have been doing so in recent years, especially as they seek to give effect to the Rome Statute in domestic law. See K. Dörmann and R. Geiss, 'The Implementation of Grave Breaches into Domestic Legal Orders',(2009) 7 JICJ 703. [Back]

47. 2004 Report, supra note 42, para. 22. [Back]

48. Ibid.There are echoes here of Art. 12(I) of the United Nations Charter and the relationship between the General Assembly and the Security Council in dealing with the maintenance of international peace and security. That provision (not rigidly applied in practice) asserts that 'While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests'. It is hard to imagine the Security Council trying to strike at the point where a state's organs were merely 'looking into' a case, but one can perhaps imagine it doing so where an actual arrest or trial was a reality. [Back]

49. Supra notes 9 and 21. [Back]

50. Charter of the United Nations, 24 October 1945, I UNTS XVI, Art. 24(1). [Back]

51. An equally unaddressed point is what the Security Council might do if it saw fit to intervene in particular domestic proceedings. Note its power under Art. 16 of the Rome Statute to request a twelve-month deferral of a case in the Court. Could the Council, acting pursuant to its powers and procedures under Chapter VII of the Charter go further and order a domestic system not to proceed with a case in which the Council has an interest? There is some suggestive (and far from conclusive) material about the Council's powers in respect of cases in domestic courts, in Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Request for Provisional Measures, Order of 14 April 1992 and Preliminary Objections, ICJ, Judgment, 27 February 1998. Compare the 'legislative' power exercised by the Council requiring states to criminalize such matters as terrorist financing (SC Res. 1373) and proliferation of weapons of mass destruction to non-States actors (SC Res. 1540). See E. M. Wise, E. S. Podgor and R. S. Clark, International Criminal Law: Cases and Materials (2004), 41-2. Can the Council exercise something closer to a 'judicial' power in particular instances involving aggression? How much traffic will Chapter VII and Arts. 24 and 25 of the United Nations Charter bear? [Back]

52. 2004 Report, supra note 42, paras. 23 and 24. Note also para. 25:

    A point was made drawing attention to the possibility that some of the provisions of the Statute might be interpreted to give jurisdiction to the Court in situations in which a victorious State would prosecute individuals without due regard to their rights; another situation could arise when a 'victim' State did not prosecute individuals out of fear of the aggressor State. Among the provisions that could be read from this perspective were article 17, paragraph 2(c), and article 53, paragraph 1 (c). In addition, the view was expressed that the Court had never been conceived and should not be considered as a court of appeal for national decisions.

Art. 17(2)(c) deals with the example of'unwillingness' where 'The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person to justice'. Art. 53(1) (c) is the 'interests of justice' provision under which the Prosecutor may decline to pursue a case further when 'Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice'. [Back]

53. At the time the quoted passages of the 2004 Report were written, the drafting was at a stage where it was still possible that the provisions on aggression would provide that the Security Council might make a specific determination that there had been an act of aggression, and that determination would be binding on the Court so far as the existence of that element of the crime was concerned. This was no longer the position in the Special Working Group's report, supra note 2, and in the amendments adopted in Kampala, supra note 4. All the relevant documents have a paragraph which reads: 'A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court's own findings under this Statute.' The preparatory work makes it clear that 'without prejudice' means that any determination by a UN organ can be 'second-guessed' by the Court for the purposes of considering the relevant finding of an act of aggression as one of the elements of the crime. [Back]

54. Rome Statute, Art. 20. Paragraph 1 of the Article is not about complementarity as understood in this chapter, supra notes 8 and 9. Paragraph 3 is the one with the closest connections to the issue and the area where the Special Working Group paid most attention. It is specifically referred to in Art. 17(1)(c), supra note 14. But paragraph 2 is also about the relationship between the Court and domestic jurisdictions. Once the ICC has determined a case involving a 'crime referred to in article 5' (which includes aggression), then any other court, national or international, is barred. For a careful analysis of Art. 20, see C. V. den Wyngaert and T. Ongena, 'Ne Bis in Idem Principle, Including the Issue of Amnesty', in Cassese, Gaeta, and Jones, supra note 15, 705. [Back]

55. 2004 Report, supra note 42, para. 34. [Back]

56. 2009 Report, supra note 2, Appendix, Draft Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression, para. 6, proposed to change the words of the chapeau to Art. 20 to read: 'No person who has been tried by another court for conduct also proscribed under article 6, 7, 8, or 8 bis shall be tried by the Court with respect to the same conduct unless the proceedings in the other court...'. (Art. 8bis is the basic substantive provision 'defining' the crime of aggression.) Identical language became para. 7 of the Kampala document, supra note 4. [Back]

57. 2004 Report, supra note 42, para. 28. [Back]

58. Art. l5bis(4) of the Special Working Group on Aggression's Draft amendments to the Statute of the on the Crime of Aggression, Doc. ICC-ASP/7/20/Add. I, 2009, contained a range of possible 'filters' by UN organs before the ICC could act on a particular instance of the crime of aggression, including action (or inaction) by the Security Council, the General Assembly or the International Court of Justice. See generally, Barriga, supra note 3; R. S. Clark, 'Negotiating Provisions Defining the Crime of Aggression, its Elements and the Conditions for ICC Exercise of Jurisdiction Over It', (2010) 20 EJIL 1103. As adopted in Kampala, the amendments contain a different regime for Security Council referrals (permissible under new Article 15ter), and state referrals and referrals by the Prosecutor propriu motu (Article 15bis).In the latter cases, the Prosecutor must first ascertain whether the Security Council has made a determination of aggression; if not, he must then give it an opportunity to consider the matter. He may then proceed after six months without a Security Council determination 'provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15 and the Security Council has not decided otherwise in accordance with article 16'. [Back]

59. The Working Group's following comments on 'conduct', 2004 Report, supra note 42, 30, must be right, but they do not dictate which of the two interpretations about to be suggested in the text makes most sense:

    The point was made that the meaning of 'conduct' in the phrase 'conduct which formed the basis of crimes' contained in article 20, paragraph l, was broader than the meaning given to the same word in other parts of the Statute, since in this case it seemed to include both the mens rea and the actus reus. It was also construed as referring to conduct which can be qualified as a crime, not as conduct enabling commission of a crime.

Art. 30 of the Rome Statute sets out the basic conceptual structure of the crimes in the Statute. It distinguishes between 'mental' elements and 'material' (or physical) elements. The 'material' elements specifically mentioned in Art. 30 are 'conduct', 'consequences' and 'circumstances'. [Back]

60. Para. 10 of Article 15bis (state referral, propriu motu), as adopted in Kampala, supra note 4, contemplates the possibility discussed in the text: 'This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5'. See discussion of the draft that became this provision at the Special Working Group's 2007 meeting, Informal Inter-sessional Meeting of the Special Working Group on the Crime of Aggression, held at the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, at Princeton University, 11-14 June 2007, Doc. ICC-ASP/6/SWGCA/INF.1 (2007) para. 35. The 2004 Report, supra note 42, para. 28, also noted a less-likely scenario: 'A similar query was posed regarding the possibility of the Court convicting or acquitting a person for the crime of aggression and at a later point in time trying the same individual for war crimes, crimes against humanity or genocide'. Again, the issue appears to turn on what is to be made of 'conduct' in this context. [Back]

61. 2004 Report, supra note 42, para. 31. [Back]

62. Ibid., para. 33. [Back]

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