On December 11

On this day in ...

... 1946, the U.N. General Assembly adopted Resolution 57(I), "Establishment of an International Children's Emergency Fund." The resolution aimed initially at helping "children and adolescents of countries which were victims of aggression" in the recently ended Second World War. Over time, of course, the mandate of the Fund – known today by its acronym, UNICEF – expanded to include all children throughout the world. On this very same day in 1965, when UNICEF was awarded the Nobel Peace Prize in Oslo, the organization was praised for the results it had achieved:

'Differences of view have been welded, almost always, into an accepted concensus in the search for agreement on the best methods of providing assistance to alleviate the agony of children who are victims of cruel circumstance.'

(Prior December 11 posts are here, here, here, here, and here.)

Welcoming a very special guest, Hans-Peter Kaul

It's IntLawGrrls great pleasure to welcome Judge Hans-Peter Kaul (left) as an IntLawGrrls contributor.
As we've frequently posted, he has been a Judge of the International Criminal Court since 2003, having served in the Pre-Trial Division and in the Vice-Presidency.
Qualified for the German Bar, he was appointed in 2002 as the Ambassador and Commissioner of the Federal Foreign Office for the International Criminal Court. From 1996 onwards, he was Head of the Public International Law Division of the Federal Foreign Office, responsible inter alia for cases Germany litigated before the International Court of Justice. Also in that role, he participated as head of the German delegation in the discussions and negotiation process that led to the Rome Diplomatic Conference and adoption, on July 17, 1998, of the Rome Statute of the International Criminal Court. In his post below, Judge Kaul brings that moment of adoption to vivid life, as an introduction to his examination of the ICC and the Nuremberg legacy. He focuses in particular on the role Americans then played in the advancement of international criminal justice and on an international ban on the crime of aggression. The post excerpts a lecture that he gave at the "ICC at 10" conference last month in St. Louis; the full text of the lecture is here.
Heartfelt welcome!

Nuremberg legacy & International Criminal Court

(My thanks to IntLawGrrls for the opportunity to contribute this post, an excerpt from "'The Nuremberg Legacy and the International Criminal Court': Lecture in Honor of Whitney R. Harris, Former Nuremberg Prosecutor," which I delivered last month in St. Louis. The full text of that lecture is here.)

1998 Rome Conference (c) Coalition for the International Criminal Court

Then, on 17 July 1998, after a last dramatic tussle, comes the breakthrough, the climax.
After the decisive vote on the Rome Statute, our founding treaty, there is some kind of explosion, an enormous outpouring of emotions, of relief among those present, unparalleled for such a conference: screams, stamping, exultation without end, tears of joy and relief; hard-baked delegates and journalists who have frowningly watched the entire conference hug each other in a state of euphoria. And a German delegate, normally a level-headed man, jumps up and down like a rubber ball and keeps punching me in the ribs, completely breathless,

'Herr Kaul, Herr Kaul, we've done it! We're getting an international criminal court!'

And then, in all this "Tohuwabohu", in all this chaos of clapping and screaming, something strange, something unexpected happens: I see Professor Harris standing up, and with a serious face, he begins to walk towards the German delegation, across the entire conference hall. While he is striding towards us, maybe 40 yards, undisturbed by the cheering delegates, I realise that he is constantly looking at me. Even today, this scene is still in my head, I see his walk in some kind of slow motion; I ask myself, why, what does he want?
A moment later, he shakes my hand and says – I do not recall his exact words – this is a great day for the entire world. It is a breakthrough, the fulfilment of many hopes. In a foreseeable future, we will have a world criminal court. He believes that the German delegation has played a decisive role, that without Germany the crime of aggression would not have been included in the treaty.
I admit, I am shaken, confused, and touched at the same time. That this prominent former US Nuremberg prosecutor is acknowledging the work of my people and of myself is almost too much. Finally, Mr Harris takes me by the shoulders, then he says: now, you must promise that from now on we will remain in close contact. Still shaken, I promise.
Then comes a further sentence, almost an order:

'and from now on, you call me Whitney, understood?'

When he embraces me briefly to say goodbye, I feel, for the first time, the special heartiness and warmth of Whitney which were so characteristic of him.
Well, this is, this was the beginning of a lasting friendship with Whitney, a relationship for more than a decade, with countless exchanges and contacts; with meetings in Germany, in Berlin, in Nuremberg, in St. Louis and elsewhere. And it is so wonderful that the friendship with Whitney soon includes Anna and Elisabeth, my wife, and also Leila Sadat.

Whitney R. Harris (1912-2010)

There is no doubt: Whitney was one of the foremost pioneers of the Nuremberg Trials – and I am convinced not only of their continuing historic significance, but also of their significance for the world of today and tomorrow. Today, we realize and it is obvious that these trials were based on a breakthrough, on some kind of intellectual and legal quantum leap of enormous significance. Notwithstanding the involvement of the three other victorious powers, Nuremberg is in essence an American invention, a contribution of men like Justice Robert H. Jackson, Telford Taylor, Whitney Harris, Benjamin Ferencz and others. Their ideas and actions made a difference, they provided lasting international awareness for the necessity of the rule of law in international relations. All these innovative ideas, the contribution of the Nuremberg Trials and of the underlying principles have had a decisive and on-going influence on international law. Thus, without Nuremberg, there would have been no ad hoc tribunals, without Nuremberg there would have been no International Criminal Court. There would be no recognition for the principle which is universally recognised today: nobody is above the law; there can be no impunity for grave crimes which concern the international community as a whole, regardless of the rank or nationality of the perpetrators in question. And, above all, Nuremberg achieved, for the first time, clarity about a fundamental principle: aggressive war, which had been a national right throughout history, should henceforth be punished as an international crime.

The Coalition for the International Criminal Court: Civil society at the ICC Assembly of States Parties

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)

The first half of the 11th Session of the International Criminal Court Assembly of States Parties is behind us. Since Jing Geng posted on the session's opening last week, much has been accomplished:
► A Deputy Prosecutor has been elected,
► A practical discussion was held regarding means for improving state cooperation with the ICC, and
► States parties appear to have reached a consensus on the court’s budget.
A bulk of the action during any Assembly session, however, takes place not during the official proceedings, but in the many activities and side events sponsored by nongovernmental organizations and coordinated through the umbrella group, the Coalition for the International Criminal Court.
The Coalition is an example of networked politics at their best.
Representing 2,500 civil society organizations in 150 countries, the Coalition, which has headquarters in New York and at The Hague, operates on a structure that is flexible, loosely coordinated, inclusive, and empowering. It also provides a lesson in organizational stickiness and adaption.
The Coalition was founded 17 years ago to lobby for a treaty establishing a permanent international criminal court and to persuade reluctant states to sign on to that treaty. Since the establishment of the ICC, the Coalition has transitioned into more of a watchdog role, monitoring the court’s legal work, institutional processes, and relations with states. It also acts as a facilitator between civil society activists and representatives of governments, regional organizations, and the court. (Prior IntLawGrrls posts)
In part because of its relationship with the like-minded states from the outset of the negotiations on the 1998 Rome Statute of the ICC, the Coalition has always played an important role with the court generally, and at the Assembly of States Parties in particular. It is charged with the accreditation of virtually all NGO delegates seeking to attend the Assembly, and coordinates the many civil-society-sponsored side events that fill the agenda. Those functions grant the Coalition substantial agenda-setting power.
The side events bring key actors together to discuss issues of importance to civil society, and are well attended by delegates of both states parties and observer nonparty states.
The Coalition more directly coordinates civil society’s interaction with states, including by organizing regional strategy sessions with the geographically relevant NGO representatives, sessions that are followed by meetings with government representatives.
Given the integral role the Coalition plays and its acceptance by the Court, it is perhaps surprising to see how young most of its Secretariat is.
Perhaps this is a reflection both of the cutting-edge nature of this area of law, and of the importance of these issues to members of the younger generations, who have found through the Coalition a way to be directly involved in structuring relations between states and society.
The Coalition’s key issues at this year’s session of the Assembly of States Parties have included the substantive topics on the formal agenda of state cooperation and complementarity. Also included:
► Discussions regarding the Kampala amendments on the crime of aggression, on which Diane Marie Amann last week posted the latest news,
► Assessment of gender-related issues at the court,
► A focus on the Middle East and North Africa region, and
► Advocacy for adoption of a budget that will ensure that financial constraints do not prevent the prosecutor from investigating situations.

T & T makes it 3

The country that jump-started establishment of the International Criminal Court has become the 3d state to ratify the Kampala crime of aggression amendments.
Yesterday the ICC announced that the Caribbean island state of Trinidad and Tobago had deposited its instrument of ratification at The Hague, where, as Jing Geng just posted, the ICC Assembly of States Parties is meeting for the next several days.
As we've posted, the amendments were adopted by consensus at the close of the 2010 ICC Review Conference in Uganda. They are designed to activate the court's jurisdiction over the crime of aggression; that is, of making war in manifest violation of the use-of-force provisions of the U.N. Charter. Entry into force, which by the terms of the amendments may not take place any earlier than 2017, requires 30 ratifications plus a further vote by states parties.
Back in 1989, an immediate post-World War II proposal for a permanent international criminal court was revived by Trinidad and Tobago, via its Prime Minister, A.N.R. Robinson. (The journey that led Robinson to make the push is detailed in this 2009 paper by Dr. Brinsley Samaroo, of the University of Trinidad and Tobago.) Moreover, this past December a Trinidadian High Court Judge, Anthony Thomas Aquinas Carmona, was elected a Judge of the ICC on the 1st ballot.
Assembly President Tiina Intelmann thus noted on accepting the ratification instrument yesterday:

'It is fitting that Trinidad and Tobago, which has been an active supporter of the Court since before its creation, should be one of the first to ratify these historic amendments.'

(credit for yesterday's photo, courtesy of the ICC, of Intelmann accepting instrument of ratification from Trinidadian officials) 
Three states now have completed ratification: not only Trinidad and Tobago, but also Liechtenstein and Samoa.
What's more, the "ICC @ Ten" conference that Leila Nadya Sadat hosted this week at Washington University in St. Louis brought this news:
► In a keynote speech, ICC Judge Hans-Peter Kaul of Germany, who served as the head of the German delegation at the 1998 Rome Conference at which the ICC Statute was adopted, reported:

'In Germany, the ratification law on the crime of aggression amendments has already been approved by the Cabinet of Chancellor Angela Merkel; the draft law is already in the Bundestag.'

► In a panel presentation, Florida International University Law Professor Noah Weisbord listed a slew of states that he said were in the process that numerous other countries are moving toward ratification of the aggression amendments.
Seems time for officials of the United States, who conveyed desire to slow the crime-of-aggression-ratification process at Kampala's end, to begin thinking about the eventuality of entry into force.

Samoa makes it 2 and counting against aggression

The 2d state instrument ratifying amendments that would make the crime of aggression fully punishable by the International Criminal Court was deposited yesterday at U.N. headquarters in New York.
Above, Patricia O'Brien, Under-Secretary for Legal Affairs and U.N. Legal Counsel, accepted the document from Tuilaepa Sailele Malielegaoi, Prime Minister and Minister of Foreign Affairs of Samoa. (photo credit) At yesterday's event, he explained the reasons behind the Pacific island state's decision to ratify:

'Samoa is not a member of any military grouping and has no aspirations to become one. We do so because we place great faith in the rule of law and the vital protection that the law offers to all States, especially to the weak and small. From this perspective, we consider the International Criminal Court one of the most important developments in the affairs of the international community in the struggle against impunity ....'

Samoa joins 1 other state in adhering to the crime-of-aggression amendments, the text of which was adopted by a consensus vote of the ICC Assembly of States Parties at the close of its 2010 ICC Review Conference in Kampala, Uganda. Ratifying several months ago was Liechtenstein, as we then posted. As we've discussed in our series on the crime of aggression, entry into force of these amendments cannot occur any earlier than 2017, and then only if 30 states have ratified and the Assembly of States Parties has given a further vote of approval.

Making aggression punishable before the ICC: Liechtenstein leads way & Germany's on road

"Liechtenstein geht international voran," boasted a headline in today's edition of the largest daily newspaper in Vaduz.
Occasioning this claim that "Liechtenstein leads the way internationally" was the announcement that yesterday, on the 67th anniversary of the end of World War II, Liechtenstein became the 1st state to ratify the Kampala amendments that would make the crime of aggression fully punishable by the International Criminal Court.
Martin Meyer, Deputy Prime Minister of the centuries-old principality, where today a little over 36,000 people occupy a space about the size of Washington, D.C., said:

'Der rechtliche Schutz vor Angriffskriegen ist gerade für Kleinstaaten von enormer Bedeutung. Ich bin stolz, dass wir heute unsere Vorreiterrolle zu diesem Thema fortsetzen können'.

That is:

'Especially for small states, legal protection against wars of aggression is of enormous importance. I am proud that today we can continue our leadership on this issue.'

Liechtenstein indeed has been a leader in moving toward definition and, perhaps, eventual activation, of the crime of aggression – an offense placed within ICC jurisdiction via the 1998 Rome Statute, by dint of Article 5(1), yet, by dint of Article 5(2), not then activated. (Here is IntLawGrrls' series of posts on the crime of aggression.)
Christian Wenaweser, the Ambassador Extraordinary and Plenipotentiary who's been Liechtenstein's Permanent Representative to the United Nations since 2002,served as chair of negotiations respecting the crime of aggression from 2003 to 2009 and, in his capacity as President of the Assembly of States Parties from 2008-2011, as leader of the ICC Review Conference. That 2010 Uganda meeting, on which many IntLawGrrls then posted, produced a package of amendments not only on the crime of aggression, but also on extension of certain bans on poisonous gases to non-international as well as international armed conflicts.
Thus in New York yesterday, Wenaweser's successor as Assembly President, Estonian Ambassador Tiina Intelmann, said as she accepted Liechtenstein's ratification documents from him:

'It is particularly fitting that Liechtenstein, which played such a crucial role in the negotiation of these amendments, should be the first to ratify them. I encourage other States Parties to do the same and hope for the earliest possible entry into force of the amendments.'

(credit for above (c) UN photo by Benoit Marcotte) To date, San Marino is the only other country to have ratified any part of the Kampala package – not the crime-of-aggression part.
But there is movement toward the goal that Intelmann articulated.
In Berlin in March 14, the German Ministry of Justice hosted a "VStGB konferenz" – that is, a conference aimed at exploring how the crime-of-aggression package might be incorporated into the statute known by its German acronym VStGB, which implements the Rome Statute domestically.
In opening the conference, the Ministry's State Secretary, Dr. Birgit Grundmann (left), referred to the negotiated agreement embodied in the Kampala package, and said:

Write On! Ferencz Essay Competition

(Write On! is an occasional item about notable calls for papers)

The Whitney R. Harris World Law Institute, for which I serve as Director, is pleased to announce the Inaugural Benjamin B. Ferencz Essay Competition.
To be held in conjunction with the International Criminal Court at Ten international conference being held on November 12, 2012, at my home institution, Washington University School of Law in St. Louis, Missouri, the competition will honor former Nuremberg Prosecutor Benjamin B. Ferencz (below left). (2010 photo courtesy of the Robert H. Jackson Center)
This competition addresses the very difficult issue of the relationship between crimes against humanity and the crime of aggression, both as a matter of substantive law and jurisdiction. In particular, given that the crime of aggression is not currently enforceable in the ICC, the competition aims to address whether illegal uses of force, interstate or otherwise, resulting in significant loss of life may currently be prosecutable before the ICC as crimes against humanity.
This call for essays invites scholars throughout the world to contribute to and develop the arguments set forth in the description of the Call for Essays to answer the main essay question:

Under what conditions may acts that constitute illegal use of armed force and that result in the widespread or systematic attack upon a civilian population be prosecuted as crimes against humanity by the International Criminal Court, pursuant to the Rome Statute?

The first-place winner of the Essay Contest will receive an award of US$10,000. Second- and third-place runners-up will each receive an honorable mention and a plaque as well as runner-up awards in the amount of US$2,500 each. The first-place winner of the Contest will be invited to St. Louis for an award ceremony that will take place during the International Criminal Court at Ten conference. The essay will be included in the symposium issue published by the Washington University Global Studies Law Review resulting from the conference.
Contestants are encouraged to register for the competition on our Inaugural Benjamin B. Ferencz Essay Competition website as soon as possible. The deadline for submission of entries is Friday, August 31, 2012, at 5:00 PM (Central Daylight Time).
Please visit our website for additional information on eligibility, requirements and guidelines for the competition. For further information, please contact Ms. Bethel Mandefro at bmandefro@wulaw.wustl.edu.
Thank you for your interest and we look forward to your participation.

Go On! ICL, in China

(Go On! is an occasional item on symposia and other events of interest)

"Sovereignty and Individual Criminal Responsibility for Core International Crimes" will be the subject of the 2012 Li Haopei Lecture and Seminar, to be held April 2 and 3, at the China University of Political Science and Law in Beijing, China. According to its sponsor, the Forum for International Criminal and Humanitarian Law, the event will examine the theme as it plays out in 3 issue areas:
► "First, when evidence of core international crimes incriminates State officials and there are calls for criminal investigation, State immunity concerns will continue to be voiced."
► "Secondly, the closing down of the ad hoc international criminal jurisdictions is likely to shift more attention to the exercise of national criminal jurisdiction over core international crimes, which would include jurisdictional exercise by States not directly affected by the said crimes."
► "Thirdly, the amendments of the ICC Statute at the 2010 Review Conference with regard to the crime of aggression may at one stage enable the ICC to investigate and prosecute such crimes."
Delivering the 2d annual lecture in honor of Judge Li (1906-97), a Chinese jurist, diplomat and academic who served on the International Criminal Tribunal for the former Yugoslavia, will be Judge Liu Daqun (left). (photo credit) Liu served as an Appeals Chamber Judge for the ICTY and the International Criminal Tribunal for Rwanda, will speak on "Immunity of State Officials for Core International Crimes and the ICC Statute." (Delivering the inaugural lecture, in Oslo in 2011, was International Criminal Court Vice President Hans-Peter Kaul; his speech, "Implications of the Criminalization of Aggression," is available here.)
Speakers at the seminar will include 2 colleagues who took part in IntLawGrrls' 2010 "Women and International Criminal Law" roundtable: the director of the Forum for International Criminal and Humanitarian Law, Morten Bergsmo, and Georgetown Law Professor David Luban.
Women taking part in the seminar include Professor Ling Yan (right), Judge Li's daughter and Director of the Research Center for International Criminal Law and Humanitarian Law at China University of Political Science and Law, and Dr. Zhou Lulu, Director of the Treaty Division of the Department of Treaty and Law, Ministry of Foreign Affairs of China.
Details and registration (requested by March 21, 2012) for the Lecture and Seminar are available here.

Post-Kampala piecemeal

This week in New York, the United Nations accepted deposit of the 1st instrument ratifying a Kampala amendment to the 1998 Statute of the International Criminal Court.
No, not that amendment.
And that may be the rub.
Ratified was a Kampala amendment to ICC Statute Article 8(2)(e). Upon entry into force, it would authorize war-crimes jurisdiction over the use of specified dumdum bullets and poisonous weapons -- not only over international armed conflicts, as the statute already provides, but also in armed conflicts not of an international nature.
San Marino (flag at left) became the 1st state party when Antonella Mularoni, its Foreign Minister, delivered San Marino's instrument of ratification to U.N. Legal Counsel Patricia O'Brien.
Appears no other state took this step during Monday's annual U.N. treaty event in New York -- notwithstanding that well over a year has passed since the ICC Review Conference in Kampala.
And Article 8(2)(e) was supposed to be the easy change.
Far more innovative, of course, were other Kampala amendments about which we've frequently posted -- the package of crime-of-aggression amendments that, if ratified, would authorize the ICC to pursue individuals believed responsible for the offense. (Our colleague Bill Schabas blogged last week "that Germany hopes to be the first to ratify the aggression amendments.") The crime last was prosecuted internationally in the post-World War II trials at Nuremberg and Tokyo.
Posts by various IntLawGrrls have indicated potential legal complexities within that package; my own 2010 miniseries on the issue is here, here, and here.
In my view, a single key will unlock complexities:
Political will.
Right after Kampala, some predicted that proposed Article 8 bis and the other aggression provisions soon would be part of the ICC Statute. By the package's own terms that can't happen unless 30 ICC states parties, and even then not until the year 2017.
At the end of the Review Conference, 2017 seemed quite a ways off.
It's less so now that 15 months have lapsed. Yet only 1 state has ratified even 1 piece -- a small, easy piece -- of the Kampala amendments.
Compare that with developments after the 1998 Rome Conference: Senegal became the 1st state party to the ICC Statute within 6-1/2 months. By the 15-month mark -- that is, by the end of September 2000 -- fully 18 states had joined the ICC. (credit for above right photo of ICC's Hague headquarters)
The comparison points to a slowgoing, piecemeal ratification process, and so provokes questions about political will with regard to preventing and punishing the crime of aggression.

Complementarity & Aggression

The principle of complementarity undergirds the International Criminal Court’s admissibility regime. And yet, in the negotiations leading up to the 2010 Review Conference in Kampala, Uganda, delegates did not fully focus on the potential for the addition of the crime of aggression to destabilize the Court’s complementarity regime. (See our prior discussion of this concern here).
The only guidance from the ASP came in the form of two interpretive Understandings that express a subtle preference that States Parties not incorporate the crime into their domestic codes. (We discuss the negotiations surrounding these Understandings here).
If States Parties heed this call—which they should—the Court will inevitably be faced with situations in which there is incomplete concurrence between the prosecuting state’s domestic law and the ICC Statute, given that few states have codified the crime of aggression. (Our discussion of domestic codification is here). Under prevailing interpretations of the principle of complementarity (which focus on a defendant's conduct), however, a case would be admissible before the Court if a domestic court were prosecuting atrocity crimes, but not the crime of aggression.
I engage these issues in a new paper to be published in a special issue on this topic of the Journal of International Criminal Justice edited by Claus Kress (below right) and Philippa Webb (left).
The paper argues that the Prosecutor should announce in advance of the amendments’ activation the intention to stay his or her hand in the event that genuine domestic prosecutions are going forward on the basis of charges of genocide, crimes against humanity, or war crimes, even if potential domestic aggression charges are not available under domestic law, are legally barred as by immunity doctrines, or are not forthcoming.
The only exception to this general approach should be in cases in which the crime of aggression is the primary or central charge to arise out of a particular situation, such that atrocity crimes are non-existent or largely peripheral.
This paper thus advocates that the ICC be allowed to exercise a de facto exclusivity over the crime of aggression vis-à-vis domestic courts, which will retain the ability to take the lead on prosecuting the atrocity crimes.
Such a division of labor between the ICC and domestic courts will: obviate a number of concerns associated with domestic prosecutions of the crime of aggression; encourage domestic prosecutions in keeping with the ideal of positive complementarity; reinforce the recognized duty of states to prosecute international crimes; and avoid over-burdening the ICC with cases that could otherwise proceed effectively in a domestic court. It will also ensure that to the extent that the crime of aggression is ever prosecuted, it is done not in a domestic but rather in an international forum, as was the case with the defendants in the dock at the Nuremberg Tribunal at right. Moreover, the prosecution should occur pursuant to a consensus definition of the crime and a negotiated jurisdictional regime.
The paper has been posted online here.

Guest Blogger: Jennifer Trahan

It's IntLawGrrls' great pleasure to welcome Jennifer Trahan (right) as today's guest blogger.
Jennifer's an Assistant Clinical Professor of Global Affairs at New York University's School of Continuing & Professional Studies. Courses she's taught include: International Law, Human Rights, International Criminal Tribunals & Their Law, Transitional Justice, and U.S. Use of Force & the “Global War on Terror.” She's also taught as an adjunct at Columbia University, Fordham Law School, Brooklyn Law School, and The New School, and has lectured at Salzburg Law School’s Institute on International Criminal Law.
Additionally, Jennifer's served as: counsel and of counsel to the International Justice Program of Human Rights Watch; Iraq Prosecutions Consultant to the International Center of Transitional Justice; and a consultant on cases before the Special Court for Sierra Leone and the International Criminal Tribunal for Rwanda.
Among Jennifer's many writings -- a number of which have appeared in languages such as Spanish, Bosnian-Croatian-Serbian, and French, as well as in English -- are two published by Human Rights Watch, Genocide, War Crimes and Crimes Against Humanity: A Digest of the Case Law of the International Criminal Tribunal for Rwanda (2010) (left) and Genocide, War Crimes and Crimes Against Humanity: A Topical Digest of the Case Law of the International Criminal Tribunal for the former Yugoslavia (2006).
Jennifer, who earned her A.B. degree from Amherst College, her J.D. degree from New York University School of Law, and her LL.M. degree from Columbia Law School, practiced as a litigator for 10 years at the New York City law firm Schulte Roth & Zabel LLP.
In her guest post below, Jennifer takes issue with IntLawGrrl Beth Van Schaack's May 5, 2011, post regarding what lies ahead for the crime-of-aggression amendments that were adopted by consensus at International Criminal Court Review Conference, and thus are now open for ratification by ICC states parties. Jennifer attended last year's Review Conference, held in Kampala, Uganda, in her capacities as Chair of the ICC Committee of the American Branch of the International Law Association, as a member of the American Bar Association 2010 ICC Task Force, and as an observer for the Association of the Bar of the City of New York. Pre-Kampala, also on behalf of the New York Bar, Jennifer had observed meetings of the ICC Special Working Group on the Crime of Aggression.
Heartfelt welcome!

Construing consent: ICC amendments on the crime of aggression

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Drawing upon the legacy of the post-World War II Nuremberg and Tokyo Tribunal prosecutions of “crimes against the peace,” an historic consensus agreement was reached at the 2010 International Criminal Court Review Conference to adopt an amendment to the Rome Statute of the ICC that defines both the crime of aggression and conditions for the exercise of jurisdiction. (credit for photo of ICC headquarters at The Hague, Netherlands)
In a recent IntLawGrrls post, Professor Beth Van Schaack raised two interesting questions:
(1) Whether the nationals of states parties that do not ratify the amendments may be prosecuted if such individuals commit the crime of aggression on the territory of any state; and
(2) Whether a prosecution for the crime of aggression may go forward when the crime is committed on the territory of a state party that has not ratified the aggression amendments.
To start with, it is important to note that the questions posed:
► Do not directly impact the United States – which as a non-state party to the Rome Statute will be completely excluded from aggression jurisdiction as to its nationals and crimes committed on its territory.
► Do not challenge the fact that the jurisdictional regime to which ICC states parties agreed is a completely consensual one, at least as to potential aggressor states.
States parties to the ICC have a choice whether or not to ratify the crime of aggression amendment adopted at the Kampala Review Conference. Only when there are 30 ratifications and an Assembly of States Parties vote of 2/3 or consensus – and, by terms of the amendment, no earlier than 2017 – will ICC jurisdiction over the crime of aggression commence.
Beth’s questions are then implicated, namely: whether after 30 ratifications and the activation vote:
(1) Will all states parties be subject to the exercise of ICC jurisdiction over the crime of aggression regarding their nationals and crimes committed in their territories absent exercise of an opt-out declaration? or
(2) Will states parties continue to have to ratify the aggression amendment to be subject to ICC exercise of jurisdiction over the crime of aggression regarding their nationals and crimes committed in their territories?
(In neither event would crimes committed by nationals of, or on the territory of, a non-state Party be covered.)
Either way, the regime remains purely consensual vis-à-vis potential aggressor states, with slightly different mechanics – whether it is ratification or the non-exercise of an opt-out declaration that will trigger jurisdiction after 30 ratifications and the activation vote.
In short, the questions posed in the earlier post could not have practical application for at least six years. Even then, they would only be directly relevant to states parties when a case is referred by a state party or by the ICC Prosecutor – but not by the Security Council. Because the United States is not a state party to the Rome Statute and sits as a permanent member on the Security Council – meaning it could veto any future aggression referrals – these amendments simply do not apply to the United States. (credit for 2007 map showing ICC states parties in the Americas in green, the United States, which signed but has not ratifed, in orange, and the few nonsignatory American states in grey)
Beth's post is right that there are indeed two possible readings of the crime of aggression amendment’s text. But it is wrong on other counts. First, it disparages as “revisionist” a passive-consent interpretation that was in fact discussed in negotiations long before the Review Conference, and was thus hardly a post-Kampala development. Second, it fails to accurately describe that approach.

Passive-consent interpretation
Many country delegations, including those intimately involved in the compromises that resulted in the final agreement at Kampala, appear to interpret that agreement as follows:
► Article 5(2) of the 1998 Rome Statute mandated states parties to determine the conditions for the exercise of ICC jurisdiction vis-à-vis the crime of aggression. Adoption of such conditions occurred at the Kampala conference. There, an opt-out methodology was adopted, whereby a state party may choose to opt out of aggression jurisdiction.
► The Review Conference Resolution also invoked Rome Statute Article 12(1), which provides that states parties have already accepted jurisdiction over the crime of aggression.
► The implication of the use of the opt-out methodology and the invocation of Article 12(1) is this: After 30 ratifications and the activation vote are achieved, every state that has joined the ICC Statute will be subject to ICC jurisdiction aggression vis-à-vis its nationals or crimes occurring in its territory (except for crimes committed by a national of, or on the territory of, of a non-state party) – unless, that is, the state party has exercised an opt-out declaration. (This would apply to cases triggered by State Party referral or proprio motu initiation; any situation could be covered by Security Council referral.)

Active-consent interpretation
Another construction is also being offered – the one advocated in Beth's earlier post. This approach does not appear to correspond with what was agreed on at the Review Conference.
The second sentence of Article 121(5) of the Rome Statute states:

'In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.'

Drawing on this language, the active-consent interpretation would hold that once jurisdiction commences, the ICC could only exercise jurisdiction over the nationals of, or crimes committed in the territory of, a state party if the state party has ratified or accepted the amendment, at least if the state party is the alleged aggressor state.
This alternative construction, however, does not consider that the second sentence of Article 121(5), quoted above, covers the exercise of jurisdiction.
Pursuant to Article 5(2) of the Rome Statute, states parties were authorized to establish at Kampala conditions for the exercise of jurisdiction over the crime of aggression. This meant that the states parties could rely on Article 12(1), the acceptance-of-jurisdiction provision described above, and not on a literal reading of the second sentence of Article 121(5). This appears to have been what was done.
It is important to note that states parties can avoid the issues altogether, by simply being clear and choosing a concrete path; for example, ratification without an opt-out declaration, ratification with an opt-out declaration, or exercise of an opt-out declaration without ratification.
For states parties that do not choose any such clear path, these issues of construction may become ones for the ICC judges when they adjudicate an aggression case that implicates such a state party. In that event, the ICC judges will be perfectly capable of evaluating the amendment’s language and of selecting between the “active” and “passive” constructions.

Entry Into Force of Aggression Amendments

Delegations left the 2010 International Criminal Court Review Conference in Kampala, Uganda, with the impression that a consensus compromise on the crime of aggression had been reached. It now appears, however, that dissension remains over a crucial technical issue: namely, when are states parties “bound” by the amendments in the absence of a U.N. Security Council referral?
At stake are two open questions:

1. whether the nationals of states parties that do not ratify the amendments may be prosecuted if such individuals commit the crime of aggression on the territory of any state; and


2. whether a prosecution for the crime of aggression may go forward when the crime is committed on the territory of a state party that has not ratified the aggression amendments.
   

Two approaches have emerged to resolve this lingering uncertainty.
One approach relies on the plain language of Article 121(5) of the ICC Statute, which all states now agree governs the aggression amendments. Reflecting the regime set forth in Article 40(4) of the Vienna Convention on the Law of Treaties, this provision asserts that the Court cannot apply statutory amendments to a state party’s nationals or territory if that state party has not ratified them. Article 121(5) reads:

Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals or on its territory.

The second approach—articulated for the first time post-Kampala—is based on the argument that the adoption of the opt-out provision has over-ridden the amendment regime set forth in Article 121(5). The op- out appears in proposed Article 15bis(4), and reads:

The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar.

This revisionist position is not supported by the text of the treaty or the amendments; rather, it depends upon the piecing together of snippets of text and the drawing of subtle assumptions from preambular references.
The plain-language reading of 121(5), by contrast, not only finds clear textual support, but it also reflects sound policy by enabling states parties to remain out of the aggression amendments altogether, both from the perspective of the possible prosecution of their nationals for the commission of aggression elsewhere and from the perspective of potential acts of aggression that may be committed on their own territories.
Lodging an opt-out declaration is no substitute for remaining outside the aggression provisions altogether. Such a declaration will only insulate the nationals of the putative aggressor state from prosecution; it will not prevent the Court from asserting jurisdiction over acts of aggression committed on the territory of states parties. There are a number of reasons why a victim state may not want the crime of aggression to be prosecuted before the ICC, not the least of which would be in circumstances in which an investigation or prosecution might antagonize the conditions on the ground. In addition, a victim state may oppose an aggression prosecution before the ICC when the dispute has already been satisfactorily resolved through diplomatic channels or when the process might risk the production of sensitive national security information.
These open issues reflect enduring confusion over how the treaty’s amendment provisions should apply to the codification of the crime of aggression. This confusion, in turn, threatens the very legality of the amendment package. It is important to gain precision on this point so that the world’s legislative bodies can make informed policy choices about the propriety of ratification.
Fortunately, additional post-Kampala discussions involving interested states are proceeding in informal settings in an effort to resolve this open issue in advance of 2017. This will ensure that the aggression amendments enjoy a genuine consensus—rather than just the illusion of consensus—before the first prosecutions commence. Otherwise, the entire aggression package will be subject to challenge in the first contentious aggression cases that appear before the Court. In such event, the interpretive sleights of hand necessary to sustain the revisionist interpretation should not fool the judges when confronted with the plain language of 121(5), the clear intent of the ICC Statute’s founders, and the principle of lenity.

(See here for Jennifer Trahan's response to this post)

Read On! ICL Interest Group Newsletter

(Thanks to IntLawGrrls for giving me the opportunity to contribute this guest post!)

The International Criminal Law Interest Group for the American Society of International Law, chaired by Beth Van Schaack and Linda Malone, and of which I am delighted to serve as Newsletter Editor, has released the Winter Issue of Accountability (previous posts regarding the group are here). This issue has grouped articles around themes outlining the forward thinking aspects of international criminal law. The issue is separated into three sections - Judicial Commentaries, Legislative Commentaries and a section focusing on the ICC. Each section provides new insights in different aspects of ICL yet the common theme throughout all the articles is found in the newsletter’s name – Accountability.

Our journey through relevant ICL Judicial Commentaries begins with two pieces by Gentian Zyberi and Alexis Demirdjian taking us through the recent decisions by the ICTY Appeals Chamber regarding the Haradinaj and Šljivančanin cases. Zyberi points out not only the substantive questions raised by the decision surrounding witness intimidation, but more importantly what he views as the dangerous precedent of ordering a retrial and failing to show deference to the Trial Court. Demirdjian’s piece also notes a proactive Appellate Court in Šljivančanin where the court determined the five year sentence handed down by the Trial Court was insufficient as related to the gravity of the crimes committed and increased the sentence to 17 years. Subsequently, the Appellate Court reviewed the testimony of an officer who informed the Court that Šljivančanin (left, on the right) had not been informed of key information that placed those to whom he owed a legal obligation in imminent danger and left him with a ten year sentence.

This section closes with a piece by Alexandra Meise Bay, who analyzes Case 001 – Duch - of the ECCC. In this piece, she lays out the arguments and judicial split, between international and national judges, surrounding the extension of the statute of limitations to domestic crimes within the jurisdiction of the ECCC. In her discussion, she outlines the international and domestic standards applicable to the retroactive extension of a statute of limitations within the context of Cambodia. (Photo at left by A.K. Meise Bay depicts a member of the Cham Muslim minority watching Duch over a live feed of the reading of the verdict in Case 001 from the public viewing area of the ECCC. (July 26, 2010)).
As we move from the Judiciary to the Legislature we begin with Magne Frostad’s look into the regulation of the death penalty under modern international criminal law. In doing so, Frostad notes the changing attitudes towards the death penalty over the past sixty years and utilizes the European framework, and some international mechanisms, to explore available enforcement mechanisms. Specifically, he examines the ECHR, how relevant protocols affect state and non-state parties and what criteria judges appear to be using when analyzing cases involving the possibility of the death penalty.

Accountability then moves from the death penalty to mutual legal assistance as regards frozen Duvalier assets that were removed from Haiti. In this article, Konstantinos Magliveras looks specifically at Swiss legislation that should allow for the restitution of illegal acquired state assets, but given the length of time are now treated as legal for mutual assistance purposes. This piece is of particular timeliness, as in January 2011 Duvalier returned to Haiti and was immediately charged with corruption and crimes against humanity domestically. The affect these charges will have on the restitution of the Swiss assets will be of great interest in upcoming months.

The section on Legislative Commentaries closes with a move from Haiti back to Europe and Africa in the form of the EC and the Saharan Fisheries Partnership Agreement. J.J.P. Smith

evaluates changes to the agreement pertaining to EC interaction with Western Sahara and the over-fishing over her waters. Smith utilizes the crime of pillage, under various historical definitions, and international criminal liability theory to agree with recent EU Legal Service statements citing violations by the EC.

The largest section of Accountability looks to the future of the ICC as concerns US engagement, new preliminary examinations the Court has taken on as well as continued discussion surrounding the crime of aggression. (Assembly of States Parties at right). Carl Christol opens the section with a general background piece to international criminal law and the history of the United States and the ICC through the Kampala Conference. The commentary provided by Rachel Gore furthers this discussion by noting what future interactions and implications are awaiting both the US and the ICC. Her piece recounts the ASIL Expert Forum that took place allowing experts (including IntLawGrrl Beth Van Schaack) to comment on the proceedings in Kampala and the way forward. A key issue in the way forward, and noted in Gore’s commentary, is the view on the crime of aggression both in terms of US foreign policy, the UN Security Council and the ICC. Stefan Kirchner continues the aggression story by looking at US opposition to the definition while being a non-state party that was very actively involved in Kampala. Noha Aboueldahab takes the Kampala discussion even further looking at the effects the definition of the crime of aggression will have on territorial sovereignty and the role of domestic inquiries in defining the crime. Moreover, Aboueldahab responds to the point-counter-point discussion begun in the last issue of Accountability by Dov Jacobs and Keith Petty. This section of the issue closes with a look towards the ICC’s future with Nick Allen’s piece on the recent preliminary examination into North Korean war crimes. Allen discusses which particular incidents would fall under the subject matter jurisdiction of the ICC, issues of admissibility and the possibility of escalation given the gravity of nuclear weapons. This exploration into jurisdiction and enforceability as regards North Korea is new territory for the ICC.

This issue provides a unique look at the progression of international criminal law from a judicial and legislative perspective. Moreover, the pieces that further the crime of aggression discussion begun in the last issue and the way forward for the ICC continue themes between issues raising the level of scholarship in Accountability. Check out the full issue here!!

Diane Amann talk at GW

Earlier this week, just before President Obama addressed the nation on why the US is involved in Libya, I was privileged to hear Diane Amann give a talk at an International Law Colloquium at George Washington University Law School. Her talk, which was titled The Value of Peace and the Crime of Aggression, explores the contradictions involved in pursuing "a peace envisioned as the absence of war, yet often pursued through military intervention."
She began by pointing out that, even though President Obama had received the Nobel Prize for Peace, the US is now involved in three different conflicts, and previewed how President Obama would defend the US role in Libya. Indeed, as I listened to Obama's speech that evening, Diane's talk repeatedly echoed in my mind; she had presciently predicted his approach almost to a word!
The main part of her talk focused on the crime of aggression. She reviewed the adoption in Kampala last year of amendments to the Rome Statute that define the crime and how the ICC will exercise its jurisdiction over this crime. She described the eloquence of Ben Ferencz, the 90-plus year old former Nuremberg prosecutor, at the Kampala conference as he urged development of the crime of aggression. In addition, she discussed the US approach to securing peace around the world, and then analyzed the proposed aggression amendments in the context of this history. It was fascinating to hear her explore the paradoxes in American policy as we use force to achieve peace and as we hail mechanisms for international accountability while seeking to avoid such accountability ourselves.
The article is part of a work in progress that I very much look forward to reading!

Major Staff Turnover Anticipated at the ICC

The ICC is poised to experience a major turnover in its professional staff in 2012. These upcoming elections and appointments will constitute the most significant and dramatic changes in the ICC's leadership corps since the inaugural elections in 2003.
On the judicial side: the terms of six of the Court's 18 judges (depicted above) will expire next year. (The ICC Statute staggered the terms of office of the first batch of judges so that one third would serve 9 year terms. It is this group of judges whose terms are now ending.) The nomination period for the open positions shall run from June 13 to September 2, 2011. Candidates will be elected at the tenth session of the Assembly of States Parties (ASP) (December 12-21, 2011) to be held at United Nations Headquarters. The Court also needs a new President and new Vice Presidents. This radical overhaul of the bench will come just as the first trials before the Court are coming to a close and the ad hoc tribunals are shutting their doors.
The Judicial Division is composed of 18 judges in three divisions. The Pre-Trial Division is composed of 6 judges. Some of the responsibilities of the Division are carried out by two Pre-Trial Chambers of 3 judges each or by a single judge. As the name implies, the Pre-Trial Division carries out a number of functions prior to the initiation of trial:

• authorizing the prosecutor's proprio motu investigation,
• ruling on admissibility challenges, including on complementarity and gravity grounds,
• reviewing decisions by the prosecutor not to proceed in the event of the referral of a situation,
• upholding the rights of the accused and protecting victims and witnesses in the investigative phase,
• authorizing investigations on the territories of states parties,
• issuing warrants for arrest,
• confirming the charges against an accused, and
• (eventually) serving as a filter to charges of aggression (if the ASP decides to activate the aggression amendments in 2017).

The Trial Division, composed of 8 judges with criminal law experience, is charged with conducting fair and expeditious trials to determine the individual responsibility, vel non, of the accused and to award any reparations due to the victims. Finally, the Appeals Division, consisting of the President of the Court and four other judges, is responsible for adjudicating any appeals emerging from the Pre-Trial Division or the Trial Division.
Among those ICC judges whose terms are ending are three women:
Fatoumata Dembélé Diarra of Mali, the First Vice President of the Court and a member of the Trial Division (above right), Elizabeth Odio Benito of Costa Rica and a member of the Trial Division (immediate right), and Sylvia Steiner of Brazil, who is a member of the Pre-Trial Division (above left).
The current prosecutor's term ends in June 2012, and the ASP has established a representative search committee to find his replacement pursuant to the same schedule as the judicial elections. The Committee is being coordinated by H.R.H. Zeid Ra’ad Zeid al-Hussein, Permanent Representative of Jordan to the United Nations. The Committee hopes to have a short list of candidates by the end of this summer.
As they consider their nominations, the ASP will do well to recall the qualifications of judges and the prosecutor, which are set forth in part in Articles 36 and 42 of the ICC Statute, respectively. In particular, Article 36(8)(a) directs the ASP to in the selection of judges, to

take into account the need, within the membership of the Court, for: ... (iii) A fair representation of female and male judges.

Not surprisingly, NGOs are calling for a merits-based set of nominations rather than politicized vote-trading. To this end, the Coalition for an ICC has created a high-level expert panel to assess the candidates put forward by States Parties. See here for more on this campaign. (Diane's prior post on the CICC panel convened to vet judicial candidates is here.)
The ASP is going to experience an overhaul as well, with the election of new members of the Bureau (the executive committee of the ASP), a new President, and 6 new members for the Committee of Budget and Finance. (Ambassador Simona Mirela Miculescu (left), Permanent Representative of Romania to the United Nations, recently assumed the position of Vice-President of the Assembly).
The crime of aggression will likely become operational during the terms of office of this group. (The ASP can make a decision as early as 2017 to activate the Court's jurisdiction over the crime). No doubt this too will impact states parties' choices of candidates as it is these individuals who must be trusted to adjudicate this new and controversial crime.
Stay tuned...

Libya and the Codification of the Crime of Aggression

There has been a lot of attention in the press and blogosphere about the worrisome situation in Libya, the (in)adequacy of the United States' and United Nations' response thereto, and the Security Council's unanimous referral of the situation to the International Criminal Court via Resolution 1970 on February 26, 2011. (See our prior coverage here). On March 2, 2011, the ICC Prosecutor announced that he had opened his investigation into potential crimes committed in Libya (see his press conference here). The President of the ICC, Judge Sang-Hyun Song (S. Korea), thereafter assigned the situation to Pre-Trial Chamber I.

In undertaking his investigation into international crimes committed since February 15th, the ICC Prosecutor has already signaled that he will consider the commission of crimes against humanity—a constellation of acts made criminal under international law when they are committed within the context of a widespread or systematic attack against a civilian population with knowledge of that attack. Certainly the strafing of peaceful demonstrators with helicopter gunships, the indiscriminate bombing of residential neighborhoods by warplanes (left, photo credit), and the unleashing of mercenaries and snipers on the ground collectively rise to the level of such an attack. This is especially true given that at least a thousand people have been killed and thousands others have been injured and/or displaced. (Although, I should note that Judge Kaul, who does not sit on this PTC, will likely disagree here).

War crimes may also have been committed, depending on whether the situation in eastern Libya or elsewhere rises to the level of armed conflict. Common Article 3, whose prohibitions are listed as war crimes in Article 8(2)(c) of the ICC Statute, is applicable once there is an "armed conflict" occurring "on the territory of" a party to the Geneva Conventions. The determination of when violence rises to the level of an "armed conflict" depends on the level of violence and the degree of organization of the parties. Certainly, the formation of an increasingly hierarchized and united armed opposition—populated and led by courageous defectors from Libyan armed forces' officer corps—goes far toward finding the necessary degree of organization. In addition, there are indications that swaths of the country are under the control of opposition groups forging a transitional government (the Libyan National Council) after governmental authorities collapsed.

All this implies that the heightened threshold of Protocol II, which also governs non-international armed conflicts and whose prohibitions may be prosecuted as war crimes pursuant to Article 8(2)(e) of the ICC Statute, may also be satisfied. That treaty becomes applicable when there is a non-international armed conflict

which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

It explicitly excludes situations

of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.

There thus may be reasonable grounds to conclude the existence of a full-scale civil war, albeit an unbalanced one according to comparative military assessments, which would lay the groundwork for war crimes charges.

The crime of aggression is not immediately implicated in the Libyan situation. For one, the aggression amendments will not come into force until 2017 at the earliest. Moreover, the definition of the crime does not envision the act of aggression being committed by or against non-state actors that are not linked to a state. Nonetheless, the crime of aggression may bear on responses by the international community to the crisis in Libya.

Indeed, military options are not off the table, according to recent comments by President Obama and other world leaders. In particular, it has been proposed that the international community—or some subset thereof—should impose a no-fly zone over the country in an effort to prevent Libya's increasingly erratic and vicious leader from committing further violence against his own people. The Gulf Cooperation Council and Arab League reportedly support such a measure as do several vocal members of Congress. France and Britain are working on a draft Security Council resolution that would authorize such a response, although it is unclear if Russia and China would support this measure, which sounds of military intervention. This raises the prospects that a group of states, such as NATO or some other coalition of the willing, might move forward without explicit Council approval. This is exactly the kind of scenario that worries detractors of the codification of the crime of aggression in the ICC Statute.

The imposition of a no-fly zone without prior Council approval might run afoul of the prohibition of aggression as it has been defined in the aggression amendments. Article 8bis(2) of the amendments defines “act of aggression” broadly as

the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State...

The amendments go on to list the following as acts of aggression:

a) The invasion or attack by the armed forces of a State of the territory of another State ...;
b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; ...
d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State...

Simply policing the no-fly zone might constitute a breach of Libya's territorial integrity, and for a no-fly zone to be effective, it would likely be necessary to neutralize Libya's air defense capabilities, which would involve air strikes. To be sure, such acts would only be prosecutable as the crime of aggression if they are deemed to constitute a "manifest" violation of the U.N. Charter with reference to their character, gravity and scale as per Article 8bis(1). As we have discussed at length in our crime of aggression series, no explicit exception was carved out for bona fide humanitarian interventions or for considerations of a state's motives for engaging in military action. However, important understandings adopted in Kampala imply that a consideration of the "consequences" of military action might shield actions from being characterized as an act of aggression. This would depend, of course, on the views of

• the prosecutor (exercising prosecutorial discretion),
• the Pre-Trial Division (which would need to approve aggression charges), and
• the Security Council (which also acts as a filter to aggression charges and can defer prosecutions for a renewable period of a year).

In any case, the ICC is poised to enter the debate about such humanitarian interventions in the event that they occur once the aggression amendments are operational. The situation in Libya offers yet another potential scenario in which a deployment of armed force might be warranted and beneficial, but may not—for whatever reason—be able to garner Security Council approval.