June 14, 2010

International Criminal Court Review Conference Adds Crime of Aggression to Court’s Jurisdiction

Michael Scharf, Case Western Reserve University School of Law Professor, Served as a Delegate at Historic International Session in Kampala, Uganda

Michael Scharf at the ICC Review Conference

At nine minutes after midnight on June 12, the 111 States that are party to the International Criminal Court Statute adopted by consensus, in Kampala, Uganda, an amendment adding the crime of aggression to the court’s jurisdiction.

Case Western Reserve University School of Law Michael P. Scharf, director of the Frederick K. Cox International Law Center at the Case Western Reserve University School of Law, characterizes this amendment as "a historic moment that was years in the making." Although the crime of aggression is subject to numerous qualifiers and caveats, he says he has no doubt that "in the end, recognition of this crime will make a significant contribution to world peace."

Scharf served as head of the Public International Law and Policy Group's delegation at the ICC’s First Review Conference, where important amendments to the ICC Statute were debated, including most importantly adding the crime of aggression to ICC jurisdiction. The ICC already had jurisdiction to prosecute leaders for war crimes and crimes against humanity, but this new provision will allow the tribunal to prosecute leaders for launching an attack against another state unless doing so is in self defense, for the purpose of preventing crimes against humanity or genocide, or authorized by the UN Security Council.

While the delegates in Kampala quickly agreed on a definition and elements of the crime of aggression, the sticking point was the so-called “trigger mechanism” or “filter” that would be a pre-requisite to the tribunal’s exercise of jurisdiction over the crime, Scharf said. After two weeks of non-stop negotiations, an elaborate compromise was reached, which Scharf believes had its origins in part in the work of an Experts Meeting convened at Case Western Reserve University School of Law in 2008.

In September 2008, Ambassador Christian Wenaweser, the President of the ICC Assembly of State Parties, along with the Nobel-nominated Public International Law and Policy Group, and the Cox Center co-hosted a symposium and experts meeting on "The ICC and the Crime of Aggression" at the CWRU School of Law. Articles and the report generated from the meeting were published in a double volume issue of the Case Western Reserve Journal of International Law, available at and were provided to the delegations participating in the ICC Review Conference.

The Experts Meeting was the brainchild of the late Case Western Reserve Law Professor Henry King, who had been a prosecutor at Nuremberg. Scharf said King, along with former Nuremberg prosecutors Whitney Harris and Ben Ferencz, became the moral force behind adding the crime of aggression to the ICC’s jurisdiction.

In an unusual move, the Review Conference was extended until past midnight on its last day to enable participating states to negotiate the final compromise necessary to reach agreement on the pre-requisites for the International Criminal Court’s exercise of jurisdiction over aggression. The conference ended by adopting the amendment.

The amendment defines aggression as an act by a country’s leaders “which, by its character, gravity and scale, constitute a manifest violation of the Charter of the United Nations,” followed by a detailed seven-paragraph enumeration of acts that would qualify as aggression. The amendment stipulates that the ICC can only prosecute the crime when either the UN Security Council makes a determination that the crime of aggression has been committed, or the Court’s pre-trial chamber makes such a finding in a case in which the Security Council does not act for a period of six months after the attack in question.

Moreover, the resolution accompanying the amendment specifies that the amendment on aggression does not enter into force until Jan. 1, 2017, and does not apply to States Parties that lodge a declaration indicating that they do not wish to be subject to this additional crime. In addition, with the exception of cases of aggression referred to the Court by the UN Security Council, the resolution makes clear that the Court cannot otherwise exercise jurisdiction over the crime of aggression with respect to non-parties like the United States, Iran, North Korea or Israel.

The International Criminal Court, governed by the Rome Statute, is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.

The ICC is an independent international organization, and is not part of the United Nations system. Its seat is at The Hague in the Netherlands. Although the Court’s expenses are funded primarily by States Parties, it also receives voluntary contributions from governments, international organizations, individuals, corporations and other entities.

For more information contact Marv Kropko, 216.368.6890.

Posted by: Kimyette Finley, June 14, 2010 09:37 AM | News Topics: Faculty, School of Law, international

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