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Aggression, Affected States, and a Right to Participate: A Response to Koh and Buchwald

Part of: Koh & Buchwald, “The Crime of Aggression: The United States Perspective”

Published online by Cambridge University Press:  20 January 2017

Sarah Williams
Sarah Williams*
Affiliation:
UNSW Australia, Australian Human Rights Centre
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Extract

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At the review conference in Kampala, States Parties adopted three new provisions on the crime of aggression for inclusion in the Rome Statute, as well as consequential amendments to the Elements of Crimes. However, states parties did not consider revisions to the procedural arrangements that may be required to accommodate the crime of aggression. The crime of aggression requires a link to states, being limited to acts of aggression by one state against another state. The individuals that can be charged with the crime of aggression are persons “in a position effectively to exercise control over or to direct the political or military action of a State.” The crime is also connected to the international security framework, in particular the UN Charter. Given that aggression is intrinsically linked to state acts, it is “likely that the ICC [International Criminal Court] would need relevant states to cooperate, present evidence, and argue the case.” Yet the existing framework does not include an adequate right of participation for affected states. This contribution suggests one possible revision to provide a clearer legal basis for states to participate directly in ICC proceedings in respect of the crime of aggression.

Type
Symposium on Koh & Buchwald, “The Crime of Aggression: The United States Perspective”
Information
AJIL Unbound , Volume 109 , 2015 , pp. 246 - 251
Copyright
Copyright © American Society of International Law 2015

References

1 Assembly of States Parties, The Crime of Aggression, ICC Res RC/Res.6, Annex 1, Art 8bis, 15bis and 15ter (June 11 2010).

2 Assembly of States Parties, The Crime of Aggression, ICC Res RC/Res.6, Annex II.

3 Jia, Bing Bing, The Crime of Aggression as Custom and the Mechanisms for Determining an Act of Aggression, 109 AJIL 569, 578 (2015)Google Scholar.

4 Prosecutor v. Ntaganda, ICC-01/04-02/06, Decision on the application by the Redress Trust to submit Amicus Curiae observations, para 3 (Mar. 18, 2014).

5 Prosecutor v. Katanga, ICC‐01/04‐01/07, Decision on the motion filed by the Queen’s University Belfast Human Rights Centre for leave to submit an amicus curiae brief on the definition of crimes of sexual slavery, para 7 (April 7, 2011).

6 Prosecutor v. Lubanga Dyilo, ICC-01/04-01/06, Decision on Motion for Leave to File Proposed Amicus Curiae Submission of the International Criminal Bar Pursuant to Rule 103 of the Rules of Procedure and Evidence, para 8 (Apr. 22, 2008).

7 Prosecutor v. Lubanga Dyilo, ICC-01/04-01/06, Order authorising the submission of observations, para 8 (Nov. 15, 2011).

8 For example, a request by the Kenyan government to file an amicus brief regarding its participation in the process of amending Rule 68 “was neither necessary or appropriate”: Prosecutor v. Ruto, ICC-01/09-01/11, Decision on the Government of the Republic of Kenya’s Request to File Amicus Curiae Observations (May 29, 2015).

9 Prosecutor v. Ruto, ICC-01/09-01/11, The Government of the Republic of Kenya’s Request for Leave Pursuant to Rule 103 (1) of the ICC Rules of procedure and Evidence to join as Amicus curiae and make Observations in the Applications by the Ruto and Sang Defence Teams for Leave to Appeal the Decision on the Prosecutor’s Application for Witness Summonses and resulting Request for State Party Cooperation, para 17, (May 12, 2014) accepted in Prosecutor v. Ruto, ICC-01/09-01/11, Decision on defence applications for leave to appeal the “Decision on Prosecutor’s Application for Witness Summonses and resulting Request for State Part Cooperation” and the request of the Government of Kenya to submit amicus curiae observations, para 35 (May 23, 2014); Prosecutor v. Ruto, ICC-01/09-01/11, Decision on the Request of the Government of Kenya to Submit Amicus Curiae Observations, (Oct. 8, 2013); Prosecutor v. Ruto, ICC-01/09-01/11, Decision on the Government of Kenya’s application for leave to file observations pursuant to Rule 103(1) of the Rules of Procedure and Evidence, (Apr. 24, 2013).

10 Prosecutor v. Ruto, ICC-01/09-01/11, Decision on the requests for leave to submit observations under rule 103 of the Rules of Procedure and Evidence (Sep. 13, 2013) (United Republic of Tanzania, Republic of Rwanda, Republic of Burundi, State of Eritrea and Republic of Uganda).

11 E.g., Prosecutor v. Lubanga, ICC-01/04/-01-06, Application for Leave to Appeal the Trial Chamber’s “Decision on the request by DRC-D01-WWWW-0019 for special protective measures relating to his asylum application” (ICC-01/04-01/06-2766-Conf) dated 4 July 2011 (July 13, 2011).

12 Prosecutor v. Lubanga, ICC-01/04/-01-06, Urgent Request for Directions (Aug. 17, 2011).

13 Prosecutor v. Ruto, ICC-01/09-01/11, Decision on applications for leave to submit amicus curiae observations pursuant to rule 103 of the Rules of Procedure and Evidence, (Oct. 12, 2015).

14 Prosecutor v. Ruto, ICC-01/09-01/11, Registry Transmission of a submission received from the African Union Commission, represented by Prof. Charles Chernor Jalloh, para 23 (Oct. 7, 2015).

15 Kenya, Uganda and Namibia, see Prosecutor v. Ruto, ICC-01/09-01/11, Decision on applications for leave to submit amicus curiae observations pursuant to rule 103 of the Rule of Procedure and Evidence, para 17 (Oct. 12, 2015).

16 Id. at para. 16.

17 Prosecutor v. Samphan, 002/19-09-2007-ECCC/SC, Decision on Requests to Intervene or Submit Amici Curiae Briefs in Case 002/01 Appeal Proceedings, para. 9, (Apr. 8, 2015); though a broader approach was taken at the Special Court for Sierra Leone in Prosecutor v. Kallon, Scsl-2003-07, Decision on Application by the Redress Trust, Lawyers Committee for Human Rights and the International Commission of Jurists for Leave to File Amicus Curiae Brief and to Present Oral Submissions (Nov. 1, 2003).

18 Prosecutor v. Kallon, SCSL-2004-15-AR72(e), Decision on Constitutionality and Lack of Jurisdiction (Mar 13, 2004).

19 E.g., Case 003, 002/19-09-2007-ECCC/SC, Defence Request to Intervene in the Appeal Proceedings in Case 002/01 for the Purpose of Addressing the Applicability of JCE III at the ECCC or, in the alternative, Request for Leave to Submit Amicus Curiae Brief on JCE III Applicability (Jan. 12, 2015).

20 Prosecutor v. Samphan, 002/19-09-2007-ECCC/SC, Decision on Requests to Intervene or Submit Amici Curiae Briefs in Case 002/01 Appeal Proceedings, para. 12 (Apr. 8, 2015).