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Prosecuting the Crime of Aggression As a Complement: a Framework to Promote the International Criminal Court’S Legitimacy in Head-Of-State Prosecutions

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Prosecuting the Crime of Aggression As a Complement: a Framework to Promote the International Criminal Court’S Legitimacy in Head-Of-State Prosecutions \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 1 3-SEP-19 10:26 PROSECUTING THE CRIME OF AGGRESSION AS A COMPLEMENT: A FRAMEWORK TO PROMOTE THE INTERNATIONAL CRIMINAL COURT’S LEGITIMACY IN HEAD-OF-STATE PROSECUTIONS CARA CUNNINGHAM WARREN* When people are friends they have no need for justice, but when they are just they need friends as well.1 ABSTRACT There have been wide-ranging responses to the Assembly of States Par- ties’ decision to activate the Court’s power to prosecute the crime of aggression. On one hand, there is cause for celebration. For the first time since Nuremberg and Tokyo, an international tribunal has juris- diction over the “supreme international crime [that] contains within itself the accumulated evil of the whole.”2 On the other hand, the Court’s aggression jurisdiction is limited. This has prompted some to characterize activation as a symbolic gesture. Others urge the Court to pursue Security Council referrals to augment the Court’s jurisdictional limitations. These reactions should not guide the Court’s course of action. We should not be lulled into a post-celebration ease. Nor should we think that a symbolic event does not require a concrete response. Nor should we retard the Court’s maturation by immediately ceding power to another international body. Activation should prompt the Court to take immediate action to ready itself for the challenges ahead. Prosecuting the leadership crime of aggression opens Pandora’s Box regarding one of the Court’s most diffi- * Associate Professor of Law, University of Detroit Mercy School of Law; LL.M. Uni- versity of Toronto Faculty of Law. The author expresses many thanks to her colleagues at the 2018 Midwest Junior Faculty Forum, which was hosted by the University of Richmond School of Law; Sara Wharton and Andrea Russell for their feedback and encouragement; Thomas Bud for his research and editorial assistance; Rodney Warren for his support; and Jerry & Susan Cichowski and Fred & Barbara Wahrman for providing a space to reflect and write. 1. This material is adapted from Aristotle’s Nicomachean Ethics, wherein he said: “And if men are friends, there is no need of justice between them; whereas merely to be just is not enough—a feeling of friendship also is necessary. Indeed the highest form of justice seems to have an element of friendly feeling in it.” ARISTOTLE, NICOMACHEAN ETHICS, bk. 8, ch. 1, s. 4 (Harris Rachman ed., W. Heinemann & G.P. Putnam’s Sons 1934). 2. International Military Tribunal (Nuremberg), Judgment and Sentences, 41 AM. J. INT’L. L. 172, 186 (1947) [hereinafter Nuremberg Judgment]. 231 \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 2 3-SEP-19 10:26 232 The Geo. Wash. Int’l L. Rev. [Vol. 51 cult chapters: Head-of-State prosecutions.3 In this context, this Article evaluates activation consequences and next steps through the lens of legitimacy theories. Section II identifies several legitimacy pitfalls that will undermine HOS prosecutions if left unresolved: questions of consent related to the relatively small number of participating states; questions of consent related to undeveloped complementarity rules in the HOS aggres- sion context; questions of efficacy regarding the Court’s inability to pur- sue successfully a case against a sitting Head of State; and questions regarding procedural fairness. Section III addresses these legitimacy issues and suggests that the Office of the Prosecutor adopt a Prosecutorial Framework for HOS aggression situations. It would expand the existing preliminary exami- nation analysis to address complementarity questions unique to HOS aggression prosecutions. It also would expand the interests of justice considerations to include an evaluation of the Court’s capacity to inves- tigate and prosecute with an aim of protecting the Court’s legitimacy. The Article also calls for the use of a constructivist methodology that will incentivize participation. Constructivist norm building that produces successful HOS prosecutions is a critical need, and the new Prosecutorial Framework introduced in this Article would achieve this end. I. INTRODUCTION The core international crimes of genocide, war crimes, crimes against humanity, and aggression are the most serious criminal offenses in the world.4 Often occurring in the context of armed conflict, they “shock the conscience” and are profound in terms of their scale and level of complexity.5 Of these difficult cases, the International Criminal Court (Court or ICC) focuses on the grav- est breaches and the most responsible offenders.6 When the Court was created in 1998, the framers were hopeful that their normative structure “might influence or even restrain 3. This Article uses the term “Head of State” for ease of reference, but the broader phrase would be Head of State or Government. 4. BRUCE BROOMHALL, INTERNATIONAL JUSTICE AND THE INTERNATIONAL CRIMINAL COURT: BETWEEN SOVEREIGNTY AND THE RULE OF LAW 9–10 (Oxford University Press 2004) (noting that these crimes transcend national law and engage an international interest given their threat to peace and security and their gravity). 5. ELINOR FRY, THE CONTOURS OF INTERNATIONAL PROSECUTIONS: AS DEFINED BY FACTS, CHARGES, AND JURISDICTION 1–2 (Eleven International Publishing 2016) (noting that they “generally occur on a massive scale, spread out over a large geographical area and a long time span, involving many perpetrators at various distances from the crime scene”). See ROSA ALOISI & JAMES MEERNIK, JUDGMENT DAY: JUDICIAL DECISION MAKING AT THE INTER- NATIONAL CRIMINAL TRIBUNALS Appendix (Cambridge University Press 2017) (providing excerpts of judicial decisions that detail some of the chilling and heinous international crimes that have been committed and their impact on humanity). 6. See Rome Statute of the International Criminal Court (Rome Statute) pmbl. ¶¶ 3–5, 9, July 17, 1998, U.N. Doc A/CONF.183/, 2187 U.N.T.S. 3. \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 3 3-SEP-19 10:26 2019] Prosecuting the Crime of Aggression 233 the Hobbesian order established by the politics of States.”7 In fur- therance of this point, the framers charged the Court with ending impunity for powerful criminal actors; bringing stability to places that do not know the rule of law; bringing peace to survivors of the most heinous and depraved forms of criminality; and creating a historical record of the most complex and usually surreptitious domestic and international criminal schemes.8 While the Court has succeeded on many fronts9 and continues to hold together broad and divergent bases of support,10 it is “increasingly defined by gaps between its ideals and its reality.”11 The current president of the Assembly of States Parties (ASP) has said, “We are still witnessing mass atrocities worldwide. In many 7. Leila Nadya Sadat & S. Richard Carden, The New International Criminal Court: An Uneasy Revolution, 88 GEO. L.J. 381, 385 (2000). 8. U.N. Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post- Conflict Societies, ¶ 38, U.N. Doc S/2004/616 (Aug. 23, 2004) [hereinafter Secretary Gen- eral 2004 Report—Transnational Justice] (outlining the wide range of responsibilities with which international tribunals are tasked); FRY, supra note 5, at 15–20; Jens David Ohlin, R Goals of International Criminal Justice and International Criminal Procedure, in INTERNATIONAL CRIMINAL PROCEDURE: PRINCIPLES AND RULES 56, 59 (Goran Sluiter et al. eds., Oxford Uni- versity Press 2013). While these charges are admittedly broad and wide-ranging, some sug- gest the breadth is purposeful, designed to hold together a broad range of constituents with divergent interests. NERIDA CHAZAL, THE INTERNATIONAL CRIMINAL COURT AND GLOBAL SOCIAL CONTROL: INTERNATIONAL CRIMINAL JUSTICE IN LATE MODERNITY 28 (Routledge 2016). 9. The Court has been created from the ground up—literally. Its main location is in The Hague, and there are six field offices. Facts and Figures, ICC, https://www.icc-cpi.int/ about (last visited Aug. 20, 2018). It has promulgated numerous constitutive documents, including Rules of Evidence and Procedure; elements of crimes; regulations to govern the Court, the Office of the Prosecutor, the Registry, staff, and finances; a Code of Professional Conduct for Counsel; and a Code of Judicial Ethics. Resource Library, ICC, https://www.icc- cpi.int/resource-library (last visited Aug. 20, 2018). In terms of its efficacy, it has pursued 26 cases, resulting in 32 arrest warrants, 8 convictions, and 2 acquittals. With regard to its size and support, its 2018 budget was _147,431,500, and it employs 900 staff from 100 countries. Facts and Figures, supra. 10. CHAZAL, supra note 8, at 1. R 11. Id. at 28. See also Coalition for the ICC, Concept Note – 20th Anniversary of the Rome Statute: The Need for Universality and the International Criminal Court’s Jurisdic- tion Over the Crime of Aggression (Jul. 17, 2018), http://www.coalitionfortheicc.org/ 20th-anniversary-rome-statute-need-universality-and-international-criminal-courts-jurisdic tion-over [hereinafter 20th Anniversary Universality Statement] (noting that “[i]n only two decades, 123 States have joined the Rome Statute, making a public legal commitment to ending impunity for the worst crimes under international law. In addition, [more than 30] ICC States Parties have ratified the Kampala Amendments on the crime of aggression. While these numbers are encouraging, extending the reach of the ICC is necessary to address the most serious crimes and to deterring them in the first place. Indeed, too many situations where grave crimes are presently being committed remain outside the ICC’s reach. Strengthening support for the ICC to act effectively where it can—while increasing efforts to expand the Rome Statute’s member- ship—will signal the international community’s aspirations for accountability.” (emphasis added)). \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 4 3-SEP-19 10:26 234 The Geo.
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