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

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 jurisdiction 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].

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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 aggression context; questions of efficacy regarding the Court’s inability to pursue 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 examination 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 investigate 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 suggest 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 membership—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. Wash. Int’l L. Rev. [Vol. 51 cases the perpetrators of these crimes are beyond the court’s reach, due to the limited jurisdiction of the court, non-cooperation of states, or lack of political will. Ending [ ] impunity seems to remain a remote goal even two decades after the inception of the court.”12 In this context, one can see how activation of the Court’s power to prosecute the crime of aggression, which occurred in July 2018, on the twentieth anniversary of the Court’s creation,13 is cause for celebration. Activation marks the Court’s continued development and sets in motion a process that could eventually deter the most heinous criminal behavior. Indeed, for the first time since Nurem- berg and Tokyo, an international tribunal will have jurisdiction over the “supreme international crime [that] contains within itself the accumulated evil of the whole,”14 and this is the first time ever that a permanent international court will be empowered in this way.15 On the other hand, in light of the Court’s limited jurisdiction over the crime of aggression,16 one can also appreciate why some

12. H.E. O-Gon Kwon, President of the Assembly of States Parties, Statement (upon election), at 2 (Dec. 4, 2017), https://asp.icc-cpi.int/iccdocs/asp_docs/ASP16/ASP-16- PASP-N.pdf (emphasis added). 13. Resolution ICC-ASP/16/Res 5, Activation of the Jurisdiction of the Court over the Crime of Aggression § 1 (Dec. 14, 2017), https://asp.icc-cpi.int/iccdocs/asp_docs/Resolu tions/ASP16/ICC-ASP-16-Res5-ENG.pdf [hereinafter ASP—Aggression Activation Resolu- tion]; GLOBAL LEGAL MONITOR, ICC Jurisdiction over the Crime of Aggression is Activated, LIBRARY OF CONG. (Dec. 26, 2017), http://www.loc.gov/law/foreign-news/article/icc-juris diction-over-crime-of-aggression-activated/; Alex Whiting, Crime of Aggression Activated at the ICC: Does It Matter?, JUST SEC. (Dec. 19, 2017), https://www.justsecurity.org/49859/crime- aggression-activated-icc-matter/. 14. Nuremberg Judgment, supra note ????. ERROR 15. Jennifer Trahan, Activation of the International Criminal Court’s Jurisdiction Over the Crime of Aggression & Challenges Ahead, OPINIO JURIS (July 19, 2018), http://opiniojuris.org/ 2018/07/18/33604/ (noting that at a July 2018 U.N. event, “States Parties generally hailed activation of the ICC crime of aggression’s jurisdiction as significant for: (1) completing the crimes originally envisioned under the Rome Statute; (2) furthering the legacy of the International Military Tribunal at Nuremberg which prosecuted ‘crimes against peace’ and deemed the crime of aggression as ‘the Supreme crime’; (3) essentially reinforcing the core norm against aggressive use of force found in article 2(4) of the UN Charter; and (4) supporting international peace and security”). 16. ASP—Aggression Activation Resolution, supra note 13, § 2 (limiting the Court’s R jurisdiction to only those states who have “opted in” to the Court’s jurisdiction by way of ratifying the Kampala Amendments). This makes the Court’s jurisdiction over the crime of aggression more limited than the other three core ICC crimes. For example, if a national of a non-State Party commits an act of genocide on the territory of a State Party, the Court will have jurisdiction. This, however, is not the case with respect to aggression. The Court cannot exercise jurisdiction over the national of the non-State Party, even if a State Party was the victim of aggression, unless the Security Council refers the matter or the non-State Party consents. See Rome Statute, art. 15(5); see also Jennifer Trahan, Historic Activation of the International Crime of Aggression: The Assembly of States Parties Decides to Activate the ICC’s 4th \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 5 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 235 characterize activation as a symbolic gesture17 or urge the Court to pursue Security Council referrals to augment the Court’s jurisdictional limitations.18 These responses should not guide the Court. It is time to move beyond celebrations and lamentations. Instead, we should treat this period between activation and the first HOS prosecution as a strategic opportunity to cultivate the Court’s legitimacy and to develop a normative framework to maintain it. The Court will need both in order to meet the challenges ahead.19 In particular, Heads of State have and will continue to be indicted by the Court.20 This is not to impugn world leaders. It is to acknowledge that they have a powerful arsenal of military, politi-

Crime, INT’L JUDICIAL MONITOR (Fall 2017), http://www.judicialmonitor.org/fall2017/ specialreport1.html; BROOMHALL, supra note 4, at 81. R 17. See Melissa Tessler, Despite Recent Accomplishments, Many Challenges Ahead for the International Criminal Court, OPEN CANADA (Jan. 26, 2018), https://www.opencanada.org/ features/despite-recent-achievements-many-challenges-ahead-international-criminal-court/; Whiting, supra note 13. R 18. Trahan, supra note 15. These criticisms could be rooted in basic deterrence the- R ory, where it is argued that “[i]n order to deter future aggressors and ensure future peace, we must be willing to absorb short-term costs. To earn a reputation for resoluteness, or to avoid one of irresoluteness, we must signal our firmness to allies and adversaries by fighting today.” JONATHAN MERCER, REPUTATION AND INTERNATIONAL POLITICS 2 (Cornell University Press 1996). Nevertheless, this posture is premature in both the aggression and Head of State (HOS) prosecution contexts. 19. The Court must build its capacity before it can achieve true and meaningful deterrence. See Jennifer Schense & Linda Carter, Findings and Recommendations, in TWO STEPS FORWARD, ONE STEP BACK: THE DETERRENT EFFECT OF INTERNATIONAL CRIMINAL TRIBUNALS 327, 346 (Nuremberg Academy Series Vol. I 2017) (arguing that the Court has only been able to achieve short-term and ephemeral deterrence. Referring to Darfur, the authors note that in the beginning, “the regime and Bashir and everyone was afraid. When Bashir and the others found out that the ICC doesn’t have police or international forces, then they returned to business as usual. The deterrent effect diminished when no arrests followed the issuance of warrants.”). In fact, deterrence plays a role in ultimate crime prevention, and prevention requires moral and legal norms; institutions that make the norms credible; and a culture that allows the norms to exist. Dan Saxon, The International Criminal Court and the Prevention of Crimes, in THE RESPONSIBILITY TO PREVENT 119–20 (Serena K. Sharma & Jennifer M. Welsh eds., Oxford University Press 2015). Thus, the Court should develop HOS aggression prosecution norms, and through that process, the Court’s legitimacy, so that it will one day be capable of achieving this preventative effect. 20. See Fanny Benedetti & John L. Washburn, Drafting the International Criminal Court’s Treaty: Two Years to Rome and an Afterward on the Rome Diplomatic Conference, 5 GLOBAL GOV- ERNANCE 1, 3 (Jan.–Mar. 1999) (“Atrocities in Yugoslavia, Rwanda, Cambodia, and else- where demonstrated to international public opinion that military and political responses to genocide, war crimes, and crimes against humanity were insufficient. Such responses were, and would be, rarely adequate in themselves. Even when they did succeed in stop- ping violence and conflict, they offered no satisfactory way to deal with leaders and their closest followers who gained and kept power by manipulating peoples through deep but often half-forgotten mutual hatreds into atrocities against each other.” (emphasis added)). See Mary Robinson, Fore- word, in PROSECUTING HEADS OF STATE (Ellen L. Lutz & Caitlin Reiger eds., Cambridge \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 6 3-SEP-19 10:26

236 The Geo. Wash. Int’l L. Rev. [Vol. 51 cal, and economic tools at their disposal that intensifies the scope and impact of their crimes when they choose to resort to such means.21 This brings Heads of State squarely within the Court’s ‘serious crime/most responsible’ mandate as well as its primary goals noted above.22 At the same time, HOS prosecutions are fraught. The power and influence that make crimes directed by Heads of State so deadly also insulate them from investigation and arrest. In fact, there has been only one successful HOS prosecution (in terms of compliance with ICC procedures and requests). It is the case against the former president of Cote d’Ivoire, Laurent Gbagbo, who was charged after he had been removed from power. He was surrendered to ICC custody, and his trial began in 2016.23 In contrast, the Court has been unable to bring into custody three sitting Heads of State: President Muammar Gaddafi of Libya,24 President Uhuru Kenyatta of Kenya, and recently ousted

University Press 2009) (noting the trend, which began in 1990, of holding senior officials responsible for mass atrocities). 21. For example, the charges against former Sudanese President Al-Bashir reflect a criminal law theory of perpetration-by-means. “[A]lthough most legal systems criminalize a situation in which a person uses an ‘innocent agent’ to commit a crime, the Rome Stat- ute’s version of perpetration-by-means . . . focuses on the perpetrator’s control over a hier- archical organization.” See, e.g., Kevin Jon Heller, A Sentence-Based Theory of Complementarity, 53 HARV. INT’L L.J. 85, 102 (2012). 22. Indeed, one can see how successful prosecution will remove high-ranking offenders from power in a way that may not have been available domestically (both in terms of the result and the manner in which it is achieved). This outcome, in turn, achieves several of the Court’s aims. It brings an end to the leader’s impunity, limits the infliction of future harm, and creates a historical record of the situation. Given the high-profile nature of Head-of-State crimes and the subsequent prosecutions, success on this front also serves a greater normative function. 23. See also Prosecutor v. Laurent Gbagbo, ICC-02/11-01/15 (Jan. 28, 2016), https:// www.icc-cpi.int/cdi/gbagbo-goude#icc-timeline. The vast number of cases in domestic and other international tribunals also seem to focus on former Heads of State or government. Robinson refers to more than sixty indictments in domestic and other international tribunals from 1990 to 2009; however, she expressly states that these cases all were against former Heads of State or Government. Robinson, supra note 20, at xvi. Lutz and Reiger note just R a slightly higher number (67) when counting both current and former Heads of State or Government. Ellen L. Lutz & Caitlin Reiger, Introduction, in PROSECUTING HEADS OF STATE, supra, note 20, at 12. In terms of those who were charged, most came from Latin America R (48%) and Africa (23%), whereas only 15% were from Europe, 11% were from Asia, and 3% were from the Middle East. Id. at 12–13. Unfortunately, of these individual proceedings, only half proceeded to trial. Of those, half of the defendants were convicted, and half of those convicted served a sentence. Id. at 14. 24. Gaddafi’s official title is uncertain. Some referred to him as President, but he preferred other self-fashioned titles, including “King of Kings” and “Brotherly Leader and Guide of the First of September Great Revolution of the Socialist People’s Libyan Arab Jamahiriya.” Libya’s Gaddafi: A Man of Many Titles, AL ARABIYA NEWS (Apr. 1, 2009), https:/ /www.alarabiya.net/articles/2009/04/01/69716.html [hereinafter Libya’s Gaddafi]. \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 7 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 237

President Al-Bashir of Sudan. Gaddafi was never brought into custody. His case was closed after he was killed by opposition forces.25 However, the Court’s inability to obtain custody over Saif Gaddafi, Libya’s former second-in-command and Muammar’s son,26 furthers the point and suggests what may have been the result of Muammar’s prosecution. Kenyatta was elected, in part, because of the ICC proceedings against him. Then, amid charges of witness interference, the case was closed due to lack of evidence,27 and those charged with offences against the administration of justice remain at large.28 Finally, Al-Bashir remains at large ten years after he was indicted.29 These impasses and outright failures negatively impact the Court’s legitimacy.30 The Court has been asked recently to assess how it can fulfill its basic function—pursuing “high-profile cases against powerful people accused of serious crimes.”31 Given the Court’s reliance on state cooperation, a related concern is the international community’s apathy or lack of political will with respect to the Court’s most challenging cases.32 These HOS cases also have brought the Court into conflict with ICC member states who were instrumental in bringing the Court to

25. Prosecutor v. Saif Al-Islam Gaddafi, ICC-01/11-01/11, https://www.icc-cpi.int/ libya/gaddafi. 26. Id. 27. Prosecutor v. Uhuru Muigai Kenyatta, ICC-01/09-02/11, https://www.icc-cpi.int/ kenya/kenyatta. 28. See Prosecutor v. Water Barasa, ICC-01/09-01/13, https://www.icc-cpi.int/kenya/ barasa; Prosecutor v. Paul Gicheru and Philip Kipkoech Bett, ICC-01/09-01/15, https:// www.icc-cpi.int/kenya/gicheru-bett. 29. Prosecutor v. Omar Hassan Al-Bashir, ICC-02/05-01/09, https://www.icc-cpi.int/ darfur/albashir. 30. Kamore Maina, Kenya—ICC Starts Investigation into Witness Tampering in Kenyatta, Rufo, Sang Cases, (Jan. 30, 2017), http://www.informereastafrica.com/node/182#sthash. Bk24rPJ1.dpbs; OPEN SOC’Y JUSTICE INITIATIVE, BRIEFING PAPER: WITNESS INTERFERENCE IN CASES BEFORE THE ICC (Nov. 2016), https://www.opensocietyfoundations.org/sites/ default/files/factsheet-icc-witness-interference-20161116.pdf [hereinafter Kenya Briefing Paper]; How Libya Became the International Criminal Court’s Latest Failure, CONVERSATION (Aug. 6, 2015), http://theconversation.com/how-libya-became-the-international-criminal- courts-latest-failure-45389; David Hoile, ICC: The Failure That Keeps on Failing, NEW AFRICAN MAG. (Mar. 23, 2015), https://newafricanmagazine.com/opinions/icc-failure-keeps-fail ing/; ICC on Trial as it Takes on a President, CONVERSATION (Oct. 8, 2014), http://theconver sation.com/the-international-criminal-court-on-trial-as-it-takes-on-a-president-32628; see, e.g., ICC: Hopes for Justice Set Back, HUM. RTS. MAG. (Dec. 5, 2014), https://www.hrw.org/ news/2014/12/05/icc-hopes-justice-set-back. 31. ICC: Hopes for Justice Set Back, supra note 30. R 32. See Mark Kersten, Protecting the Story-Line: Why Kenya Refuses to Surrender Witness Intimidation Suspects to the ICC, JUSTICE IN CONFLICT (Apr. 2016), https://justiceincon flict.org/2016/04/28/protecting-the-story-line-why-kenya-refuses-to-surrender-witness-in timidation-suspects-to-the-icc/. \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 8 3-SEP-19 10:26

238 The Geo. Wash. Int’l L. Rev. [Vol. 51 fruition.33 The Al-Bashir case is a prime example. The recently ousted president traveled to over seventy-five countries after warrants were issued for his arrest in 2009 and 2010. Nevertheless, no state honored the warrants or the numerous ICC cooperation requests.34 The Court publicly has named many states for their recalcitrance, including Chad, Congo, Djibouti, Ethiopia, Jordan, Kenya, Mauritania, Morocco, South Africa, Sudan, and Uganda.35 The African Union (A.U.) has weighed in on the fray, calling for the Al-Bashir case to be terminated; for members not to honor the ICC’s arrest warrants; and for all members to consider the ICC Withdrawal Strategy.36 African leaders also have urged immunity for Heads of State and the rejection of the Court’s proposal that peacekeepers execute arrest warrants.37 Most recently, the Repub- lic of Burundi has become the first state to withdraw from the Rome Statute,38 and Kenya has urged the U.N. General Assembly

33. For example, many African States were members of the Like-Minded Group (LMG), which grew in influence and in size (from forty-two to sixty countries) during the Rome Conference. This group is credited with bringing the Rome Statute to fruition, despite competing efforts by some of the permanent members of the United Nations Security Council, including the United States and the Non-Aligned Nations, including India. Benedetti & Washburn, supra note 20, at 30–32. R 34. Tessler, supra note 17. R 35. See, e.g., Prosecutor v. Omar Hassan Al-Bashir, ICC-02/05-01/09, Report of the Registry on Information Received Regarding Omar Al-Bashir’s Travels to States and Non- States Parties from 22 July 2016 to 8 August 2016 (Sept. 9, 2016) [hereinafter Al-Bashir Report]. 36. See African Union, Assembly of the Union, Draft Decision on the International Crimi- nal Court, Doc. EX.CL/1006(XXX), at 30–31 (Jan. 2017), https://www.hrw.org/sites/ default/files/supporting_resources/assembly_au_draft_dec._1_-_19_xxviii_e.pdf [hereinafter African Union, 2017 Draft Decision]. 37. African Union, Union Open-Ended Ministerial Committee of Ministers of Foreign Affairs on ICC, Summary Report, §§ iii, iv (Apr. 2016), https://www.hrw.org/sites/de fault/files/supporting_resources/summary_report_of_the_african_union_open_ended_ ministerial_committee_of_ministers_of_foreign_affairs_on_icc.pdf. 38. Burundi has withdrawn from the Rome Statute effective October 2017. See Depos- itary Notification, Oct. 27, 2016, C.N.805.2016.TREATIES-XVIII.10, https://treaties.un.org /doc/publication/cn/2016/cn.805.2016-eng.pdf. This country, which is bordered by Rwanda, Democratic Republic of Congo, and Tanzania, has a history of armed conflict, human rights violations, and election violence. A spokesperson for the president’s office lauded its withdrawal: “The ICC has shown itself to be a political instrument and weapon used by the west to enslave other states . . . This is a great victory for Burundi because it has defended its sovereignty and national pride.” Agence France-Presse, Burundi Becomes First Nation to Leave the International Court, GUARDIAN (Oct. 27, 2017), https://www.theguardian. com/law/2017/oct/28/burundi-becomes-first-nation-to-leave-international-criminal-court. Activists took a different approach and see the withdrawal as a “major blow to international justice. The decision to withdraw Burundi from the Rome Statute comes at a time when the machine continues to kill with impunity in Burundi.” Id. The ICC responded just days later by authorizing the Prosecutor to launch an investigation into crimes against humanity occurring in Burundi and the surrounding region. Situation in the Republic of Burundi, \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 9 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 239 to seek an advisory opinion from the International Court of Justice (ICJ) regarding HOS immunity.39 Prosecuting the crime of aggression adds a new and troubling dynamic to this already fraught situation. The crime of aggression is defined in Article 8 bis of the Rome Statute as follows: The planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.40 Thus, by virtue of the power and authority required to engage in such criminality, it is, by definition, a leadership crime. “Unlike other international crimes, the crime of aggression links individual criminal responsibility to the wrongful act of a State,”41 and this is

ICC-01/17, https://www.icc-cpi.int/burundi; Press Release, ICC, ICC Judges Authorise Opening an Investigation Regarding Burundi Situation (Oct. 27, 2017), https://www.icc- cpi.int/Pages/item.aspx?name=PR1342. 39. Walter Menya, Kenya Pushes Africa Agenda on Immunity for Its Heads of State, DAILY NATION (Sept. 9, 2018), https://www.nation.co.ke/news/Africa-agenda-on-immunity-for- its-heads-of-State/1056-4750340-wtqap3z/index.html. 40. Amendments to Rome Statute of the International Criminal Court on the Crime of Aggression, Amendment 2 (Kampala, Uganda) (Jun. 11, 2010), https://asp.icc-cpi.int/ iccdocs/asp_docs/RC2010/AMENDMENTS/CN.651.2010-ENG-CoA.pdf. The amendments also defined an “act of aggression,” for the purpose of the crime, as: [T]he use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a dec- laration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; 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; c) The blockade of the ports or coasts of a State by the armed forces 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; e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. Id. § 2.2 (a)–(g). 41. DOUGLAS GUILEFOYLE, INTERNATIONAL CRIMINAL LAW 291 (Oxford University Press 2016). Indeed, some aspects of the historical definition of the crime relate only to state responsibility. See G.A. Res. 3314 (XXIX), Definition of Aggression (Dec. 14, 1974); Sean D. Murphy, The Crime of Aggression at the ICC, in OXFORD HANDBOOK ON THE USE OF FORCE 8–9 (Marc Weller ed., Oxford University Press 2013). \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 10 3-SEP-19 10:26

240 The Geo. Wash. Int’l L. Rev. [Vol. 51 the first time that a permanent international criminal court will have jurisdiction to pursue such criminality.42 Noted international law scholar Sean Murphy has warned: Given the lack of bright lines, given the extraordinary public- ity attendant to transnational uses of force, and given the ines- capable focus on senior government officials with respect to the crime of aggression, it appears possible that the Court will be an enormous lightening rod for intense political scrutiny with respect to any transnational use of force that falls within the scope of its jurisdiction. To the extent that some observers think the current ICC case against Sudan’s President Omar Al-Bashir, and the adverse reaction of many States Parties to that case, is damaging the Court, one can imagine the same scenario potentially playing out multiple times in the context of demands for criminal charges against sitting [H]eads of State or Govern- ments across the globe for aggression.43 In short, the Court now has jurisdiction over the most significant international crime, but executing jurisdiction before resolving legitimacy pitfalls could render the Court “a weapon that can reinforce political divides and amplify political struggles at both a national and international level.”44 As a result, this Article evaluates activation consequences and next steps through the lens of legitimacy theories. This approach is meaningful because legitimacy is outcome determinative,45 and it is difficult to earn and maintain.46 Section II identifies four legitimacy pitfalls that will undermine HOS prosecutions if left

42. 20th Anniversary Universality Statement, supra note 11, at 2 (“The principle that it R is illegal for one State to aggressively wage war on another State has long been enshrined in international law and is at the heart of the Charter of the United Nations. Until recently, however, it was almost impossible to hold the persons in leadership positions— whether military or political—that are responsible for such wars to account. But [as of July 17, 2018], that will change[,] . . . marking the first time that humanity has a permanent international court with the authority to hold individuals accountable for the commission of the worst forms of the illegal use of force.) See also BROOMHALL, supra note 4, at 20 R (noting the Court’s adherence to the four Nuremberg Principles—namely, individual criminal responsibility; an inability to rely on one’s status or national law to excuse or mitigate one’s responsibility; and the application of enforcement jurisdiction). 43. Murphy, supra note 41, at 39. R 44. CHAZAL, supra note 8, at 27. R 45. See generally Yvonne McDermott & Wedad Elmaalul, Legitimacy, in RESEARCH HAND- BOOK ON INTERNATIONAL COURTS AND TRIBUNALS 229–45 (William A. Schabas & Shannon- brooke Murphy eds., Edward Elgar Publishing 2017). 46. Marlies Glasius, What Is Global Justice and Who Decides? Civil Society and Victim Responses to the International Criminal Court’s First Investigations, 31:2 HUM. RTS. Q. 496, 497 (2009) (“[W]hile the ICC could not have been established without the support of states, it is a creation of global civil society. As such, it needs to work much harder than national courts to gain legitimacy. In each of its early cases, it will be not just the suspect but also the Court itself which is on trial.”). \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 11 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 241 unresolved. First, there is a need to build the nature and number of participating states. Second, there is a lack of consensus regarding complementarity. It is a thorny exercise to evaluate a state’s ability or willingness to prosecute when the state’s ultimate decision maker also is involved in the ICC’s examination. Third, the Article examines the Court’s lack of efficacy regarding the Gaddafi, Kenyatta, and Al-Bashir prosecutions to identify underpinnings that should inform future action. Finally, the Section ends with a discussion of procedural fairness concerns that will be raised if these input and consent gaps are not filled. To address these legitimacy gaps, Section III suggests that the Office of the Prosecutor (OTP) adopt a prosecutorial framework (Prosecutorial Framework) involving a revised decision-making process and the identification of broader, more collaborative actions to promote the Court’s long-term capacity. Rather than turn to the fragmented Security Council, the OTP should consult participating States Parties to rebuild the ‘new global order’ that gave the Court life in Rome in 1998. Constructivist norm building that produces successful HOS prosecutions is a critical need, and the new Prosecutorial Framework described in this Section would achieve this end. Again, the true course of action is to begin in earnest the process of building the Court’s legitimacy with respect to HOS prosecutions so that it is prepared to meet its obligations when the first prosecution for aggression occurs. Those who support the Court and believe in its mandate should welcome the space within which the Court can ready itself for the challenges to come.

II. LEGITIMACY GAPS IN HOS AGGRESSION PROSECUTIONS The challenges that the Court must overcome to ready itself to examine, investigate, and prosecute the crime of aggression are perhaps best understood through the lens of legitimacy theories. HOS aggression cases provoke a daunting tension: the demands of justice versus the need to avoid conduct that might disrupt the highest institutions of the target State47 or the Court’s ability to engage in positive complementarity.48 It will take a powerful

47. Paola Gaeta, Official Capacity and Immunity, in THE ROME STATUTE OF THE INTERNA- TIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, 988 (Antonio Cassese et al. eds., Oxford University Press 2002). 48. Scholars note a second function of complementarity that brings the ICC and domestic courts together in a legal framework to complement and reinforce each other. Carsten Stahn, Complementarity: A Tale of Two Notions, 19 CRIM. L.F. 87, 91 (2008). Bos \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 12 3-SEP-19 10:26

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Court, imbued with unquestioned legitimacy, to strike the appropriate balance, especially when the aggressor state and her leaders are likely to argue that the use of force was not aggression but the lawful act of a sovereign State exercising one of its most fundamental rights.49 In this way, legitimacy is the lynchpin to the Court’s success.50 It is outcome-determinative. It also is difficult to obtain and maintain. Here, the Court is still building its legitimacy generally and is just taking its initial steps with respect to the crime of aggression. In other nascent periods, scholars have warned: “[W]hile the ICC could not have been established without the support of states, it is a creation of global civil society. As such, it needs to work much harder than national courts to gain legitimacy. In each of its early

described this aspect of complementarity “as a bridge between international and national jurisdictions.” Adrian Bos, Foreword, in THE EMERGING PRACTICE OF THE INTERNATIONAL CRIMINAL COURT xvii (Carsten Stahn & Goran¨ Sluiter eds., Martinus Nijhoff 2009). Others refer to it as “positive complementarity.” Luis Moreno-Ocampo, A Positive Approach to Com- plementarity: The Impact of the Office of the Prosecutor, in THE INTERNATIONAL CRIMINAL COURT AND COMPLEMENTARITY FROM THEORY TO PRACTICE, VOL. I, 21, 23 (Carsten Stahn & Mohamed M. El Zeidy eds., Cambridge University Press 2011). In this context, the Court is in a positive, constructive partnership with states who are genuinely investigating and prosecuting crimes. Here, the Prosecutor can: Encourage the State concerned to initiate national proceedings, help develop cooperative anti-impunity strategies, and possibly provide advice and certain forms of assistance to facilitate national efforts. There may also be situations where the Office of the Prosecutor (OTP) and the State concerned agree that a consensual division of labour is in the best interests of jus-tice: for example, where a conflict-torn State is unable to carry out effective proceedings against persons most responsible. ICC, Informal Expert Paper, The Principle of Complementarity in Practice, ICC-01/04-01/ 07-1015-Anx, ¶ 3, https://www.icc-cpi.int/RelatedRecords/CR2009_02250.PDF [hereinafter Informal Expert Paper on Complementarity]. More recently, the term has been used to describe the involvement of states, international organizations, and civil society in strengthening justice at the national level. Morten Bergsmo et al., Complementarity after Kampala: Capacity Building and the ICC’s Legal Tools, in ACTIVE COMPLEMENTARITY: LEGAL INFORMATION TRANSFER 3, 4 (Torkel Opsahl Academic EPublisher 2011), http://www.fichl. org/fileadmin/fichl/documents/FICHL_8_Web.pdf. 49. GUILEFOYLE, supra note 41, at 301 (noting that “any grey areas may provide an R opportunity for states and their leaders to make a case justifying the use of force, thereby constituting a possible defence to a claim that they have committed the crime of aggression”). As one scholar has noted, “[T]he right of self-defense, as one of the two justifica- tions of the legality of the use of force, is under deep-rooted conceptual doubt. Any misuse of the right of self-defense by state actors forms the actus reus of the crime of aggression. So, the right of self-defense being arbitrarily interpreted can, in practice, lead to devastating consequences.” Salar Abbasi, A Conceptual Incongruence Between International Law of Self-Defense and the International Core Crime of Aggression, 6 PENN. ST. J.L. & INT’L. AFF. 179, 199 (2018). 50. See generally McDermott & Elmaalul, supra note 45, at 229–45. R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 13 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 243 cases, it will be not just the suspect but also the Court itself which is on trial.”51 This Section focuses on two related legitimacy theories. The first is the theory of constitutive legitimacy, which involves the manner in which an adjudicative body is created (i.e., input or consent legitimacy)52 and the community’s ultimate acceptance of and participation in the entity’s processes (i.e., its efficacy).53 The second theory is the theory of process legitimacy, which involves procedural fairness.54 In the context of these theories, there are several specific legitimacy gaps that will impact the Court’s ability to pursue aggression cases.55 First, the Court should address consent and input concerns related to the relatively small number of states participating in the Kampala Amendments and undeveloped norms regarding the application of the complementarity principle in the aggression context. Second, the Court should address efficacy concerns regarding its paradoxical power structure and its three attempts to bring sitting Heads of State within the custody of the Court. Finally, failure to address these consent and efficacy concerns can implicate negatively the perception of procedural fairness.

A. Input Legitimacy: Challenges Related to Consent Again, input legitimacy refers to the process by which a tribunal is created—specifically, whether constituents have the opportunity to express input and consent, such that the tribunal’s actions reflect the “authentic preferences” of those subject to its power.56 At the international level, one would ask whether states participated in the creation of the entity; whether they were in a position to offer their input as equal sovereigns; and whether they ultimately consented to the creation of the entity via treaty or other agreement.57

51. Glasius, supra note 46, at 496–97. R 52. KLAUS DINGWERTH, THE NEW TRANSNATIONALISM: TRANSNATIONAL GOVERNANCE AND DEMOCRATIC LEGITIMACY 15 (Palgrave Macmillan 2007). 53. McDermott & Elmaalul, supra note 45, at 229. R 54. Id. at 229, 235. 55. The term “cases” refers generally to the examination and investigation of situations and the prosecution of a case. While the distinction is important, the generic term is used here for ease of reference. 56. McDermott & Elmaalul, supra note 45, at 229 (citing FRITZ SCHARPF, GOVERNING IN R EUROPE: EFFECTIVE AND DEMOCRATIC? 6 (Oxford University Press 1996)). 57. Id. at 230 (citing Lee A. Casey & David B. Rivkin, Jr., The Limits of Legitimacy: The Rome Statute’s Unlawful Application to Non-State Parties, 44 VA. J. INT’L. L. 63, 66 (2003–2004)). But see ALAN BUCHANAN, JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 14 3-SEP-19 10:26

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In this context, activation of the crime of aggression raises two troubling contrasts between the Court’s origins and the Court’s current position—specifically, the number and nature of participating states and undeveloped norms regarding complementarity, which is a bedrock principle of the Court that does not fit easily into the HOS aggression context.

1. The Number & Nature of Participating States The nature and relatively small number of states participating in the Kampala Amendments reinforce the argument that normative development must occur before successful HOS aggression proceedings can transpire. Of the 123 ICC Member States,58 only thirty-eight presently come within the Court’s jurisdiction with respect to the crime of aggression.59 As one might expect, these initial adopters are unlikely to be the focus of an aggression claim. Instead, they are those most likely to benefit from the potential deterrent effect of aggression prosecutions.60 In terms of consent then, there is a disconnect between those who have consented to the Court’s jurisdiction and those over whom the Court might

MORAL FOUNDATION FOR INTERNATIONAL LAW 303–304 (Oxford University Press 2004) (arguing that state consent is not a sufficient or necessary ground by which to confer international legitimacy, particularly in light of bargaining inequities and power asymmetries). 58. The States Parties to the Rome Statute, ASSEMBLY OF STATES PARTIES, https://asp.icc- cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the %20rome%20statute.aspx. 59. 10.b. Amendments on the Crime of Aggression to the Rome Statute of the International Criminal Court, U.N. TREATY COLLECTION, https://treaties.un.org/pages/ViewDetails. aspx?src=TREATY&mtdsg_no=XVIII-10-b&chapter=18&clang=_en [hereinafter Kampala Participants] (last visited Apr. 19, 2019). There had been extensive debate whether to adopt a wide view of jurisdiction, like that for the three other core ICC crimes, or a narrow view, which restricts jurisdiction in cases of state referral or proprio motu investigations, to those states who have ratified or accepted the Kampala Amendments. The narrow view, which was espoused by France, U.K., Japan, Canada, Norway, and Colombia, prevailed. Dapo Akande, The International Criminal Court Gets Jurisdiction Over the Crime of Aggression, EJIL: TALK! (Dec. 15, 2017), https://www.ejiltalk.org/the-international-criminal-court-gets- jurisdiction-over-the-crime-of-aggression/. 60. See Kampala Participants, supra note 59. The 38 states are Andorra, Argentina, R Austria, Belgium, Botswana, Chile, Costa Rica, Croatia, Cyprus, Czech Republic, El Salva- dor, Estonia, Finland, Georgia, Germany, Guyana, Iceland, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Panama, Paraguay, Poland, Portugal, Samoa, San Marino, Slovakia, Slovenia, Spain, State of Palestine, Switzerland, The former Yugoslav Republic of Macedonia, Trinidad and Tobago, and Uruguay. Some of these countries have relatively small military budgets (e.g., the newly named Republic of North Macedonia, which ranks 117 of 136 listed countries). Defense Spending by Country, GFP, https:// www.globalfirepower.com/defense-spending-budget.asp (last visited Sept. 20, 2018). Others do not have a history of aggression (e.g., Switzerland & Liechtenstein) or have a history of being invaded (e.g., Cyprus & Georgia). \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 15 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 245 need to exercise jurisdiction.61 In this way, the Court lacks the power that was deemed instrumental twenty years ago with respect to ICC prosecutions generally.62 This leaves the very real possibility that the first aggression situation will come before the Court via Security Council referral involving the actions of a non-Kampala participating state and its Head of State. The inquiry could focus on an ICC Member State who has not ratified the Kampala Amendments on aggression or a nation that has rejected both the Rome Statute and the Kampala Amend- ments. In any event, these states expressly have withheld consent, either in whole or in part, to the multilateral treaty regime that has created and shaped the Court. Thus the Security Council would be imposing on these states legal requirements regarding HOS immu- nity63 and the scope of the crime of aggression64 that differ from their existing legal obligations. Asserting Chapter VII powers is one thing; mandated participation in a treaty regime that differs from international custom and domestic law is another in terms of the input and consent factors that are at the root of constitutive legitimacy. For example, the legitimacy of the ICJ is bolstered by the fact that it was established by the U.N. Charter, which enjoys universality. In addition, states consent to the Court’s jurisdiction and the scope of its review.65 In contrast, the Nuremberg, Tokyo, Yugoslav, and Rwandan tribunals were subject to criticism because they lacked this fundamental element of consent—they were perceived to be the product of “vic-

61. This also is consistent with ICC membership generally, where states in the most conflict-prone regions are not member states. Firew Kebede Tiba, Regional International Criminal Courts: An Idea Whose Time Has Come?, 17 CARDOZO J. CONFLICT RES. 521, 523 (2016). 62. BROOMHALL, supra note 4, at 83 (noting how “the basic jurisdictional features of R the Rome Statute [such as territorial or nationality jurisdiction, automatic jurisdiction upon ratification, and prohibiting reservations] have a direct effect on the ability of the Court to promote effective, regular accountability for the core crimes of international criminal law”). 63. See infra Section II.B.3.c (comparing domestic and international laws that grant immunity to Heads of State and the Rome Statute, which does not). 64. If certain resolutions and cases are found to reflect customary international law, then there is a difference between custom and the Rome Statute regarding the crime of aggression. Custom takes a broader view of who may be indicted compared to the ICC’s approach, which is focused on control rather than mere involvement or participation. GUILEFOYLE, supra note 41, at 294–95. On the other hand, the ICC’s definition of the R crime is broader and includes acts of aggression, whereas custom refers to a war of aggression. Id. at 295–97. See generally Murphy, supra note 41 (detailing the various challenges R raised by the ICC’s approach to the crime). 65. Statute of the International Court of Justice, art. 36 (1946). \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 16 3-SEP-19 10:26

246 The Geo. Wash. Int’l L. Rev. [Vol. 51 tors’ justice”66 or Security Council mandate.67 To be clear, these tribunals were legitimate. The point is that they were vulnerable to criticism, and in the complex area of aggression, the ICC is likely to be less capable of withstanding such criticism because it does not enjoy the primacy status of these other tribunals.68 With respect to primacy, some experts have gone so far as to suggest that the Security Council use its Chapter VII powers to cir- cumvent admissibility concerns by compelling states to refrain from exercising jurisdiction.69 Noting the Security Council’s power to create tribunals with primary jurisdiction, they urged that it would be “retrogressive and inconsistent with the purposes of the U.N. Charter if the ICC could not be placed in a comparable situation,”70 at least in the most difficult cases. In contrast, members of the same expert panel argued that the Security Council may not possess such power and that its exercise might be counterproductive.71 Specifically, the experts noted that the Security Council does not have the power to disable states who seek to pursue erga omnes obligations and violations of jus cogens norms. The Security Council’s exercise of such power also could “alter the balance of the proper relationship between the Security Council and the ICC,”72 that the Rome Statute framers worked so

66. Critics have argued that in Nuremburg, Tokyo, Yugoslavia, and Rwanda, the powerful meted out justice for the defeated and exempted themselves from scrutiny. See Nicole Deitelhoff, The Discursive Process of Legalization: Charting Islands of Persuasion in the ICC Case, 63 INT’L. ORG. 33, 39 (2009). The “selectivity of ad hoc tribunals” also furthers the point of victors’ justice and its lack of legitimacy. Id. Specifically, tribunals were created for Yugoslavia and Rwanda (but not for Uganda or Burundi) “in order to avoid costly and risky military interventions that none of the major powers wanted.” Id. 67. McDermott & Elmaalul, supra note 45, at 230–31. R 68. See, e.g., infra Section II.B.3.c (detailing the ongoing case of President Al-Bashir of Sudan). 69. Informal Expert Paper on Complementarity, supra note 48, at 21–22 n.30. This R informal group of experts was convened in April 2003, at prosecutors’ request. They sought an “expert consultation process on complementarity in practice for the benefit of the future Chief Prosecutor and the staff of his Office.” Id. at 2. 70. Id. at 22 n.30. 71. Id. at 22. 72. Id. at 22 n.30. \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 17 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 247 hard to create.73 Such power assertions also could be open to abuse.74 This debate between objective experts presages just some of the arguments that would arise and inflame75 an already volatile HOS aggression situation. The Court should avoid these circumstances in light of their negative impact on legitimacy. In addition to the lack of consent and input, complicating an already hostile situation directly implicates the second facet of constitutive legitimacy (i.e., efficacy or the achievement of one’s goals), as discussed below. Moreover, in its current position, the Court does not yet have the capacity to defend itself against these input legitimacy claims. Specifically, there are three cooling or declining trends in terms of state consent and the ICC that would be deepened at the expense of the Court’s aim of building its legitimacy and universality. First, the thirty-eight participating states brought themselves within the Court’s mandate by virtue of their ratification or acceptance of the Kampala Amendments, but there is a negative trend in this regard. With respect to sheer numbers, deposits of acceptance or ratification instruments reached their peak in 2013 and have declined each subsequent year, with only two instruments filed in 2018.76 There also is a cooling trend with respect to ICC membership generally. Of the 123 ICC Member States, many have not enacted domestic legislation to bring their ICC obligations into the domestic sphere, which hinders their ability to execute their international obligations.77 In addition, in contrast with the Court’s goal of

73. The working papers of the Rome Statute make it clear that the ICC referral process was not intended to increase the Security Council’s influence. Luigi Condorelli & Santiago Villalpando, Referral and Deferral by the Security Council, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY,VOL. I, 629 (Antonio Cassese et al. eds., Oxford University Press 2002) (“From the very beginning of the travaux preparatoires, it was understood that this provision would make available to the Security Council the jurisdictional mechanism created by that Statute, but that it would not add to (nor restrict) the Security Council’s powers as defined in the UN Charter.”). 74. Informal Expert Paper on Complementarity, supra note 48, at 22 n.32 (“These R members felt that it would not be prudent to advocate exercise of such a power, particularly in the current international climate, where the Security Council has not always been exemplary in the battle against impunity. Exercise of such a power could easily be open to abuse.”). 75. Id. at 21, 22 nn.31–32. 76. The list that follows tracks ratification or acceptance rates since 2010. The number of deposits per annum peaked in 2013 and has declined each subsequent year. Specifi- cally, the rates are: 2010 (0); 2011 (0); 2012 (3); 2013 (11); 2014 (7); 2015 (6); 2016 (6); 2017 (3); 2018 (2); 2019 (1) as of April 2019. Kampala Participants, supra note 59. R 77. Implementing Legislation on the Rome Statute, PARLIAMENTARIANS FOR GLOBAL ACTION, http://www.pgaction.org/campaigns/icc/implementing-legislation.html (last visited Oct. 1, 2018) (noting that, as of 2014, only 65 of the 123 ICC Member States had implemented \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 18 3-SEP-19 10:26

248 The Geo. Wash. Int’l L. Rev. [Vol. 51 universality,78 there appears to be a stalemate with the remaining non-ICC Member States.79 Major world powers like the United States, Russia, and China remain opposed to the Court. Few Asian- Pacific countries have signed or ratified the Rome Statute in light of fundamental differences regarding non-interference and state sovereignty principles,80 and the A.U. has encouraged Member States to withdraw from the Court.81 The withdrawal of Burundi, the threatened withdrawal of other Member States, the perception that the Court is focused only on African situations and cases, and the assertion of jurisdiction over non-States Parties like Sudan are not likely to increase participation in the Rome Statute generally or the Kampala Amendments.82 Finally, these initial thirty-eight Kampala participating states may be unable to influence other states to consent to aggression jurisdiction or to participate in normative development unless the dynamic changes. None are permanent members of the U.N. Security Council. Indeed, the two permanent members of the Security Council who also are members of the ICC, France and the United Kingdom, have sought to limit the Court’s jurisdiction complementarity or corporation principles into domestic law and that only a handful of Kampala participating states had implemented aggression rules into the domestic sphere). 78. Assembly of States Parties, Seminar on International Criminal Justice: The Role of the International Criminal Court (May 19, 2009) [hereinafter 2009 Seminar Paper]; Assembly of States Parties, Seminar on the International Criminal Court Review Confer- ence: Key Challenges for International Criminal Justice, at v (Apr. 30, 2010) (noting that “the concept of trying to attain universal participation in the Rome Statute system is quin- tessential in order to ensure that impunity does not prevail in any part of the world”). 79. CHAZAL, supra note 8, at 12. R 80. See Steven Freeland, International Criminal Justice in the Asia-Pacific Region: The Role of the International Criminal Court Treaty Regime, 11:5 J. INT’L. CRIM. JUSTICE 1029, 1030–31 (2013) (noting the relatively low participation rates of states in the Asia-Pacific region compared to Africa, Europe, and the Americas); Amrita Kapur, Asian Values v. The Paper Tiger: Dismantling the Threat to Asian Values Posed by the International Criminal Court, 11:5 J. INT’L. CRIM. JUSTICE 1059, 1061–62 (2013) (noting the Court’s complementarity rules are in tension with fundamental ‘Asian values,’ such as non-interference in domestic affairs and def- erence for state sovereignty, that underlie inter-state relations in the Association of Southeast Asian Nations); Daragh McGreal, A Rationalist View of Rome Statute Ratification in the Pacific, 11:5 J. INT’L. CRIM. JUSTICE 1091, 1092–93 (2013) (positing that geographical isolation, geopolitics, and treaty structures may limit Pacific Island states from participating in the Rome Statute). 81. See African Union, 2017 Draft Decision, supra note 36. R 82. One scholar has remarked on the paradox that the Court “desire[s] to transcend the sovereignty of states, while simultaneously relying heavily on states for its existence and operation.” CHAZAL, supra note 8, at 34 (citing Nerida Chazal, Beyond Borders?: The Interna- R tional Criminal Court and the Geopolitics of International Criminal Justice, 14:3 GRIFFITH L.R. 707 (2013)). \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 19 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 249 regarding aggression.83 And only two Kampala participating states, Germany and Argentina, are members of the influential “Group of 20,” which is the mix of the world’s largest advanced and emerging economies that account for 2/3 of the world’s population, eighty- five percent of global gross domestic product, and seventy-five percent global trade.84 The Court will have a difficult time increasing the number of participating states, yet doing so is a necessary step toward building its capacity to investigate and prosecute aggression. While a Secur- ity Council referral might provide a short-term boon for those who are frustrated by the Court’s limited jurisdiction, relying on the Security Council as an alternative to legitimate Court power is not the answer. Doing so will only empower those who seek to dis- credit the Court in this era of rising nationalist trends. Instead, the Court must take every opportunity to promote its legitimacy by reversing the declining participation trends. Specific suggestions regarding how to accomplish this task follow in Section III.B.4. The second legitimacy concerns regarding consent and input relate to the need for normative development regarding complementarity. Addressing this gap will provide an opportunity for dialogue, which, in turn, may promote increased participation. Again, the aim is to provide the opportunity to express input and consent, such that the Court’s actions reflect the “authentic preferences” of those subject to its power.85

2. Undeveloped Complementarity Norms a. Complementarity as a First Principle Reversing the accepted primacy practices of the Nuremberg, Tokyo, Yugoslav, and Rwandan tribunals,86 the ICC’s jurisdiction is

83. Jennifer Trahan, Activation of the International Criminal Court’s Jurisdiction Over the Crime of Aggression & Challenges Ahead, OPINIO JURIS (Jul. 19, 2018), http://opiniojuris.org/ 2018/07/18/33604/. 84. G20 ARGENTINA 2018, https://web.archive.org/web/20180728010142/https:// www.g20.org/en (last visited Jul. 26, 2018). 85. McDermott & Elmaalul, supra note 45, at 229. R 86. See Prosecutor v. Tadic, Case No. IT-94-I-AR72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 58 (Oct. 2, 1995), http:// www.icty.org/x/cases/tadic/acdec/en/51002.htm (“[W]hen an international tribunal such as the present one is created, it must be endowed with primacy over national courts. Otherwise human nature being what it is, there would be a perennial danger of international crimes being [thwarted by various strategies] . . . If not effectively countered by the principle of primacy, any one of those stratagems might be used to defeat the very purpose of the creation of an international criminal jurisdiction, to the benefit of the very people whom it has been designed to prosecute.”). See also KRISTINA MISKOWIAK, THE INTERNA- \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 20 3-SEP-19 10:26

250 The Geo. Wash. Int’l L. Rev. [Vol. 51 purposefully limited. Domestic courts retain primary jurisdiction over the prosecution of international crimes,87 with the Court sup- plementing or complementing national systems rather than dis- placing them.88 In this way, the ICC is a court of last resort that is intended to step in only when a State with jurisdiction is unable or unwilling genuinely to pursue the case.89 The hope underpinning the principle is that “the establishment of an international order wherein national institutions respond effectively to international crimes [will obviate] the need for trials before the ICC.”90 This concept of complementarity is the bedrock upon which the Court was built. Although the topic was political and sensitive, complementarity was the first issue discussed on the first day of the Preparatory Committee’s first session,91 and “it would not be an over-statement to affirm that the early agreement on a complementarity regime was what made the Court possible.”92 Complementar- ity was intended to “appease those concerned with a permanent court and an independent court, [and] outreach campaigns focused strategically on the complementarity principle to assuage concerns.”93 The approach succeeded by convincing “states that

TIONAL CRIMINAL COURT: CONSENT, COMPLEMENTARITY AND COOPERATION 41 (Djoef Publish- ing 2000) (noting that the model adopted in Yugoslavia and Rwanda did not follow the pattern of equality between sovereign states. Instead, “national jurisdictions were made subjects to the primacy of the international tribunal[s].”). 87. Informal Expert Paper on Complementarity, supra note 48, ¶ 1. Noted in this R report are the now-famous remarks of the Court’s first prosecutor: “As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.” Id. at 3 (statement by Mr. Luis Moreno-Ocampo, Ceremony for the Solemn Undertaking of the Chief Prose- cutor, June 16, 2003). 88. Rome Statute, art. 17; FRY, supra note 5, at 137. R 89. See Rome Statute, art. 17. But see Cartsen Stahn, Taking Complementarity Seriously: On the Sense and Sensibility of Classical ‘Positive’ and ‘Negative’ Complementarity, in THE INTERNA- TIONAL CRIMINAL COURT AND COMPLEMENTARITY: FROM THEORY TO PRACTICE, supra note 48, R at 233, 237, 239 [hereinafter Stahn, Taking Complementarity Seriously] (noting that the Court possesses more power under the complementarity regime than was first appreciated and that implicit in the Rome Statute is an idea of shared responsibility which makes the ICC a “guardian of accountability”). 90. Informal Expert Paper on Complementarity, supra note 48, at 3. R 91. Benedetti & Washburn, supra note 20, at 5. R 92. Silvia A. Fernandez De Gurmendi, Foreword, in THE INTERNATIONAL CRIMINAL COURT AND COMPLEMENTARITY FROM THEORY TO PRACTICE, supra note 48, at xviii. R 93. Stahn, Complementarity: A Tale of Two Notions, supra note 48, at 94, 96. It should be R noted that not all agreed that this was the right approach. “[M]any left Rome with the feeling that the complementarity provisions, which failed to recognize primacy to the international jurisdiction, were a necessary but regrettable concession to national sovereignty that could weaken the future institution to some extent.” Fernandez De Gurmendi, supra note 92, at xix. R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 21 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 251 they would remain master over their own judicial proceedings, without allowing perpetrators of serious crimes to go unpunished.”94 Complementarity served as this balm because it is, at its heart, a concurrent jurisdiction framework that empowers states vis-a-vis` the Court.95 It applies only when both the Court and at least one state are competent to adjudicate the matter.96 It empowers domestic jurisdictions97 by transforming a discretionary admissibility principle into an institutional framework that allocates competencies and settles disputes over the exercise of jurisdiction.98 b. Complementarity’s Uneasy Fit in the HOS Aggression Context Despite the fundamental nature of the principle, the conceptual dimensions of complementarity have been described as “underde- veloped in their articulation and meaning”99 and suffering from a “large degree of normative ambiguity and uncertainty.”100 While this is true when speaking of the principle generally, it is even more accurate with respect to the crime of aggression, as the Spe- cial Working Group on the Crime of Aggression is criticized for giving the topic short shrift.101 This forbearance may be a matter of timing given the gap between the Rome Statute and the ASP’s

94. Bos, supra note 48, at xvii. R 95. Roger S. Clark, Complementarity and the Crime of Aggression, in THE INTERNATIONAL CRIMINAL COURT AND COMPLEMENTARITY FROM THEORY TO PRACTICE, VOL. II, 721–22 (Car- sten Stahn & Mohamed M. El Zeidy eds., Cambridge University Press 2011). 96. Id. at 723. 97. Stahn, Complementarity: A Tale of Two Notions, supra note 48, at 91-92. R 98. Id. at 91. 99. Stahn, Taking Complementarity Seriously, supra note 89, at 233 (“[C]omplementarity R is undertheorized in the Rome Statute. In the negotiations, significant attention has been devoted to specific technical issues, such as the definition of notions of unwillingness and inability or procedural challenges by states. Fundamental aspects, such as the definition of complementarity, its rationales and application, have remained unspecified.” Id. at 236 (internal citations omitted).). 100. Id. at 235. See also MISKOWIAK, supra note 86, at 45 (describing the term being used R in its earliest days as an “empty box in which one could put whatever one liked without having to reveal the intentions behind it”); Megan A. Fairlie & Joseph Powderly, Complemen- tarity and Burden Allocation, in THE INTERNATIONAL CRIMINAL COURT AND COMPLEMENTARITY FROM THEORY TO PRACTICE, supra note 48, at 644 (arguing that Article 17 fails to address a R number of key issues regarding its operation and interpretation and that the Court still has to determine its precise functioning); Ben Batros, The Evolution of the ICC Jurisprudence on Admissibility, in THE INTERNATIONAL CRIMINAL COURT AND COMPLEMENTARITY FROM THEORY TO PRACTICE, supra note 48, at 558–59 (noting the number of questions raised by the com- R plementarity and admissibility provisions and the “relatively little judicial examination” of the Court’s admissibility provisions in the Court’s early years). 101. Clark, supra note 95, at 721–22. R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 22 3-SEP-19 10:26

252 The Geo. Wash. Int’l L. Rev. [Vol. 51 aggression activation decision. It is more likely the case that the negotiations regarding the crime of aggression were sufficiently fraught102 that the additional question of aggression’s impact on complementarity was seen as a future bridge to cross. Regardless of the reason, the discussion can no longer be delayed. The basic tenets of the complementarity principle do not fit easily in the HOS aggression context. As we know, Article 17 requires the Court to gauge the existence and genuineness of investigations or prosecutions at the national level.103 “The OTP will consider first whether there are or have been any investigations or prosecutions in relation to the case and, if there is domestic action, whether it is vitiated by an unwillingness or inability to genuinely carry out proceedings.”104 If not, the domestic courts retain jurisdiction. It is only when the state is genuinely unwilling or unable to carry out the proceedings, or the case becomes inactive, that the Court will step in.105 Guidance is needed regarding the application of this principle when a sitting Head of State has participated in the aggression situation under examination or investigation. There currently is a range of options, and each favors a finding that the situation is admissible (i.e., that the Court can proceed rather than an individual state). The automatic nature of this result is troubling given the importance of the complementarity principle106 and, as discussed in the next Section below, the Court’s paradoxical power structure and inability to bring sitting Heads of State into custody. The first potential scenario is that the target state would not initiate an investigation or prosecution against her sitting Head of State for the crime of aggression. Domestic law may not permit such action, and, in the context of an armed conflict, the institutions of

102. Sadat, supra note 7, at 436–37. “Implementing jurisdiction over aggression was R the source of significant disagreement. Indeed, inclusion of aggression in the Statute threatened to derail the entire process. During the Preparatory Committee meetings lead- ing up to the Statute’s adoption, several proposals were made for including aggression in the Statute and defining it. The political obstacles to its incorporation, however, were so extensive that even some of the human rights NGOs were uncomfortable insisting upon its inclusion.” Id. The well-accepted compromise, then, was to include aggression as a crime within the Court’s mandate but to delay its implementation. Id. 103. Luis Moreno-Ocampo, supra note 48, at 23. R 104. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07- 1497, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ¶ 78 (Sept. 23, 2009). 105. Id. 106. Both the Rome Statute and the 2010 Review Conference stress the status of states as the primary actors and those with the primary duty to investigate and prosecute. See Stahn, Taking Complementarity Seriously, supra note 89, at 238. R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 23 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 253 power may support the leader’s decision to use force. In fact, the leader may have considered this level of support as part of the use of force calculus. If the leader judged correctly and that factor weighed in favor of the use of force, then it would be unlikely for the state to pursue an investigation or prosecution. (Or at least one that would pass a complementarity analysis.) If anything, the state might ‘double down’ on the alleged legitimacy of its leader’s actions. In any event, the lack of action removes the complementarity question entirely. Again, complementarity resolves concurrent jurisdiction questions. It lies dormant, and thus does not check the Court’s jurisdiction, in the absence of state action. A second option is that the use of force would open internal schisms within the target state, and it would become difficult to ascertain who is competent to make domestic decisions to investigate or prosecute. It is unclear how the Court should proceed in light of such conflict. At best, the informal expert panel urged the Court officials to be mindful of conflict between internal institutions. It noted there may be differing degrees of willingness. For example, “the judiciary may be ‘willing,’ whereas the executive is not. Investigators may be willing but an ‘unwilling’ military may frustrate and hinder investigative efforts. Unwillingness in one branch of government may create ‘inability’ in another branch attempting sincerely to investigate or prosecute.”107 Likewise, the expert panel also mentioned inability in a way that could cover HOS aggression when it advised that “obstruction by uncontrolled elements” would render a system unavailable.108 Thus each of these scenarios suggests that in the face of uncertainty, the case would be deemed admissible, and this Court of last resort would assume control. While asserting jurisdiction may be technically correct, the net result would likely place the Court in a tenuous situation. A similar difficulty could occur if the victim state attempted to investigate or prosecute a sitting Head of State for aggression or a third state did so on universal jurisdiction grounds. In this instance, the Court would not be pursuing the case as a primary actor, but it likely could be called upon to assist in a positive complementarity role. Given the complex and fraught circumstances under which these cases arise, this would be a prime instance where the Court’s support would be warranted.

107. Informal Expert Paper on Complementarity, supra note 48, ¶ 45. R 108. Id. ¶¶ 48–49. \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 24 3-SEP-19 10:26

254 The Geo. Wash. Int’l L. Rev. [Vol. 51

Nevertheless, taking such action in a time of conflict could be a dangerous enterprise—literally and, in terms of the Court’s legitimacy, figuratively. The Court would be seen as working with domestic or external forces against the sitting Head of State. And if the Court, regional actors, or minority groups within the state were seen to remove a sitting Head of State from office, it has the appearance of a Court-sanctioned change in government. This certainly shifts the Court into the political realm in a way that it has sought to avoid and in a way that detracts from its legitimacy. Finally, as noted above, experts have disagreed about whether the Security Council could use its Chapter VII powers to circum- vent admissibility concerns by compelling states to refrain from exercising jurisdiction.109 This lack of agreement between the relatively small group of experts convened to direct the Court in its complementarity practices is a microcosm of the potentially broad and fundamental disagreements regarding the application of the complementarity principle. States Parties entered into the Rome Statute with the understanding that they were the primary actors. Nonetheless, the current reading of complementarity in the HOS aggression context suggests that the Court is more than one of last resort or, at least, could be seen as having the ability to tip the scales in these extremely sensitive situations involving the use of force. Time and time again the Court has said that it is focused on the interests of justice and not the Security Council’s interest in peace and security.110 To maintain this distinction, the OTP should develop a normative framework to govern these complementarity questions so that the international community provides input and ultimately consents to the processes that will be employed. Specific suggestions are included below in Sections III.A.1. and III.B.4.a. This approach would achieve the Court’s goal of being principled, con-

109. Id. at 21, 22 n.30. This informal group of experts was convened in April 2003, at prosecutors’ request. They sought an “expert consultation process on complementarity in practice for the benefit of the future Chief Prosecutor and the staff of his Office.” Id. at 2. 110. ICC, Office of the Prosecutor, Policy Paper on the Interests of Justice 9 (2007), https://www.icc-cpi.int/NR/rdonlyres/772C95C9-F54D-4321-BF09-73422BB23528/143640 /ICCOTPInterestsOfJustice.pdf [hereinafter Interests of Justice Policy Paper]; Fatou Ben- souda, Prosecutor of the ICC, Key Note Address at the Seminar Institute for Security Stud- ies, Setting the Record Straight: The ICC’s New Prosecutor Responds to African Concerns (Oct. 10, 2012), https://issafrica.s3.amazonaws.com/site/uploads/10Oct2012ICCKeyNote Address.pdf (“I should stress here that the ‘interests of justice’ must not be confused with the interests of peace and security, which falls within the mandate of other institutions[.] The international community has put in place some clear divisions of responsibility. The UN Security Council is in charge of peace and security. The ICC is doing justice.” Id. at 5). \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 25 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 255 sistent, and fair, which in turn would enable it to fulfill its mandate and build and maintain its legitimacy.111

B. Efficacy Legitimacy: Compliance Challenges The second facet of constitutive legitimacy relates to effectiveness. Some gauge efficacy by how well the Court achieves its goals.112 Others evaluate using the lens of compliance or engage- ment in the Court’s processes.113 These elements are, at the very least, interrelated as compliance enables the Court to achieve its aims. This Section identifies two legitimacy gaps regarding efficacy: the Court’s paradoxical power structure and the extent to which this vulnerability is exacerbated in the HOS aggression context.

1. The Court’s Paradoxical Power Structure At the most basic level, the Court is tasked with the same responsibility as domestic courts in terms of adjudicating crimes, but international crimes are especially complex and difficult,114 and

111. Informal Expert Paper on Complementarity, supra note 48, at 4 (noting that the R expert group was guided by three “considerations in developing or recommending interpretations, policies, and practices. These considerations might also be considered by the OTP. An overarching consideration was to identify the approaches best supported by objective interpretations of the Statute and international law. Another consideration was to minimize unnecessary obstacles for the OTP and to facilitate its work. Another was to seek credible, reasonable approaches that would maintain the support of the international community. All three considerations ultimately lead to increasing the Court’s effectiveness.”). 112. McDermott & Elmaalul, supra note 45, at 232; Yuval Shany, Assessing the Effectiveness R of International Courts: A Goal-Based Approach, 106 AM. J. INT’L. L. 225, 233 (2012). The former president of the International Criminal Court expressed a similar sentiment in 2009: “Where the increase in attention to the Court’s work combines with a poor understanding of its mandate and functioning, there remain risks to the Court and the larger goals of the Rome Statute. These risks can take different forms. For example, now that cases are at trial, there could be heightened expectations of what the Court can do. If people expect that the Court can handle all cases of genocide, crimes against humanity and war crimes, this will inevitably lead to disappointment.” Address by Judge Sang-Hyun Song, in 2009 Seminar Paper, supra note 78, at 7. R 113. McDermott & Elmaalul, supra note 45, at 234 (citing Laurence R. Helfer & Anne- R Marie Slaughter, Towards a Theory of Effective Supernational Adjudication, 107 YALE L.J. 273, 282 (1997)); MICHAEL J. STRUETT, THE POLITICS OF CONSTRUCTING THE INTERNATIONAL CRIMINAL COURT: NGOS, DISCOURSE, AND AGENCY (Palgrave Macmillan 2008) (“[P]eople in the world must perceive [the ICC] as legal and be prepare d to accept its commands as binding.” Id. at 153.)). 114. See, e.g., Heller, supra note 21, at 102. For example, “proving a crime against R humanity not only requires investigators to tie the perpetrator to the underlying act, it also requires them to develop evidence (1) that the victim was a civilian and not a combatant; \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 26 3-SEP-19 10:26

256 The Geo. Wash. Int’l L. Rev. [Vol. 51 unlike domestic courts, the ICC must proceed without primary jurisdiction or an enforcement system. What’s more, the Court also aspires to the loftiest of goals, including ending impunity, giving voice and reparations to victims of mass atrocities, creating a historical record of these complex cases, and promoting security and human rights.115 Thus, paradoxically, an “intrinsically power- less institution[ ] aspire[s] to achieve objectives whose attainment would be a serious challenge to even the most powerful domestic counterparts.”116

2. Inherent Difficulties with HOS Prosecutions Investigating or prosecuting a sitting Head of State increases exponentially the challenges of a “standard” international criminal investigation117 given the power wielded by the executive—over people, documents, domestic juridical functions and systems, police powers, and so forth. HOS prosecutions, particularly those against executives who are still in power, also trigger the fierce sovereignty questions that stymied the development of the Court in the first place. Moreover, in the normative sense, HOS prosecutions are rare.118 Therefore, there is not a vast body of experience to guide behavior. As a result, it is perhaps not surprising that HOS prosecutions have presented such a serious challenge to the Court’s legitimacy. In fact, there has been only one successful ICC HOS prosecution

(2) that the underlying act was part of a widespread or systematic attack on civilians; (3) that the widespread or systematic attack involved a course of conduct involving multiple crimes against humanity; (4) that the multiple crimes against humanity were committed pursuant to a state or organizational policy; and (5) that the perpetrator knew of the widespread or systematic attack.” Id. And recall that this investigation occurs in a foreign country, sometimes in the context of armed conflict, where victims have been brutalized and may have difficulty recounting the events, if, indeed, they are alive to tell the tale. 115. CHAZAL, supra note 8, at 2. R 116. See Mirjan Damaska, The International Criminal Court between Aspiration and Achieve- ment, 14 UCLA J. INT’L L. FOREIGN AFF. 19, 23 (2009). 117. Domestic courts are finding it difficult to pursue investigations or prosecutions of the core crimes. The Assembly of States Parties and various Member States have noted a lack of resources, expertise, security, capacity, implementing legislation, etc. Carsten Stahn, Introduction: Bridge Over Troubled Waters? Complementarity Themes and Debate in Context, in THE INTERNATIONAL CRIMINAL COURT AND COMPLEMENTARITY: FROM THEORY TO PRAC- TICE, supra note 48, at 13. R 118. Firew Tiba, The Prosecution of Sitting Heads of States by the International Criminal Court, 21 WILLAMETTE J. INT’L. L. & DIS. RES. 134, 136 (2013); Charles Chernor Jalloh, The Law and Politics of The Charles Taylor Case, 43:3 DEN. J. INT’L L. & POLICY 229, 229 (2015). And even though there has been an increase in the number of cases since 1990, they almost always involve former Heads of State, not sitting leaders. See Robinson, supra note 23, at R xvi; Lutz & Reiger, Introduction, supra note 23, at 12. R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 27 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 257 involving the former president of Cote d’Ivoire, Laurent Gbagbo, who was charged after he had been removed from power. He was surrendered to ICC custody, and his trial began in 2016.119 In contrast, the Court has been unable to bring into custody three sitting Heads of State: President Muammar Gaddafi of Libya, President Uhuru Kenyatta of Kenya, and former President Al- Bashir of Sudan. The next Section outlines these three cases. It must be noted at the outset that these studies are not intended to present an in-depth analysis of the underlying events that brought about ICC involvement or the subsequent prosecutions. That level of detail is not possible given the scope of this work nor is it necessary in order to understand the challenges facing the Court. They are apparent, and the purpose of this Section is to lay the foundation for the Prosecutorial Framework that follows.

3. Case Studies Although these accused account for less than ten percent of all defendants who have been indicted by the Court,120 which is an admittedly small sample, these attempted prosecutions serve as stark instantiations of the risks inherent in HOS prosecutions. In terms of efficacy legitimacy in particular, the Court has been unable to achieve its mission and cannot compel compliance with its processes and procedures. a. President Gaddafi—Libya This case study will focus on the Court’s inability to bring the indicted Head of State into custody despite international support for the Court’s involvement.121 Gaddafi seized control of Libya in 1969 and remained its dictator until 2011.122 Before his final

119. Prosecutor v. Laurent Gbagbo, ICC-02/11-01/15, https://www.icc-cpi.int/cdi/ gbagbo-goude- icc-timeline. 120. The Court reports that it has indicted forty-three defendants, thus these four defendants represent 9.3% of the total. See Cases, ICC, https://www.icc-cpi.int/Pages/ cases.aspx (last visited April 29, 2018). 121. For information regarding the conflict in Libya and the international community’s involvement as a means of international crime prevention, see Ruben Reike, Libya and the Prevention of Atrocity Crimes: A ‘Controversial Success’, in THE RESPONSIBILITY TO PRE- VENT: OVERCOMING THE CHALLENGES OF ATROCITY PREVENTION 324–67 (Serena K. Sharma & Jennifer M. Welsh eds., Oxford University Press, 2015). See also Mark Kersten, Between Jus- tice and Politics: The International Criminal Court’s Intervention in Libya 1–30 (2015), http:// www.academia.edu/download/13603814/Between_Justice_and_Politics-_The_Internation al_Criminal_Courts_Intervention_in_Libya_-_FINAL.pdf (exploring the “tensions between the pursuit of justice and the politics of law” in the International Criminal Court). 122. Libya’s Gaddafi, supra note 24. R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 28 3-SEP-19 10:26

258 The Geo. Wash. Int’l L. Rev. [Vol. 51 months, however, few would have foreseen that the Court would issue arrest warrants for the Head of State, his heir apparent, and his director of intelligence.123 Libya had just been given better placement on the 2010 Failed States Index than India, Russia, Tur- key, and Mexico, and some had been lauding its improved human- rights track record.124 Nevertheless, in February 2011, in the context of the Arab Spring, Gaddafi responded to peaceful protests with brute force.125 There were wide-spread reports of violence against civilians, “with pro-Gaddafi forces indiscriminately shelling civilian areas, arresting thousands of protesters and others suspected of supporting the opposition, holding many in secret detention, and carrying out summary executions.”126 Regional actors and the broader international community quickly condemned the actions of the Gaddafi regime and called for action,127 as did Libyan officials. In fact, Libya’s most senior diplomat to the U.N. appeared with other officers to renounce the behavior and to seek protection for the Libyan people. He reported that President Gaddafi had been engaged in genocide, crimes against humanity, and war crimes.128 The Libyan diplomat also warned African nations who sent mercenaries to fight in concert with Gaddafi that they would “not see their soldiers coming back.”129 Within days, the Security Council took unanimous action and adopted Resolution 1970.130 The resolution was intended to com-

123. Kersten, supra note 121, at 457. R 124. Id. 125. FRY, supra note 5, at 113–14 (discussing the conflict in general and Libya’s R attempts to assert jurisdiction, after President Gaddafi’s death, over Saif Gaddafi and Abdullah al-Senussi (Libya’s chief intelligence officer)); Death of a Dictator: Bloody Vengeance in Sirte, HUM. RTS. WATCH (Oct. 16, 2012), https://www.hrw.org/report/2012/10/16/ death-dictator/bloody-vengeance-sirte [hereinafter Human Rights Watch—Libya]. 126. Human Rights Watch—Libya, supra note 125 MAX DU PLESSIS & ANTOINETTE R LOUW, INST. FOR SECURITY STUDIES, JUSTICE AND THE LIBYAN CRISIS: THE ICC’S ROLE UNDER SECURITY COUNCIL RESOLUTION 1970 1 (May 31, 2011), https://issafrica.s3.amazonaws.com /site/uploads/LibyaICCBrief.pdfhttps://issafrica.s3.amazonaws.com/site/uploads/Libya ICCBrief.pdf. 127. DU PLESSIS & LOUW, supra note 126, at 1 (noting the breadth of condemnation R that had been expressed, including public statements from the Organization of the Islamic Conference, the Council of the League of Arab States, the U.N. High Commissioner for Human Rights, the African Union Commission, the African Union Peace & Security Coun- cil, and the European Union Foreign Affairs Council); Kersten, supra note 121, at 458. R 128. Colin Moynihan, Libya’s UN Diplomats Break with Qaddafi, N.Y. TIMES (Feb. 21, 2011), https://www.nytimes.com/2011/02/22/world/africa/22nations.html. 129. Id. 130. See S.C. Res. 1970 (Feb. 26, 2011), http://www.un.org/en/ga/search/view_doc. asp?symbol=S/RES/1970 (2011). \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 29 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 259 plement other Security Council measures (i.e., arms embargo, asset seizures, and travel bans) aimed at checking Gaddafi’s crack- down.131 Invoking Chapter VII, the Security Council called for the immediate cessation of violence and referred the situation to the ICC.132 The resolution was praised, both for its speed and for its unanimity, although non-ICC Member States and those who oppose the Court to varying degrees did suggest a sense of unease.133 Then, in March 2011, the Security Council approved Resolution 1973 to demand a ceasefire, to authorize states to take necessary action to protect civilians (short of an occupying force), and to create a no-fly zone that states were authorized to enforce.134 This promoted divisions within the international community.135 NATO commenced airstrikes and opposition forces soon took control of the Libyan capital, Tripoli. Gaddafi fled to Sirte, where he was ultimately killed in October 2011.136 The ICC terminated its case against Gaddafi after his death; however, the Saif Gaddafi situation is relevant because it suggests what may have been the outcome of Muammar Gaddafi’s prosecution. According to the ICC, Saif was the de facto prime minister of Libya when his arrest warrant was issued.137 His case remains open, yet it is unlikely he will be taken into ICC custody any time soon. After the Gaddafi regime fell, Saif was held in Zintan, Libya. The area is controlled by a powerful militia that does not recognize the U.N.-backed government of Libya. It answers to another authority in Tobruk.138 In 2015, the U.N.-backed government convicted Saif and other pro-regime officials in absentia and sentenced them to death.139 The ICC, however, also sought to prosecute Saif and cited Libya for its refusal to surrender Saif to the Court. For exam-

131. DU PLESSIS & LOUW, supra note 126, at 1. R 132. See S.C. Res. 1970, supra note 130. 133. See Kersten, supra note 121, at 459 (noting Chinese, Russian, and Indian state- R ments that either did not mention the Court directly or were careful not to espouse direct support for intervention). 134. See S.C. Res. 1973 (Mar. 17, 2011), https://www.sipri.org/sites/default/files/ 2016-03/Libya-vote-2011.pdf. 135. See DU PLESSIS & LOUW, supra note 126, at 1. R 136. See Human Rights Watch—Libya, supra note 125, § II. R 137. Libya’s Gaddafi, supra note 24. R 138. See Chris Stephen, Gaddafi Son Saif Al-Islam ‘Freed After Death Sentence Quashed, GUARDIAN (Jul. 7, 2016), https://www.theguardian.com/world/2016/jul/07/gaddafi-son- saif-al-islam-freed-after-death-sentence-quashed. 139. See Chris Stephen, Gaddafi’s Son Saif-Al-Islam Sentenced To Death by Court in Libya, GUARDIAN (Jul. 28, 2015), https://www.theguardian.com/world/2015/jul/28/saif-al-islam- sentenced-death-by-court-in-libya-gaddafi-son. \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 30 3-SEP-19 10:26

260 The Geo. Wash. Int’l L. Rev. [Vol. 51 ple, in 2014, the Court requested Security Council’s assistance,140 and the Security Council called upon Libya to cooperate with the Court.141 When this failed to change the situation, the ICC Prose- cutor sought to communicate directly with Zintan authorities regarding Saif’s arrest.142 The Libyan government would not consent; therefore, the Court denied the Prosecutor’s request.143 As a result, Saif remained “unavailable.”144 The Libyan authorities have since dismissed Saif’s domestic sentence on amnesty grounds,145 and he was released from house arrest in 2017.146 More recently, he announced plans to run for political office in Libya.147 The ICC proceeding is stalled until the Court can obtain physical custody over him,148 and the Prosecutor has reported that the security conditions in Libya continue to deteriorate.149 In efficacy terms, the Court should evaluate its ability to achieve compliance with its procedures and to achieve its goals. To further the point, the Prosecutorial Framework in Section III compares the

140. See Prosecutor v. Gaddafi, ICC-01/11-01/11-577, Decision on the Non-Compliance by Libya with Requests for Cooperation by the Court and Referring the matter to the United Nations Security Council (Dec. 10, 2014), https://www.icc-cpi.int/CourtRecords/ CR2014_09999.PDF. 141. See S.C. Res. 2212 (Mar. 27, 2015), http://www.un.org/ga/search/view_doc.asp? symbol=S/RES/2213%282015%29. 142. See Prosecutor v. Gaddafi, ICC-01/11-01/11-624, Request for an Order Directing the Registrar to Transmit the Request for Arrest and Surrender to Mr. Al-’Ajami AL- ’ATIRI, Commander of the Abu-Bakr Al-Siddiq Battalion in Zintan, Libya (Apr. 26, 2016), https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/11-01/11-624. 143. See Prosecutor v. Gaddafi, ICC-01/11-01/11-634, Decision on the Prosecutor’s ‘Request for an Order Directing the Registrar to Transmit the Request for Arrest and Sur- render to Mr al-’Ajami AL-’ATIRI, Commander of the Abu-Bakr Al Siddiq Battalion in Zintan, Libya’, ¶ 15 (Nov. 21, 2016), https://www.icc-cpi.int/CourtRecords/CR2016 _25280.PDF. 144. Id. ¶ 6. 145. See Stephen, supra note 138. See also Saif al-Islam Gaddafi Case: ICC Calls for Arrest of R Ex-Libya Leader’s Son, BBC NEWS (Jun. 14, 2017), https://www.bbc.com/news/world-africa- 40278385. 146. See Libya: Surrender Saif al-Islam Gaddafi to the ICC: Brigade Holding Ex-Leader’s Son Alleges He’s Free, HUM. RTS. WATCH (Jun. 15, 2017), https://www.hrw.org/news/2017/06/ 15/libya-surrender-saif-al-islam-gaddafi-icc. 147. See Mohamed Osman, Saif Al-Islam Gaddafi Plans to Return to Libya’s Political Life, INT’L JUSTICE MONITOR (May 11, 2018), https://www.ijmonitor.org/2018/05/saif-al-islam- gaddafi-plans-to-return-to-libyas-political-life/; Saif al-Islam Gaddafi Publishes His Political Pro- gramme for Libya, VOLTAIRE NETWORK (Jul. 9, 2018), http://www.voltairenet.org/article 201902.html. 148. See Gaddafi Case, ICC, https://www.icc-cpi.int/libya/gaddafi (last visited Aug. 28, 2018). 149. See Fatou Bensouda, Prosecutor of the ICC, Statement of the ICC Prosecutor to the UNSC on the Situation in Libya (May 9, 2017), https://www.icc-cpi.int/Pages/ item.aspx?name=170509-otp-stat-lib. \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 31 3-SEP-19 10:26

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Court’s capacity to pursue an investigation or prosecution and the level of opposition that can be raised to contest the Court’s authority. The chart that follows below provides those details in terms of the situation in Libya. Before we begin, it is important to define terms. Court capacity and opposition are opposite sides of the same coin. Capacity considerations include the Court’s ability to compel cooperation from Member States or via the Security Council; to overcome complementarity or immunity challenges; to obtain evidence; and to conduct its work in a relatively safe environment. The level of opposition inquiry focuses on the Head of State’s ability to rally support for his or her cause. Considerations include the power of the Head of State in terms of military, judicial, economic, and pop- ular support. In addition, the Court should consider how the leader came to power; how effective he or she is; how long he or she has been in office; and the means by which the leader has remained in power (democratic elections or illicit means). Final considerations would include the stability of the target country and the surrounding region.

COURT CAPACITY Low High The violence of the Libyan civil N/A war prevented the Court from bringing President Gaddafi into custody. Libya is not a member of the Rome Statute, which limits the Court’s ability to compel its cooperation. The Security Council referred the case to the Court and has called upon Libya to cooperate; however, the situation in Libya remains unstable, and the U.N.- backed government does not have control over swaths of territory. \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 32 3-SEP-19 10:26

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There is an ongoing complementarity issue between Libya and the Court. The current government of Libya prosecuted Saif Gaddafi in absentia then later suspended the sentence. They claim they are unable to gain physical custody over Saif Gaddafi. OPPOSITION TO THE COURT’S AUTHORITY High Low President Gaddafi was a sitting N/A Head of State who had been in power for more than forty years. He refused to submit to the Court’s jurisdiction. The Zintan militia is a powerful non-state actor that refused to release Saif Gaddafi. b. President Kenyatta—Kenya The case against Uhuru Kenyatta relating to post-election violence in Kenya has been closed and is noted for its destructive impact on the Court.150 Kenyatta is the son of Jomo Kenyatta, who was the first leader to come to power after Kenya gained independence in 1963.151 Uhuru Kenyatta was the Deputy Prime Minister at the time of his indictment152 but was later elected President and used his indictment as a campaign tool. This was the first case initiated by the ICC Prosecutor rather than by a State or Security Council referral.153 Kenyatta appeared

150. See Kersten, supra note 32. R 151. Kevin Sieff, Who is Kenyatta? A Look at the Kenyan President Welcoming Obama, WASH- INGTON POST (Jul. 25, 2015), https://www.washingtonpost.com/news/worldviews/wp/ 2015/07/25/who-is-kenyatta-a-look-at-the-kenyan-president-welcoming-obama/?utm_term =.2eab70725003. 152. Prosecutor v. Uhuru Muigai Kenyatta, supra note 27. R 153. Indentation is different here but I could not fix it. COALITION FOR THE INTERNA- TIONAL CRIMINAL COURT, CASES & SITUATIONS, KENYA, http://iccnow.org/?modkenya [hereinafter COALITION—Kenya]; Carsten Stahn, Libya, the International Criminal Court and Complementarity: A Test for Shared Responsibility, 10 J. INT’L CRIM. JUST. 325 (2012) (“The OTP used domestic consent as a leverage and yardstick for the initiation of proceedings at the ICC. Following mediation efforts, the Prosecutor agreed with Kenyan authorities to priori- tize domestic justice, subject to certain conditions. The conditions were specified in the \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 33 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 263 before the Court, but the charges against him were later withdrawn due to lack of evidence.154 Some claim the case never had merit. Kenyatta denies the allegations, and others criticize the Court’s “shoddy” investigative procedures.155 Still, other commentators claim that witness interference did, in fact, undermine the Court’s case. Human Rights Watch reported that there had been “perva- sive witness interference and intimidation” in the Kenyatta case.156 Other sources confirm that interference played a role in the ultimate closure of the case.157 Key witnesses either recanted their tes- timony or reported being offered bribes to do so. Several witnesses withdrew because of security concerns, and the identity of at least one anonymous witness was released via social media. In addition, members of the gang Kenyatta allegedly solicited to perpetrate the crimes were killed or disappeared.158 Undaunted, the ICC has issued three arrest warrants for “offences against the administration of justice.” These individuals are alleged to have engaged in acts of witness tampering.159 Kenya has refused to honor the warrants, again noting the failings of the original charges against Kenyatta and stating that no Kenyan national will be prosecuted in the ICC. Kenyatta has said: “I will not allow any other Kenyan to be tried in a foreign court. As a country, we have closed the ICC chapter[.]”160 Kenya also has asked on behalf of the A.U. that the U.N. General Assembly seek an advisory opinion from the ICJ on the question of HOS immunity.161

Agreed Minutes, which set out clear benchmarks and timelines for investigations and prosecutions by the Kenyan authorities. The OTP decided to proceed with ICC investigations and prosecutions on its own motion for the first time in the history of the ICC’s proceedings, after domestic authorities failed to comply with the terms of this complementarity arrangement.”). 154. COALITION—Kenya, supra note 153. R 155. ICC: The Failure That Keeps on Failing, supra note 30. R 156. ICC: Hopes for Justice Set Back, supra note 30. R 157. Kenya Briefing Paper, supra note 30; Maina, supra note 30. R 158. ICC: Hopes for Justice Set Back, supra note 30. R 159. Prosecutor v. Uhuru Muigai Kenyatta, supra note 27. R 160. See Kersten, supra note 32 (emphasis in original). R 161. Menya, supra note 39. R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 34 3-SEP-19 10:26

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COURT CAPACITY Low High This case was initiated by the N/A Prosecutor rather than a state or the Security Council, which could reflect a lack of international support for the prosecution. Unlike other cases, President Kenyatta’s alleged crimes impacted fewer people and occurred over a shorter period of time, which makes it more difficult to obtain evidence (i.e., fewer witnesses, less physical evidence, etc.). OPPOSITION TO THE COURT’S AUTHORITY High Low President Kenyatta is the son of N/A Keyna’s first leader after it gained independence and is a sitting Head of State in his own right. He enjoys the support of his people and was democrati- cally elected, in part because of the ICC warrant. He has said that he will no longer consent to the Court’s jurisdiction. Kenya had been one of Africa’s success stories in terms of stability and prosperity. Given recent resentment regarding the Court’s focus on African defendants, one can see why African leaders would support Kenyatta and would not welcome ICC involvement. \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 35 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 265 c. Former President Al-Bashir—Sudan162 President Al-Bashir came to power in 1989 during a coup d’etat and ruled Sudan with an iron fist163 until he was removed from power in April 2019.164 Regardless of whether he will be brought into custody now, the past ten years are instructive in terms of the difficulties presented by HOS prosecutions. In terms of our inquiry, the case against him represents a series of “firsts.” This was the first situation the U.N. Security Council referred to the ICC pursuant to the Rome Statute.165 After Sudan’s repeated failure to comply with earlier U.N. mandates to cease hos- tilities, the Security Council directed the creation of an international commission of inquiry into Darfur (Commission).166 The Commission noted the number and causes of internal displace- ments and refugee claims, which numbered almost two million, and the large-scale destruction of villages throughout the three states of Darfur.167 In January 2005, the Commission reported on Sudan’s deliber- ate and indiscriminate attacks against civilians, which amounted to serious breaches of international humanitarian and human rights law; rejected Sudanese claims that their actions were rooted in counter-insurgency; and expressed alarm that the violence continued unabated, even during the course of the Commission’s mandate.168 The Commission, however, found that the Sudanese government had not carried out a policy of genocide.169

162. For additional background on Sudan, see Patrick S. Wegner, THE INTERNATIONAL CRIMINAL COURT IN ONGOING INTERSTATE CONFLICTS: NAVIGATING THE PEACE-JUSTICE DIVIDE 51–149 (Cambridge University Press 2015); Manisuli Ssenyonjo, The International Criminal Court Arrest Warrant Decision for President Al Bashir of Sudan, 59:1 INT’L. & COMP. L.Q. 205 (Cambridge University Press 2010). 163. Profile: Sudan’s Omar Al-Bashir, BBC NEWS (Apr. 6, 2016), http://www.bbc.com/ news/world-africa-16010445. 164. Maggie Michael, Sudan’s Army Removes Leader, Rejects Al-Bashir’s Extradition, WASH- INGTON POST (Apr. 12, 2019), https://www.washingtonpost.com/world/africa/sudanese- protesters-defy-curfew-day-after-military-coup/2019/04/12/441446ec-5cf5-11e9-98d4-8440 88d135f2_story.html?utm_term=.bc3ddedaaf24. 165. Ammar Mahmoud, A Critical Review of Security Council Resolution 1593 (2005) on Darfur, A CONTRARIO (Oct. 26, 2013), https://acontrarioicl.com/2013/10/26/security- council-resolution-1593-2005-on-darfur/. 166. S.C. Res. 1564, ¶ 12 (Sept. 18, 2004), http://www.un.org/en/ga/search/ view_doc.asp?symbol=S/RES/1564. 167. Rep. of the Int’l Comm’n of Inquiry on Darfur to the U.N. Secretary-General, at 3 (Jan. 25, 2005), http://www.un.org/news/dh/sudan/com_inq_darfur.pdf [hereinafter Commission Report—Darfur]. 168. Id. 169. See id. at 4, ¶¶ 514–19. \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 36 3-SEP-19 10:26

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In March 2005, the Security Council took a mixed course of action when it adopted Resolution 1593.170 On one hand, the Security Council acted pursuant to its Chapter VII powers and took an all-important “decision” to refer the matter to the Court171 and to order Sudanese cooperation, even though Sudan is not an ICC Member State.172 At the same time, however, the Security Council confused or diminished the Court’s role. The Security Council invited the Court and the A.U. to pursue practical regional arrangements to end impunity in the region.173 It also granted Darfur peacekeepers immunity from international prosecution174 and referred to the existence of Rome Statute 98-2 agreements,175 which seemingly validated the bilateral agreements the United States had struck with approximately one hundred separate nations that prevent the Court from exercising jurisdiction over U.S. personnel and officials.176 The referral brought Al-Bashir within the Court’s jurisdiction, ultimately making him the first sitting Head of State to be indicted by the Court.177 The 2009 arrest warrant accused Al-Bashir of war crimes and crimes against humanity related to the armed conflict in Sudan that existed from 2003 until 2008.178 After an appeal regarding the standard used to evaluate genocide, a second arrest warrant was issued in 2010 that included the crime of genocide.179 This made Al-Bashir the first person to be charged with genocide by the ICC.180

170. S.C. Res. 1593 (Mar. 31, 2005), https://www.un.org/en/ga/search/view_doc.asp? symbol=S/RES/1593 (2005). 171. Id. ¶ 1. A decision, as opposed to a recommendation or some other action taken by the Security Council, has particular significance in the United Nations system. It triggers an obligation on all Member States to “accept and carry out” the decision. U.N. Char- ter, art. 25. In other situations, Members States “shall give . . . every assistance in any action it takes in accordance with the present Charter. . . .” Id. art. 2(5). 172. S.C. Res 1593, ¶ 2. 173. Id. ¶ 3. 174. Id. ¶ 6. 175. Id. at pmbl. ¶ 4. 176. Mahmoud, supra note 165. R 177. Omar Hassan Ahmad Al-Bashir, HAGUE JUSTICE PORTAL, http://www.haguejustice portal.net/index.php?id=9502. 178. See Prosecutor v. Al Bashir, ICC-02/05-01/09, Warrant for Arrest for Omar Hassan Ahmad Al Bashir (Mar. 4, 2009), https://www.icc-cpi.int/CourtRecords/CR2009_ 01514.PDF. 179. See Prosecutor v. Al Bashir, ICC-02/05-01/09, Warrant for Arrest for Omar Hassan Ahmad Al Bashir (Jul. 12, 2010), https://www.icc-cpi.int/CourtRecords/CR2010_04826. PDF. 180. Mary Reynolds, Legitimizing the ICC: Supporting the Court’s Prosecution of Those Responsible in Darfur, 30 B.C. THIRD WORLD L.J. 179, 193 (2010). \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 37 3-SEP-19 10:26

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Sudan has not cooperated with the ICC and will not consent to its jurisdiction. As of April 2019, Al-Bashir has been removed from office but remains at large.181 It is unclear whether he will be taken into custody. At the moment, Sudanese officials say they will not extradite Al-Bashir to the Court.182 Either way, the case remains instructive in terms of the Court’s difficulty bringing a sitting Head of State into custody. First, rather than the A.U. and the Court cooperating as Resolu- tion 1593 invited, the two bodies have been at odds, which inured to Al-Bashir’s benefit while he was in office. The A.U. urged the ICC to delay Al-Bashir’s prosecution because it would be difficult to negotiate regional peace when the leader was under indictment.183 The ICC did not heed the A.U.’s request, thus creating a divide: the ICC focused on justice; the A.U. focused on peace.184 After the indictment, the A.U. asked the Security Council to defer Al- Bashir’s prosecution pursuant to Article 16 of the Rome Statute.185 The Security Council did not agree. In response, the A.U. urged non-cooperation with the prosecution.186 African States have honored the A.U.’s request, which has brought these states into conflict with the Court. The ICC Registry has been reporting Al-Bashir’s movements outside of Sudan. There are many cases of non-cooperation, where states have refused to arrest and surrender him despite advance notice of his travels and specific requests from the Court to cooperate and execute the arrest warrants.187 For example, in September 2016, the Registry issued a report to Pre-Trial Chamber II detailing the suspect’s uninterrupted travels to Chad, an ICC Member State, and to three non-Member States: Mauritania, Morocco, and Ethiopia.188 These states have joined the ever-expanding list of non-cooperative states, which also

181. Michael, supra note 164. 182. Id. 183. See John Mukum Mbaku, Africa and the International Criminal Court: Is There Room for Cooperation?, GEO J. INT’L AFFAIRS (Apr. 26, 2017), https://www.georgetownjournalof internationalaffairs.org/online-edition/africa-and-the-international-criminal-court-is-there- room-for-cooperation. 184. See id. 185. See id.; Edith Lederer, African Union Asks UN to Delay Al-Bashir Prosecution, MAIL & GUARDIAN (Sept. 25, 2010), https://mg.co.za/article/2010-09-25-african-union-asks-un-to- delay-albashir-prosecution. 186. See Mbaku, supra note 183. R 187. See, e.g., Al-Bashir Report, supra note 35. R 188. Id. \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 38 3-SEP-19 10:26

268 The Geo. Wash. Int’l L. Rev. [Vol. 51 includes South Africa, Uganda, Djibouti, Kenya, Congo, Jordan, and Sudan, who openly refuse to honor the Court’s warrants.189 States have cited Article 98(1) of the Rome Statute to justify their non-compliance with the Court’s request to arrest and surrender Al-Bashir.190 Jordan and South Africa are the two most recent advocates of this position, and they have relied on custom and various treaties that afford HOS immunity. With respect to custom, even the Court has recognized that customary international law affords immunity to sitting Heads of State.191 Nevertheless, the Court has responded that the Security Coun- cil’s use of its Chapter VII power to refer the Sudan situation brings Sudan within the Rome Statute, which does not afford such immunity.192 It states: Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.193 *** The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: . . . (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prose- cutor by the Security Council acting under Chapter VII of the Charter of the United Nations[.]194

189. Id. See also Tessler, supra note 16. 190. Article 98(1) states: “The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.” 191. The Court noted: “[C]ustomary international law prevents the exercise of criminal jurisdiction by States against Heads of State of other States. This immunity extends to any act of authority which would hinder the Head of State in the performance of his or her duties. The Chamber is unable to identify a rule in customary international law that would exclude immunity for Heads of State when their arrest is sought for international crimes by another State, even when the arrest is sought on behalf of an international court, including, specifically, this Court.” Prosecutor v. Al Bashir, ICC-02/05-01/09, Decision under Article 87(7) of the Rome Stat- ute on the Non-Compliance by South Africa with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir, ¶ 68 (Jul. 6, 2017), https://www.icc-cpi.int/Cour- tRecords/CR2017_04402.PDF [hereinafter Decision—South Africa Non-Compliance]. 192. Prosecutor v. Al Bashir, ICC-02/05-01/09, Pre-Trial Chamber II, Decision under Article 87(7) of the Rome Statute on the Non-Compliance by Jordan with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir (Dec. 11, 2017), https:// www.icc-cpi.int/CourtRecords/CR2017_07156.PDF [hereinafter Decision—Jordan Non- Compliance]; Decision—South Africa Non-Compliance, supra note 191, ¶¶ 34–43. R 193. Rome Statute, art. 27(2). 194. Id. art. 13. \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 39 3-SEP-19 10:26

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The Court also has rejected treaty-based immunity claims.195 The tension has continued to escalate. In January 2017, the A.U. agreed upon a draft decision calling for Al-Bashir’s case to be terminated, for members not to honor the ICC’s warrants, and for all members to consider the ICC Withdrawal Strategy.196 Further- more, as noted above, the A.U. is urging the U.N. General Assem- bly to seek an advisory opinion from the ICJ on the question of HOS immunity.197 In addition, the Security Council, which referred the situation, has been passive with respect to the A.U./ICC dispute. It has not answered the A.U.’s request for Al-Bashir’s case to be delayed, but it also has not answered the Court’s requests for assistance. More than four years ago, the Prosecutor warned that the Court’s investigation would go into hibernation until the Security Council became more engaged,198 and she has continued to reiterate the point at every opportunity.199 Scholars sadly have noted the reali- zation of the Prosecutor’s concerns.200

195. For example, Jordan asserted Al-Bashir was entitled to immunity pursuant to the 1953 Convention on the Privileges & Immunities of the Arab League; however, the Court noted that Sudan was not a member of the 1953 treaty. Decision—Jordan Non-Compli- ance, supra note 192, ¶¶ 29, 32. Likewise, South Africa argued that it was required to R afford Al-Bashir immunity pursuant to a Host Agreement executed between itself and the African Union (A.U.) related to an African Union Summit held in Johannesburg. The Court rejected this argument out of hand because Al-Bashir was not within the categories of persons afforded immunity as a member of an African Union Commission, a delegate, a staff member, or any other A.U. representative. Decision—South Africa Non-Compliance, supra note 191, ¶ 67. R 196. African Union, 2017 Draft Decision, supra note 36. R 197. Menya, supra note 39. R 198. See Fatou Bensouda, Prosecutor of the ICC, Statement to the United Nations Security Council on the Situation in Darfur, pursuant to UNSCR 1593 (Dec. 12, 2014), https://www.icc-cpi.int/iccdocs/otp/stmt-20threport-darfur.pdf. 199. Twenty Fourth Report of the Prosecutor of the International Criminal Court to the United Nations Security Council Pursuant to UNSCR 1593 (2005), ¶¶ 38, 40 (Dec. 13, 2016), https://www.icc-cpi.int/itemsDocuments/161213-otp-rep-24-darfur_Eng.pdf; Fatou Bensouda, Prosecutor of the ICC, Statement to the United Nations Security Council on the Situation in Darfur, pursuant to UNSCR 1593 (2005) (Dec. 12, 2017), https://www.icc- cpi.int/Pages/item.aspx?name=171212-otp-stat-UNSC; Fatou Bensouda, Prosecutor of the ICC, Statement to the United Nations Security Council on the Situation in Darfur, pursuant to UNSCR 1593 (2005) (Jun. 20, 2018), https://www.icc-cpi.int/Pages/item.aspx? name=180620-otp-stat. 200. Scholars conclude: “[T]hat a deterrent effect has been achieved, but often it is short-term and ephemeral. Darfur is a good example; some argue that ‘[i]n the beginning, the regime and Bashir and everyone was afraid. When Bashir and the others found out that the ICC doesn’t have police or international forces, then they returned to business as usual.’ The deterrent effect diminished when no arrests followed the issuance of warrants. Others argued that the shift of international attention to Darfur in 2005 drove down the crime rate, and the subsequent loss of interest \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 40 3-SEP-19 10:26

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COURT CAPACITY Low High Sudan is not a member of the N/A Rome Statute, which limits the Court’s ability to compel cooperation. The prosecution represents a series of “firsts,” meaning there is not yet fully developed norms or consensus to prompt State cooperation. The situation in Darfur remains unstable, which affects domestic and regional security. In turn, the ICC’s prosecution is seen to conflict with the interests of regional powers who seek peace. The Security Council referred the case to the ICC but is not responding to the Court’s repeated requests for assistance. The two bodies could be at odds because the Court and the A.U. have not cooperated in the way Resolution 1593 invited. The Court also pursued genocide charges, even though the Com- mission of Inquiry expressly rejected such a finding.

in the situation allowed it to rise again, with violence levels in 2014–2015 approaching those of 2003–2004. The failure of states to co-ordinate sustained pressure on a criminal situation, and to co-operate with international courts and tribunals, in particular in implementing arrest warrants, was one of the most com- monly cited causes of the loss of any deterrent effect.” Jennifer Schense & Linda Carter, Findings and Recommendations, in Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals, 1 NUREMBERG ACADEMY SERIES 427, 446 (2017). \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 41 3-SEP-19 10:26

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OPPOSITION TO THE COURT’S AUTHORITY High Low Until recently, Al-Bashir was a N/A sitting Head of State who had been in power for almost thirty years. He gained and held power through violence. He has refused to consent to the Court’s jurisdiction and enjoyed considerable support from Afri- can leaders and the AU.

Here, in terms of efficacy, the Court’s inability to bring these leaders into custody impacts its legitimacy and ultimate aims. As Chazal noted, the harm can go so far as to actually convert the Court into a “weapon that can reinforce political divides and amplify political struggles at both a national and international level.”201 Obviously these challenges must be overcome before the Court can proceed with HOS prosecutions. Sections III.A.2. and III.B.4.b. below offer specific suggestions. The idea is to expand the fourth prong of the OTP’s preliminary examination inquiry, the ‘interest of justice’ phase, to include an evaluation of the Court’s capacity to proceed vis-a-vis` the sitting Head of State’s ability to mount opposition. Whereas constitutive legitimacy is the first concern of an adjudicative body, it is not the last, for regardless of the legitimacy of its foundation, a Court cannot sustain itself if it also is not seen to use legitimate methods and rules.202 This brings us to the final theory: process legitimacy.

C. Process Legitimacy: Challenges Related to Perceived Unfairness The final legitimacy theory relates to procedural fairness. One of the earliest theorists to explore this aspect of legitimacy proposed that an outcome derived from a just procedure would be

201. CHAZAL, supra note 8, at 27. R 202. “[C]onstitutive legitimacy cannot stand alone as the foundation for the legitimacy of an international tribunal, and the same is equally true for procedural legitimacy. When a tribunal is lacking in constitutive legitimacy, states may refuse to cooperate with it, and this in turn will have an impact on its procedural legitimacy, which requires having both sides of the dispute present their arguments.” McDermott & Elmaalul, Legitimacy, in RESEARCH HANDBOOK ON INTERNATIONAL COURTS AND TRIBUNALS, supra note 45, at 238. R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 42 3-SEP-19 10:26

272 The Geo. Wash. Int’l L. Rev. [Vol. 51 accepted, even if it disadvantaged the participant.203 Expanding on this idea, others have argued that procedural fairness is just as important, if not more important, than the outcome itself.204 In terms of what such “fairness” might entail, an international law per- spective on Rawls’ theory of distributive justice would involve, at a minimum, treating “like cases alike” and affording all parties the opportunity to put their case forward.205 Treating a case with “dignity, neutrality, importance[,] consistency, and impartiality” also are critical attributes of fairness.206 McDermott and Elmaalul focus specifically on “impartiality of judges; equal access to the court; consistency in the application of the law; and allowing each side the chance to put their side of the dispute forward.”207 If not addressed, the legitimacy criticisms noted above related to input and consent will carry over into the way in which the Court’s actions will be evaluated on procedural fairness grounds. As described in the three case studies, states in opposition have used these gaps to challenge the Court, and the opposition, to date, has prevailed in each case. Some would argue that the opposition vic- tories have gone so far as to de-legitimize the Court. For example, President Kenyatta used the ICC proceedings as a badge of honor that led him to electoral victory in Kenya. Likewise, the ongoing Sudanese situation has empowered Court detractors and stilted the Court’s relationship with some of its earliest and most important African supporters. In these instances where the Court’s reach has been seen to exceed its grasp, the Court’s legitimacy has been damaged by those acting with impunity. It is difficult to imagine how a HOS aggres-

203. Id. at 235 (citing NIKLAS LUHMANN, LEGITINATION DURCH VERHAFEN (Luchterhand 1969)). 204. Id. (citing Tom R. Tyler, The Role of Perceived Injustice in Defendants’ Evaluations of Their Courtroom Experience, 18 L. & SOCIETY REV. 51, 51–74 (1984); E. ALLAN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (Plenum 1988); Klaus R. Rohl, Procedural Justice: Introduction and Overview, in PROCEDURAL JUSTICE 1 (Ashgate 1997)). 205. Id. at 236 (citing JOHN RAWLS, A THEORY OF JUSTICE 54–114 (Harvard University Press 1971); HLA HART, THE CONCEPT OF LAW 164 (3rd ed., Oxford University Press 2012)). 206. Id. (citing Neil Vidmar, Procedural Justice and Alternative Dispute Resolution, in PROCE- DURAL JUSTICE, supra note 204, at 121, 128; John Kekes, Morality and Impartiality, 18 AM. R PHILOSOPHICAL Q. 295 (1981)). 207. Id. The authors go on to note that the fundamental right to a fair trial exists and that human rights treaties and national legislation flesh out specific guarantees such as the right to adequate time and facilities to prepare one’s defense; the right to examine witnesses; the right to an interpreter; the right to be present at trial; the right to representa- tion; and the right to be free from self-incrimination. Id. at 237. \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 43 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 273 sion prosecution, if one were to occur presently, would overcome these current shortcomings. As a result, one is left to wonder if the costs to the Court’s legitimacy would warrant a prosecution that, in the end, would be disregarded as procedurally unfair. To be clear, this is not an attack on the Court’s procedures or its intent. This Article is intended to raise a cautionary appeal that HOS prosecutions should not proceed until the Court has filled these legitimacy gaps. The fight is a worthy one, and those who support the Court should seek to empower it before the battle begins, lest all of the Court’s progress be reversed.

III. BUILDING LEGITIMACY: A PROSECUTORIAL FRAMEWORK & CONSTRUCTIVIST METHODOLOGY Section II has identified three legitimacy gaps: consent and input concerns regarding application of the complementarity principle in the HOS aggression context; efficacy concerns regarding the Court’s inability to pursue three HOS prosecutions; and an overarching consent and input concern regarding the number of states participating in the Kampala Amendments. Section III will now identify how these gaps can be addressed. In terms of substance, the OTP can promote the Court’s legitimacy with respect to complementarity and efficacy by creating a normative framework to be applied in future HOS aggression prosecutions. In terms of methodology, the OTP can use an approach rooted in the international relations theory of constructivism to develop these norms. This should, in turn, promote broader acceptance of the framework and alter the dynamic that has been inhibiting participation in the Kampala Amendments.

A. Substance: A Normative Framework Focused on Admissibility & the Interests of Justice The Prosecutorial Framework would articulate norms to be applied to future preliminary examinations related to HOS aggression. During the preliminary examination, the OTP assesses jurisdiction, admissibility, and the interests of justice in four stages to \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 44 3-SEP-19 10:26

274 The Geo. Wash. Int’l L. Rev. [Vol. 51 determine whether there is a reasonable basis208 to proceed with an investigation.209 Preliminary Action Taken Examination Phases210 1. Initial assessment of information received pursuant to Article 15; OTP will evaluate the seri- ousness of the information and determine whether the situation is manifestly outside the jurisdiction of the Court. 2. Formal commencement of a preliminary examination; OTP will evaluate “whether the precon- ditions to the exercise of jurisdiction under Article 12 are satisfied and whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court.”211

208. Reasonable basis involves “a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court has been or is being committed.” Situa- tion in the Republic of Kenya, ICC-01/09-19-Corr, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ¶ 35 (Mar. 31, 2010), http://www.legal-tools.org/doc/f0caaf/pdf/ (internal quota- tions omitted). 209. Rome Statute art. 53(1)(a)–(c) (“In deciding whether to initiate an investigation, the Prosecutor shall consider whether: (a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (b) The case is or would be admissible under article 17; and (c) 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.”). 210. ICC, Office of the Prosecutor, Policy Paper on Preliminary Examinations 18–19 (Nov. 2013), https://www.icc-cpi.int/iccdocs/otp/otp-policy_paper_preliminary_examin ations_2013-eng.pdf [hereinafter Preliminary Examination Paper]. 211. Id. at 19. \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 45 3-SEP-19 10:26

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3. Admissibility evaluation pursuant to Article 17 (complementarity and gravity); “[I]n line with its prosecutorial strategy, the Office will assess complementarity and gravity in relation to the most serious crimes alleged to have been committed and those most responsible for those crimes.”212 4. Evaluate the countervailing consideration of the interests of justice.213

The proposed Prosecutorial Framework is linked to Phases 3 and 4.

1. Developing Complementarity Norms To address the consent and input challenges regarding complementarity, the Prosecutorial Framework would specify how the future complementarity analysis should be conducted in the context of HOS aggression situations. For example, the framework could address the following questions: Who is competent to speak on behalf of the aggressor state with regard to domestic investigation and prosecution decisions involving a sitting Head of State? How should the complementarity analysis proceed when there are varying degrees of willingness and ability within the aggressor state? How far does positive complementarity go when a victim state seeks to investigate or prosecute? Finally, what impact does a third party’s assertion of universal jurisdiction have on the Court’s complementarity analysis? The OTP likely will continue to identify these and other complementarity questions to be resolved. Section III.B will discuss the specific methodology to use. However, the point here is to encourage the OTP to collaborate with interested parties now to develop the Prosecutorial Framework. The area of law is fraught, norms are needed to support future Court action, and agreement will be difficult to achieve. With that said, these future situations will be volatile and high-profile, thus meaningful and workable norms must be developed before rather than in the midst of such proceedings. Achieving this result through a transparent and deliberative process also promotes international law in terms of

212. Id. at 10 (“The Statute does not stipulate any mandatory sequence in the consideration of complementarity and gravity. The Prosecutor must be satisfied as to admissibility on both aspects before proceeding.”). 213. Interests of Justice Policy Paper, supra note 110, at 9. R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 46 3-SEP-19 10:26

276 The Geo. Wash. Int’l L. Rev. [Vol. 51 treaty interpretation and the development of custom.214 Finally, it could assuage the concerns of states who have not yet ratified the Kampala Amendments, in the same way initial decisions regarding complementarity eased concerns and paved the way for the Rome Statute in the 1990s.

2. Resolving Efficacy Concerns

To address efficacy concerns related to failed HOS prosecutions, the framework could expand the interests of justice considerations to include an analysis of the Court’s capacity to overcome opposition to the exercise of its investigative or prosecutorial powers. As noted, ‘interests of justice’ is a countervailing consideration. If the jurisdiction and admissibility evaluations favor further Court action, the OTP may still decline to pursue the case if, as a last resort, the interests of justice inquiry urges that result. At present, ‘interests of justice’ involves the blatancy of the crime; the interests of victims (both in the pursuit of justice and their security); the special circumstances of the accused (age, infirmity as well as his or her role and degree of involvement in the alleged crime); and the availability of other justice mechanisms (reparations, institutional reform, truth seeking).215 The Prosecutorial Framework would expand this last factor. One of the most basic underpinnings of the ‘interests of justice’ principle is that there be a Court empowered to achieve justice. Thus, considering whether it is in the Court’s long-term legitimacy interests to pursue a case today should be a driving force in the analysis of whether other options are available. With an eye toward building legitimacy, the Prosecutorial Frame- work would tip the balance toward proceeding when an evaluation of capacity and opposition suggests that the Court can fulfill its goals and prompt compliance with its procedures. If opposition is low and Court capacity is high, success and dialogue will have a normative impact. And even if the Court’s capacity also is low, this would be a prime opportunity for dialogue and additional norm building given the lack of opposition.

214. Specifically, the record could be considered the subsequent agreement and practice of treaty members, which is relevant in terms of treaty interpretation pursuant to Arti- cle 31 of the Vienna Convention on the Law of Treaties. It also would be evidence of state practice and the ever-elusive opinio juris elements for the establishment of customary international law. 215. Interests of Justice Policy Paper, supra note 110, at 4–9. R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 47 3-SEP-19 10:26

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Conversely, when opposition is high, the Prosecutorial Frame- work would tip the balance toward proceeding with extreme caution or not proceeding until capacity improves. In particular, the Court should proceed with caution when opposition is high and Court capacity is high. The Court should open dialogue in an attempt to build consensus between international criminal law actors regarding the most appropriate avenue to pursue. If none can be identified, the Court should delay prosecution unless (i) the gravity of harm warrants action, and the Court believes that the potential risks to the institution are overcome by the significant goal that could be achieved; or (ii) there is a great risk that evidence will be destroyed, thus precluding future prosecution, and prosecution is the best way to obtain and preserve evidence. Finally, when opposition is high and Court capacity is low, the Prosecutorial Framework would suggest that the Court delay prosecution and focus on generating international community dialogue regarding a holistic resolution of the situation. If the gravity of harm warrants immediate action, the Security Council or regional actors should be encouraged to act. They would be in the best position to promote security; a failed prosecution, which would be the likely result given the Court’s low capacity, may only succeed in inflaming tensions. Moreover, the OTP has made it clear that its focus on crime prevention and security does not reach the broader mandate of peace and security, which is not the responsibility of the Prosecutor; it falls within the “mandate of other institutions” such as the Security Council.216 This does not mean, however, that the Court has no role. One cannot be obtuse and deem peace and security irrelevant to the Court’s decision-making process.217 Even the Prosecutor sees the Court’s role as one tool in a broader international toolset designed to achieve peace and security.218

216. Id. at 9; Setting the Record Straight, supra note 110, at 5. R 217. Robert H. Minookin, Rethinking the Tension between Peace and Justice: The Interna- tional Criminal Prosecutor as Diplomat, in THE FIRST GLOBAL PROSECUTOR: PROMISE AND CON- STRAINTS 77 (University of Michigan Press 2015). 218. Setting the Record Straight, supra note 110, at 5 (“It is important to realize that it is R only in the last ten years following the entry into force of the Rome Statute that this independent and permanent criminal justice component has been added to the toolbox of international policy options available to international policy makers as they work to achieve peace and security.”). \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 48 3-SEP-19 10:26

278 The Geo. Wash. Int’l L. Rev. [Vol. 51 PROPOSED INTERESTS OF JUSTICE FRAMEWORK

HIGH COURT LOW COURT CAPACITY CAPACITY

LOW OPPOSITION OTP proceed. OTP proceed. TO COURT PROCEEDINGS

HIGH OPPOSITION OTP proceed with OTP avoid TO COURT caution. prosecution until PROCEEDINGS Court’s capacity Use constructivist improves. approach to weigh options available to In the meantime, the international use constructivist criminal law approach to identify network. alternative means to: If consensus does (i) achieve and not emerge maintain security; regarding which (ii) encourage avenue to pursue, Security Council or prosecute only if regional actors to (i) the gravity of become involved in harm warrants the situation; and action, and the (iii) preserve Court believes evidence. prosecution will achieve some significant goal, such that potential damage to the Court’s legitimacy is a worthy risk -or- (ii) there is a great risk that evidence destruction will preclude future prosecution, and prosecution is the only way to obtain and preserve evidence. \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 49 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 279 There have been repeated references in this Section to using a constructivist approach to promote normative development and dialogue. It now is appropriate to describe the theory in more detail and explain how its use can address the final legitimacy gap: participation.

B. Theoretical Approach: A Shift Toward Constructivism The final legitimacy concern to be addressed is the limited number of Kampala participating states. International relations theories contextualize the Court’s current position. In particular, the Court was created in an era of constructivism (i.e., collective norm development), whereas the current stalemates reflect a return to the power-based dynamic of rationalism (i.e., a state will cede power to an international organization when it is to the state’s advantage to do so, and only to the extent of the advantage).219 Given the Court’s paradoxical power structure, it is clear who the winners and losers will be if rationalism continues to hold sway as the Court moves into HOS aggression cases. The OTP can attempt to change the dynamic by shifting toward the constructivist approach. It was instrumental in the Court’s creation, and it can be employed again today to develop the Prosecutorial Framework in advance of the Court’s first aggression case. Constructivism also can be used to galvanize other actors when the OTP assesses interests of justice in a specific future situation and concludes that judicial resolution may be untenable. Before shifting to these specific uses, however, let us first consider the theory and its impact on the Court.

1. The Theory of Constructivism The adoption of the Rome Statute in 1998 was a surprise to the extent that it achieved what had eluded the international community: a permanent international criminal court.220 Some credit this monumental occasion to the rise of the international relations theory of constructivism or to a spirit of cooperation and optimism.221

219. Caroline Fehl, Evaluating the International Criminal Court: A ‘Practice Test’ for Realist and Constructivist Approaches, 10 EURO. J. INT’L. RELATIONS 357, 364 (2004). 220. Antonio Cassese, From Nuremberg to Rome: International Military Tribunals to the Inter- national Criminal Court, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, supra note 73, at 3–4. R 221. Deitelhoff, supra note 66 (expressly using the international relations term). See, R e.g., DAVID BOSCO, ROUGH JUSTICE: THE INTERNATIONAL CRIMINAL COURT IN A WORLD OF POWER POLITICS 39 (Oxford University Press 2014); Phillipe Kirsch, QC & Darryl Robinson, Reaching Agreement at the Rome Conference, in THE ROME STATUTE OF THE INTERNATIONAL \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 50 3-SEP-19 10:26

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Constructivists focus on the “inherent normativity of law”222 rather than power. Actors and structures are considered mutually constitutive.223 Social interaction builds shared identities, which inform structure. In turn, structures influence identities, and so the circle of norm and institution-building continues.224 Constructivists also embrace social variables and their influence on behavior. Dialogue, discourse, and opportunities for persuasion (rather than coercion) are critical.225 When no relevant norm exists to guide behavior, the answer is not to coerce but to open discourse. The process begins with reasonable, agreed-upon principles, identifies “turning points” in beliefs and/or progress, and ultimately sets norms. Actors in the broadest sense of the term (i.e., states, international organizations, non-governmental organizations, experts, etc.) engage to create a shared identity and consensus.226

2. Constructivism’s Role in the Creation of the Court Scholars who attended the Preparatory Committee (PrepCom) and the Rome diplomatic conference provide many examples of the theory at work; they continually note the shared sense of purpose and common enterprise that created momentum toward adoption and overruled the objections of more powerful countries.227 For example, the work of the PrepCom has been described as a “high act of international creativity”228 in which people increasingly felt compelled to participate in the common endeavor that held the “promise of partly redeeming the worst in the history of their times.”229 Although the PrepCom participants

CRIMINAL COURT: A COMMENTARY, supra note 73, at 67–91; William R. Pace & Jennifer R Schense, The Role of Non-Governmental Organizations, in THE ROME STATUTE OF THE INTERNA- TIONAL CRIMINAL COURT: A COMMENTARY, supra note 73, at 105–143; THE INTERNATIONAL R CRIMINAL COURT: THE MAKING OF THE ROME STATUTE-ISSUES, NEGOTIATIONS, RESULTS (Roy S. Lee ed., Kluwer Law International 1999). 222. Deitelhoff, supra note 66, at 43. R 223. Rationalism and Reflectivism in IR Theory, UK ESSAYS (Nov. 2013), https:// www.ukessays.com/essays/politics/rationalism-and-reflectivism-in-ir-theory-politics-essay. php?cref=1 [hereinafter Rationalism and Reflectivism]. 224. See Kyle M. Danish, International Relations Theory, in OXFORD HANDBOOK OF INTER- NATIONAL ENVIRONMENTAL LAW 207, 216 (Bodansky et al. eds., Oxford University Press 2007). 225. Deitelhoff, supra note 66, at 44. R 226. Id. 227. Sadat, supra note 7, at 387; Deitelhoff, supra note 66, at 35. R 228. Benedetti & Washburn, supra note 20, at 2. See also Sadat, supra note 7; Deitelhoff, R supra note 66. R 229. Benedetti & Washburn, supra note 20, at 1. R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 51 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 281 were afraid that they had not done enough because the text sent to Rome was a “bulky draft about which there had been much disagreement,”230 this spirit of common purpose carried over into the Rome diplomatic conference as can be seen below: Old patterns of agreement, outworn groupings, fears of the powerful, and inhibitions on leadership were weakened or cut down there. For the multilateral making of new global institutions in a new century, there are now new ways to negotiate and to reach agreement. They were tested in Rome in the summer of 1998, and they worked.231 The constructivist approach allowed the increasingly ascendant group of Like-Minded States to propel the treaty text forward, against the objections of more powerful permanent members of the U.N. Security Council (e.g., the United States232) and other Non-Aligned States. In short, the new dynamic of constructivism rather than power-based rationalism took and held the field in Rome.233

3. Today’s Rationalism Deadlock A return to rationalism could explain declining participation trends and the current deadlock between the Court and those who have opposed attempts to prosecute President Al-Bashir and Presi- dent Kenyatta. Rationalists adhere to the same power and state-centric focus represented by earlier related theories,234 but there is a more mod-

230. Id. at 2. 231. Id. at 34. 232. See id. at 27 (“The United States had been unable to accommodate itself to the shift from the actions of states to the accountability of individuals, a shift that the momentum of the PrepCom had carried into the Rome diplomatic conference. Moreover, it had been out-maneuvered in the politics and process there by the Like-Minded Group, assisted by the determination of the new chairman and the UN Secretariat to achieve a workable statute and a viable international criminal court.”). 233. “The negotiation and adoption of the Rome Treaty worked a quiet, albeit uneasy, revolution of sorts: a surreptitious segue into the new millennium, a millennium likely to be characterized both by a new multipolar balance of power in which the United States does not exercise an unchallenged hegemony over world affairs, and by new modalities of international governance. Indeed, many aspects of the Rome Statute challenge fundamental tenets of the structure of international law existing heretofore.” Sadat, supra note 7, at R 387–88. 234. It is helpful to trace rationalism’s roots through several earlier iterations in order to inform our understanding of how the theory operates today. Classical realism emerged after World War I and rejected as utopian the idealistic view that peace was attainable through cooperation. Instead, it focused on state-centric power dynamics. Rationalism and Reflectivism, supra note 223. Classical realism was a means to evaluate behavior. Danish, R supra note 224. Therefore, in light of later demands within the social sciences to add rigor R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 52 3-SEP-19 10:26

282 The Geo. Wash. Int’l L. Rev. [Vol. 51 ern focus on cooperation and institutional design.235 For example, states will centralize monitoring or decision-making in an international institution, but their willingness is tempered by sovereignty costs. The greater the cost to a state’s traditional sovereignty interests, that is, power over its citizens or territory, the less likely it is to accept centralization.236 This may mean that the state will not participate in the international institution, particularly in the context of security questions,237 or the state might condition its participation upon retaining control over the institution’s decision-making through voting rules or veto power.238 Rationalism, broadly speaking, is consistent with the outcome of the successful Gbagbo proceedings239 and the Al-Bashir, Gaddafi, and Kenyatta challenges discussed above. Because former Presi- dent Gbagbo had been removed from power and was seen as an impediment to peace, power dynamics and cost-benefit analysis and scientific methodology, neo-realism emerged after WWII as the dominant international relations theory. 235. Fehl, supra note 219, at 363–64. R 236. Id. 237. Deitelhoff, supra note 66. R 238. Fehl, supra note 219, at 364. R 239. The case against the former President of Cote d’Ivoire, Laurent Gbagbo, is the first ICC HOS prosecution to proceed to trial. Gbagbo, supra note 23. Gbagbo was elected R in 2000, after twenty years in opposition. He survived a coup attempt in 2002, but the violence triggered a civil war. In 2005, Gbagbo declared that elections would not be held because the country was “not ready.” Profile: Laurent Gbagbo, AL JAZEERA (Feb. 19, 2013), http://www.aljazeera.com/news/africa/2013/02/201321993837772806.html. He reached a brokered settlement with rebels in 2007, and the 2010 elections were seen to put Cote d’Ivoire “back on the road to democracy.” Id. Gbagbo was announced the winner of the first round of elections, but his opponent ultimately was named the winner in the second round. This result was backed by the U.N. and France. Id. The charges against Gbagbo relate to four months of violence that occurred after Gbagbo refused to concede the 2010 results. Approximately 3,000 civilians died on both sides, but pro-Gbagbo forces were accused of the brunt of the violence, including killing people at checkpoints (sometimes burning them alive) and gang raping women. They Killed Them Like It Was Nothing: The Need for Justice for Cote d’Ivoire Post-Election Crimes, HUM. RTS. WATCH (Oct. 5, 2011), https://www.hrw.org/report/2011/10/05/they-killed-them-it- was-nothing/need-justice-cote-divoires-post-election-crimes. Ultimately, Alassane Ouattara took power with the help of French and U.N. forces and placed Gbagbo under house arrest. David Smith, Laurent Gbagbo Appears before International Criminal Court, GUARDIAN (Dec. 5, 2011), https://www.theguardian.com/world/2011/dec/05/laurent-gbagbo-inter national-criminal-court1 [hereinafter Smith—December]. This case is remarkable for the speed and apparent ease with which Gbagbo was brought into custody. In November 2011, Gbagbo was told of his ICC arrest warrant. He was trans- ferred to The Hague the next day, David Smith, Laurent Gbagbo Flown to The Hague as ICC’s 1st ex-Head of State Prisoner, GUARDIAN (Nov. 30, 2011), https://www.theguardian.com/ world/2011/nov/29/laurent-gbagbo-hague-icc-custody, and made his first appearance before the Court just several days later. Smith—December, supra note 239. His trial began R in January 2016 and is ongoing. Gbagbo, supra note 23. R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 53 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 283 supported international cooperation regarding his prosecution. In contrast, the attempted prosecutions of sitting Heads of State have not been fruitful. Their power or the power of others exceeded the power of the Court to bring them to justice. Moreover, cooperation with the ICC was not seen as beneficial.

4. A Return to Constructivism

As noted above, the OTP can employ constructivism at two different stages with respect to the Prosecutorial Framework. a. Development of the Normative Framework

First, the OTP can use constructivist methods to develop the Prosecutorial Framework in a transparent, deliberative process. While the OTP maintains confidentiality as necessary,240 it also has named transparency as a major policy objective.241 The Court’s first Prosecutor warned that the Rome Statute’s legitimacy could be undermined if the Court is not perceived to respect the law. “To avoid this possibility and build a solid institutional basis from the beginning, we make public our policies and regularly explain our legal decisions.”242 In keeping with this principle of transparency, the OTP publishes policy papers that outline its processes243 and

240. For example, the prosecutor has a duty to protect the confidentiality of information received pursuant to Article 15. “Similarly, when a decision is taken under article 15, any notice thereof shall be provided in a manner that prevents any danger to the safety, well-being and privacy of those who provided the information or the integrity of investigations or proceedings . . . .” Preliminary Examination Paper, supra note 210, at 20. Like- R wise, in 2016, the OTP announced that it would create a Case Selection Document to promote a dynamic process of case selection and prioritization that will “continually refine the focus of the Office’s investigations.” ICC, Office of the Prosecutor, Policy Paper on Case Selection and Prioritisation 5–6 (Sept. 15, 2016), https://www.icc-cpi.int/itemsdocu ments/20160915_otp-policy_case-selection_eng.pdf [hereinafter Case Selection Paper]. “The Case Selection Document, due to its very nature, will remain confidential. However, once a person has been arrested or appeared voluntarily before the Court, the Office will include as part of its public information activities its rationale for bringing forward the case for prosecution in the light of this policy paper.” Id. at 7. 241. See, e.g., Preliminary Examination Paper, supra note 210, at 22. R 242. Luis Moreno-Ocampo, The Prosecutor’s Use of Legal Policies, in THE FIRST GLOBAL PROSECUTOR, supra note 217, at 12. 243. See Preliminary Examination Paper, supra note 210; Case Selection Paper, supra R note 240; Informal Expert Paper on Complementarity, supra note 48. R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 54 3-SEP-19 10:26

284 The Geo. Wash. Int’l L. Rev. [Vol. 51 publicizes its decisions regarding preliminary examinations244 and other matters.245 Because the Prosecutorial Framework involves normative development, however, something more than after-the-fact reporting of a fully developed framework is critical in this instance. The OTP should direct the ASP to create a special working group to assist the OTP as it develops the Prosecutorial Framework. As a thresh- old matter, it must be clarified that the ASP would not be involved in management or oversight of judicial functions, which is a role that expressly was not granted to the ASP.246 Instead, the ASP would create a deliberative body much like a Conference of the Parties or a Meeting of the Parties in the environmental context. Moreover, the framers of the Rome Statute worked hard to create an independent Court, one free from political influence.247 In keeping with this ideal, the special working group would have to be a body used at the discretion and direction of the OTP. Specifi- cally, pursuant to Article 42 of the Rome Statute: [T]he Office of the Prosecutor shall act independently of instructions from any external source. Independence goes beyond not seeking or acting on instructions: it means that deci-

244. See e.g., ICC, Office of the Prosecutor, Report on Preliminary Examination Activi- ties 2017 (Dec. 4, 2017), https://www.icc-cpi.int/itemsDocuments/2017-PE-rep/2017-otp- rep-PE_ENG.pdf; ICC, Office of the Prosecutor, Report on Preliminary Examination Activi- ties 2016 (Nov. 14, 2016), https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep- PE_ENG.pdf. 245. See Case Selection Paper, supra note 240 (noting that decisions will be publicized). R 246. See Adrian Bos, Assembly of State Parties, in THE ROME STATUTE OF THE INTERNA- TIONAL CRIMINAL COURT: A COMMENTARY, supra note 73, at 305 (noting that the ASP’s R management oversight covers administrative rather than judicial activities and that por- tions of the draft statute were omitted to prevent anyone from inferring or implying that the ASP has the authority to inspect, evaluate, or investigate the Court’s judicial functions). 247. As former President Song stated: You will recall all the work that went into ensuring the Court could operate without political influence. At the Rome Conference, States successfully banded together to ensure the Court’s independence. It should be noted that this was particularly true of African States. With their experience of colonialism, African States were skeptical of investing power over the Court in the hands of a few countries. They rejected proposals to place the Court under the control of the United Nations Security Council. In a set of principles adopted in 1997, the Southern African Development Community (hereinafter “SADC”) declared that the Court should be independent and that the Prosecutor should be able to investigate crimes “without influence from States or the Security Council, subject only to appropriate judicial scrutiny.” Further, the SADC stressed that “the independence and operations of the Court and its judicial functions must not be unduly prejudiced by political considerations.” These principles were subsequently adopted by other African States, and embraced by many States from other parts of the world. The initiative succeeded, and these important principles were embedded at the very core of the Rome Statute. Address by Judge Sang-Hyun Song, in 2009 Seminar Paper, supra note 78, at 8. R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 55 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 285 sions shall not be influenced or altered by the presumed or known wishes of any external actor.248 In terms of mechanics, the ASP is empowered to create a subsidiary body “as may be necessary.”249 The basis for such action— namely the creation of a subsidiary body to support the work of the OTP as it develops a complementarity framework for future situations involving the crime of aggression and a sitting Head of State, would be rooted in the ASP’s residual powers.250 Such action is “necessary” because the norms are not sufficiently developed, and such development is essential to the work of the Court and its long- term capacity. As noted, the Special Working Group on the Crime of Aggression gave short shrift to the topic—even though (or perhaps because) it raises many thorny issues.251 In terms of group membership, these legal norms should be developed by the OTP with the support of the Kampala participating states. Specifically, participation in the special working group should focus on designees from the OTP, including the Jurisdic- tion, Complementarity and Cooperation Division (JCCD),252 and states that are subject to the Court’s jurisdiction regarding aggression, with support from interested organizations and experts. State involvement is not raised as a classic positivism trope or as an affront to the significant role individuals now play as subjects of international law; it is simply a realistic statement that in this area, interested states and the OTP are best suited to the task at hand given the combination of legal, political, and social dimensions. This also is not to minimize the role the judiciary and individual judges will play in this process.253 That immediate task, however, is

248. Case Selection Paper, supra note 240, at 7. R 249. Rome Statute, art. 112(4). 250. Article 112 (2)(g) states that the “Assembly shall perform any other function consistent with this Statute or the Rules of Procedure and Evidence.” In addition, and as necessary at a later date, the ASP also could re-constitute the body on an ad hoc basis to address specific cases of non-cooperation pursuant to Article 112(2)(f). 251. Clark, supra note 95, at 721–22. R 252. The division “conducts preliminary examinations, provides advice on issues of jurisdiction, admissibility and cooperation, and coordinates judicial cooperation and external relations for the OTP.” Office of the Prosecutor, ICC https://www.icc-cpi.int/about/otp/ (last visited Aug. 23, 2018). 253. It goes without saying that the judiciary is instrumental in the development of international criminal law and that the progression is multivariate—occurring through traditional means such as judicial decisions and scholarly work, but also through the manner in which they execute their offices, their dedication to justice and human rights, and the words they use to express the law and their humanity. See Giulia Pecorella, The Giants of the International Judiciary: Towards a Humanization of the Law of Nations, in RESEARCH HAND- BOOK ON INTERNATIONAL COURTS AND TRIBUNALS (William A. Schabas & Shannonbrooke Murphy eds., Edward Elgar Publishing 2017) (focusing on the work of Lauterpacht, Cassin, \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 56 3-SEP-19 10:26

286 The Geo. Wash. Int’l L. Rev. [Vol. 51 to sort through strategic options and political calculi regarding prosecutorial decisions that impact sovereignty, use of force, and intra- and inter-state peace and stability. While the participation of all 123 States Parties could increase the influence and reach of the group, limiting participation to those states who have ratified the Kampala Amendments privileges those states who have put “skin in the game.” This “opt in” approach is consistent with the underpinnings of the Rome Stat- ute, the ASP’s Rules of Procedure, and the ASP’s activation decision, all of which limit participation to ratifying states.254 Privileging those who have “opted in” also has the potential to incentivize additional ratifications of the Kampala Amendments. In fact, the drafters of the Rome Statute debated whether non- States Parties should be permitted to participate in the ASP, with those in favor of the proposal noting that it would promote the Court’s universality.255 This idea was soundly rejected, however, on the basis that permitting wide participation would reduce incen- tives to become a State Party.256 This rationale has its footing in rationalism, again, that a state will cede power to an international organization or entity when it is to its advantage to do so, and only to the extent of the advantage.257 In short, if participation can be achieved with no sovereignty costs, then there is no incentive to devolve sovereignty to the international entity. b. Use of a Deliberative Process to Develop Interests of Justice Alternatives The OTP also can use constructivism when it begins to pursue a specific HOS aggression situation and its interests of justice evaluation suggests that judicial action is not tenable. Such dialogue would not direct or limit the Court’s ultimate decisions. Rather, when judicial action does not appear on its face to be the best and Cassese and the role they played in the development of international law as a system progressively centered on individuals); ALOISI & MEERNIK, supra note 5 (detailing the role R that judges of the modern ad hoc tribunals played in the development of international law and their motivation to promote human rights and the legacy of international criminal law). 254. Rome Statute, art. 112; ASP Rules and Procedures, Rule 23(1) (noting that each State Party will have a representative in the Assembly). See also ASP—Aggression Activation Resolution, supra note 13, at (2) (adopting the “narrow” view with respect to the Court’s R jurisdiction over the crime of aggression, limiting its jurisdiction to those states who had ratified the Kampala Amendments). 255. See Bos, supra note 246, at 302. R 256. Id. See also Rome Statute, art. 112. 257. Fehl, supra note 219, at 364. R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 57 3-SEP-19 10:26

2019] Prosecuting the Crime of Aggression 287 option, the Court should bring others to the table to discuss alternatives. As the first prosecutor predicted: To end impunity for the most serious crimes, the entire network has to perform. For this reason, an excessive focus on courtroom activities will conceal other activities needed to stop and punish mass atrocities. To achieve such goals, the international community has to agree on additional actions, including political, humanitarian, military, and judicial measures.258 This sentiment also is in keeping with the Secretary General’s encouragement that, “Where transitional justice is required, strategies must be holistic, incorporating integrated attention to individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or an appropriately conceived combination thereof.”259 In this way, judicial action is one tool in the toolkit, but when it may not be the most effective tool, other options must be pursued. Perhaps the threat of judicial action, in combination with investigative actions taken by NGOs, political pressure asserted by regional actors and/or the U.N., which is focused on peace and security, may be sufficient to alter behavior. One can see how dialogue and collaboration amongst this network of international criminal law actors might shift the power dynamic. When it is only the OTP and the Court against a target state, the paradox of the ICC’s power structure can tip the balance of power in favor of the target state. Whereas, when the dynamic involves the OTP, in consultation with other engaged actors, the power balance shifts, potentially to incentivize cooperation with the Court.

IV. CONCLUSION President Kwon of the ASP has reminded us that “international criminal justice [is] a living and growing organism, a work in progress, a project still in its infancy, and as such, we have an obligation to future generations to care for its development.”260 In this way, activation of the crime of aggression is not a non-event or one that should prompt devolution of power to the Security Council. Instead, activation triggers an immediate need for normative development. This Article encourages this action in order to build the Court’s long-term legitimacy and capacity so that it will be the insti-

258. Moreno-Ocampo, supra note 242, at 9. R 259. Secretary General 2004 Report—Transnational Justice, supra note 8, ¶ 26. R 260. Statement by H.E. O-Gon Kwon, supra note 12, at 2. R \\jciprod01\productn\J\JLE\51-2\jle201.txt unknown Seq: 58 3-SEP-19 10:26

288 The Geo. Wash. Int’l L. Rev. [Vol. 51 tution its framers envisioned—one to stand as a bulwark against future atrocities.