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Following extensive consultations, draft regulations presented to the
Third Assembly of States Parties did not gain approval, and the matter was
held over until the next ASP. Victim-oriented NGOs continued to hold
meetings, seminars, and consultations and to propose modi¬ed regula-
tions. At the fourth ASP in November 2005, along with the debate over
de¬ning victims, controversy emerged over how and whether voluntary
contributions to the VTF could be ˜˜earmarked™™ for particular victims or
situations. Board member Mme. Simone Veil gave impassioned speeches
to the ASP, and at a meeting of the NGOs, she pressed states to resolve
their differences and allow the VTF to begin operation and expressed her
impatience and frustration.54 At the end of the session, the regulations
were adopted.
The agreed VTF regulations distinguish between funds collected from
awards for reparations (that is, from perpetrators by order of the Court)
and all other sources.55 Funds collected through awards can bene¬t only
victims ˜˜affected directly or indirectly by the crimes committed by the
convicted person.™™56 Modeled on common-law procedures, the judges, as
part of a sentence, can decide to claim reparations from a convict and then
turn over acquired resources to the VTF for distribution.
The VTF board can draw upon other, voluntarily donated resources to
support more broadly de¬ned victims and their families even before a trial
has begun, as long as the judges, once informed of the board™s intention,
determine that it would not be prejudicial to the trial to do so. What
quali¬es the victim for the voluntary funds is not direct connection with a
perpetrator, but with being de¬ned by the VTF board as having suffered
from crimes under the Court™s jurisdiction in general. Thus, the ASP didn™t
solve the problem of de¬nition but left the determination to the VTF
board. The VTF is to notify Pre-Trial Chambers of its decision to act, and


54
At the 2005 ASP, it was announced that VTF board member Oscar Arias was resigning
from his seat. He was subsequently elected president of Costa Rica and took of¬ce in
May 2006. Later in May, former President of Trinidad and Tobago Arthur N. R.
Robinson was elected to the VTF board. It had been President Robinson™s call for the
creation of an ICC in 1988 that restarted serious consideration of the matter by the UN
General Assembly and International Law Commission. During 2006, Queen Rania of
Jordan indicated that she would no longer serve on the board. The fall (2006, ¬fth) ASP
left the position open when nominations were not forthcoming from the Asian region;
the hope was that someone would be found by the time of the January continuation of
the ¬fth ASP.
55
ICC, ASP, Fourth Session, ˜˜Regulations of the Trust Fund for Victims,™™ (2005) ICC-ASP/4/
Res. 3 Annex, Part II, Chapter IV, para. 34.
56
Ibid., Part III, Chapter I, para. 46.
186 Building the International Criminal Court

the rules give the PTCs a limited period of time during which they can
raise objections.57
Victim advocates extolled this outcome that permitted the VTF to
become something like an insurance fund for victims of atrocity crimes.
From the civil-law/victim-oriented viewpoint, it brought the ICC further
into the business of reparative or restorative justice, away from retribution.
Common-law advocates still feared that the process could compromise the
presumption of innocence and were concerned that the judges would ¬nd it
very dif¬cult to come to a dispassionate decision about whether engaging
the VTF might be prejudicial because to delay VTF action would appear to
be acting against victims in favor of the accused “ an unpopular position.58


Extending Jurisdiction “ Aggression as a Crime
Aggression is the most controversial crime in the Statute. There was over-
whelming sentiment at the Rome Conference to include aggression in the
Statute, but there was also adamant opposition to it, particularly from the
United States and other Security Council permanent members. When
negotiators recognized their inability to reach consensus, they compromised
by extending the Court™s jurisdiction over aggression and creating a seven-
year grace period (in practice, to the 2009 Statute Review Conference)
during which to develop the Statute amendments.59 Jurisdiction can be
exerted once provisions de¬ne the crime and set out the conditions under
which the Court shall exercise jurisdiction, ˜˜consistent with the relevant
provisions of the Charter of the United Nations.™™60 Because the UN Charter
delegates to the Security Council responsibility for responding to

57
Dealing with the questions of when the fund could take action, the regulations declare that
to implement the ˜˜activities and projects™™ of the VTF (Part III, Chapter II), the Trust Fund
˜˜shall be considered to be seized™™ when the board ˜˜considers it necessary to
provide . . . rehabilitation or material support for the bene¬t of victims™™ (para. 50(a)(I)),
and (this is where the ball was kicked over to the judges) the board has informed the Court
(judges) and the ˜˜relevant Chamber™™ (not specifying pretrial or trial chamber, since there is
no direction in the regulations as to when this can take place, leaving open the possibility
that the board might decide to seek to initiate reparations or assistance to victims even while
a case is at the pretrial stage) has not (with various deadlines and time periods) responded to
the board that the proposed activity would ˜˜pre-determine any issue to be determined by
the Court,™™ including jurisdiction, admissibility, the presumption of innocence, ˜˜or be
prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial™™
(para. 50(a)(ii)).
58
Interviews.
59
Statute Article 123.1.
60
Statute Article 5.2.
187
ICC“State Relations

aggression,61 such Statute provisions will need explicitly to delineate the
relationship between the Court and the Security Council.
The Preparatory Commission began discussions on aggression in 2002 and
then shunted the matter over to the Assembly of States Parties, which then
established the Special Working Group on the Crime of Aggression (SWGCA).
The working group is special in that it invites participation by ICC Statute
parties as well as all members of the United Nations, since the questions at hand
involve the UN Charter as well as the ICC. Beginning in summer 2004, the
SWGCA has met annually in Princeton under the sponsorship of the Woodrow
Wilson School and the Liechtenstein Institute on Self-Determination in what
the ASP calls the ˜˜informal inter-sessional meeting™™ of the SWGCA. Partici-
pants have also established an electronic ˜˜virtual working group™™ to pursue
development of the needed statutory and other language.
There are four main areas of technical dif¬culty, underlying which is the
basic problem of whether an individual crime of aggression can be reduced
to legalities or whether the matter is so politically embedded as to make
˜˜legalization™™ impossible. The SWGCA has proceeded on the basis of a
discussion paper produced by the Preparatory Commission™s coordinator of
the Working Group on Aggression.62
The ¬rst challenge is to de¬ne aggression. A 1974 General Assembly
resolution de¬nes the state crime of aggression,63 but it does not establish

61
UN Charter, Chapter VII.
62
ICC, Preparatory Commission for the International Criminal Court, Working Group on the
Crime of Aggression, ˜˜Discussion Paper Proposed by the Coordinator™™ (2002), PCNICC/
2002/WGCA/RT.1/Rev. 2.
63
Article 1: ˜˜Aggression is the 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, as set out in this de¬nition.™™ Article 2 indicates that ¬rst use
of armed force in contravention of the Charter constitutes prima facie evidence of an act of
aggression but reserves the Security Council™s right to decide whether such an act might be
justi¬ed or ˜˜not of suf¬cient gravity.™™ Article 3 enumerates acts that, regardless of a declaration
of war, qualify as acts of aggression (invasion, annexation by force, bombardment, or use of
weapons against a state™s territory; port blockage; attack on the land, sea, or air forces or
marine and air ¬‚eets of another state; use of armed forces within a state contravening an
agreement on their stationing; allowing a state to be used for perpetrating aggression against a
third state; sending of armed bands, groups, irregulars, or mercenaries to carry out acts of force
against another state). Article 4 indicates that the UN Security Council can add acts to this list.
Article 5 establishes that there are no political, economic, military, or other justi¬cations for
aggression; that a war of aggression is a crime against international peace and gives rise to
international responsibility; and that no territorial acquisition or advantage resulting from
aggression is to be recognized as lawful. Article 6 retains Charter supremacy. Article 7 notes
that the right to self-determination, freedom, and independence is to be maintained. Article 8
notes that all of the provisions must be considered together in interpretation. UN General
Assembly, Resolution 3314(XXIX) (1974).
188 Building the International Criminal Court

an individual crime. In order for the ICC to be able to prosecute a crime of
aggression, the material elements (what actually happened) and mental
requirements (intent, motive, understanding of consequences) of an indi-
vidual person™s crime must be de¬ned, and its relationship to the state crime
will have to be determined. The discussions at SWGCA revolve in part
around how speci¬c or generic such a description should be. The individual
crime will likely be de¬ned as the act of participating in the planning,
preparation, initiation, or execution of an act of aggression as de¬ned in the
UN General Assembly resolution.
A second area of discussion is how a new aggression provision of the
Statute would come into force. Would states parties to the Statute auto-
matically be subject to accepting it were the amendment procedure (which
requires a supermajority of parties) ful¬lled, or would they in contrast either
have to ˜˜opt in™™ or have the right to ˜˜opt out™™ of the new provision?
A third topic is how the legal principles of the Statute that apply to the
existing crimes (such as complicity in attempted crime, command respon-
sibility, higher orders) apply to the new crime, which is inherently a
˜˜leadership™™ crime and thus something of a special case, and whether these
need to be spelled out or should be left to the Court to determine.
The fourth and by far most sensitive set of issues is over who decides
when aggression has taken place (or been planned!). Can the ICC pursue a
suspected perpetrator of aggression without the Security Council having
¬rst found that such an act has taken place? Must the ICC act if the Security
Council has found aggression? Could the General Assembly and/or the
International Court of Justice trigger ICC investigations? Related to that
question of ˜˜trigger,™™ once an act of aggression has been determined to
have happened, how does the Court proceed with an investigation of
individuals while protecting the due-process rights of the accused?
With regard to the role of the Security Council, according to a CICC
report on SWGCA meetings of 2005, there are two general lines of
thought. The ¬rst line is that UN Charter Article 39 gives the Security
Council the exclusive authority to make such a determination. A second
line of thought is that a Security Council ¬nding of aggression is not
required. Within this view, there are several alternatives: (a) the UNSC
has no role to play “ Chapter VII is for enforcement, and the ICC can
independently determine whether the elements of the crime appear to have
been perpetrated (after all, the Nuremberg and Tokyo trials took place
without the UN); (b) the UNSC does not have exclusive responsibility, but
primary responsibility, and if the Security Council fails to act, the ICC
could go ahead; or (c) the UNSC does not have exclusive responsibility,
189
ICC“State Relations

and if it fails to act, the General Assembly or International Court of Justice
would need to do so.64
Will states jealous of their sovereign rights to the use of force be willing
to subject their leaders to a rule of law in which aggression is explicitly
de¬ned and criminalized? Consensus on the question wasn™t even close at
the Statute Conference. Even though the intersessional discussions have
been described as constructive and friendly, British and U.S. representatives
have not participated, and for the most part the discussions are among
technical experts not representing settled state policies. The rationale for
inviting all UN member states to the SWGCA is strong “ failing agreement
with the permanent members of the Security Council, such amendment of
the ICC could lead to a confrontation between the Court and at least some
of the permanent members of the Security Council. Would the establish-
ment of formal jurisdiction over the objections of major states be worth the
risk to the Court of such a confrontation?
The arguments in favor of proceeding (if possible) even against the views
of the United States and/or other Security Council permanent members are
that aggression has already been identi¬ed as a state crime, that state crimes
have individual perpetrators, as the United States and its allies were willing
to argue at Nuremberg, and that the current development of international
society is such that the vast majority of states (as shown in Rome in 1998)
are prepared to move forward with international law in this direction. Even
setting down the markers of international norms is a constitutive act that
may serve to modify behavior and reduce the likelihood of criminal acts
such as aggression. The arguments against are that international society still
reserves to the state the ultimate capacity for the use of force, and that ˜˜self
defense,™™ enshrined in the Charter of the UN, may still be a rather ¬‚exible
concept. Why risk institutional credibility over the issue of aggression?
Enforcement may not only be impossible but likely be actively opposed by
the most powerful state(s) should aggression be pursued. In addition, all the
information needed for the investigation will reside in the country least
likely to cooperate “ the country of origin of the of¬cials in question.


STATESIDE COMPLEMENTARITY: COOPERATING WITH THE COURT

This section discusses the dependence of the Court upon cooperation from
states, particularly those that have joined the Statute. Chapter 4 discussed

64
NGO CICC Team on the Crime of Aggression, ˜˜Informal Inter-sessional Meeting . . . from
13 to 15 June 2005™™ (2006).
190 Building the International Criminal Court

complementarity “ positive and negative “ in the context of ICC operations
in states where crimes may have taken place. A lively policy debate simmers
over the extent to which the ICC should be engaged in judicial assistance to
states and over criteria by which to determine a state™s willingness and
ability to prosecute. However, ICC prosecution should be the exception
rather than the rule. Prosecution of the Statute™s crimes should usually take
place at the domestic level, and only failing this (when a state with juris-
diction is genuinely unwilling or unable) is the Court to become involved.
When a state accepts an obligation to cooperate with the Court by
acceding to the Statute,65 it formally obliges itself to become able to
prosecute Statute crimes. Nonetheless, it remains sovereign, and it can
implement (or not) prosecution and cooperation obligations according to its
own decisions. The most that the ICC can do in response to noncooperation
is to notify the Assembly of States Parties or (if the situation was referred by
the Security Council) the Security Council of the failure to comply with a
request to cooperate.
For states to comply with the Statute, their legal codes must enable them
to prosecute the Statute™s crimes, and they must be able to cooperate with
the Court. For these purposes, they must bring their domestic legislation
into line with the Statute.66 For example, in order for a state to cooperate
with the Court in apprehending suspects, its own legal system must crimi-
nalize the crimes declared illegal under the Statute and provide for domestic
enforcement capabilities.67 Aligning domestic law with Statute obligations
often requires constitutional adjustments, changes in legal codes, or both,68
not only to make enforcement possible but also to uphold the due-process
standards and legal principles embraced by the Statute. NGOs, including
Parliamentarians for Global Action, Amnesty International, the Interna-
tional Committees of the Red Cross, and many other national and inter-
national organizations,69 have been crucial in helping states to develop

65
Rome Statute Article 86: General obligation to cooperate. ˜˜States Parties shall, in
accordance with the provisions of this Statute, cooperate fully with the Court in its
investigation and prosecution of crimes within the jurisdiction of the Court.™™
66

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