Report of the Cleveland experts meeting: the International Criminal Court and the crime of aggression.

On September 25-26, 2008, Case Western Reserve University School of Law hosted a symposium and experts meeting to help advance the project of defining aggression and arriving at an appropriate trigger mechanism for the International Criminal Court (ICC) to exercise jurisdiction over that crime. The event was in coordination with Christian Wenaweser, President-elect of the ICC Assembly of State Parties, and supported by funding from the Wolf Family Foundation, the Planethood Foundation, the Public International Law and Policy Group, and the Frederick K. Cox International Law Center. This Report summarizes the presentations and discussions of the participants in the experts meeting.

TABLE OF CONTENTS INTRODUCTION DEFINITION OF THE CRIME OF AGGRESSION Security Council Trigger Possibility of Security Council Granting Approval through Resolution Magnitude and General Assembly Resolution 3314 Inclusion of Threats Priority and Intent Elements Applicability of Article 31 Location of Defenses and Structure of the Statute Judicial Interpretation of the Definition DEFINITION OF AGGRESSION AND JURISDICTIONAL FILTER (THE SCHEFFER PROPOSAL) The Scheffer Proposal (Article 8bis) New Article 8bis of the Rome Statute Crime of Aggression The Scheffer Proposal (Article 15bis) Option 1 (judicial green light) New Article 15bis of the Rome Statute Exercise of jurisdiction over the crime of aggression Option II ("soft green light") New Article 15bis of the Rome Statute Exercise of jurisdiction over the crime of aggression Discussion Points on Jurisdictional Proposals Limitations of the Scheffer Proposal Regarding Prosecutors Nomenclature of the Alternatives Red Light Solution Prosecutorial Procedure Alternative 2, Option 3 and the Uniting for Peace Process Exclusive Role of the Security Council and the 121 Discussion Independence of the ICC Trigger Defined as a Threat to the Peace International Criminal Tribunal for the Former Yugoslavia (ICTY) Rule 61 Proceedings and Victim Participation Inaction and Lack of Determination by the Security Council The Strength of the Filters Legitimacy of the ICC Appeasing the Security Council The United States of America and the ICC Interplay between the Security Council and the ICC Prosecutor Political Guidance for the ICC JURISDICTIONAL OPT-IN/OPT-OUT (THE MANSON PROPOSAL) Manson's Proposed Amendment to Article 12 Alternative (a) Alternative (b) Value of an Opt-In Procedure for States with Shared Borders or a History of Hostilities Interplay of Manson's Proposed Amendment of Article 12 with Article 15bis, Alternative 2 Relation to Article 121(5) Clarification of Proposed Article 12(2)(bis) Possibility of an Opt-Out Procedure Timing of Declaration Limitation of Jurisdiction to Nationals of States Who Have Accepted Jurisdiction Political Feasibility o f Jurisdiction in the Proposal Balancing the Concerns of Existing States Parties with those of Influential Non-States Parties States' Motivations for Opting In Complexity of Victims Issues CONCLUSION AND RECOMMENDATION ANNEX 1: THE CLEVELAND DECLARATION ANNEX 2: LIST OF PARTICIPANTS INTRODUCTION

On September 25-26, 2008, Case Western Reserve University School of Law hosted a symposium and experts meeting to help advance the project of defining aggression and arriving at an appropriate trigger mechanism for the International Criminal Court (ICC) to exercise jurisdiction over that crime. The event was in coordination with Christian Wenaweser, President-elect of the ICC Assembly of State Parties, and supported by funding from the Wolf Family Foundation, the Planethood Foundation, the Public International Law and Policy Group, and the Frederick K. Cox International Law Center.

The Cleveland Experts Meeting was chaired by David Scheffer, former U.S. Ambassador at Large for War Crimes Issues and head of the U.S. Delegation during the 1998 Rome Diplomatic Conference for the International Criminal Court. The two dozen other participants in the Experts Meeting, several were a mix of delegates and NGO representatives who have participated in the work of the Special Working Group on the Crime of Aggression (Christian Wenaweser, Stefan Barriga, Roger Clark, Don Ferencz, Robbie Manson). Additional participants were former government, international organization, and NGO representatives who had taken part in the negotiations of the Rome Statute and/or its supplemental instruments (Cherif Bassiouni, Ben Ferencz, Henry King, Michael Newton, Elizabeth Wilmshurst). The remaining participants consisted of leading academic experts on the ICC and international criminal law practitioners from across the globe (Astrid Reisinger Coracini, Shahram Dana, Mark Drumbl, Mark Ellis, Elise Leclerc-Gagne, Larry May, Sean Murphy, Laura Olson, Keith Petty, Christopher Rassi, Leila Sadat, Bill Schabas, Michael Scharf, Ben Schiff, Oscar Solera, Noah Weisbord). The experts participated in their individual/personal capacities, and not as representatives of their respective countries, organizations, or institutions.

The hope was that by holding the session away from the United Nations and involving a wide range of outside expertise and experience, the Experts Meeting could develop and explore new proposals for the Assembly of State Parties' consideration. In an effort to place the proposals of the Cleveland Experts Meeting before the Special Working Group on the Crime of Aggression (SWGCA) in time for its November 2008 sessions, the Experts Meeting provided a brief preliminary report of their work without delay, followed by this more comprehensive document that reflects the details of the discussion. The report follows the "Chatham House Rule;" therefore, with the exception of proponents of the two major proposals under consideration, the views of particular experts remain unidentified in the text. Annexed at the end of the Report is the "Cleveland Declaration." All participants of the Experts Meeting endorsed the Cleveland Declaration, with the exception of government and international organization representatives who by virtue of their official positions could not associate themselves with the document.

DEFINITION OF THE CRIME OF AGGRESSION

The first segment of the meeting focused on the definition of the crime of aggression. Although much progress has been made in defining the crime, a major area still in the working stages is how to incorporate exceptions, if at all. The question posed to the group was whether it could arrive at a definition that satisfactorily takes into account exceptions and how such a definition would look. Potential exceptions posed for consideration included: self-defense, humanitarian intervention, protection of nationals, rescue from embassies under siege, antiterrorism efforts, and nuclear nonproliferation. Humanitarian intervention and self-defense received notable emphasis. Some experts questioned the possibility of agreeing on what would constitute an acceptable form of humanitarian intervention or self-defense before either could be incorporated as an exception to the crime of aggression.

Initially, the group pointed out that by its very nature, aggression is the most political of all international crimes, and the difficulty with defining it is not necessarily inherent within the complexity of the legal issues pertaining to it, but with the political ramifications of what a legal definition may contain. Moreover, states are reluctant to reveal that they color their approaches to the definition with their respective political considerations and with their political relations with other states, particularly the major ones. This is why the question of defining aggression has, for all practical purposes, continued since the Nuremburg charter's inclusion of "crimes against peace." The work of the various committees since 1946 up to the 1974 GA Resolution on defining aggression clearly evidences the use of legal technicalities to mask the politics. From 1995 to the present, the issue is much less the definition as it is a triggering mechanism.

Security Council Trigger

The experts noted that lawful exceptions to the use of force could be linked to an exclusive Security Council trigger which could allow the Security Council to take into account exceptions when determining aggression. Unless the Security Council has exclusive power to make determinations on aggression, some experts felt the definition of aggression itself must incorporate the exceptions.

Possibility of Security Council Granting Approval through Resolution

One expert explained that with the 1974 General Assembly Resolution 3314 definition, (1) the drafters wrote in exculpating clauses to meet the concerns of various groups who did not want the restriction of a specific definition. The language used in the clauses was intentionally open to interpretation, leaving the Security Council with the discretion to determine aggression.

The current definition of aggression, then, may be able to accommodate proposed exceptions. One of those ways, as suggested by a delegation in the last Assembly of State Parties Special Working Group Meeting, would be to have the Security Council draft a resolution, after-the-fact, sanctioning the use of force by the state. If Article 2 of GA Resolution 3314 (2) were absent in the definition, this possibility would always be left open. Although an after-the-fact Security Council resolution would not be determinative for the ICC, the Court would likely give due deference to such a resolution because of the Security Council's political influence.

Another expert suggested that the ICC should not defer to any after-the-fact determination by the Security Council when looking at the facts and evidence within the context of the adjudication process. Multiple members questioned whether defendants could challenge the Security Council's determination on the aggression if it is merely a trigger to jurisdiction.

Some felt that after receiving the Security Council's...

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