Transcript: jurisdictional and trigger mechanisms.

• Author: Ellis, Mark S.

The Frederick K. Cox International Law Center at Case Western Reserve University sponsored a symposium, "The International Criminal Court and the Crime of Aggression," on September 26, 2008. The purpose oft he conference was to assist the ICC Assembly of State Parties' Special Working Group on the Crime of Aggression create a workable definition of aggression and the conditions under which the Court could exercise its jurisdiction over it. This transcript contains the remarks of Mark Ellis, who moderated a panel discussion featuring Professor David Scheffer, former U.S. Ambassador at Large for War Crimes Issues, and Elizabeth Wilmshurs, former Deputy Legal Advisor for the Foreign & Commonwealth Office (U.K.).

INTRODUCTION

I've never been a strong proponent of including the crime of aggression within the Court's jurisdiction. My fear has been that by including the crime, it will unnecessarily dilute the important and current focus on the crimes of genocide, crimes against humanity, and war crimes. I simply do not feel that these key crimes are sufficiently rooted in the mindset of the international community to add yet another complicated distracting crime. We should instead assist the Court in ensuring that the current three core crimes remain the central focus for the Court so that we can advance the goal of putting an end to impunity for the perpetrators of these crimes and contribute to the prevention of such crimes. The Court is seven years old and has only recently started its first trial (The Prosecutor v. Thomas Lubanga Dyilo). The Court's recent decision to indict and issue an arrest warrant against a sitting head of state (The Prosecutor v. Omar Hassan Ahmad Al-Bashir) also places enormous pressure on the perceived legitimacy of the Court. And yet, we are spending an extraordinary amount of time on possibly burdening the Court with a new crime that will be controversial and likely unworkable. Finally, I disagree with the argument that the crime of aggression is the ultimate international crime. Genocide, crimes against humanity, and gross violations of the international humanitarian law remain, for me, the "ultimate" international crimes. Unless the crime of aggression leads to one of these "associated" crimes, then I simply do not see the crime as having reached this same egregious level of criminality.

OUTLINE OF THE TRIGGER MECHANISM DEBATE

What I will do is very briefly frame the trigger/filter mechanism debate as presented within the Special Working Group on the Crime of Aggression (SWGCA). The SWGCA has focused on three topics (baskets): (1) the...