Negotiating at the interface of power and law: The crime of aggression

Columbia Journal of Transnational Law

Volumn 49, Issue 3, 2011, Pages 505-601

  Van Schaack, Beth ^a  

^a STANFORD UNIVERSITY   (United States)

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EID: 79960770432     PISSN: 00101931     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (272)

1. Res. RC/Res.6, U. N. Doc. RC/Res.6 (June 11, 2010), available at http://www.icccpi.int/iccdocs/asp-docs/Resolutions/RC-Res.6-ENG.pdf [hereinafter Aggression Resolution].
2. This Article focuses on the jurisdictional regime governing the crime of aggression; a companion piece will focus on the definition of the crime. See Beth Van Schaack, The Grass That Gets Trampled When Elephants Fight: Will the Codification of the Crime of Aggression Protect Women?, 15 UCLA J. INT'L L. & FOREIGN AFF. (forthcoming 2011), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id=1676506.
3. Rome Statute of the International Criminal Court, art. 5(2), U. N. Doc. A/CONF. 183/9 (July 17, 1998, corrected by proces-verbaux of Nov. 10, 1998, July 12, 1999, Nov. 30, 1999, May 8, 2000, Jan. 17, 2001 and Jan. 16, 2002) [hereinafter ICC Statute] ("The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime."), available at http://untreaty.un.org/cod/icc/statute/english/rome-statute%28e%29.pdf.
4. See Kenneth Anderson, The Rise of International Criminal Law: Intended and Unintended Consequences, 20 EUR. J. INT'L L. 331, 355 (2009) (describing international criminal law as "a mechanism for achieving reform of the Security Council over the long haul by gradually hiving off parts of its mandate and authority.").
5. Just war theory goes back centuries. See generally THE MORALITY OF WAR: CLASSICAL AND CONTEMPORARY WRITINGS (Larry May et al. eds., 2006) (compiling excerpts from just war theorists). In the face of atrocities committed during World War I, the victorious Allies and Associated Powers convened a Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties to inquire into culpable conduct of particular individuals-"however highly placed"-accused of breaching international law. Foreshadowing the notion of crimes against the peace later developed at Nuremberg and Tokyo, the Commission considered "not strictly war crimes, but acts which provoked the war or accompanied its inception", such as deliberate violations of the neutrality of Belgium and Luxembourg.
6. See Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties: Report Presented to the Preliminary Peace Conference (March 29, 1919)
7. reprinted in 14 AM. J. INT'L. L. 95, 118 (1920).
8. See generally Sheldon Gleuck, The Nuernberg Trial and Aggressive War, 59 HARV. L. REV. 396, 401-03 (1946). Notwithstanding early support for prosecuting the Kaiser and others for initiating World War I, the Commission adopted the U. S. position and concluded that acts of aggression should not be the subject of prosecution in light of the lack of legal authority for such a charge and the complexity of undertaking an investigation into the politically charged question of the causes of the war, which it viewed as a question for historians and statesmen, rather than a penal tribunal. (noting that the Commission concluded that determining the "authorship of the war would entail many handicaps of proof')
9. Agreement by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom and Northern Ireland and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, Protocol, Aug. 8, 1945, art. 6 (a), 59 Stat. 1544
10. U. N. T. S. 279 (defining crimes against the peace).
11. David Luban, The Legacies of Nuremberg, 54 Soc. RES. 779, 781 (1987). The quote is a riff on President Woodrow Wilson's too optimistic prediction that World War I would be the "war to end all wars"
12. RALPH KEYES, THE QUOTE VERIFIER 239-40 (2006). Crimes against the peace took center stage in Tokyo too, overshadowing the many war crimes and crimes against humanity that were committed in the Pacific theater.
13. See 101-103 THE TOKYO MAJOR WAR CRIMES TRIAL 48, 413-49, 591 (R. John Pritchard, ed. 1998) (discussing crimes against the peace) [hereinafter Tokyo Judgment];
14. International Military Tribunal (Nuremberg), Judgment (Oct. 1, 1946), reprinted in 41 AM. J. INT'L L. 172, 186 (1947) [hereinafter Nuremberg Judgment].
15. The notion of crimes against the peace was the most controversial element of the Charter at the time. See F. B. Schick, The Nuremberg Trial and the International Law of the Future, 41 AM. J. INT'L L. 770, 783 (1947) ("Most controversial among the broad legal aspect of the Nuremberg Trial is the basic concept that aggressive war is not only illegal in international law but that those 'who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing.'") (quoting the Nuremberg Judgment);
16. see also George Finch, The Nuremberg Trial and International Law, 41 AM. J. INT'L L. 20, 25-37 (1947);
17. Quincy Wright, The Law of the Nuremberg Trial, 41 AM. J. INT'L L. 38, 62-67 (1947).
18. See, e.g., Int'l Criminal Court, Assembly of States Parties, Special Working Grp. on the Crime of Aggression, 5th Sess., Nov. 23-Dec. 1, 2006, Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, ¶¶ 7-13, U. N. Doc. ICC-ASP/5/SWGCA/INF.l (Sept. 5, 2006), available at http://www.icc-cpi.int/iccdocs/asp-docs/library/asp/ICC-ASP-5- SWGCA-INFl-English.pdf (discussing debates over whether Resolution 3314 could provide a penal definition and suggesting alternatives, including the World War II definition of crimes against the peace).
19. Andreas Zimmerman, Article 5, Crimes Within the Jurisdiction of the Court, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 97, 104-05 (Otto Triffterer ed., 1999) (noting lack of consensus in Rome over the definition of the crime of aggression).
20. Stefan Barriga, Against the Odds: The Results of the Special Working Group on the Crime of Aggression, in THE PRINCETON PROCESS ON THE CRIME OF AGGRESSION: MATERIALS OF THE SPECIAL WORKING GROUP ON THE CRIME OF AGGRESSION, 2003-2009, 1, 3 (Stefan Barriga et al. eds., 2009) (noting that the definitional issues "could be regarded as contained, but not necessarily as resolved").
21. See Int'l Criminal Court, Assembly of States Parties, Official Records on its 4th Sess., Nov. 28-Dec. 3, 2005, Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, June 13-15, 2005, ¶ 63, U. N. Doc. ICC-ASP/4/32, Annex II. A (2005) [hereinafter June 2005 SWGCA Report], available at http://www.icccpi.int/NR/rdonlyres/D224718C-39EF-477C- B028-F434F4BF78AE/0/Annexes.pdf ("While there was general agreement that any provisions on the crime of aggression would have to be consistent with the Charter, there were considerable differences of opinion as to whether this implied that there had to be a prior determination of the act of aggression and whether such determination fell within the exclusive competence of the Security Council.");
22. see also Giorgio Gaja, The Long Journey Towards Repressing Aggression, in 1 THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 427, 433 (Antonio Cassese et al. eds., 2002) (recounting pre-Rome efforts to establish a Security Council filter for the crime of aggression).
23. The Like-Minded States comprised the Europeans-with the exception of the United Kingdom and France who remained aligned with the other members of the Security Council for the majority of the Rome Conference-and many developing nations. Philippe Kirsch & Darryl Robinson, Reaching Agreement at the Rome Conference, in 1 THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, supra note 20, at 67, 70-71 (discussing negotiating dynamics in Rome).
24. See Mohamed El Zeidy, The United States Dropped the Atomic Bomb of Article 16 of the ICC Statute: Security Council Power of Deferrals and Resolution 1422, 35 VAND. J. TRANSNAT'L L. 1503, 1509-10 (2002). The exercise of the veto would have blocked a prosecution.
25. Amnesty International, for example, claimed neutrality, although it did take positions on elements of the jurisdictional regime, insisting, for example, on no Security Council control over the crime and no right of States Parties to opt out. Amnesty Int'l, International Criminal Court: Making the Right Choices at the Review Conference, at 11-15, AI Index IOR 40/008/2010 (Apr. 21, 2010), available at http://www.amnesty.org/en/library/asset/IOR40/008/2010/en/faad9888- c9fb-425a-98bc-fcceld5e075f/ior400082010en.pdf;
26. see also Coalition for the Int'l Crim. Ct., The Crime of Aggression, http://www.iccnow.org/?mod=aggression ("The CICC as a whole did not take a position concerning the adoption of specific provisions on the crime of aggression at Kampala. This was because CICC members developed varying positions concerning the complex discussions on the crime.").
27. See, e.g., Hum. Rts. Watch, Making Kampala Count, 1 (May 10, 2010), http://www.hrw.org/en/reports/2010/05/10/making-kampala-count ("We fear that inclusion of a definition and jurisdictional filter could diminish the court's role-and the perceptions of that role-as an impartial judicial arbiter of international criminal law.").
28. see also Federation Internationale des Droits de l'Homme, ICC Review Conference: Renewing Commitment to Accountability, 24 (May 25, 2010), http://www.fidh.org/IMG/pdf/KampalaCPI543a-2.pdf (arguing for the independence of the ICC vis-a-vis the crime of aggression).
29. The United States did not start participating in the formal negotiations until November 2009. See generally Bill Marmon, As ICC Starts Major Review, Can U. S. and EU Cooperate?, EUR. AFF. (June-July 2010), http://www. europeaninstitute.org/201006041034/June-July-2010/as-icc-starts-major-review- can-us-and-eu-cooperate.html ("All their political skills will be needed if the U. S. is to manage its nuanced diplomatic goals in Kampala and beyond without appearing hypocritical, or opportunistic, or obstructive, or unilaterally hubristic-or all of the above."). This renewed engagement replaced the overt hostility toward the court that characterized the first term of the George W. Bush Administration.
30. See Diane Marie Amann & M. N. S. Sellers, The United States of America and the International Criminal Court, 50 AM. J. COMP. L. (SUPP.) 381, 384, 404 (2002).
31. See Mark S. Stein, The Security Council, the International Criminal Court, and the Crime of Aggression: How Exclusive Is the Security Council's Power To Determine Aggression?, 16 IND. INT'L & COMP. L. REV. 1, 8 (2005) ("The Security Council is a political body, and it has used the term 'aggression' in its resolutions in a political way. The Security Council has not found the existence of aggression where aggression was most obvious, and it has found aggression in borderline cases.").
32. See Niels Blokker & Claus Krep, A Consensus Agreement on the Crime of Aggression: Impressions from Kampala, 23 LEIDEN J. INT'L L. 889, 891 (2010) (noting the lack of a credible threat of a vote);
33. see also Delegations to the Review Conference of the Rome Statute of the International Criminal Court, U. N. Doc. RC/TNF.l (Aug. 26, 2010) (listing delegations present in Kampala), available at http://www.icc-cpi.int/iccdocs/ asp-docs/RC2010/RC-INF.1-reissued-ENG-FRA-SPA.pdf.
34. Harold Hongju Koh, Legal Adviser, U. S. Dep't of State, Statement at the Review Conference of the International Criminal Court, Kampala, Uganda (June 4, 2010), available at http://www.state.gov/s/l/releases/remarks/142665.htm [hereinafter Koh, U. S. Intervention];
35. see also I. C. C. Res. ICC-ASP/6/Res.2, Annex IV, Draft Rules of Procedure of the Review Conference, R. 49, 51, available at http://www.icc-cpi. int/iccdocs/asp-docs/Resolutions/ICC-ASP-ASP6-Res-02-ENG.pdf [hereinafter Review Conference Rules].
36. See Beth Van Schaack et al., International Service for Human Rights Dossier on the International Criminal Court 3 n. 14 (Santa Clara Sch. of Law Legal Stud. Res. Papers Ser., Working Paper No. 10-07, June 2010), http://papers.ssrn. com/sol3/papers. cfm?abstract-id=1628317;
37. William K. Lietzau, International Criminal Law After Rome: Concerns from a U. S. Military Perspective, 64 LAW & CONTEMP. PROBS. 119, 119-20 (2001) (describing U. S. marginalization in multilateral treaty negotiations).
38. See Valerie Oosterveld, Final Day in Kampala, INTLAWGRRLS (June 11, 2010), http://intlawgrrls.blogspot.com/2010/06/final-day-in-kampala.html;
39. Astrid Reisinger Coracini, The International Criminal Court's Exercise of Jurisdiction over the Crime of Aggression-at Last⋯ in Reach⋯ over Some, 2 GOTTINGEN J. INT'L L. 745, 764 n. 109 (2010) (discussing credentials).
40. Brackets in a treaty indicate contested or tentative text. See Int'l Criminal Court, Assembly of States Parties, Official Records on its Resumed 6th Sess., June 2-6, 2008, Report of the Special Working Group on the Crime of Aggression, Attachment, Draft Amendments to the Rome Statute of the International Criminal Court, U. N. Doc. ICC-ASP/6/20/Add.l, Annex II (2008). The aggression amendments have been denominated Article 8bis (definition) and Articles 15bis and 15ter (jurisdiction). See Aggression Resolution, supra note 1. All other Articles referenced herein appear within the Statute as adopted at Rome in 1998.
41. Int'l Criminal Court, Assembly of States Parties, Official Records on its 7th Sess. (1st & 2d Resumptions), Jan. 19-23, Feb. 9-13, 2009, Report of the Special Working Group on the Crime of Aggression, U. N. Doc. ICC-ASP/7/20/Add.l, 2d Resumption, Annex II (2009), available at http://www.icc-cpi.int/iccdocs/asp-docs/ICC-ASP-7-20-Add. 1% 20English.pdf
42. see also Int'l Criminal Court, Assembly of States Parties, Official Records on its 7th Sess. (1st & 2d Resumptions), Jan. 19-23, Feb. 9-13, 2009, Proposals for a Provision on Aggression Elaborated by the Special Working Group on the Crime of Aggression, Appendix, U. N. Doc. ICC-ASP/7/SWGCA/2, Annex I (2009), available at http://www.icc-cpi.int/iccdocs/asp-docs/ASP7R2/ICC-ASP-7- SWGCA-2-ENG.pdf.
43. Christian Wenaweser, Reaching the Kampala Compromise on Aggression: The Chair's Perspective, 23 LEIDEN J. INT'L L. 883, 883 (2010).
44. Int'l Criminal Court, Assembly of States Parties, Special Working Grp. on the Crime of Aggression 5th Sess., Nov. 23-Dec. 1, 2006
45. Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, U. N. Doc. ICC-ASP/5/SWGCA/INF.l, ¶ 18 (Sept. 5, 2006), available at http://www.icc-cpi.int/iccdocs/asp-docs/library/asp/ICC-ASP- 5-SWGCA-INF1-English.pdf.
46. See id. ¶¶ 18-20 (summarizing debates over the term "flagrant" versus "manifest"). The term "flagrant" disappeared in 2007, apparently because it was considered too high a barrier to prosecution. See Int'l Criminal Court, Assembly of States Parties, Resumed 5th Sess., Jan. 29-Feb. 1, 2007
47. Report of the Special Working Group on the Crime of Aggression, ¶¶ 16-18
48. U. N. Doc. ICC-ASP/5/35, Annex II (2007), available at http://www.icc-cpi.int/iccdocs/asp-docs/library/aspACC-ASP-5-35-English.pdf (discussing the term "manifest").
49. See, e.g., Int'l Criminal Court, Assembly of States Parties, Special Working Grp. on the Crime of Aggression 6th Sess., Nov. 30-Dec. 14, 2007
50. Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, ¶ 57, U. N. Doc. ICC-ASP/6/SWGCA/INF.l (July 25, 2007), available at http://www.icc-cpi.int/iccdocs/asp-docs/library/asp/ICC-ASP- 6-SWGCA-INF-l-English.pdf (discussing debates over including reference to "war of aggression").
51. See, e.g., Preparatory Commission for the International Criminal Court, Proposal Submitted by Germany, U. N. Doc. PCNICC/1999/DP.13 (July 30, 1999), available at http://documents-dds-ny.un.org/doc/UNDOC/GEN/N99/223/37/pdf/ N9922337.pdf70pen Element.
52. Article 46 of the 1969 Vienna Convention on the Law of Treaties suggests one useful definition in connection with provisions governing treaty ratifications in violation of domestic law: "[a] violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith." Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U. N. T. S. 331 (entered into force Jan. 27, 1980), art. 46 [hereinafter Vienna Convention].
53. See Int'l Criminal Court, Assembly of States Parties, Official Records on its 4th Sess., Nov. 28-Dec. 3, 2005
54. Discussion Paper 3, Definition of Aggression in the Context of the Statute of the ICC, ¶ 3, U. N. Doc. ICC-ASP/4/32, Annex II. D, available at hrtp://www.icc-cpi.int/NR/rdonlyres/D224718C-39EF-477C-B028-F434F4BF78AE/0/ Annexes.pdf (discussing alternative interpretations of "manifest").
55. Claus Kreß & Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, 8 J. INT'L CRIM. JUST. 1179, 1193 n. 55 (2010).
56. Int'l Criminal Court, Assembly of States Parties, Official Records on its Resumed 8th Sess., Mar. 22-25, 2010
57. Non-Paper by the Chairman on Outstanding Issues Regarding the Conditions for the Exercise of Jurisdiction, U. N. Doc. ICC-ASP/8/20/Add. 1, Appendix 1, available at http://www.icc-cpi.int/iccdocs/asp-docs/ASP8/OR/OR-ASPR8-ENG. ANNEXES.pdf. Non-papers are unofficial documents, not intended to be actionable, that aim to consolidate the negotiations and gauge support for particular formulations or concepts in an informal way.
58. ICC Statute, supra note 3, art. 121.
59. see, e.g., S. C. Res. 1593, U. N. Doc. S/RES/1593 (Mar. 31, 2005) (referring the situation in Darfurto the ICC).
60. See Diane Marie Amann, The International Criminal Court and the Sovereign State, in GOVERNANCE AND INTERNATIONAL LEGAL THEORY 185, 198 (Ige F. Dekker & Wouter G. Werner eds., 2004).
61. The United States long argued that Article 12 of the ICC Statute which, as quoted in supra note 66, allows the ICC to assert jurisdiction over the national of a Non-State Party accused of committing crimes on the territory of a State Party, violates the fundamental principle of treaty law; that is, the principle that a treaty cannot "create either obligations or rights for a third State without its consent." Vienna Convention, supra note 61, art. 34; see Sharon A. Williams, Article 12, Preconditions to the Exercise of Jurisdiction, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, supra note 16, at 329, 336 ("In cases where the Security Council does not trigger the Court's jurisdiction, the United States supported as fundamental the consent of the territorial State and the State of nationality of the accused person, or at a minimum only the consent of the State of nationality.") (citations removed, emphasis in original). This argument has always been controversial and inevitably answered with the observation that the ICC does not exercise jurisdiction over states per se, but rather over individuals.
62. See ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 260 (2007) (noting that a national of a third state may be subject to a treaty if on the territory of a treaty party). The crime of aggression puts the United States's Vienna Convention argument on stronger footing given that adjudicating the crime requires the ICC to declare the illegality of a state's actions as a predicate to the prosecution of an individual for the crime of aggression.
63. ICC Statute, supra note 3, art. 5.
64. It was always understood that ratification of the amendments was irrelevant in cases in which the Security Council triggered a prosecution. Int'l Criminal Court, Assembly of States Parties, Official Records on its 7th Sess., Nov. 14-22, 2008
65. Report of the Special Working Group on the Crime of Aggression, ¶¶ 8-10, U. N. Doc. ICC-ASP/7/20, Annex III (2008), available at http://www.icc-cpi.int/iccdocs/asp-docs/SWGCA/ICC-ASP-7-20-Ann. III%20English.pdf; see also Coracini, supra note 42, at 755 (noting that a referral by the Security Council would not depend on the consent of any of the states concerned).
66. ICC Statute, supra note 3, art. 121 (5).
67. See Int'l Criminal Court, Review Conference of the Rome Statute, May 31-June 11, 2010
68. Conference Room Paper on the Crime of Aggression, U. N. Doc. RC/WGCA/1, Annex III (May 25, 2010), available at http://www.icc-cpi.int/iccdocs/asp-docs/ RC2010/RC-WGCA-1-ENG.pdf [hereinafter May 25, 2010 Conference Room Paper] (setting forth proposed "[understandings regarding the amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression" for inclusion in final Resolution adopting the aggression amendments).
69. Jennifer Trahan, The Rome Statute's Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference, 11 INT'L CRIM. L. REV. 49, 85 n. 148 (2011).
70. ICC Statute, supra note 3, art. 12 (2).
71. Int'l Criminal Court, Assembly of States Parties, Official Records on its 7th Sess. (1st & 2d Resumptions), Jan. 19-23, Feb. 9-13, 2009
72. Report of the Special Working Group on the Crime of Aggression, ¶¶ 31-37, U. N. Doc. ICC-ASP/7/SWGCA/2(2009), available at http://www.icc-cpi.int/iccdocs/asp-docs/ASP7R2/ICC-ASP-7-SWGCA-2-ENG.pdf.
73. See The State Parties to the Rome Statute, INTERNATIONAL CRIMINAL COURT, http://www.icc-cpi.int/Menus/ASP/states+parties/ (last visited Apr. 1, 2011).
74. ICC Statute, supra note 3, art. 121 (6) ("If an amendment has been accepted by seven-eighths of States Parties in accordance with paragraph 4, any State Party which has not accepted the amendment may withdraw from this Statute with immediate effect, notwithstanding article 127, paragraph 1, but subject to article 127, paragraph 2, by giving notice no later than one year after the entry into force of such amendment.").
75. See Int'l Criminal Court, Assembly of States Parties, Official Records on its 7th Sess. (1st & 2d Resumptions), Jan. 19-23, Feb. 9-13, 2009
76. Report of the Special Working Group on the Crime of Aggression, ¶ 28(2009), U. N. Doc. ICC-ASP/7/20/Add. 1, 2d Resumption, Annex II, available at http://www.icc-cpi.int/iccdocs/asp-docs/ICC-ASP-7-20-Add.l%20English.pdf (discussing equal treatment of Non-Party States); see also Coracini, supra note 42, at 760 (noting the "previously determined policy consideration to treat non-State Parties and States Parties [that do not accept] the amendment equally").
77. See Report of the Preparatory Committee on the Establishment of an International Criminal Court, reprinted in INTERNATIONAL CRIMINAL COURT: COMPILATION OF UNITED NATIONS DOCUMENTS AND DRAFT ICC STATUTE BEFORE THE DIPLOMATIC CONFERENCE 7, 12-26 (M. Cherif Bassiouni ed., 1998) (reproducing an earlier version of Article 5, which contained draft definitions of the three core crimes plus aggression and terrorism). Indeed, the version of Article 121 (5) in the Statute adopted at Rome erroneously referred only to amendments to Article 5 of the Statute. The final report, however, added reference to Articles 6 through 8.
78. See Roger S. Clark, Article 121: Amendments, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, supra note 16, at 1265, 1269-70.
79. See Robert Manson, Identifying the Rough Edges of the Kampala Compromise, 21 CRIM. L. F. 417, 422 (2010) (arguing that the Statute provides for "two separate, distinct and mutually exclusive mechanisms, for the acceptance and subsequent entry into force of the Statute.").
80. June 2005 SWGCA Report, supra note 20, ¶¶ 14-15.
81. See, e.g., Int'l Criminal Court, Assembly of States Parties, Official Records on its 7th Sess., Nov. 14-22, 2008, Report of the Special Working Group on the Crime of Aggression (2008), U. N. Doc. ICC-ASP/7/20, Annex III, available at http://www.icc-cpi.int/iccdocs/asp-docs/SWGCA/ICC-ASP-7-20-Ann. III%20English.pdf (recounting negotiations over the correct interpretation and application of Article 121). Article 119 of the ICC Statute, supra note 3, allows the Assembly of States Parties to refer to the International Court of Justice disputes over the interpretation or application of the Statute that cannot be resolved by negotiation; however, this option, which would have delayed the addition of the aggression provisions even more, was never seriously considered.
82. See, e.g., Draft Statute for an International Criminal Court, art. 23(2), U. N. Doc. A/CN.4/Ser. A/1994/Add. 1 (pt. 2), available at http://untreaty.un. org/ilc/texts/instruments/english/draft%20articles/7-4-l994.pdf ("A complaint of or directly related to an act of aggression may not be brought under this Statute unless the Security Council has first determined that a State has committed the act of aggression which is the subject of the complaint.").
83. See, e.g., Report of the Preparatory Committee on the Establishment of an International Criminal Court, art. 10
84. reprinted in THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A DOCUMENTARY HISTORY 119, 132-33 (M. Cherif Bassiouni ed., 1998) (contemplating a filter role for the Security Council for the crime of aggression).
85. See, e.g., June 2005 SWGCA Report, supra note 20, ¶¶ 63-74.
86. See U. N. Charter art. 27, ¶ 3 ("Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.")
87. see also Constantin A. Stavropoulos, The Practice of Voluntary Abstentions by Permanent Members of the Security Council Under Article 27(3), 61 AM. J. INT'L L. 737, 742-47 (1967) (describing the established practice of the Security Council to treat a voluntary abstention as not tantamount to a veto).
88. See, e.g., Int'l Criminal Court, Assembly of States Parties, Special Working Grp. on the Crime of Aggression, 6th Sess., Nov. 30-Dec. 14, 2007
89. Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, U. N. Doc. ICC-ASP/6/SWGCA/INF.l, ¶ 25 (July 25, 2007), available at http://www.icc-cpi.int/iccdocs/asp-docs/library/asp/ICC-ASP- 6-SWGCA-INF-1-English.pdf.
90. See Int'l Criminal Court, Assembly of States Parties, 6th Sess., Nov. 30-Dec. 14, 2007
91. Report of the Special Working Group on the Crime of Aggression, U. N. Doc. ICC-ASP/6/SWGCA/1, ¶ 35 (Dec. 13, 2007), available at http://www.icc-cpi.int/iccdocs/asp-docs/library/asp/ICC-ASP-6-SWGCA-l-English. pdf (discussing Chairman's formulation of the green light proposal).
92. See Frederic L. Kirgis, Jr., The Security Council's First Fifty Years, 89 AM. J. INT'L L. 506, 510 (1995).
93. See Int'l Criminal Court, Assembly of States Parties, 6th Sess., Nov. 30-Dec. 14, 2007, Report of the Special Working Group on the Crime of Aggression, ¶ 38, U. N. Doc. ICC-ASP/6/SWGCA/l (Dec. 13, 2007), available at http://www.icc-cpi.int/iccdocs/asp-docs/library/asp/ICC-ASP-6-SWGCA-l- English.pdf. It seems clear that the green light option was a favorite of the Chair of the Special Working Group on the Crime of Aggression. Although the green light option received little actual support over the years of negotiations, it nonetheless remained in the draft texts under consideration. Id. % 36 (noting that the green light proposal received "limited support")
94. see also Robert Schaeffer, The Audacity of Compromise: The UN Security Council and the Pre-Conditions to the Exercise of Jurisdiction by the International Criminal Court with Regard to the Crime of Aggression, 9 INT'L CRIM. L. REV. 411, 418 (2009) (concluding that the Chair was a proponent of the proposal).
95. See, e.g., Int'l Criminal Court, Assembly of States Parties, Resumed 5th Sess., Jan. 29-Feb. 1, 2007, Report of the Special Working Group on the Crime of Aggression, ¶¶ 23-41, U. N. Doc. ICC-ASP/5/35, Annex II (2007), available at http://www.icc-cpi.int/iccdocs/asp-docs/library/asp/ICC-ASP-5-3 5-English.pdf (discussing filter options); see also infra text accompanying notes 259-62.
96. Int'l Criminal Court, Assembly of States Parties, Resumed 5th Sess., Jan. 29-Feb. 1, 2007, Report of the Special Working Group on the Crime of Aggression, ¶ 25, U. N. Doc. ICC-ASP/5/35, Annex II (2007), available at http://www.icc-cpi.int/iccdocs/asp-docs/library/asp/ICC-ASP-5-35-English.pdf.
97. See U. N. G. A. Rep. of the Ad Hoc Comm. on the Establishment of the Int'l Criminal Court, paras. 69-71, U. N. Doc. A/50/22; GAOR, 50th Sess., Supp. No. 22 (Sept. 6, 1995), available at http://www.undemocracy.com/A-50-22.pdf (discussing debates).
98. See June 2005 SWGCA Report, supra note 20, ¶ 71 ("Concerns regarding the exclusive competence were also based on the fact that permanent members of the Security Council could veto a proposed determination that an act of aggression had occurred and thus block criminal investigation and prosecution. Since aggression was a leadership crime, this could jeopardize the principle that all accused had similar legal resources at their disposal, irrespective of their nationality."). 114. The final iteration of this principle reads, "A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court's own findings under this Statute." Aggression Resolution, supra note 1, Annex I, art. 15bis (9)
99. see June 2005 SWGCA Report, supra note 20, ¶ 61 (confirming consensus that any Security Council determination would not be binding).
100. See Int'l Criminal Court, Assembly of States Parties, Official Records on its 7th Sess., Nov. 14-22, 2008, Report of the Special Working Group on the Crime of Aggression, ¶¶ 21-23 (Mar. 13, 2008), U. N. Doc. ICC-ASP/7/20, Annex III, available at http://www.icccpi.int/iccdocs/asp-docs/ SWGCA/ICC-ASP-7-20-Ann. III%20English.pdf.
101. See Int'l Criminal Court, Assembly of States Parties, Official Records on its 7th Sess. (1st & 2d Resumptions), Jan. 19-23, Feb. 9-13, 2009, Report of the Special Working Group on the Crime of Aggression, App. I (2009), U. N. Doc. ICC-ASP/7/20/Add.l, 2d Resumption, Annex II, available at http://www.icc-cpi.int/iccdocs/asp-docs/ICC-ASP-7-20-Add.l%20English.pdf.
102. These were informal compilations and were never published. See Int'l Criminal Court, Assembly of States Parties, Official Records on its Resumed 8th Sess., Mar. 22-25, 2010, Report of the Working Group on the Review Conference (discussing the options), U. N. Doc. ICC-ASP/8/20/Add.l, Annex II, available at http://www.icc-cpi.int/iccdocs/asp-docs/ASP8/OR/OR-ASPR8-ENG. ANNEXES.pdf.
103. Int'l Criminal Court, Assembly of States Parties, Official Records on its Resumed 8th Sess., Mar. 22-25, 2010, Non-Paper by the Chairman on Outstanding Issues Regarding the Conditions for the Exercise of Jurisdiction, U. N. Doc. ICC-ASP/8/20/Add.l, Annex II, Appendix I (setting forth chart), available at http://www.icc-cpi.int/iccdocs/asp-docs/ASP8/0R/0R-ASPR8-ENG. ANNEXES.pdf. Other commentators report slightly different tallies of this informal vote. See Trahan, supra note 80, at 63; see also Barriga & Grover, supra note 98, at 6 n. 14 (listing countries voting in favor of and against a consent-based regime).
104. Int'l Criminal Court, Review Conference of the Rome Statute, May 31-June 11, 2010, Non-Paper by the Chair: Further Elements for a Solution on the Crime of Aggression, U. N. Doc. RC/WGCA/2 (May 25, 2010), available at http://www.icccpi.int/iccdocs/asp-docs/RC2010/RC-WGCA-2-ENG.pdf [hereinafter May 25, 2010 Non-Paper].
105. The Chair reissued this Paper on June 6, 2010 after fixing several errors. Int'l Crim. Ct., Review Conference of the Rome Statute, May 31-June 11, 2010, Conference Room Paper on the Crime of Aggression (June 6, 2010), U. N. Doc. No. RC/WGCA/1/Rev.1, available at http://www.icc-cpi.int/iccdocs/asp-docs/ RC2010/RC-WGCA-1-Rev.1-ENG.pdf [hereinafter June 6, 2010 Conference Room Paper].
106. See ICC Statute, supra note 3, art. 58 (l) (a) 145.
107. See David Scheffer, The Complex Crime of Aggression Under the Rome Statute, 23 LEIDEN J. INT'L L. 897, 903 (2010) (arguing that the activation provisions were "radically]" tinkered with and probably merited an amendment to the amendment procedures).
108. Conference Room Paper on the Crime of Aggression (June 7, 2010) (on file with author) [hereinafter June 7, 2010 Conference Room Paper].
109. See ICC Statute, supra note 3, art. 124
110. Draft Report of the Working Group on the Crime of Aggression, U. N. Doc. RC/WGCA/3 (June 6, 2010), available at http://www.icc-cpi.int/iccdocs/asp-docs/ RC2010/RC-WGCA-3-ENG.pdf.
111. Non-Paper by the President of the Assembly, Draft Resolution: The Crime of Aggression, June 10, 2010, 12h00 (on file with author).
112. Non-Paper by the President of the Assembly, supra note 162, at 3 n. 8.
113. See Beth Van Schaack, Understanding Aggression II, INTLAWGRRLS (June 26, 2010), http://intlawgrrls.blogspot.com/2010/06/understanding-aggression-ii.hrml
114. Beth Van Schaack, Understanding Aggression I, INTLAWGRRLS (June 24, 2010), http://intlawgrrls.blogspot.com/2010/06/understanding-aggression.html. Later that day, the President released a draft text setting forth an opt out that would have expired seven years after adoption unless the State Party re-affirmed it. Although some members of the ABS group had called for any opt out to be subject to a sunset clause, the expiring opt out apparently received insufficient support and did not appear in any subsequent consolidated text. The President also circulated another text that would have delayed the amendments' entry into force for seven years, a period of time that paralleled the time period established for the first Review Conference.
115. See ICC Statute, supra note 3, art. 123.
116. Second Non-Paper by the President of the Assembly, Draft Resolution: The Crime of Aggression, June 10, 2010, 23h00 [hereinafter ASP President Second Non-Paper].
117. See ICC Statute, supra note 3, art.
118. ASP President Second Non-Paper, supra note 170, art. 15bis (4) (Alternative 2) (second set of brackets in original).
119. ICC Statute, supra note 3, art. 16.
120. See Burns Weston, Nuclear Weapons and the World Court: Ambiguity's Consensus, 7 TRANSNAT'L L. & CONTEMP. PROBS. 384 (1997) (discussing concept of ambiguity's consensus in treaty drafting).
121. ICC Statute, supra note 3, art. 22 (2)
122. The question of what limits, if any, are placed on the Security Council when it is operating within its sphere of competency is not new. See Judith G. Gardam, Legal Restraints on Security Council Military Enforcement Action, 17 MICH. J. INT'L L. 285, 287 (1996) (exploring to what extent the ius ad helium and ius in bello apply to Council enforcement actions under Chapter VII). To the extent that such limits exist, their justiciability remains equally unresolved.
123. See Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶¶ 13-40
124. (Int'l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995), available at http://www.icty.org/x/cases/tadic/acdec/en/51002.htm
125. Int'l Criminal Court, Assembly of States Parties, Resumed 5th Sess., Jan. 29-Feb. 1, 2007, Report of the Special Working Group on the Crime of Aggression, ¶¶ 35-41, U. N. Doc. ICC-ASP/5/35, Annex II (2007), available at http://www.icc-cpi.int/iccdocs/asp-docs/library/asp/ICC-ASP-5-35- English.pdf (discussing alternative filters as potential compromises).
126. But see CRIME OF AGGRESSION: STATEMENT BY THE UNITED STATES 3 (Sept. 26, 2001), http://www.state.gov/documents/organization/16461.pdf (arguing that "primary" refers to the fact that the maintenance of peace and security is the Council's most important function, rather than that there exists some UN organ with concurrent power).
127. Id. art. 11, para. 1 (empowering the General Assembly to consider situations involving international peace and security and make recommendations to states and the Council); see, e.g., G. A. Res. 46/242, U. N. Doc. A/RES/46/242 (Aug. 25, 1992) (concerning acts by Serbia and Montenegro against Bosnia-Herzegovina)
128. G. A. Res. 37/18, U. N. Doc. A/RES/37/18 (Nov. 16, 1982) (concerning aggressive acts committed by Israel against Iraqi nuclear installations)
129. G. A. Res. 37/3, U. N. Doc. A/RES/37/3 (Oct. 22, 1982) (considering the prolongation of the Iran-Iraq conflict and reaffirming that no act of aggression should be committed)
130. G. A. Res. 36/226, U. N. Doc. A/RES/36/226 (Dec. 17, 1981) (concerning Israel's act of "aggression" in Lebanon)
131. G. A. Res. 36/172, U. N. Doc. A/RES/36/172 (Dec. 17, 1981) (concerning aggressive acts committed by South Africa in the region)
132. G. A. Res. 36/27, U. N. Doc. A/RES/36/27 (Nov. 13, 1981)
133. G. A. Res. 2795 (XXVI), U. N. Doc. A/RES/2795 (Dec. 10, 1971) (concerning acts committed by Portugal against Guinea-Bissau and Cape Verde, but not employing the term "aggression")
134. G. A. Res. 2508 (XXIV), U. N. Doc. A/RES/2508 (Nov. 21, 1969)
135. Question of South West Africa, G. A. Res. 1899 (XVIII), U. N. Doc. A/RES/1899 (Nov. 13, 1963) (considering "any attempt to annex a part or the whole of the Territory of South West Africa [to constitute] an act of aggression")
136. see generally UNITED NATIONS, HISTORICAL REVIEW OF DEVELOPMENTS RELATING TO AGGRESSION 242-51 (2003) (compiling resolutions).
137. G. A. Res. 377, U. N. Doc. A/RES/377 (V) (Nov. 3, 1950) (asserting that the Assembly may make "appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force.").
138. See, e.g., G. A. Res. 498, U. N. Doc. A/RES/498 (V) (Feb. 1, 1951) (calling China's actions in Korea "aggression"). Even the Security Council has invoked the Uniting for Peace Resolution.
139. See S. C. Res. 303, U. N. Doc. S/RES/303 (Dec. 6, 1971)
140. S. C. Res. 157, U. N. Doc. S/RES/157 (Sept. 17, 1960);
141. S. C. Res. 129, U. N. Doc. S/RES/129 (Aug. 7, 1958);
142. S. C. Res. 120, U. N. Doc. S/RES/120 (Nov. 4, 1956)
143. See also Int'l Criminal Court, Assembly of States Parties, Resumed 5th Sess., Jan. 29-Feb. 1, 2007, Report of the Special Working Group on the Crime of Aggression, ¶ 23, U. N. Doc. ICC-ASP/5/35, Annex II (2007), available at http://www.icc-cpi.int/iccdocs/asp-docs/library/asp/ICC-ASP-5-35-English.pdf (noting the view that "the Court would benefit from the authority of the Security Council as there would be political backing for the Court's investigation of situations.").
144. For summaries of these negotiating positions, see Report of the Working Group on the Crime of Aggression, Annex II, RC/20, available at http://www.icc-cpi.int/iccdocs/asp-docs/RC2010/RC-20-ENG-Annex. II. WGCA.report.pdf.
145. Int'l Criminal Court, Assembly of States Parties, 6th Sess., Nov. 30-Dec. 14, 2007, Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, ¶ 25, U. N. Doc. ICC-ASP/6/SWGCA/INF.l (July 25, 2007), available at http://www.icccpi.int/iccdocs/asp-docs/library/asp/ICC-ASP- 6-SWGCA-INF-l-English.pdf.
146. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I. C. J. 136, 149 (July 9) (noting an increasing tendency for the Assembly and the Council "to deal in parallel with the same matter concerning the maintenance of international peace and security.");
147. see also Certain Expenses of the United Nations, Advisory Opinion, 1962 I. C. J. 151, 163 (July 20) ("The responsibility conferred [on the Security Council] is 'primary', not exclusive⋯. The Charter makes it abundantly clear⋯ that the General Assembly is also to be concerned with international peace and security⋯. [T]he functions and power conferred by the Charter on the General Assembly are not confined to discussion, consideration, the initiation of studies and the making of recommendations⋯ [but include] 'decisions'⋯ [with] dispositive force and effect.").
148. See, e.g., INDEPENDENT INTERNATIONAL COMMISSION ON KOSOVO: THE KOSOVO REPORT, available at http://www.reliefweb.int/library/documents/thekosovoreport. htm ("The Commission concludes that the NATO military intervention was illegal but legitimate.").
149. See James Nicholas Boeving, Note, Aggression, International Law, and the ICC: An Argument for the Withdrawal of Aggression from the Rome Statute, 43 COLUM. J. TRANSNAT'L L. 557, 567 (2005) ("[T]he Security Council has rarely characterized such acts as aggression. ").
150. See, for example, the string of resolutions condemning the actions of Southern Rhodesia and South Africa against Angola, Zambia and Lesotho as acts of aggression. See, e.g., S. C. Res. 326, U. N. Doc. S/RES/326 (Feb. 2, 1973) (S. Rhodesia);
151. S. C. Res. 387, U. N. Doc. S/RES/387 (Mar. 31, 1976) (S. Africa).
152. See generally HISTORICAL REVIEW, supra note 213, at 225-36 (compiling resolutions).
153. For example, in some of the instances the reference to aggression appeared in the preamble rather than the main text of the resolution. See, e.g., S. C. Res. 386, U. N. Doc. S/RES/386 (Mar. 17, 1976) (S. Rhodesia). In the alternative, the term was used as an adjective rather than a noun.
154. See, e.g., S. C. Res. 527, U. N. Doc. S/RES/527 (Dec. 15, 1982) (South Africa).
155. See, e.g., S. C. Res. 611, U. N. Doc. S/RES/611 (Apr. 25, 1988) (U. S. abstention in a resolution against Israel regarding an assassination in Tunisia);
156. S. C. Res. 573, U. N. Doc. S/RES/573 (Oct. 4, 1985) (U. S. abstention on resolution condemning Israeli attack on PLO headquarters in Tunisia). On the Israeli PLO raid
157. see William E. Smith, Israel's 1500-Miles Raid, TIME (Oct. 14, 1985), http://www.time.com/time/magazine/article/0, 9171, 960108, 00.html. On the assassination, for which Israel did not claim responsibility
158. see Jill Smolowe, Gunned Down in Tunis, TIME, Apr. 25, 1988, http://www.time.com/time/magazine/article/0, 9171, 967236, 00.html.
159. See, e.g., S. C. Res. 611, ¶ 1, U. N. Doc. S/RES/611 (Apr. 25, 1988) (condemning Israeli assassination in Tunisia);
160. S. C. Res. 405, ¶ 2, U. N. Doc. S/RES/405 (Apr. 14, 1977) (condemning private mercenary attacks in Benin).
161. Joint Declaration by Russia, Germany and France on Iraq (Feb. 10, 2003), available at https://pastel.diplomatie.gouv. fr/editorial/actual/ael2/bulletin. gb.asp?liste=20030211.gb.htm.
162. The Security Council resolutions surrounding the war in Iraq are compiled here: UN Security Council Resolutions Relating to Iraq, CAMPAIGN AGAINST SANCTIONS IN IRAQ, http://www.casi.org.uk/info/scriraq.html (last visited Mar. 26, 2011).
163. The most oft-cited example was the invasion of Kuwait by Iraq, which was deemed "a breach of international peace and security" rather than an act of aggression. S. C. Res. 660, U. N. Doc. S/RES/660 (Aug. 2, 1990). The Council never denounced Turkey's action in Cyprus as aggression per se either, although arguably Resolution 3314 would have supported such a determination. Both situations did, however, receive Council condemnation.
164. See S. C. Res. 353, ¶¶ 3-4, U. N. Doc. S/RES/353 (July 20,
165. June 2005 SWGCA Report, supra note 20, ¶¶ 63-74.
166. In these mutuality cases, to the extent that the conflict is addressed, the Council takes a "pox on both your houses" approach. Examples include the Iran/Iraq War (see, e.g., S. C. Res. 514, U. N. Doc. S/RES/514 (July 12, 1982) and subsequent resolutions from 1982 to 1987);
167. the Eritrea/Ethiopia War (see, for example, S. C. Res. 1177, U. N. Doc. S/RES/1177 (June 26, 1998) and subsequent resolutions from 1998 to 2000); and the conflict in Nagorno-Karabakh pitting Azerbaijan against Armenia
168. (see, e.g., S. C. Res. 822, U. N. Doc. S/RES/822 (Apr. 30, 1993)).
169. See, e.g., S. C. Res. 1778, U. N. Doc. S/RES/1778 (Sept. 25, 2007) (approving the deployment of an international force in eastern Chad and the northeastern region of the Central African Republic);
170. S. C. Res. 1861, U. N. Doc. S/RES/1861 (Jan. 14, 2009)
171. See, e.g., S. C. Res. 1319, U. N. Doc. S/RES/1319 (Sept. 8, 2000) (calling on Indonesia to disband militia active in Timor-Leste);
172. S. C. Res. 496, ¶ 2, U. N. Doc. S/RES/496 (Dec. 15, 1981) (condemning mercenary attacks in the Seychelles often attributed to South Africa). In December 2008 following the Mumbai attack, a special committee of the Security Council added the group Lashkar-E-Tayyiba to the list of terrorist organizations established by Council Resolution 1267, but otherwise did not implicate Pakistan in the attack.
173. See S. C. Res. 1822, ¶ 1, U. N. Doc. S/RES/1822 (June 30, 2008) (setting forth additional state obligations vis-a-vis listed groups and individuals);
174. S. C. Res. 1267, U. N. Doc. S/RES/1267 (Oct. 15, 1999);
175. Comm., The Consolidated List Established and Maintained by the 1267 Committee with Respect to Al-Qaida, Usama bin Laden, and the Taliban and Other Individuals, Groups, Undertakings and Entities Associated with Them (Feb. 9, 2011), http://www.un.org/sc/committees/1267/pdf/consolidatedlist.pdf.
176. Examples include the 1998 intervention in Kosovo, the 1981 attack by Israel against Iraqi reactors (see, e.g., S. C. Res. 487, ¶ 4, U. N. Doc. S/RES/487 (June 19, 1981));
177. and the United States's attacks on Sudan and Afghanistan after the 1998 embassy bombings. See generally Jules Lobel, The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan, 24 YALE J. INT'L L. 537 (1999)
178. Ved P. Nanda, NATO's Armed Intervention in Kosovo and International Law, 10 U. S. AIR FORCE ACAD. J. LEGAL STUD. 1 (1999/2000).
179. Even in the Armed Activities in the Congo case-where Uganda launched an invasion and air attacks and eventually occupied parts of the territory of the Democratic Republic of Congo-the court did not find aggression per se. Armed Activities on Territory of Congo (Dem. Rep. Congo v. Uganda), 2005 I. C. J. 168, 227 (Dec. 19) (holding the "obligations arising under the principles of non-use of force and non intervention [were] violated by Uganda" and concluding that Uganda's conduct constituted a "grave violation of the prohibition on the use of force expressed" in Article 2 (4)).
180. See Kari M. Fletcher, Defining the Crime of Aggression: Is There an Answer to the International Criminal Court's Dilemma?, 65 A. F. L. REV. 229, 252-53 (2010);
181. Troy Lavers, [Pre]determining the Crime of Aggression: Has the Time Come To Allow the International Criminal Court Its Freedom?, 71 ALB. L. REV. 299, 311 (2008).
182. See, e.g., Monetary Gold Removed from Rome in 1943 (It. v. Fr., U. K., N. Ir. & U. S.), 1954 I. C. J. 19, 32 (June 15). The Monetary Gold case might be read to require all states involved in a putative act of aggression to have accepted the court's contentious jurisdiction before the court could have exercised any filter function assigned to it.
183. But see Legality of Use of Force (Yugo. v. Belg.), 1999 I. C. J. 124, 140 (June 2);
184. Legality of Use of Force (Yugo. v. Can.), 1999 I. C. J. 259, 274 (June 2);
185. Legality of Use of Force (Yugo. v. Fr.), 1999 I. C. J. 363, 374 (June 2);
186. Legality of Use of Force (Yugo. v. Ger.), 1999 I. C. J. 422, 433 (June 2);
187. Legality of Use of Force (Yugo. v. It.), 1999 I. C. J. 481, 493 (June 2);
188. Legality of Use of Force (Yugo. v. Neth.), 1999 I. C. J. 542, 558 (June 2);
189. Legality of Use of Force (Yugo. v. Port.), 1999 I. C. J. 656, 672 (June 2);
190. Legality of Use of Force (Yugo. v. Spain), 1999 I. C. J. 761, 774 (June 2);
191. Legality of Use of Force (Yugo. v. U. K.), 1999 I. C. J. 826, 840 (June 2);
192. Legality of Use of Force (Yugo. v. U. S.), 1999 I. C. J. 916, 926 (June 2) (allowing case to go forward against other members of NATO in the absence of Spain and the United States, which had lodged reservations to Article IX of the Genocide Convention on which Serbia & Montenegro had premised jurisdiction).
193. Sixty-six such declarations have been lodged with the court. Declarations Recognizing the Jurisdiction of the Court as Compulsory, INT'L COURT OF JUSTICE, http://www.icj-cij.org/jurisdiction/index.php?pl=5&p2=l&p3=3 (last visited Apr. 1, 2011).
194. Statute of the International Court of Justice art. 36, June 26, 1945, 59 Stat. 1055, 33 U. N. T. S. 993 [hereinafter ICJ Statute].
195. See, e.g., Oil Platforms (Iran v. U. S.), 2003 I. C. J. 161 (Nov. 6) (basing jurisdiction on the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran).
196. ICJ Statute, supra note 245, art. 65.
197. See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I. C. J. 136, 153 (July 9). In that case, the court at the request of the General Assembly declared that parts of the wall built by Israel violated international law. The court had to find a number of facts in connection with this opinion, many of them adverse to Israel, which had not consented to the court's jurisdiction.
198. See Sean Murphy, Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?, 99 AM. J. INT'L L. 62, 74 (2005).
199. See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 I. C. J. 136.
200. See generally Dapo Akande, The Competence of International Organizations and the Advisory Jurisdiction of the International Court of Justice, 9 EUR. J. INT'L L. 437 (1998)
201. (discussing the court's advisory jurisdiction and critiquing the court's approach in Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I. C. J. 226 (July 8).).
202. Wall, Advisory Opinion, 2004 I. C. J, at 156 ("the Court has discretionary power to decline to give an advisory opinion even if the conditions of jurisdiction are met.").
203. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I. C. J. 226 (July 8).
204. See Nuclear Weapons, Advisory Opinion, 1996 I. C. J, at 235
205. (referring to Status of Eastern Carelia, 1923 P. C. I. J. (series B) No. 4).
206. Wall, Advisory Opinion, 2004 I. C. J, at 157. In this regard, Eastern Carelia may be said to have been effectively overruled, or at least confined to its facts, in favor of a form of de facto compulsory advisory jurisdiction.
207. See Beth Van Schaack, International Court of Justice Roundup, INTLAWGRRLS (Feb. 28, 2011), http://intlawgrrls.blogspot.com/2011/02/international-court- of-justice-round-up.html (discussing current docket).
208. See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Written Statement of the Government of Israel on Jurisdiction and Propriety (Jan. 30, 2004) (declining to discuss merits of the advisory opinion on the grounds that the Court does not have jurisdiction to entertain the request for an advisory opinion), available at http://www.icj-cij.org/docket/files/131/1579.pdf.
209. See Benjamin B. Ferencz, Enabling the International Criminal Court To Punish Aggression, 6 WASH. U. GLOB. STUD. L. REV. 551, 563 (2007).
210. See also Int'l Criminal Court, Assembly of States Parties, Resumed 5th Sess., Jan. 29-Feb. 1, 2007, Report of the Special Working Group on the Crime of Aggression, ¶ 25, U. N. Doc. ICC-ASP/5/35, Annex II (2007), available at http://www.icc-cpi.int/iccdocs/asp-docs/library/asp/ICC-ASP-5-35-English.pdf (recounting arguments as to the importance of ensuring the court's independence from political bodies).
211. See U. N. Secretary-General, A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Change, U. N. Doc. A/59/565 (Dec. 2, 2004), at ¶¶ 244-65;
212. see generally BARDO FASSBENDER, UNITED NATIONS SECURITY COUNCIL REFORM AND THE RIGHT OF VETO: A CONSTITUTIONAL PERSPECTIVE (1998) (discussing Security Council reform proposals).
213. See S. C. Res. 1929, U. N. Doc. S/RES/1929 (June 9, 2010).
214. Coracini, supra note 42, at 762 (noting elimination of the red light option); see also Int'l Criminal Court, Assembly of States Parties, Official Records on its 7th Sess., Nov. 14-22, 2008, Report of the Special Working Group on the Crime of Aggression, ¶¶ 21-22, U. N. Doc. ICC-ASP/7/20, Annex III (2008), available at http://www.icc-cpi.int/iccdocs/asp-docs/SWGCA/ICC-ASP- 7-20-Ann. III%20English.pdf (describing limited support for the red light proposal).
215. See Int'l Criminal Court, Assembly of States Parties, Official Records on its 7th Sess., Nov. 14-22, 2008, Report of the Special Working Group on the Crime of Aggression, ¶ 22, U. N. Doc. ICC-ASP/7/20, Annex III (2008), available at http://www.icc-cpi.int/iccdocs/asp-docs/SWGCA/lCC-ASP-7-20-Ann. IIl%20English.pdf.
216. See M. CHERIF BASSIOUNI, 1 THE LEGISLATIVE HISTORY OF THE INTERNATIONAL CRIMINAL COURT: INTRODUCTION, ANALYSIS AND INTEGRATED TEXT 132 (2005) (arguing that the Council can only suspend the prosecution of an entire situation). Murphy notes that Article 16 also requires the Council to extend a benefit to a potential aggressor state at the exact point when the Council is trying to bring that state back into compliance.
217. Sean Murphy, The Crime of Aggression As Adopted by the ICC First Review Conference: A Step Forward? 12 (Oct. 15, 2010) (unpublished manuscript).
218. See El Zeidy, supra note 26, at 1519-23; Carsten Stahn, The Ambiguities of Security Council Resolution 1422(2002), 14 EUR. J. INT'L L. 85 (2003) (discussing the controversy surrounding resolution 1422).
219. S. C. Res. 1422, U. N. Doc. S/RES/1422 (July 12, 2002).
220. See U. N. SCOR, 57th Sess., 4568 mtg., U. N. Doc. S/PV.4568 (July 10, 2002), available at http://www.un.org/Docs/pv4568e.pdf and http://www.un.org/ Docs/pv4568el.pdf (Security Council debates);
221. see also Bryan MacPherson, Authority of the Security Council To Exempt Peacekeepers from International Criminal Court Proceedings, ASIL INSIGHTS (July 2002), http://www.asil.org/insigh89.cfm (discussing the controversy over the legality of Resolution 1422). The Bosnian peacekeeping mission was thereafter immediately renewed.
222. See S. C. Res. 1423, U. N. Doc. S/Res/1423 (July 12, 2002).
223. S. C. Res. 1487, U. N. Doc. S/RES/1487 (June 12, 2003)
224. See Marco Roscini, The Efforts to Limit the International Criminal Court's Jurisdiction over Nationals of Non-Party States: A Comparative Study, 5 LAW & PRAC. INT'L CTS. & TRIBS. 495, 500 (2006).
225. S. C. Res. 1497, ¶ 7, U. N. Doc. S/Res/1497 (Aug. 1, 2003).
226. Besides the two peacekeeping resolutions, the Council has yet to invoke Article 16 as it was originally conceived. Efforts to convince the Council to defer the prosecution of Sudanese President Al Bashir did not bear fruit. See Press Release, Security Council, International Criminal Court Prosecutor Says Security Council Should Be Prepared for "United Action" To Ensure Execution of Sudanese President's Arrest Warrant, U. N. Doc. SC/9516 (Dec. 3, 2008), available at http://www.un.org/News/Press/docs/2008/sc9516.doc.htm (discussing debates about potential deferral).
227. see also Negotiated Relationship Agreement between the International Criminal Court and the United Nations, art. 2(1), U. N. Doc. ICC-ASP/3/Res. 1 (July 22, 2004), available at http://www.icc-cpi.int/NR/rdonlyres/916FC6A2-7846- 4177-A5EA-5AA9B6DlE96C/0/ICCASP3Resl-English.pdf (confirming the independence of the court).
228. But see Luigi Condorelli & Santiago Villalpando, Can the Security Council Extend the ICC's Jurisdiction?, in 1 THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 572 (Antonio Cassese et al. eds., 2002) (arguing that the Relationship Agreement between the ICC and the United Nations precludes the Council from extending the jurisdiction of the court).
229. See U. N. Charter art. 125 ("The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.");
230. See Nigel White & Eric Myjer, Editorial, 7 J. CONFLICT & SECURITY L. 145, 145 (2002).
231. see Prosecutor v. Kayishema & Ruzindana, Case No. ICTR-95-1-A, Judgment (Reasons) (June 1, 2001) (discussing genocide charges against businessmen).
232. See ICC Statute, supra note 3, art. 8.
233. See Res. RC/Res.5 (June 10, 2010), U. N. Doc. RC/Res.5, available at http:www.icc-cpi.int/iccdocs/asp-docs/Resolutions/RC-Res.5-ENG.pdf.
234. ICC Statute, supra note 3, art. 8 (1).
235. International Criminal Court, Elements of Crimes, U. N. Doc. PCNICC/2000/1/Add.2(2000), available at http://documents-dds-ny.un.org/doc/ UNDOC/GEN/N00/724/27/pdf/N0072427.pdf?OpenElement.
236. East Timor (Port. v. Austl.), 1995 I. C. J. 90 (June 30).
237. See generally Dapo Akande, Prosecuting Aggression: The Consent Problem and the Role of the Security Council (May 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1762806.
238. See London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis art. 6 (a), Aug. 8, 1945, 59 Stat. 1544
239. U. N. T. S. 280 (defining "crimes against the peace" as the "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing").
240. See, e.g., Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field art. 24, July 6, 1906, available at http://www.icrc.org/ihl.nsf/FULL/1807OpenDocument ("The provisions of the present Convention are obligatory only on the Contracting Powers, in case of war between two or more of them. The said provisions shall cease to be obligatory if one of the belligerent Powers should not be signatory to the Convention").
241. See Patricia A. Weitsman, Wartime Alliances Versus Coalition Warfare: How Institutional Structure Matters in the Multilateral Prosecution of Wars, 4 STRATEGIC STUDIES Q. 113 (Summer 2010) (discussing modern multilateral warfare).
242. See, e.g., Corfu Channel (U. K. v. Alb.), Merits, 1949 I. C. J. 4, 35 (Apr. 9) ("the Court must declare that the action of the British Navy constituted a violation of Albanian sovereignty. This declaration is⋯ in itself appropriate satisfaction. ");
243. Golder v. United Kingdom, App. No. 4451/70, 18 Eur. Ct. H. R. (ser. A) (1975) (treating declaratory relief as "adequate just satisfaction").
244. See S. S. Lotus (Fr. v. Turk.), 1927 P. C. I. J. (ser. A) No. 10, at 18 (Sept. 7) ("the rules of law binding upon states therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law⋯. Restrictions upon the independence of States cannot therefore be presumed.").
245. But see Alain Pellet, The Normative Dilemma: Will and Consent in International Law-Making, 12 AUST. Y. B. INT'L L. 22 (1988-89) (arguing that consent does not underlie the formation of customary international law).
246. See generally J. Shand Watson, State Consent and Sources of International Obligation, 86 AM. SOC'Y INT'L L. PROC. 108, 112 (1992) (defending classical theory).
247. See Chin Liew Ten, Paternalism-Strong Paternalism, MILL ON LIBERTY: A VICTORIAN WEB BOOK (2001), http://www.victorianweb.org/philosophy/mill/ten/ch7b. html ("the practice of strong paternalism easily becomes a cloak for the imposition of our values on those who are coerced.").
248. For example, according to Article 7 of the Third Geneva Convention governing prisoners of war, "[p]risoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be." Convention (III) Relative to the Treatment of Prisoners of War art. 7, Aug. 12, 1949, available at http://www.icrc.org/ihl.nsf/ 7c4d08d9b287a42141256739003e63bb/6fef854a3517b75acl25641e004a9e68;
249. see also JOHN LOCKE, TWO TREATISES OF GOVERNMENT (1690) (arguing that a person cannot consent to enslavement).
250. Gerry Simpson, On the Magic Mountain: Teaching Public International Law, 10 EUR. J. INT'L L. 70, 78 (1999).
251. See generally Anne-Marie Slaughter, Judicial Globalization, 40 VA. J. INT'L L. 1103 (2000) (discussing increased use of international courts to resolve international disputes).
252. Int'l Criminal Court, Assembly of States Parties, Special Working Grp. on the Crime of Aggression, 8th Sess., Nov. 18-26, 2009, Informal Inter-Sessional Meeting on the Crime of Aggression, ¶¶ 40-41, U. N. Doc. ICC-ASP/8/INF.2(2009), available at http://www.icccpi.int/iccdocs/asp-docs/ASP8/ ICC-ASP-8-INF.2-ENG.pdf.
253. For a discussion, see Dapo Akande, What Exactly Was Agreed in Kampala on the Crime of Aggression?, EJIL TALK! (June 21, 2010), http://www.ejiltalk.org/ what-exactlywas-agreed-in-kampala-on-the-crime-of-aggression/;
254. See Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61 (7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo (June 15, 2009), available at http://www.icc-cpi.int/iccdocs/doc/doc699541.pdf.
255. See Res. RC/Res.4, U. N. Doc. RC/Res.4 (June 10, 2010), available at http://www.icccpi.int/iccdocs/asp-docs/Resolutions/RC-Res.4-ENG.pdf.
256. See John R. Bolton, Remarks to the Federalist Society: The United States and the International Criminal Court (Nov. 14, 2002) (noting that "US military forces, civilian personnel and private citizens are active in peacekeeping and humanitarian missions in almost 100 countries at any given time."), available at http://stage.amicc.org/docs/Boltonl l-14-02.pdf;
257. see also Gergana Halpern, The Crime of Aggression and the United States: Negotiations of the International Criminal Court, THE AMERICAN NON-GOVERNMENTAL ORGANIZATIONS COALITION FOR THE INT'L CRIMINAL COURT (Oct. 1, 2007), http://www.amicc.org/docs/Crime%20of%20Aggression%20and%20the%20US.pdf.
258. See generally Roger Clark, Amendments to the Rome Statute of the International Criminal Court Considered at the First Review Conference on the Court, Kampala, 31 May-11 June 2010, 2 GOTTINGEN J. INT'L L. 689, 691-92 (2010);
259. Shana Tabak, Note, Article 124, War Crimes, and the Development of The Rome Statute, 40 GEO. J. INT'L L. 1069 (2009).
260. Colombia's ICC Declaration a "Prelude to Impunity", HUMAN RIGHTS WATCH (Sept. 5, 2002), http://www.hrw.org/en/news/2002/09/05/colombias- icc-declarationprelude-impunity (critiquing Colombia's Article 124 declaration).
261. Delivering on the Promise of a Fair, Effective and Independent Court, Review Conference of the Rome Statute, Article 124, COALITION FOR THE INTERNATIONAL CRIMINAL COURT, http://www.iccnow.org/?mod=article l24 (last visited Apr. 17, 2011);
262. See John Bolton, Speech Two: Reject and Oppose the International Criminal court, in TOWARD AN INTERNATIONAL CRIMINAL COURT? THREE OPTIONS PRESENTED AS PRESIDENTIAL SPEECHES 37 (1999).
263. Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06 OA 17, Decision on the Prosecutor's Request To Give Suspensive Effect to the Appeal Against Trial Chamber I's Oral Decision To Release Mr. Thomas Lubanga Dyilo (July 23, 2010), available at http://www.icc-cpi.int/iccdocs/doc/doc912271.pdf.
264. Ultimately, the Appeals Chamber ruled that a stay and the release of the defendant was not an appropriate response to the misconduct; rather, sanctions should be imposed on the prosecutor. Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06 OA 17, Judgment on the Appeal of Prosecutor Against the Oral Decision of Trial Chamber I of 15 July 2010 To Release Thomas Lubanga Dyilo (Oct. 8, 2010), available at http://www.icc-cpi.int/iccdocs/doc/doc947862.pdf.
265. Prosecutor v. Abu Garda, Case No. ICC-02/05-02/09, Decision on the Confirmation of Charges (Feb. 8, 2010), available at http://www.icc-cpi.int/NR/ exeres/586C0B9F-685C-4A05-B0EF-702A23A4B6F9.htm.
266. See Draft Report of the Intersessional Meeting from 19 to 30 January in Zutphen, the Netherlands, in THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A DOCUMENTARY HISTORY, supra note 102, at 221, 238 (containing draft Article 10 envisioning filter role).
267. See, e.g., Roger S. Clark, The International Criminal Court and the Crime of Aggression: Ambiguities in Articles 5(2), 121 and 123 of the Rome Statute, 41 CASE W. RES. J. INT'L L. 413 (2009) (discussing controversy over amendment provisions and concluding that Article 121 (4) applies to the crime of aggression);
268. Donald M. Ferencz, Addendum to the Aggression Issue: Bringing the Crime of Aggression Within the Active Jurisdiction of the ICC, 42 CASE W. RES. J. INT'L L. 531 (2009) (discussing alternative formulations);
269. See generally Sean Murphy, Contemporary Practice of the United States Relating to International Law: U. S. Bilateral Agreements Relating to ICC, 97 AM. J. INT'L L. 179, 200 (2003) (discussing the practice of the United States, during the administration of President George W. Bush, of securing Article 98 agreements promising that treaty parties would not surrender nationals to the ICC without expressed consent).
270. Res. RC/Res.5, U. N. Doc. RC/Res.5 (June 10, 2010) available at http://www.icccpi.int/iccdocs/asp-docs/Resolutions/RC-Res.5-ENG.pdf.
271. See generally MDURRAY EDELMAN, THE SYMBOLIC USES OF POLITICS (1964);
272. John P. Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L. Q. 233 (1990) (arguing that many pieces of regulatory legislation are more symbolic than functional).