Richard Goldstone Comes Out Against an ICC “Crime of Aggression”

by Julian Ku

Do we have an emerging consensus that the ICC States-Parties should refrain from adding the crime of aggression to the ICC Statute at its upcoming conference in Kampala?  Michael Glennon, the CFR, Harold Koh, David Kaye, and now Richard Goldstone have all come out against adding the crime of aggression. Here is Goldstone:

Based on my experience as an international prosecutor, and speaking as a strong supporter of the International Criminal Court, I think it would be a mistake to add the crime of aggression to the Court’s docket now. The issue should be deferred again.

By any measure, the I.C.C. has gotten off to a strong start in generating international support and demonstrating its potential to address the problem of impunity for serious international crimes.

But it also has encountered charges of politicization and is still learning, as an institution, how to exercise effectively its jurisdiction over genocide, crimes against humanity and war crimes.

One of the greatest challenges I faced as prosecutor at the International Criminal Tribunal for the former Yugoslavia (I.C.T.Y.) was convincing the Serbian public that the court was not a politically motivated conspiracy against Serbia. This challenge would have been immensely greater — perhaps impossible — if the Tribunal’s jurisdiction had included the crime of aggression. That would have required me to investigate and potentially prosecute the decision to go to war — which is inherently a profoundly political decision.

Prosecuting that decision would have inflamed Serbian suspicions of a conspiracy; choosing not to prosecute would have incited countervailing charges that the Tribunal was not fulfilling its mandate. Such a debate would have diverted attention and energy from the imperative of fairly and effectively providing justice and accountability for the grave crimes then being committed against civilians in the former Yugoslavia.

Now is not the time for the I.C.C. to risk embroiling itself in similar controversy. The issues that would arise from dealing with allegations of aggression would give ammunition to critics who claim it is a politicized institution.

7 Responses

  1. I’m against it, too!! 🙂

  2. This consensus does not seem to extend to the States-Parties themselves, though.  My impression from the March roll call is that though there’s disagreement about the jurisdictional triggers, there’s a consensus among States-Parties that compromise and progess on aggression jurisdiction is desirable.

  3. I’m just waiting for Dershowitz to be in favour of it simply because Goldstone is against it.

    However, I think a bigger issue that needs to be addressed is how in terms of aggression and related acts (e.g. violating soverignty, torture, etc.), the Security Council P5 have effective immunity from even investigation let alone prosecution. That’s a very obvious political situation but everyone seems to think it’s acceptable.

  4. No one said it was going to be easy.  Goldstone may be tacking to the right as is Koh.  One can understand the Serbians problem but, of course, their role was a bit less than inglorious in that war.  Every international crime is considered politicized justice anyway – aggression just hits those with the might to pull off the aggression – a risk I suspect those persons do not like.  I say if it was good enough for Nuremberg it is good enough for us now.

  5. “This challenge would have been immensely greater — perhaps impossible — if the Tribunal’s jurisdiction had included the crime of aggression. That would have required me to investigate and potentially prosecute the decision to go to war — which is inherently a profoundly political decision.”

    I’m just not convinced of the logic behind the explanation Goldstone offers. Why is this a more political decision than for instance the decision to mark a particular minority as enemy of the State, or dominant race, and engage in a genocidal policy towards them? Or the decision to also bomb civilian targets in an armed conflict? I fail to see why.

    Is it the degree in which a conspiracy is suspected by the nationals of the alleged agressor in question? This is just not a valid consideration in my view. That is, it may be a relevant factor within the prosecutorial discression, but should not militate against definite adoption in the Statute (which is how I interpret Goldstone). Of course, the purpose of criminal trials is not to alienate an entire population, but to refrain from accepting a crime within the ICC’s jurisdiction because the population would feel stigmatized is a rationale that, if applied consistently, would prove an absurd policy. In fact, I think that some form of public indignation of collective guilt is inextricably connected to the crime of aggression, and to a lesser extent to other (collective) crimes. It may be an important issue to deal with, but perhaps it’s more appropriate to solve that issue through politcal means.

  6. It is sad to see the level of irresponsibility in discussing the supreme crime in international law—per Nuremberg judgment—among prominent discussants.

    When Goldstone talks about what would amount to alleged difficulties prosecuting for aggression at ICTY, had this crime been included in its jurisdiction, he is not saying the obvious: the only aggression in the affair of dismantling Yugoslavia was committed by the US and other NATO countries.

    It is even more irresponsible to be seeing smiley faces placed after cheers against finally defining aggression at ICC as Anderson does.  Of course, aggression must be defined and in a way that would be consistent with clearly classifying as aggressions the US attacks on Republika Srpska in 1995, Yugoslavia in 1999, Afghanistan in 2001, Iraq in 2003. Talk about a no-brainer here!

  7. I am a great fan of the ICC, but given the defendants the ICC has chosen to prosecute so far (all African), isn’t it already open to charges of ‘politicization’?
    Afghanistan has been a member of ICC since 2003, thus giving the Court jurisdiction over all that goes on there, but has anyone even mentioned war crimes and crimes against humanity by invading forces in that country? Secondly, I was under the impression that it was the definition of aggression that was being debated, not whether to include it at all. When did this agenda shift occur?

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