The Complementarity Regime and the Crime of Aggression: mission ( Im )Possible

1. The Complementarity Regime and the Crime of Aggression: mission (Im)Possible Nidal Nabil Jurdi

2. Crime of Aggression and Complementarity – Kampala • From SWGCA and onwardsnoneed for a special provision concerning complementarity • The ‘differentiated’ approach prevailed over the ‘monist’ approach: all other articles on admissibility will apply to the crime of aggression. • In Kampala : • Indirectly dealt complementarity (framing conditions for the exercise of jurisdiction ultimately restrict (domestic) prosecutions to the limitations of the jurisdictional regime).

3. Main features of the adopted Kampala Compromise • The Aggression package was a huge success for the Court and for the like-minded stakeholders. • This compromise came at a cost to the uniformity of the ICC’s jurisdictional regime.

4. Crime of Aggression- Kampala Compromise • Definition …“crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. ( Nuremburg +GA RS 3314)

5. Crime of Aggression’s characteristics& complementarity implications • Crime of aggression is based on inter-stateactivity (act of aggression) • Has effect on inter-states relations, regional and international stability (Political implications) • Will be determined by judges (not Diplomats) for conducts usually national judges didn’t prosecute applying a complex definition

6. Res. 6, Annex III, Understandings 4 and 5, Domestic jurisdiction over the crime of aggression 4. amendments that address the definition of the act of aggression and the crime of aggression …for the purpose of this Statute only. .. not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute (Art 10). 5. It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.

7. Understanding –Annex IIILegal value • An Understanding Vs Statute • Little discussion in Kampala – not subject to ratification • When analyzed visa- visVCLT = No power of amending the Rome Statute. • Not a primary means of interpretation of the RS under art 31 of the VCLT (not adopted in ‘connection with the conclusion of the treaty) • Adopted in the absence of 27 states parties (out of 111)

8. Understanding –Annex IIILegal value -2 • Understandings don’t fulfill art 41 VCLT- cant modify the Rome Statute. • Supplementary means (Art 32 VCLT) but when there is ambiguity in the Statute (art 17) • Is there ambiguity in Art 17?

9. Understanding –Annex IIIPolicy and Politics • Understanding 5 express a subtle preference that the states parties do not incorporate the crime domestically, but do not prohibit. • Viewed by some as a weakening factor

10. Does the Amendments allow domestic prosecutions of the crime of aggression? Challenges Opportunities YES - Article 17, 18 or 19 Applicable to Crime of aggression! States parties have accepted the criminalization and the prosecution of the crime of aggression under intlaw. Duty to prosecute intCrimes Acts of states in sovereign capacity (acta jure imperii) vs. acts of state in private law nature ( jure gestionis) • Unclear howcomplementarity will interplay with other principles of international law: state immunity; equals ruling on equals, • difficulty of extradition of citizens and collecting evidence) • Domestic courts refrain from adjudicating the acts of other states ( par in parem imperium non habet-equal no authority over an equal)

11. Challenges& Opportunities in prosecuting Crime of Aggression domestically -2 Challenges Opportunities States have implicitly envisaged that other domestic courts can prosecute the crime of aggression (territoriality), albeit within the narrow jurisdictional parameters and conditions set in Kampala. PlausibleProsecutions: Domestic courts depend on another body determination on acts of aggression: IMT determination domestic prosecutions Aggressor state prosecuting its own nationals • Political challenges and tensions for trying foreign leaders • Will it affect international stability and mutual relations of states?

12. Non or Less Contentious Domestic prosecutions • When domestic courts, under the complementarity mechanism prosecute their nationals for crime of aggression • Domestic prosecutions for non-nationals (within jurisdictional parameters) after the ICC determination • domestic prosecution after determination by the UNSC. • Prosecuting as an ordinary crime? Does it fly?

13. Complementarity functioning under limited jurisdictional regimes : a curse or a blessing ? The achievements in Kampala should not be understated, but they came at a heavy price — that of sacrificing the uniformity of the jurisdictional regime of the Rome Statute.

14. Such Complexities will also shadow Domestic prosecution for Aggression 2. Will be applying a separate jurisdictional regime if they are to prosecute the crime of aggression. Different from the jurisdictional system applied to genocide, crimes against humanity and war crimes. Different domestic jurisdictional regime for aggression

15. Complexities affiliated to Domestic prosecution for Aggression (Continued 2) • Exercising wider national jurisdiction for other ICC core crimes • Exercising a more restricted jurisdiction vis-a-vis crime of aggression. This creates undesirable complexities for national systems when they are prosecuting the same individual who has committed the crime of aggression along with other core crimes

16. Complexities affiliated to Domestic prosecution for Aggression (Continued 3) • Individual in different locus standibefore national courts depending on their own states position on the amendments.National judges will struggle? Increasingly complex when a crime of aggression has occurred along with the crime of genocide.

17. “Challenges” to challenge the admissibility for crime of aggression • Challenge of admissibility before the ICC will bring in an uneasy interplay between art 15bis on one side and arts 18 and 19 on the other. Not envisaged during the Review Conference. • Contradictory language of arts 15bis (Pre-Trial Division) and 18. (Pre-Trial Chamber’s role) : Increasingly complex when a crime of aggression has occurred along with the crime of genocide.

18. 2017 and beyond • Prosecution of Aggression is a cumbersome task for the growing ICC and for domestic courts (if feasible) • While there is no doubt that the issueof domestic prosecution of the crime of aggression remains challenging, the possibility of itsdomestic prosecution remains open — albeit requiring some creative interpretations of theamendments of the Rome Statute.

19. Thank you