The Crime of Aggression under International Criminal Law: Links with Refugee Law

The 16th Assembly of States Parties to the Rome Statute of the International Criminal Court is already more than halfway done. Many of the themes at the ASP this year is worthy of note, including the election of six new judges, planning for the 20th anniversary of the Rome Statute of the International Criminal Court, as well as consideration of activation of the International Criminal Court’s jurisdiction over the crime of aggression.

Of particular interest is the ICC’s activation of the crime of aggression, which will be the focus of this blog post. The crime of aggression is defined under the Rome Statute as ‘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’. The activation and exercise of the ICC’s jurisdiction over the crime of aggression is of significance because there are outstanding jurisdictional issues which are to be discussed at the ASP, including whether all States Parties are subjected to the ICC’s jurisdiction over the crime of aggression, or whether only States Parties which have ratified the crime of aggression amendments are subjected to the ICC’s jurisdiction over the crime of aggression (see Coalition of the ICC Backgrounder). This blog post will consider the impact the activation of the crime of aggressions may have on international refugee law.

ASP Work Programme

ASP Work Programme

One can see several parallels between international criminal law and refugee law. While at first glance, international criminal and refugee law may seem distinct from one another, in fact, when operating together, these two fields of law may enhance the functions of the other. First, the purposes of international criminal law and refugee law draw parallels with one another. Second, while international refugee law regime’s main purpose is to protect refugees, in order to do so, it must also protect the institution for asylum, by preventing those who have committed grave crimes from gaining refugee status and corresponding protection. Here, international refugee law borrows from international criminal law so as to ascertain what type of individuals would be excluded from international protection.

 One view of international criminal law’s purpose is to bring justice to victims through the prosecution of an individual for international crimes, i.e. by holding an individual liable for committing mass atrocities. The command responsibility rule is illustrative of this purpose in that high-ranking individuals can be held responsible for crimes committed by their subordinates. One view of international refugee law is that it offers the widest protection to those deserving through the granting of refugee status. Article 1F(a) of the Convention Relating to the Status of Refugees (Refugee Convention) prevents those who are undeserving of international protection from benefiting from that protection. This provision applies to those who have committed crimes prior to admission as refugees. Article 1F acts to preserve the institution of asylum, and to safeguard the receiving country from criminals who present a danger to that country’s security. Borrowing from international criminal law, international refugee law determines who is deserving of refugee status by excluding those who have committed serious international crimes. By working together, international criminal law brings perpetrators to justice, while international refugee law excludes those who try to find safe havens through acquiring refugee status and corresponding protection.

International refugee law borrows from international criminal law when determining which individuals would be excluded from refugee status under Article 1F(a) of the Refugee Convention. Under Article 1F(a), individuals are excluded from refugee status and corresponding protection where there are ‘serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes’. The United Nations High Commissioner for Refugees (UNHCR) has stated that ‘a ‘crime of aggression’ is essentially a ‘crime against peace’’ in its commentary. A crime against peace is defined as ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any manner inconsistent with the Charter of the United Nations’. This definition of a crime against peace was drawn from the United Nations General Assembly 1974 definition of ‘aggression’ and such definition has been retained in the International Law Commission’s Draft Code of Crimes against the Peace and Security of Mankind. As can be seen, international refugee law draws upon international criminal law in defining the relevant crimes under Article 1F(a) of the Refugee Convention. This type of close relationship between international criminal and refugee law may enhance respect for the rule of law internationally, while preventing individuals who do not deserve to be protected under the international refugee law regime from attaining refugee status.

As briefly demonstrated, while both international criminal law and refugee law may serve different functions, these two branches of international law, when operating together, may draw upon the other to enhance international respect for the rule of law. The negotiation between States Parties at the ASP will likely clarify the activation and jurisdiction of the ICC over the crime of aggression, which may, in turn, inform how Article 1F(a) may be interpreted by international refugee law adjudicators. Now more than ever, the institution for asylum must be protected from potential abuse by perpetrators of international crimes, so that only those deserving may be given the widest possible protection under the international refugee law regime.

This blogpost and Jenny Poon’s attendance to the 16th Assembly of States Parties in the framework of the Canadian Partnership for International Justice was supported by the Social Sciences and Humanities Research Council of Canada.

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16th Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Opening Plenary Main Themes

The Opening Plenary of the 16th Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court (ASP) took place earlier this morning in New York. The ASP is the management oversight and legislative body of the International Criminal Court (ICC). Several themes emerged from the opening plenary which are worthy of note. This blog post will highlight three main themes from the first plenary of the ASP. First, the President of the ASP highlighted the need for States Parties of the ICC to cooperate with the ICC. Second, as reiterated by the current President of the ASP as well as the new President-elect of the ASP, the ICC is a distinct kind of court which has not yet reached its full potential. Third, the Prosecutor of the ICC emphasized the need to foster a culture of accountability to prosecute perpetrators of international crimes.

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President Sidiki Kaba addressing the 16th Session of the Assembly of States Parties.

1. Cooperation from States Parties essential to workings of the ICC

The President of the ASP, Mr. Sidiki Kaba, in his address to the ASP, called for the continued cooperation between States Parties and the ICC in order to boost the effectiveness of the Court. This is especially important where some African States have begun to signal their intention to withdraw from the ICC. The meeting of the ASP at its 16th session is an important juncture in time when the work and value of the ICC should be safeguarded especially through increased cooperation from States Parties. Mr. Kaba reiterated that the ICC only steps in when there is a clear lack of will or an inability by a country to prosecute its nationals in accordance with the complementarity rule. This means that cooperation from States Parties is essential in order for the workings of the ICC to be effective. In addition, training should be provided to judges, lawyers, security officers and others in order to safeguard the complementarity rule. Furthermore, national determination processes must meet the highest international standards and norms. Finally, in order to ensure reparations for victims of international crimes, support for the ICC Trust Fund for Victims is necessary to support victims.

2. ICC can still reach its full potential

In his address to the ASP, Mr. Kaba further reiterated that the ICC is a distinct kind of court, where independence is essential in order to safeguard its credibility and legitimacy. The judicial independence of the ICC should not be an impediment to its efforts, which has been his main priority during the tenure of his presidency. Mr. Kaba stated that there are certain areas which the ICC should work, including the need to focus upon the legal representation of victims, and the emphasis required for reparations for victims for international crimes and the availability of legal aid for victims. As President, Mr. Kaba sought to promote a cohesive judicial culture which is vital in order to accelerate judicial proceedings and to facilitate the understanding of the parties and victims involved. Another key area is making sure that officials of the ICC uphold their integrity. Mr. Kaba announced the mapping of all relevant existing goals of ethics relating to the duties of elected officials while they are in office and after their departure. Mr. Kaba also stated that the ICC has increased its outreach efforts to victims of international crimes and that the participation and reparation of victims are central to the role of the ICC.

At the 16th session of the ASP, Mr. Kaba announced the election of Judge O-Gon Kwon from the Republic of Korea by acclamation as the next President of the ASP effective for the 17th, 18th and 19th sessions of the ASP until 2020. Judge O-Gon Kwon has vast experience in law at both national and international levels including serving as a judge for 22 years and holding senior positions in the government of the Republic of Korea. Judge O-Gon Kwon, in his address to the ASP, emphasized the need for cooperation between the States Parties and the ICC. Judge O-Gon Kwon stated that the Kampala Amendments of the Rome Statute on the crime of aggression was adopted by consensus and therefore is a milestone for the ASP. Judge O-Gon Kwon reiterated that international criminal justice is very much a work-in-progress – a project very much in its infancy. Further, it is critical that the ICC maintain its neutrality, impartiality and independence which requires the careful balancing of viewpoints. It is vital to liaise and facilitate cooperation between the States Parties and the ICC and this cooperation is indispensable for a well-functioning court. As the new President of the ASP, Judge O-Gon Kwon announced that he will reach out to those States that have not yet ratified the Rome Statute of the ICC and will work closely with the ICC and civil society to promote universality.

3. The Office of the Prosecutor is steadfast in its commitment to the Rome Statute

The Prosecutor of the ICC, Ms. Fatou Bensouda, began her address to the ASP by stating that the ICC is a firmly rooted but still evolving institution and has a potential for global impact. The Office of the Prosecutor of the ICC is working jointly towards a culture of accountability for crimes of mass atrocities. The commitment of States Parties will be the key to determining the trajectories of this path. The investigations of Afghanistan and Burundi are indicators of the steadfast commitment of the Office of the Prosecutor of the ICC. Ms. Bensouda emphasized that Burundi’s withdrawal from the ICC has no effect on its continuing obligation to cooperate with the ICC or the period during which Burundi was an ICC State Party of the ICC. Ms. Bensouda ended her address to the ASP by reiterating that what is needed today is the strengthening of the ICC, and it would be up to the States Parties as custodians to stand firm to safeguard its values.

As the 16th session of the ASP continues, more themes such as these will emerge, highlighting the importance of the work of the ICC as well as that of the Office of the Prosecutor. Main plenary sessions will be complemented by side events hosted by nongovernmental organizations.

Follow the IntLawGrrls symposium for periodic posts on the ASP as it is happening!

This blogpost and my attendance to the 16th Assembly of States Parties in the framework of the Canadian Partnership for International Justice was supported by the Social Sciences and Humanities Research Council of Canada.

 

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