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The ICC Review Conference, the Crime of Aggression, and International Criminal Justice

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Starting Monday, May 31st, the International Criminal Court (ICC) held its first-ever Review Conference in Kampala, Uganda, affording the opportunity for States Parties to amend the Rome Statute since its creation in 1998. Up to 2,000 participants from around the world--key actors in international relations, high-ranking government officials, court leaders, non-state actors, United Nations representatives, and more than 500 NGO representatives--will assess the ICC's impact on communities and victims plagued by mass atrocities, its influence on developing and strengthening domestic justice systems, its ability to punish effectively and resolve conflict, and both member and non-member State cooperation towards the Court. With investigations under way in the Democratic Republic of Congo, Sudan, the Central African Republic, Uganda and Kenya, coupled with preliminary examinations currently unfolding in Georgia, Afghanistan, the Palestinian Territories, Colombia, Cote d'Ivoire, and Guinea, 13 arrest warrants have been issued, but only four are in ICC custody. Certainly, there is much to discuss.

Most notably, however, the ICC Review Conference will pay special attention to the potentiality of extending the Court's jurisdiction to the yet-defined crime of aggression. Ambassador Christian Wenaweser, President of the Assembly of States Parties (ASP)--the governing body of the Court--was uncertain as to whether the amendment will be adopted or not, and predicted that the debate will focus on whether the United Nations Security Council has the mandate to determine whether or not a crime of aggression has been committed. Indeed, the United States can play a critical role in that very discussion, among others, and is sending Ambassador-at-Large for War Crimes Issues Stephen Rapp and Legal Adviser Harold Koh to lead an interagency observer delegation to Kampala. Last week, Ambassador Wenaweser remarked that he is "cautiously optimistic" member states could forge a consensus on definition; if adopted, the crime of aggression would join war crimes, crimes against humanity, and genocide as actionable offenses. Moreover, defining the crime of aggression and expanding the Court's investigative crosshairs is a hotly contested issue.

Noah Weisbord, an independent expert on the working group charged by the ICC's Assembly of States Parties with drafting the crime of aggression, recently argued in favor of such expansion (though not without concern) and hopes that individual criminal responsibility for the illegal use of armed force will make international law more credible--supplanting the existing system of collective guilt, whereby populations are sanctioned for the decisions of their delinquent leaders. On the other hand, Richard Goldstone, former Chief Prosecutor of the International Criminal Tribunals for Rwanda and the former Yugoslavia, warns that such an expansion risks strong politicization of the Court. And furthermore, as a young institution, the Court still has much work to do in effectively investigating and prosecuting the crimes over which it already exercises jurisdiction.

The "system" of international criminal justice is unquestionably complex, interdependent, and rapidly evolving, and to educate the general public on contemporary issues facing the International Criminal Court, a series of 5- to 7-minute long documentaries were produced for virtual consumption. Convened by the Hauser Center for Nonprofit Organizations at Harvard University and sponsored by the MacArthur Foundation, the edited discussions were captured from the proceedings of the Consultative Conference on International Criminal Justice held last September at the United Nations Headquarters in New York.

Video themes include:

1. Kenya and the ICC
2. Humanitarian NGOs and the ICC
3. Domestic and Regional Complimentarity
4. The Role of ICC Preliminary Examinations
5. The ICC and Colombia
6. The Emerging "System" of International Criminal Justice
7. The ICC & International Relations

The ICC Review Conference is not without controversy, for over the weekend Sudan confiscated passports from three activists--Saleh Mahmoud, a Darfuri lawyer who won a human rights award from the European Parliament, Mariam al-Mahdi, the daughter of the last democratically elected leader of Sudan, and another lawyer, Bukhari Ja'ali--as they attempted to travel to the ICC Review Conference in Kampala. With an outstanding arrest warrant for war crimes issued by the Court in March 2009, President Omar Hassan al-Bashir has been relentless in suppressing criticism, resistance and perceived co-conspirators with the ICC's pursuit.

The following mini-documentary explores the delicate and difficult relationship between humanitarian NGOs, such as CARE and Save the Children, with that of the International Criminal Court. ICC Prosecutor Luis Moreno-Ocampo also discusses the expulsion of aid agencies in Sudan following President al-Bashir's arrest warrant.

Above all, however, the ICC Review Conference is an historic convening of the highest order for furthering the ultimate goal of ending impunity for the world's gravest crimes. While the crime of aggression has taken center stage on the Court's agenda for the next two weeks, we must not lose sight of that which the Court does have jurisdiction over: war crimes, crimes against humanity, and genocide. Coming into force in 2002, the ICC has been fully operational for a mere 8 years--a child in relation to other permanent global institutions.

But there is a case to be made on both sides: we must be wary of expanding the Court's authority while it is still both learning as an institution and strained in achieving its current mandate; although, one could argue that until the Court has a more robust role in international affairs and international justice, states will be unwilling to provide the necessary resources. In the end, such a resolution nonetheless rests upon the salience and political attractiveness of the new jurisdiction. One thing, however, is for certain: over the next two weeks, Kampala will chisel a new chapter in international criminal justice.