Richard Goldstone Comes Out Against an ICC “Crime of Aggression” 26May10 July 5, 2010

by Julian Ku  -  Opinio Juris -  26 May 2010

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.

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