Professor Michael P. Scharf served as head of the Public International Law and Policy Group’s delegation at the International Criminal Court (ICC) First Review Conference May 31-June 9, 2010, in Kampala, Uganda. At this session, the 111 states that are party to the International Criminal Court Statute adopted, by consensus, an amendment adding the crime of aggression to the Court’s jurisdiction.
The ICC Review Conference was similar to a constitutional convention, at which amendments to the ICC Statute were debated. The most important debate addressed adding the crime of aggression to the jurisdiction of the court. The ICC previously had jurisdiction to prosecute leaders for war crimes and crimes against humanity, but this new provision will allow the tribunal to prosecute leaders for launching an attack against another state unless it is in self defense, for the purpose of preventing crimes against humanity or genocide, or authorized by the United Nations Security Council.
While the delegates in Kampala quickly agreed on a definition and elements of the crime of aggression, the sticking point was the so-called “trigger mechanism” or “filter” that would be a prerequisite to the tribunal’s exercise of jurisdiction over the crime. After two weeks of non-stop negotiations, an elaborate compromise was reached which had origins in the work of an Experts Meeting convened at Case Western Reserve University School of Law in 2008.
In September 2008, Ambassador Christian Wenaweser, President of the ICC Assembly of State Parties—along with the Nobel-nominated Public International Law and Policy Group and the Frederick K. Cox International Law Center at CWRU—co-hosted a symposium and experts meeting on “The ICC and the Crime of Aggression” at the School of Law. Articles and the report generated from the meeting were published in a double-volume issue of the Case Western Reserve Journal of International Law (available at www.case.edu/orgs/jil/aggression.html), and were provided to the delegations participating in the ICC Review Conference. The Experts Meeting was the brainchild of the late CWRU law professor Henry King, who had been a Prosecutor at Nuremberg and, along with former Nuremberg Prosecutors Whitney Harris and Ben Ferencz, was the moral force behind adding the crime of aggression to the ICC’s jurisdiction.
Professor Scharf characterizes this amendment as “an historic moment that was years in the making.” Although the crime of aggression is subject to numerous qualifiers and caveats, he says he has no doubt that “in the end, recognition of this crime will make a significant contribution to world peace.”
Professor Scharf is Director of the Frederick K. Cox International Law Center, established in 1991 through a multi-million dollar endowment from the George Gund Foundation. The Cox Center anchors an extensive network of international law programs in the School of Law including the Canada-United States Law Institute (est. 1976), the Henry T. King, Jr. War Crimes Research Office (est. 2002), the Institute for Global Security Law and Policy (est. 2005), and the Cyberspace Law and Policy Office (est. 2008). Few law schools in the world have as many full-time faculty members (24) engaged in teaching, research and the practice of international law, and only eight other U.S. law schools provide as many international law course offerings (54). The Cox Center provides a unique combination of traditional coursework, externships, clinics, lab and study abroad that allows students extraordinary opportunities to work with international law practitioners.