Session 5 CAH Flashcards
Q: What is the main focus of Beth Van Schaack’s article The Crime of Aggression and Humanitarian Intervention on Behalf of Women?
A:
- Explores the gendered aspects of the crime of aggression
- Examines whether the amendments to the ICC’s Rome Statute discourage humanitarian interventions aimed at protecting women.
Q: Why might the crime of aggression have a chilling effect on humanitarian interventions?
A: Because it is broadly defined, covering all uses of force, and lacks explicit exemptions for humanitarian interventions, states may fear prosecution even when intervening to prevent crimes like genocide or systematic sexual violence.
Q: How does feminist theory relate to humanitarian intervention?
- critiques militarism
- also recognizes that intervention might sometimes be necessary to protect women from mass violence,
- tension between anti-war principles and humanitarian protection.
Q: What key terms in the definition of the crime of aggression could be interpreted to allow humanitarian intervention?
A:
- described in Rome Statue of ICC
- Terms like “manifest,” “character,” “gravity,” and “scale” could be interpreted in ways that exclude bona fide humanitarian interventions from being classified as acts of aggression.
- Only if both aggressor and victim has signed Kampala Amendments
Q: What solutions does Van Schaack suggest to prevent humanitarian interventions from being prosecuted as aggression?
A: She suggests considering the intent behind interventions, interpreting “manifest” violations to exclude humanitarian actions, and expanding legal justifications for interventions aimed at preventing atrocities.
Q: What role does the inclusion of women in decision-making play in humanitarian intervention?
A: Including women in decisions on military interventions, as emphasized in U.N. Security Council Resolutions 1325 and 1820, could lead to more just and effective responses to mass atrocities affecting women.
Q: Why does Davis Brown argue that the crime of aggression is overbroad?
A: The definition does not account for arguably legitimate uses of force,
- such as humanitarian intervention,
- preemptive self-defense, and
- counterterrorism operations,
= making state leaders hesitant to engage in necessary interventions.
Q: Why is the crime of aggression unlikely to gain broad international support?
A: The most frequent users of force, such as the U.S., China, Russia, and Israel, have not ratified the Rome Statute or are unlikely to accept the crime of aggression, limiting its impact.
Q: How does Brown critique the legal clarity of the crime of aggression?
A: The term “manifest violation” in the Rome Statute is vague, leaving open the possibility that legitimate military interventions could be prosecuted, deterring states from necessary actions.
Q: What role does political bias play in Brown’s critique of the crime of aggression?
- selective enforcement and double standards in international law
= likely that prosecutions will be politically motivated, undermining the legitimacy of the ICC.
Q: Why does Brown believe the crime of aggression will not significantly reduce state aggression?
A: Empirical data shows that most acts of aggression (70%) from 1946–2001 were committed by non-parties to the Rome Statute, meaning the ICC has no jurisdiction over the states most likely to commit aggression.
Q: What is Brown’s overall conclusion about the effectiveness of the crime of aggression?
-, it will not deter powerful states,
- may discourage necessary military interventions, and
- risks becoming a tool used selectively against weaker states.
Q: What was the significance of the 2010 Kampala Review Conference regarding the crime of aggression?
- first time since the Nuremberg and Tokyo trials that an international tribunal was given jurisdiction over the crime of aggression,
- establishing a legal definition and conditions for prosecution under the ICC.
Q: How was the crime of aggression defined at the Kampala Conference?
Based on UN General Assembly Resolution 3314 (1974)
- the use of armed force by a state in violation of the UN Charter,
- individual responsibility limited to political and military leaders.
Q: What was the main controversy regarding the role of the UN Security Council in aggression cases?
A: Some states argued only Security Council should determine aggression,
- others wanted the ICC to act independently.
- final compromise allows the ICC to proceed if the Security Council fails to act within six months,
- with approval from ICC pre-trial judges.
Q: Why is the ICC’s jurisdiction over the crime of aggression limited?
amendments do not apply to non-states parties like the U.S., Russia, and China.
- states can opt out, and
- the ICC cannot prosecute non-ratifying states unless the Security Council refers the case.
Q: Why was the ICC’s jurisdiction over the crime of aggression delayed until at least 2017?
- amendments required 30 state ratifications
+ a further decision by states parties, - as a compromise between those wanting immediate enforcement and those who believed the ICC was not yet ready.
Q: What are some of the remaining political and legal challenges to enforcing the crime of aggression?
- deep divisions among states over the ICC’s role,
- concerns over selective enforcement,
- powerful states remain outside its jurisdiction raise questions about whether the amendments will effectively deter acts of aggression.
Q: Why is Russia’s invasion of Ukraine considered a clear violation of international law?
- Violates Article 2(4) of the UN Charter,
- crime of aggression has been recognized in international law but has not been prosecuted since World War II.
Q: Who can be held accountable for the crime of aggression under international law?
- political and military leaders who have the power to shape, influence, or execute the decision to wage war,
- based on precedents from Nuremberg and Tokyo trials.
- includes figures like Vladimir Putin and Alexander Lukashenko.
Q: Why can’t the ICC prosecute Russia’s aggression against Ukraine?
- ICC lacks jurisdiction because Russia and Ukraine are not ICC members,
- the crime of aggression requires either state consent or a UN Security Council referral,
- impossible due to Russia’s veto power.
- Need to be party to Kampala unless UNSC referral.
Q: What alternative mechanisms exist for prosecuting aggression in Ukraine?
- A special ad hoc tribunal (created by UNGA?).
- Domestic courts, (Ukraine’s, which have criminalized aggression).
- Universal jurisdiction in foreign domestic courts, though politically controversial.
Q: What legal barriers exist to prosecuting Russian leaders for aggression?
- Head of state immunity prevents foreign domestic courts from prosecuting sitting leaders.
- Functional immunity protects state officials for official acts, creating challenges unless an international tribunal is established.
Q: Why is there concern about selectivity in prosecuting the crime of aggression?
A: Many past acts of aggression, like the 2003 U.S. invasion of Iraq, were not prosecuted. Some states now supporting a tribunal for Russia previously resisted ICC jurisdiction over aggression, raising concerns about hypocrisy and selective justice.
Q: Why does Dr. Carrie McDougall argue that Russia’s invasion of Ukraine must be prosecuted as a crime of aggression?
- Clear violation of international law, with Vladimir Putin and Alexander Lukashenko directly responsible. =
- necessary to uphold Ukraine’s sovereignty,
- protect international order, and
- hold leaders accountable.
Q: Why can’t the ICC prosecute Russia’s aggression against Ukraine?
A: The ICC’s jurisdiction over aggression is uniquely limited—it applies only when both the aggressor and victim are ICC members, or if the UN Security Council refers the case. Since Russia, Belarus, and Ukraine are not ICC members, the ICC has no jurisdiction over aggression in this case.
Q: What are the limitations of prosecuting aggression in domestic courts?
A:
Ukrainian courts risk accusations of victor’s justice.
Head of state immunity protects Putin and Lukashenko from prosecution in foreign courts.
Trials in absentia lack legitimacy and wouldn’t restrict Putin’s movements.
Q: Why is a Special Tribunal for Aggression the best available option?
It would be created through an international treaty, ensuring legal legitimacy.
The UN General Assembly could endorse it to increase credibility.
It would hold top Russian leaders accountable where other mechanisms fail.
Q: How does McDougall respond to criticisms of selective justice?
- past cases of unpunished aggression (e.g., the 2003 Iraq War),
- argues that inaction now would only worsen the problem.
- tribunal for Ukraine could strengthen international law and set a precedent for future accountability.
Q: What recommendations does McDougall make for strengthening the tribunal?
- ICC’s definition of aggression for consistency.
- broad international participation, led by Ukraine’s neighbors.
- Urge supporting states to ratify the ICC aggression amendments to avoid hypocrisy.
- Establish cooperation with the ICC to share evidence and coordinate prosecutions.
Q: Why does Kevin Jon Heller argue that a Special Tribunal for Russia’s aggression against Ukraine is impractical?
- tribunal would struggle to obtain suspects and evidence
- key figures and documents remain inside Russia,
- Russia will not cooperate.
- Effective prosecution would require regime change, making the tribunal largely symbolic.
Q: What alternative legal mechanisms does Heller suggest for prosecuting Russian aggression?
- If regime change, the new government could ratify the ICC Rome Statute and allow prosecutions.
- Ukrainian courts could prosecute aggression with international support.
Q: Why does Heller argue that a Special Tribunal would not deter future aggressors?
-Powerful states have ignored past aggression,
- tribunal that never prosecutes anyone would reaffirm impunity rather than deterrence.
- would not guarantee future tribunals for other aggressors.
Q: How does Heller criticize the selectivity of international criminal justice?
A: He argues that past illegal wars (e.g., the 2003 Iraq invasion) were not prosecuted, and the same states that weakened ICC aggression jurisdiction now push for a Russia-specific tribunal, revealing double standards.
Q: What does Heller say about the costs of creating a Special Tribunal?
A: A tribunal would cost hundreds of millions of euros, which could be better spent supporting Ukraine’s legal system or strengthening the ICC. Given the uncertainty of obtaining suspects, it risks becoming a waste of resources.
Q: What alternative approach does Heller propose instead of a Special Tribunal?
- Creating a permanent International Criminal Tribunal for Aggression with broad jurisdiction,
= less selective and more effective in the long run.
Q: Why does the article argue that an international tribunal is the best approach to prosecuting Russia’s aggression?
A: A UN-backed international tribunal would have greater legitimacy, stronger legal weight, and set a global precedent, ensuring that top leaders like Putin and Lavrov can be prosecuted.
Q: What are the main flaws in the U.S. proposal for an “internationalized” Ukrainian court?
A: The U.S. proposal does not address key legal barriers, including:
Immunities that protect Putin and other leaders.
Weak precedent, as a domestic tribunal lacks international legitimacy.
Ukrainian constitutional issues, which prohibit special courts.
Q: Why can’t a national or hybrid tribunal prosecute top Russian leaders?
A: Under international law, heads of state and foreign ministers have personal immunity in national courts, meaning Putin and Lavrov cannot be prosecuted unless the tribunal is truly international.
Q: What lessons from past hybrid tribunals suggest they are ineffective?
A: Hybrid tribunals, like the Iraqi High Tribunal, failed due to political bias, unfair trials, and lack of legitimacy. A UN-backed tribunal would ensure neutrality and legal credibility.
Q: Why is setting a strong legal precedent against aggression important?
A: Russia’s invasion is a clear violation of Article 2(4) of the UN Charter. Failing to prosecute it properly weakens international law and allows future aggressors to act with impunity.
Q: What long-term solution does the article propose for prosecuting aggression?
A: The ICC’s jurisdiction over aggression must be expanded by amending the Rome Statute. However, in the short term, a UN-backed Special Tribunal (STCoA) is the best available option.
Q: What was the process for activating ICC jurisdiction over the crime of aggression?
A: The 2010 Kampala Amendments required ratification by 30 States and an activation decision after January 1, 2017. By November 2017, 34 States had ratified, allowing the Assembly of States Parties (ASP) to begin discussions on activation.
Q: What were the key legal issues debated in the ASP discussions on aggression?
The definition of aggression.
Whether non-ratifying States Parties could be subject to ICC jurisdiction.
The conditions under which the ICC could prosecute aggression.
The role of opt-out declarations under Article 15 bis (4).
Q: What were the two main opposing views on jurisdiction over non-ratifying States?
Restrictive View (UK, France, Canada, Japan): The ICC cannot prosecute nationals of non-ratifying States Parties.
Expansive View (Liechtenstein, Argentina, Switzerland): The ICC can prosecute aggression as long as the victim State ratified the amendments.
Q: How does Article 15 bis (4) affect ICC jurisdiction over aggression?
A: Article 15 bis (4) allows States Parties to opt out of ICC jurisdiction for aggression, but it remained unclear whether non-ratifying States were automatically exempt or needed to make a formal opt-out declaration.
Q: What procedural challenges did the ASP face in activating ICC jurisdiction over aggression?
A two-thirds majority vote (82 votes) was required for activation.
UK and France pushed for a restrictive interpretation, while Palestine and Switzerland favored broader jurisdiction.
Many States sought consensus to avoid reopening the Kampala compromise.
Q: What was the final outcome of the ASP discussions on aggression jurisdiction?
The ASP aimed to finalize an activation decision at its sixteenth session.
Most States supported activating ICC jurisdiction, but disagreements over non-ratifying States remained unresolved.
The process showed the legal and political complexities of enforcing aggression accountability.
Q: How did the UK and France attempt to weaken ICC jurisdiction over the crime of aggression?
A: They reopened negotiations at the 16th Assembly of States Parties (ASP) in 2017, pushing for an opt-in system that would require the aggressor state’s explicit consent, despite the existing opt-out system from the 2010 Kampala compromise.
Q: What was the difference between the opt-in and opt-out systems for ICC aggression jurisdiction?
Opt-in (UK/France proposal): ICC can prosecute only if both the aggressor and victim have ratified the aggression amendments.
Opt-out (Kampala compromise): ICC has jurisdiction unless the aggressor state formally opts out, ensuring broader accountability.
Q: How did the UK and France use consensus rules to impose their position?
A: They exploited the need for consensus, knowing other states wanted unity. This gave them a de facto veto, allowing them to force through the opt-in system, despite most states supporting the opt-out model.
Q: Why did France and the UK object to reaffirming judicial independence in the final resolution?
A: They opposed a provision reaffirming ICC judicial independence, even though South Africa (considering ICC withdrawal) supported it. Their stance raised concerns about their true commitment to international justice.
Q: What was the result of the ICC jurisdiction activation for aggression?
A: The ICC’s jurisdiction was activated but severely limited, applying only to conflicts between the 35 ratifying states, none of which are currently likely to commit aggression, weakening the court’s enforcement power.
Q: What are the broader implications of the UK and France’s actions?
A: Their opposition contradicted their historical role at Nuremberg and ensured that powerful states remain shielded from prosecution for aggression, undermining the credibility and effectiveness of international criminal justice.
Q: Why is the ICC’s activation of the crime of aggression historically significant?
A: It is the first time since Nuremberg that an international tribunal has jurisdiction over aggressive war-making, marking a major step in international criminal law.
Q: What are the main restrictions on ICC jurisdiction over the crime of aggression?
Only “manifest” violations of the UN Charter can be prosecuted.
Only senior political and military leaders are liable.
ICC jurisdiction applies only between ratifying States Parties unless there is a UN Security Council referral.
Only 35 of 123 ICC members have ratified the aggression amendment.
Even ratifying states can opt out of jurisdiction.
Q: Why are prosecutions for aggression at the ICC unlikely?
The jurisdictional limitations make it difficult to prosecute state leaders.
The Security Council is unlikely to refer major powers for prosecution.
Only a few states fall under ICC jurisdiction, reducing potential cases.
Q: What is the primary value of activating the crime of aggression?
A: The activation has symbolic and normative significance, encouraging global discussions on the legality of war and individual accountability for illegal wars.
Q: How could the crime of aggression impact the ICC’s legitimacy?
A: The ICC already struggles with high expectations, and now it may face criticism for not prosecuting aggression cases, undermining its credibility.
