Integrating the Crime of Aggression into International Criminal Law and Public International Law

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This panel was convened at 3:00 p.m., Thursday March 24, by its moderator, Michael Newton of Vanderbilt University School of Law, who introduced the panelists: Beth Van Schaack of Santa Clara University and the U.S. delegation to the ICC Review Conference; Teresa McHenry of the U.S. Department of Justice, Criminal Division, Human Rights and Special Prosecutions; Claus Kress of the University of Cologne; and Michael Scharf of Case Western Reserve School of Law.

INTRODUCTORY REMARKS BY MICHAEL A. NEWTON

I want to welcome you all to the Benjamin Ferencz Session during which we will focus on the results of the Review Conference convened by the Assembly of States Parties to the International Criminal Court in Kampala, Uganda. We are here to honor an extraordinary man, who is seated in the front of the room along with his son Don, and we have assembled an extraordinary panel to dissect the recent developments in the field of international criminal law. The recent amendments to the Rome Statute of the International Criminal Court adopted in Kampala have sharpened debate over the tensions between traditional principles of public international law and processes of criminal adjudication, especially where concurrent jurisdiction exists between domestic and international courts. Professor Beth Van Schaack served on the U.S. delegation in Kampala and will discuss the key results of the diplomatic discussions, as well as projecting their lasting significance. Theresa McHenry joins us from the U.S. Department of Justice and will speak in her personal capacity on the challenges to come as the Court attempts to balance its new statutory authority with the fabric of existing domestic jurisdiction consistent with the complementarity principle. Claus Kress chaired the understandings negotiations in Kampala and can enlighten us regarding that process, the legal authority that should be accorded to the understandings, and their role in forging the consensus that emerged. Lastly, Michael Scharf will focus on a particular aspect of the aggression debates that has been heretofore under-analyzed. He will discuss the fabric of universal jurisdiction and assess the impact of the Kampala compromises on the future of that statutory structure.

Let me set the stage for this conversation among friends and eminent experts by briefly reviewing the context and content of the discussions in Kampala. When we reflect on the lifelong dedication of Benjamin Ferencz that began as he stood up to deliver the opening statement in the Einsatzgruppen trial more than half a century ago, there is a word picture that comes to mind unbidden and immediately: perseverance, selflessness, duty, passion, innovation, intelligence, unflagging energy, vision, innovation, all commingled with a whiff of occasional controversy. The Planethood Foundation that he and Don started some years ago has inaugurated the Global Institute for the Prevention of Aggression to be convened in London that will help implement Ben's vision and to cement the accomplishments in Kampala. Many of the same concepts that have shaped Ben's lifelong pursuit of justice were readily apparent in Kampala. The legal results involved a complex choreography of politics and the necessary compromises between the allocation of adjudicative authority between international and domestic forums. This is especially important in the context of the understandings that the governments assembled in Kampala adopted to augment the statutory refinements that formally amended the Rome Statute. The implementation of those understandings by a Court that is facing real defendants and real cases and applying a Statute to which no reservations are permitted will be fascinating to watch in the coming years. The discussions highlighted the enduring tension between expediency and efficiency that are inherent in our shared goals for justice--both for individual victims and the societies affected by armed conflicts--and fundamental fairness. …