Tagged: State sovereignty

Another State Ratifies Crime of Aggression Amendments

To follow up on our previous post, the International Criminal Court (ICC) reports in its December 8, 2014 press release that on December 5, 2014, another state, Georgia, deposited the instrument of ratification of the 2010 amendments to the Rome Statute on the crime of aggression. This ratification brings the number of ratifications of the crime of aggression amendments to a total of twenty so far. The press release further notes that Georgia “is the seventh country from the Eastern European Group to have ratified this set of amendments,” following Croatia, Estonia, Latvia, Poland, Slovakia, and Slovenia.

The crime of aggression was included in the Rome Statute in 1998 but the definition of the crime and the process by which the Court can exercise jurisdiction over this crime was not articulated until the 2010 Review Conference in Kampala, Uganda. These amendments are set to go in effect on January 1, 2017 and the Court will be able to exercise jurisdiction over the crime of aggression once thirty States Parties have ratified the amendments.

Article 8 bis (1) articulates the definition of crime of aggression as

the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

Article 8 bis (2) further states that act of aggression means

the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.

The definition directly draws on the principles articulated in and established by the UN Charter, namely Article 2(4). In light of the continuous situation in Ukraine and Crimea, can we expect more ratifications soon?

Prosecutorial Discretion: Key Factor in Civil Rights Challenges

An inspiring editorial, Refusing to Defend Unjust Laws: Prosecutorial Discretion or Prosecutorial Nullification?, by Professor Bennett L. Gershman of Pace Law School has shed light on the national importance of Attorney General Eric Holder’s recent attempt to address state laws that may be unjust or unconstitutional. In past weeks, Holder has led the charge to denounce such laws by directing state attorneys general that it is within their discretion to refuse to defend such laws.

Professor Gershman, who is a nationally recognized authority in the field of constitutional law and well renowned expert on prosecutorial misconduct, highlights this development in both national politics and law, explaining that Holder’s directive is both an important and well principled exercise of a prosecutor’s discretion.  He points out that Holder’s position may play a pivotal role in the nation’s ability to address the defining civil rights challenges of our time, including state laws that ban gay marriages. Some critics, including a number of Republican state attorneys general, have criticized Holder’s position as an impermissible exercise of “prosecutorial nullification,” and violative of their duty to enforce all laws, including those that may be unconstitutional. However, Professor Gershman explains that Holder’s directive is a well-settled exercise of prosecutorial authority, as “discretion is at the heart of the prosecutor’s function, it is virtually unlimited, and virtually unreviewable.”

Professor Gershman further explains that “[p]rosectors decide every day – -as a matter of policy and justice– whether and to what extent to use their limited resources to enforce the law. And the kinds of determinations that prosecutors make every day is whether it would be unjust to enforce or defend certain laws, especially if the prosecutor believes in good faith that the law is invalid, unworkable, or unconstitutional.” He points out that “defending [] [unjust] laws, as the Republican attorneys general claim they must do, may be a principled exercise of discretion, but a foolish and irrational one.”  

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