A substantial portion of the ASPs sixth session will be devoted to the crime of aggression. Human Rights Watchs institutional mandate includes a position of strict neutrality on issues of jus ad bellum, because we find it the best way to focus on the conduct of war, or jus in bello, and thereby to promote our primary goal of encouraging all parties to a conflict to respect international humanitarian law.26 Consistent with this approach, we take no position on the substance of a definition of the crime of aggression.
At the same time, Human Rights Watch is deeply concerned about proposals that a UN Security Council determination be required to trigger any exercise of the ICCs jurisdiction over the crime.27 Having the Security Council act as the gatekeeper to the courts exercise of jurisdiction would subordinate the court to the decisions of a political body with a highly politicized decision-making process. The approach would undercut the courts independence, and also its legitimacy, authority and credibility.28 Accordingly, we urge states parties to reject any proposal that gives the Security Council exclusive control over the ICCs exercise of jurisdiction over a crime under its subject matter jurisdiction.
26 The only exceptions that Human Rights Watch has made to this policy is to call for military intervention where massive loss of human life, on the order of genocide, can be halted through no other means, as was the case in Bosnia and Rwanda in the 1990s.
27 See ICC-ASP, Informal inter-sessional meeting of the Special Working Group on the Crime of Aggression, July 25, 2007, ICC-ASP/6/SWGCA/INF.1, http://www.icc-cpi.int/library/asp/ICC-ASP-6-SWGCA-INF.1_English.pdf (accessed November 7, 2007).
28 For further discussion of this issue more generally, see Human Rights Watch, Justice in the Balance: Recommendations for an Independent and Effective International Criminal Court (New York: Human Rights Watch, 1998), http://www.hrw.org/reports98/icc/, section C Role of the Security Council and section D How an Investigation is Triggered (In order to establish an independent and effective Court it is absolutely essential that the prosecutor be empowered to initiate investigations ex officio on the basis of reliable information... If only states and the Security Council can trigger prosecutorial investigations, the proper functioning of the Court will be dependant on the political motivations of these entities).