An NYU SPS Center for Global Affairs professor since 2009, Clinical Professor Jennifer Trahan teaches international law, international justice, and transitional justice, among other topics. She has led field intensive programs to The Hague, Bosnia, Serbia, and one to Rwanda.
She is a prolific scholar, having published scores of law review articles and book chapters, including about the International Criminal Court’s crime of aggression. Her book, “Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes” (Cambridge University Press 2020), was awarded the “2020 ABILA Book of the Year Award” by the American Branch of the International Law Association.
She serves as one of the US representatives to the Use of Force Committee of the International Law Association and holds various leadership positions with the American Branch. She also serves as Convenor of the Global Institute for the Prevention of Aggression.
Recently, she talked about becoming involved in international law and her latest work related to international criminal law and tribunals.
How did you become involved in international law, specifically the International Criminal Court (ICC)?
I became involved in international law more than 20 years ago when I was looking to move from litigation at a large Manhattan law firm to something more meaningful.
My work related to the ICC started in the early 2000s when I attended Preparatory Commission negotiations related to the ICC, particularly the negotiations to develop the definition of the crime of aggression. I was able to continue to participate in the process through the negotiations before the Special Working Group on the Crime of Aggression and, ultimately, the Review Conference in Kampala, Uganda, which resulted in the ICC’s definition of aggression and conditions for the exercise of jurisdiction being adopted.
I have also been involved in pro-ICC advocacy within the US, primarily through chairing the American Branch of the International Law Association’s ICC Committee. I also served as an amicus on the Afghanistan situation before the ICC and, more recently, on the Council of Advisers on the Application of the ICC’s Rome Statute to Cyberwarfare.
Can you talk about your work related to developing a special criminal tribunal on the crime of aggression related to Russia’s invasion of Ukraine?
In June, I had the privilege of working on a proposal for a special criminal tribunal, which l presented, with several others, in a meeting sponsored by the Permanent Missions of Liechtenstein and Latvia to the United Nations (UNSC-Letter-12-August-2022.pdf). The meeting summary, including the write-up of my presentation, was circulated with Ukraine's endorsement to all UN member states.
We also developed a blog series on the same topic (U.N. General Assembly and International Criminal Tribunal for Russian Aggression Against Ukraine Archives - Just Security). Our ideas set forth a template that could be used as the basis of negotiations between the United Nations and Ukraine if the General Assembly recommends the creation of such a tribunal.
Why would an ad hoc tribunal on aggression be needed if the International Criminal Court could investigate crimes committed in Ukraine?
The ICC only has jurisdiction to investigate and prosecute war crimes, crimes against humanity, and genocide in the situation of Ukraine. It lacks jurisdiction to prosecute the crime of aggression when committed by nationals of a non-State Party to the ICC’s Rome Statute, such as Russia. This crime is important as it is the crime that started the whole invasion.
An amendment is needed to fix the ICC’s jurisdiction so the crime of aggression can be prosecuted at the ICC, as the crime was always intended to be investigated and prosecuted there. In the interim, we need an ad hoc solution, which I mentioned earlier, to fill the gap in jurisdiction.
Beyond the Russia/Ukraine conflict, what other areas or issues do you see as priority challenges and opportunities for the ICC system?
The ICC has many cases and investigations on its plate from around the globe. Top challenges include budgetary ones as well as issues of state cooperation. Despite an outpouring from states of monetary support related to the Ukraine investigation, the court needs regular financial assistance across the board for all of its work. It also needs its States Parties and even non-States Parties, such as the US, to play a role in effectuating arrests. I hope that states’ enthusiasm for the ICC regarding the ICC’s investigating crimes in Ukraine can translate into consistent support in other situations.
Also, with the potential for the ICC to investigate and prosecute crimes being committed in Ukraine, the United States appears much more invested in the ICC than ever before, so this is a good moment for the US to strengthen its commitment to the ICC.
How are you taking your work with the ICC into your classroom and sharing it with students?
In my classes, I focus not only on imparting academic knowledge but sharing practical experiences that I have gleaned—for instance, in observing treaty negotiations at the United Nations or meetings in The Hague at the Assembly of States Parties related to the management of the International Criminal Court.
Students can share field experiences more directly when I lead global field intensives. I have organized five such study trips to The Hague, Bosnia, and Serbia, and I am about to lead my third trip to Rwanda.
Through these trips, students can see directly the challenges facing the field of international criminal justice and countries in rebuilding after they have been decimated by war and atrocity crimes.
Are you speaking at or participating in any upcoming conferences?
I will be speaking about a Special Tribunal for the Crime of Aggression related to Ukraine during a conference called “International Law Weekend” sponsored by the American Branch of the International Law Association and at a conference at the University of Maryland School of Law.
I hope to speak at an early November conference on cyberattacks as part of International Criminal Court Rome Statute crimes. Also, I may be speaking about the tribunal and the crime of aggression in The Hague, Netherlands, in December during meetings of the ICC’s Assembly of States Parties.