The
development of the Crime of Aggression has involved a lengthy deliberation
among civil society and governments which culminated in its approval by the
Assembly of State Parties at the International Criminal Court in 2017.
Delegates could not reach a consensus on the definition, breadth, or
application of the crime of aggression at the creation of the Rome Statute in 1998;
however, delegates compromised at the time to include the crime of aggression
in the Rome Statute Article 5 of the crimes within the jurisdiction of the
Court after the negotiation of a definition.
At a Review Conference in 2010 in Uganda, delegates negotiated the
definition and purview of the crime to facilitate State Party ratifications of
amendments to the Rome Statute at an Assembly of State Parties (ASP) thereafter.
The
Kampala Review Conference disagreed about a provision—specifically whether
State Parties should enable the Court’s jurisdiction over aggression through
either opting out if unwilling to accept a broadly inclusive application of the
provision or opting in to choose the jurisdiction of the Court with the new
amendments to the Statute. The US, as an observer delegation rather than a
State Party delegation, had advocated for the opt-in option and broad Security
Council referral control during the Preparatory Commission following the Rome
conference. At the Kampala Conference, most countries felt that a consensus had
been achieved on definition and breadth of the amendments. However, it later
appeared that some disagreements over jurisdiction remained. During the 2017 ASP,
delegates further negotiated between the majority advocating for a “broad view”
by which states can elect to opt out of the ICC’s jurisdiction for the
aggression amendments and the strong minority advocating for a “narrow view” of
ICC jurisdiction requiring states to opt in to the provision. Ultimately,
delegates voted to adopt the aggression amendments at the 2017 ASP along the
narrow view—State Parties must opt in to accept the amendments to enable their
enforcement in the state territory and over the nationals of those State
Parties.
Defining the Crime of Aggression is actually not
a new concept. United States delegates had advocated during the Rome Conference
for the inclusion of the Crime of Aggression in the Rome Statute with the
requirement that the Security Council must refer cases to the Court as a final
effort to solidify the crime in the initial text; however, there was no
consensus for the requirement at the time. Concern about ICC jurisdiction over
acts of aggression proved to be one critical
reason that the Bush administration would not sign the Rome Statute. The
administration was concerned that US military activities internationally could
be considered crimes of aggression.
This was a departure from previous US positions
on the crime of aggression. US efforts to prosecute the crime of aggression
extend back to the International Military Tribunal at Nuremberg and the
International Military Tribunal for the Far East (Tokyo). In The Journal of International and Comparative
Law, Jennifer Trahan described, “The Nuremberg Tribunal deemed ‘crimes
against peace’ to be ‘the supreme international crime, only differing from
other war crimes in that it contains within itself the accumulated evil of the
whole.’ Trahan also pointed to the prohibition of aggressive use of force
enshrined in U.N. Charter Article 2(4), which precludes use of force against
the “territorial integrity” or “political independence” of any state, unless
authorized by U.N. Security Council Chapter VII enforcement actions or Article
51 arguments of individual or collective self-defense.[1]
The
new definition of the crime of aggression is as follows:
“‘crime of aggression’ means 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.”[2]
The
amendments then include a list of actions that would qualify as an “act of
aggression”: “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… [including
any] of the following acts, regardless of a declaration of war, shall… qualify
as an act of aggression:
(a) The invasion or attack by the armed forces of
a State of the territory of another State, or any military occupation, however
temporary, resulting from such invasion or attack, or any annexation by the use
of force of the territory of another State or part thereof;
(b) Bombardment by the armed forces of a State
against the territory of another State or the use of any weapons by a State
against the territory of another State;
(c) The blockade of the ports or coasts of a
State by the armed forces of another State;
(d) An attack by the armed forces of a State on
the land, sea or air forces, or marine and air fleets of another State;
(e) The use of
armed forces of one State which are within the territory of another State with
the agreement of the receiving State, in contravention of the conditions
provided for in the agreement or any extension of their presence in such
territory beyond the termination of the agreement;
(f) The action of a State in allowing its territory,
which it has placed at the disposal of another State, to be used by that other
State for perpetrating an act of aggression against a third State;
(g) The sending by or on behalf of a State of
armed bands, groups, irregulars or mercenaries, which carry out acts of armed
force against another State of such gravity as to amount to the acts listed
above, or its substantial involvement therein.”[3]
If
any acts fell under these categories but were authorized by the Security
Council or were for individual or collective self-defense, they would not
qualify as crimes of aggression.[4]
To
initiate any investigation on a crime of aggression, a referral can originate
from the Security Council, a State Party, or the Office of the Prosecutor with
Pre-Trial Chamber approval.[5]
The aggression amendments do not allow the ICC jurisdiction over Non-States
Parties, or their nationals, unless the case is referred by the Security
Council for Non-State Parties. Therefore, this stipulation offers the Permanent
Five Security Council members who are not State Parties—namely the US, Russia,
and China—de facto immunity from the Court’s jurisdiction because of their
vetoes.[6]
(For clarity, the ICC only tries individuals, so such cases and resultant
trials only involve the culpability of the most senior level leadership.) The
aggression amendments will enter into force for State Parties that have
ratified them by July 17, 2018, which is also the 20th anniversary of the ICC’s
founding treaty, the Rome Statute.[7]
There
are some potential complications that will need to be considered. Are states
that ratify the Rome Statute after the adoption of the amendments subject to
the amendment or must they additionally ratify it? Can non-State Parties by a
special declaration accept the Court’s jurisdiction in relation to these
amendments?[8]
For these questions and other grey areas, the ICC judges have the discretion to
determine the breadth and limitations of the aggression amendments. Despite
limitations to the Court’s jurisdiction over the crime of aggression, the
beginning of the Court’s jurisdiction over this critical fourth crime on the
20th anniversary of the creation of the Rome Statute marks a momentous
milestone and progress for the Court.
Written
By Amanda Schmitt
[3] The Rome Statute. ICC. 7-8.
[4] Trahan, Jennifer. “An Overview of the Newly
Adopted International Criminal Court Definition of the Crime of Aggression.”
39.
[5] Trahan, Jennifer. “An Overview of the Newly
Adopted International Criminal Court Definition of the Crime of Aggression.”
41.
[6] Trahan, Jennifer. “An Overview of the Newly
Adopted International Criminal Court Definition of the Crime of Aggression.”
41.
