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The Crime of Aggression
The unique position of the crime of aggression within the Rome Statute: In a compromise reached during the negotiation of the Rome Statute in 1998, Article 5 of the Rome Statute lists the crime of aggression as one of the core crimes under the Court’s jurisdiction. However, in contrast to the other three crimes (genocide, crimes against humanity and war crimes), the Court remained unable to exercise jurisdiction over the crime of aggression as the Statute did not define the crime or set out jurisdictional conditions.
Adoption of the crime of aggression in Kampala: after two weeks of intense debate and years of preparatory work, on 11 June 2010, the Review Conference of Rome Statute (held in Kampala, Uganda between 31 May and 11 June 2010) adopted by consensus amendments to the Rome Statute which include a definition of the crime of aggression and a regime establishing how the Court will exercise its jurisdiction over this crime.
The conditions for entry into force decided upon in Kampala provide that the Court will not be able to exercise its jurisdiction over the crime until after 1 January 2017 when a decision is to made by States Parties to activate the jurisdiction.
Definition of the crime of aggression: Article 8 bis adopted in Kampala defines the individual crime of aggression as the planning, preparation, initiation or execution by a person in a leadership position of an act of aggression. Importantly, it contains the threshold requirement that the act of aggression must constitute a manifest violation of the Charter of the United Nations.
An act of aggression is defined as the use of armed force by one State against another State without the justification of self-defense or authorization by the Security Council. The definition of the act of aggression, as well as the actions qualifying as acts of aggression contained in the amendments (for example invasion by armed forces, bombardment and blockade), are influenced by the UN General Assembly Resolution 3314 (XXIX) of 14 December 1974.
The threshold and formulation of this definition, draws heavily upon the pre-existing language and general provisions in the Rome Statute and the UN Charter, and reflects a compromise made by many States and in the lead up to the Review Conference.
The conditions for exercise of jurisdiction: The text of articles 15 bis and 15 ter set out the conditions for the Court’s exercise of jurisdiction over the crime of aggression. In contrast to the other crimes in the Statute, these articles establish a unique jurisdictional regime outlining when the ICC Prosecutor can initiate an investigation into a crime of aggression.
Where a ‘situation’ is referred to the Prosecutor by the UN Security Council, article 15 ter of the Statuteprovides that the Court’s jurisdiction is triggered in the same manner as with the other crimes in the Statute, meaning the Prosecutor may proceed with an investigation into the crime of aggression.
In contrast to Security Council referrals, under article 15 bis, the Prosecutor may only proceed with an own motion (proprio motu) investigation or an investigation based on a State referral of a situation into the crime of aggression:
· after first ascertaining whether the Security Council has made a determination of the existence of an act of aggression (under article 39 of the UN Charter) and waiting for a period of 6 months;
· where that situation concerns an act of aggression committed between States Parties; and
· after the Pre-Trial Division of the Court has authorized the commencement of the investigation.
Article 15 bis also provides that States Parties may opt-out of the Court’s jurisdiction under the article by lodging a declaration of non-acceptance of jurisdiction with the Court’s Registrar. Such a declaration can be made at any time (including before the amendments enter into force) and shall be reviewed by the State Party within three years.
Non-State Parties have been explicitly excluded from the Court’s jurisdiction into a crime of aggression under this article when committed by that State’s nationals or on its territory.
Both articles 15 bis and 15 ter note that any determination by an organ outside of the Court (such as the Security Council) will be without prejudice to the Court’s own finding of an act of aggression.
Adoption and entry into force: The amendments were adopted by consensus in accordance with article 5(2) of the Statute and will enter into force under article 121(5). However, the provisions of both article 15 bis and article 15 ter provide that the Court will not be able to exercise its jurisdiction over the crime of aggression until:
· at least 30 States Parties have ratified or accepted the amendments; and
· a decision is taken by two–thirds of States Parties to activate the jurisdiction at any time after 1 January 2017.
CICC position on the crime of aggression: The Coalition for the International Criminal Court (CICC) represents over 2500 organizations that strongly support the Rome Statute system from all over the world with differing mandates and expertise. The CICC as a whole did not take a position concerning the adoption of specific provisions on the crime of aggression at Kampala. This was because CICC members developed varying positions concerning the complex discussions on the crime.
Nevertheless, both before and during the Review Conference, the CICC encouraged States to approach the consideration of proposals concerning the crime of aggression on their merits and in a constructive and cooperative manner. The CICC Team on the Crime of Aggression was actively involved in the Princeton Process and in the preparatory work undertaken by the Special Working Group on the Crime of Aggression. During the Review Conference the CICC was active in providing information and forums for discussion on the topic to its membership and states delegates.
For more information on this issue and the Review Conference, please contact Toby Hanson at [email protected].