By: Jennifer Trahan, Associate Professor, Center
for Global Affairs, New York University
On Thursday, December 14, 2017, the ICC’s Assembly of States
Parties took the historic and significant decision, by consensus, to activate,
effective July 17, 2018, the ICC’s jurisdiction over its 4th crime, the
crime of aggression. It was not through the jurisdictional interpretation of
the crime of aggression amendment that many States Parties had favored; yet the
decision nonetheless advances the rule of law and completes the ICC’s Rome
Statute.
This decision has been a long time coming. The crime of
aggression is hardly a new crime, having historic roots. It was of course
famously prosecuted by the International Military Tribunal at Nuremberg (then
termed “crimes against peace”). But after the Nuremberg and Tokyo Tribunals, prosecution
of the crime languished (along with the rest of the field of international
justice) during the Cold War. It resurfaced with the decision in 1998 at the
Rome Conference, that the crime of aggression was one of the most
serious crimes of concern to the international community (Rome Statute, arts. 1,
5.1) and one over which the ICC would have jurisdiction (Rome Statute, arts.
5.1, 12.1). Only, states, in Rome, also agreed, in article 5.2, that there
needed to be more time to negotiate the definition and conditions for the exercise
of jurisdiction. So, when the ICC first commenced operations, it did so with
jurisdiction only over three crimes (genocide, crimes against humanity, and war
crimes) having been activated.
After Rome, negotiations on the definition and conditions for
the exercise of jurisdiction continued, first, at Preparatory Commission
meetings, and then before the Special Working Group on the Crime of
Aggression. Work on the definition was essentially completed by 2008 (the end
of the Special Working Group’s mandate). Agreement on conditions for the
exercise of jurisdiction, as well as various Understandings that accompanied
the definition, were only concluded at the Kampala Review Conference (May 31 - June
11, 2010), on the shores of Lake Victoria. Also agreed upon at the Review
Conference was a delay mechanism, requiring 30 States Parties to ratify the
amendment (now achieved, with 35 ratifications), 1 year’s passage after the 30th ratification (also now achieved), and one more vote or decision by consensus of
the Assembly of States Parties (just now achieved).
This article will highlight a few key features of the
definition and jurisdictional regime.
Definition of the Crime
There are various noteworthy features of the definition.
First, the crime has two different component parts—paragraph 8bis (para.
1) addresses the “crime of aggression,” which covers the conduct of the
individual at issue. Paragraph 2 then addresses the state “act of aggression,”
which is the context in which the individual’s actions take place. In this
way, the crime is somewhat different from other ICC crimes (although they too
require certain contextual elements in their “chapeaux”).
As to the crime, Rome Statute 8bis para.1 states:
For purposes of this Statute, “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.
The words “planning, preparation, initiation or execution” derive
from the London Charter of the Nuremberg Tribunal. The next phrase is known as
the “leadership clause,” which specifies that the crime is only committed only “by
a person in a position effectively to exercise control over or to direct the
political or military action of a State.” This would cover only a very limited
number of state actors. Their conduct would then need to pertain to an “act of
aggression” (described in para. 2) that, by its “character, gravity and scale,”
constitutes a “manifest” violation of the UN Charter. “Manifest” here means
extremely clear; thus, de minimis incursions between two states would be
excluded,
as would all unclear cases (those falling within a grey area).
As to the act of aggression, Rome Statute 8bis para. 2
states:
For the purpose of paragraph 1, “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. Any of the
following acts, regardless of a declaration of war, shall, in accordance with
United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974,
qualify as an act of aggression[.]
There then follows a list of covered acts, listed in
subsections (a)–(g).
The first sentence basically tracks article 2.4 of the UN
Charter. The list of illustrative acts (a)-(g) come directly from General
Assembly Resolution 3314 (1974). Yet, each of these acts (a)-(g) would still
only meet the definition of the crime (para. 1), if the act satisfies all other
requirements (e.g. constituting a “manifest” Charter violation by its
“character, gravity and scale.”)
Exercise of Jurisdiction
In terms of the jurisdictional regime, the most significant
points to note are that the three ways that
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