ICC Resolution on Crime of Aggression

Yesterday a conference in Kampala, Uganda concluded over terms of the Crime of Aggression under the International Criminal Court. The press release from the court can be found here.

To date, the Rome Statute (pdf) only had subject-matter jurisdiction for three crimes, as listed under Article 5:

1. Genocide
2. Crimes against humanity
3. War crimes

A fourth crime is listed in Article 5, but it is was not defined at the time of the signing of the statute,

2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

At Nuremburg and Tokyo a crime against peace was used in prosecution, and was considered the “supreme international crime.” Although a similar crime of aggression was agreed upon at the Rome Conference, a definition of the crime and how it should be investigated did not achieve consensus and was only included in the statute on the last day of the 1998 conference.

As the statute came into force in on July 1, 2002, the amendments referred to in Article 5(2) could only be considered after 7 years, according to Articles 121, 123. Entry will be delayed until a subsequent vote in January 2017.

The recent conference adopted the definition of aggression expressed by the General Assembly on December 14, 1974 in Resolution 3314 (XXIX), which was one of the proposals during the 1998 formation of the statute. The other main proposition was that a generic definition be used, because it was impossible to enumerate all of the instances in which a crime of aggression may occur.

The new changes place primary responsibility on the Security Council, in accordance with Article 39 of the UN Charter and the reference in Article 5(2). In the case of Security Council inaction, a state party or the prosecutor may initiate proceedings with Pre-Trial Division approval. State parties can then also receive immunity from the Court by applying for an exemption, as long as the Security Council has not exerted its privilege.

The changes have received some critique, especially for signatory states surrounded by states that are not parties to the statute, and for the continuing refusal by the U.S. to sign the treaty. There has also been significant legal comment on the fact that both the Secretary-General of the U.N. and the Attorney-General of the U.K. considered the invasion of Iraq to violate Article 2(4) of the UN Charter, potentially giving liability under the statute. As the temporal jurisdiction of the court is not applied retroactively, it’s unlikely that a crime of aggression could be invoked even if the above definition is adopted in 2017.

The ICC is also facing increased scrutiny and resistance since the implication of the court in Darfur, Sudan.

Updates
Details on the conference can be found here. Commentary on the amendments can be found on Opinio Juris by Kevin Heller and Julian Ku. Heller summarizes how jurisdiction for the crime would work:

The following chart explains when the ICC will have jurisdiction over an act of aggression. The two actors refer to the state committing aggression (state of nationality) and the state against whom aggression is committed (territorial state). “OO” refers to a State Party that has opted out of jurisdiction.

• State Party & State Party —–> Jurisdiction
• State Party & State Party OO —–> Jurisdiction
• State Party & Non-State Party —–> No Jurisdiction
• State Party OO & State Party —–> No Jurisdiction
• State Party OO & State Party OO —–> No Jurisdiction
• State Party OO & Non-State Party —–> No Jurisdiction
• Non-State Party & State Party —–> No Jurisdiction
• Non- State Party & State Party OO —–> No Jurisdiction
• Non-State Party & Non-State Party —–> No Jurisdiction