The push to criminalize aggressive war

This December, states are set to decide on activation of the International Criminal Court's jurisdiction over the crime of aggression. For the first time since the post-WWII trials in Nuremburg and Tokyo, an international court may be able to hold leaders individually criminally responsible for waging aggressive war.

Aggression was one of the four crimes listed in the Rome Statute when the treaty was adopted in 1998. However, the completion of the definition and provisions of jurisdiction were postponed for further negotiation. In 2010, ICC member states adopted a definition and conditions of activation and jurisdiction for the crime of aggression.

These conditions have now been met: More than the required 30 states parties have ratified the amendment, and the 16th Assembly of States Parties session in December 2017 is the earliest time procedurally possible to take a decision on adoption of the crime, which must be by consensus or at least a 2/3 majority.

Download Aggression factsheet

Three facts on the crime of aggression

It focuses on the most responsible: leaders.

It applies to individuals, not states.

It may be the fourth core crime tried at the ICC. 

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The crime of aggression defined

The 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 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."

These acts can include, among others, invasion, military occupation, and annexation by the use of force, blockade by the ports or coasts.

Rome Statute of the International Criminal Court articles 8 bis 1 and 2.

How was the definition decided?

In May/June 2010, the first Review Conference of the Rome Statute took place in Kampala, Uganda.  ICC member states and non-member states alike gathered to review the implementation and impact of the Rome Statute since its entry into force in July 2002.

Several amendments to the Statute were proposed at this time, including a proposed definition for the crime of aggression (Article 8 bis), as well as how and in what instances the ICC can begin exercising jurisdiction over the crime of aggression (Article 15 bis and 15 ter).

After much discussion, both ICC member states and non ICC member states agreed to adopt, by consensus, the Kampala Amendments on 11 Junewhich included the crime of aggression amendments.

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"The illegal use of armed force is a crime against humanity"

Former Nuremburg prosecutor Ben Ferencz

 

State ratifications of the Crime of Aggression

Three ways the ICC can exercise jurisdiction

The Crime of Aggression has a unique jurisdictional regime, which cannot be triggered in the same manner as with other crimes of the Rome Statute (genocide, crimes against humanity and war crimes). The Court may exercise jurisdiction over the crime either by: 

1. An ICC member state referring a situation to the Court.

2. The prosecutor initiating an investigation proprio motu.

3. UN Security Council referring the situation to the Court

Except in the case of UN Security Council referrals, non-ICC member states are excluded from the Court’s jurisdiction over the crime of aggression, regardless of victim or aggressor status.

1. In the case of a state referral (Article 15 bis), the Court will only be allowed to exercise jurisdiction if the amendments have entered into force for at least one of the ICC member states, victim or aggressor, involved. The Prosecutor must then determine there to be a reasonable basis to proceed with an investigation. If this occurs, the Prosecutor must notify the UN Secretary-General of the situation. The Security Council itself has the authority to determine, whether an act of aggression has been committed. The Prosecutor must allow the Security Council six months to make a determination. If no such determination is made, the Prosecutor may still proceed with investigation only with authorization of the Pre-Trial Division judges.

2. In the case of the prosecutor initiating an investigation (Article 15 bis), referred to as proprio motu, the same conditions apply as in the case of Article 15 bis state referrals.

3. In the case of a UN Security Council referral (Article 15 ter), if the UN Security Council refers a situation, the Prosecutor has the authority to investigate any of the four core crimes, including the crime of aggression, committed in any territory by any state’s national. In this situation, the Court is able to exercise jurisdiction over crimes of aggression involving ICC member states, regardless of their individual ratification status or “opt-out” status, and non-ICC member states alike.

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How is ICC jurisdiction applied?

The amendments on the crime of aggression enter into force for a state one year after its ratification or acceptance by that state. 

Even if ICC member states activate ICC jurisdiction over the crime of aggression, the option to “opt-out” of the Court’s exercise of that jurisdiction in non-UN Security Council referral situations does exist. 

The reported view held by the plurality of ICC member states is that once the two conditions (ratification by at least 30 ICC member states and the decision by the ASP) are met, the Court’s exercise of the jurisdiction over the crime of aggression applies to all ICC member states (unless an opt out declaration has been submitted), regardless of individual ratification status of the amendments.

An alternate view has also been advanced stating that the Court’s exercise of jurisdiction over the crime of aggression only applies to the ICC member states who have ratified the amendments.

Table of jurisdictional regime of the Crime of Aggression applicable to Rome Statute states parties

* One area of divergent interpretation surrounding these amendments to the Rome Statute relates to the exercise of jurisdiction under Article 15 bis where an aggressor state (from which nationals have committed an alleged crime of aggression) has not ratified the Kampala amendments and has not opted out of the Court’s exercise of jurisdiction.

What do they say?

"With this completion, implementation and universalization must proceed. Our global international justice network believes that full implementation of the Rome Statute system – including complementarity and full cooperation – will be a major element of the sacred goal of the Rome Statute and the UN Charter – to prevent these worst crimes in international law. And when prevention cannot be achieved, the violations of peace are addressed by justice and the rule of law."

William R. Pace, convenor of the Coalition for the ICC. 

"Following the unanimous adoption in Kampala, activating the Crime of Aggression is the next logical and important step to expand international justice and the creation of a more peaceful, secure and accountable global environment.  It is in our collective interest that such acts should be criminalised and encompassed within the jurisdiction of the ICC. Just as importantly, this step is in line with the growing understanding of our common humanity and the expressions of compassion which are increasingly emerging within and between the citizenry of every states party."

Brigid Inder, OBE, executive director, Women’s Initiatives for Gender Justice

"With thousands of nuclear weapons in play, it is too late for wars! The resolution of international political conflict by force is no longer a rational option - if it ever was. The crime of aggression has never been more criminal." 

Jutta F. Bertram-Nothnagel led the Coalition for the International Criminal Court Team on the Crime of Aggression (2001-2010). Read her opinion piece, A plea to reinforce peace.

"Only leaders are legally capable of committing the crime of aggression."

Ambassador Christian Wenewesar

Outlawing war

The Covenant of the League of Nations of 1919 (article 10) marked the first real commitment against war under international law, with states committing “to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League.” The Kellogg-Briand Pact of 1928 marked a further move against acceptance of war as a legitimate political instrument. After World War II, the UN Charter crystalized the international law prohibition (article 2 (4)) on the use of force by states against the territorial integrity or political independence of any state—except for in two circumstances: individual or collective self-defence by states (art. 51); and the use of force as authorized by the Security Council (art. 42).

Aggression was first recognized as a punishable international crime in the Charter of the International Military Tribunal at Nuremberg (IMT), as well as in the Charter of the Toyko Tribunals. The definition, enshrined in the Nuremberg Principles, was largely endorsed by the UN General Assembly (GA), which in 1974 adopted Resolution 3314 on the Definition of Aggression, focusing like earlier treaties on state rather than individual conduct and namely intended to guide the Security Council in its decisions on whether an act of aggression has occurred. It is the Rome Statute now that fills the gap, providing an avenue to individual accountability for the crime of aggression.

 

Coalition position on the crime of aggression

The Coalition for the International Criminal Court represents over 2500 organizations that strongly support the Rome Statute system from all over the world with differing mandates and expertise. The Coalition as a whole did not take a position concerning the adoption of specific provisions on the crime of aggression at Kampala. This was because Coalition members developed varying positions concerning the complex discussions on the crime.

Nevertheless, both before and during the Review Conference, the Coalition encouraged states to approach the consideration of proposals concerning the crime of aggression on their merits and in a constructive and cooperative manner. The Coalition 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 Coalition was active in providing information and forums for discussion on the topic to its membership and states delegates.

What next?

The ASP decided in November 2016, having already received the requisite 30 ratifications at that time, to establish facilitation meetings in New York among ICC member states only to discuss activation of the Court's jurisdiction over the crime of aggression, the second precondition to the Court's exercise of jurisdiction. The facilitation is intended to assist in reaching a consensus on activation by the 16th ASP session in December 2017, and not to reopen questions answered in Kampala.

As of 1 October 2017, 34 ICC member states have ratified the crime of aggression amendments.

ASP 2017

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