Invited Experts on Aggression Question

Akande Avatar Image Dapo Akande Professor of Public International Law & Co-Director, Oxford Institute for Ethics, Law and Armed Conflict University of Oxford

An Analysis of why the ICC does not have Jurisdiction over the Crime of Aggression Committed by Nationals of ICC Parties which have not Ratified the Kampala Aggression Amendments

The answer to the question over whom the Court will have jurisdiction with respect to aggression is to be found in Rome rather than in Kampala and the key to addressing that issue is to understand how the amendment provisions of the Rome Statute work, in conjunction with basic principles of the law of treaties.

Summary

I. Introduction

This comment examines the question of who will be subject to the ICC’s jurisdiction with respect to the crime of aggression. One of the most contentious questions in the negotiations that have taken place, since the adoption of the Rome Statute, regarding the crime of aggression is the question whether the Court’s normal jurisdictional regime should apply to the crime of aggression. A key point that divided the parties during the aggression negotiations was whether the Court should have jurisdiction over nationals of a state that does not ratify the aggression amendments but which is alleged to have committed an act of aggression on the territory of a state has accepted the aggression amendments. At the Kampala Review Conference, a provision was included in the aggression amendments by which states parties to the Rome Statute could opt out from the Court’s jurisdiction over aggression. While some states asserted that the Kampala Amendments essentially created an opt-out regime, under which nationals of states parties to the Rome Statute were covered by ICC jurisdiction unless their state opted-out, others maintained the regime for aggression was essentially an opt-in regime under which nationals of state parties were not within the jurisdiction of the Court unless their state opted-in. The dispute on this issue continued right up to the 2017 ICC Assembly of States Parties meeting in New York at which the ICC’s jurisdiction over the crime of aggression was activated. The resolution adopted in New York endorsed the “narrow view” of ICC jurisdiction and asserted that its jurisdiction over the crime of aggression was essentially based on states parties opting in.

This comment first considers the legal effect that the New York resolution will have in determining this jurisdictional question. It is argued that the although an ASP resolution adopted by consensus can, in principle, be regarded as a subsequent agreement of the parties to the Rome Statute that establishes their authentic interpretation of the Statute, within the meaning of the Vienna Convention on the Law of Treaties, the New York resolution does not, in itself, provide the definitive answer as to the correct interpretation of the Rome Statute. It is argued that despite being adopted by consensus, and despite being highly relevant for the interpretation of the Rome Statute and Kampala Amendments, this resolution does not necessarily amount to a subsequent agreement or subsequent practice that the Court is legally bound to follow.

Nevertheless, it is argued that the position adopted in New York with regard to the jurisdiction of the Court over nationals of states parties that do not ratify the aggression amendments is the correct legal position and the one that the Court, including the Office of the Prosecutor, ought to adopt. This comment argues that the answer to the question over whom the Court will have jurisdiction with respect to aggression is to be found in Rome rather than in Kampala and that the key to addressing that issue is to understand how the amendment provisions of the Rome Statute work, in conjunction with basic principles of the law of treaties.

Argument

II. Who is Subject to ICC Jurisdiction over the Crime of Aggression?

In the early hours of the morning on the 15th of December 2017, the States Parties to the Statute of the International Criminal Court (ICC), gathered in New York, took the historic step of “activating” the jurisdiction of the Court over the crime of aggression. By resolution of the ICC Assembly of States Parties (ASP),1 adopted by consensus, the crime of aggression will, from July 17, 2018, be subject to the Court’s jurisdiction. This move was the final step in the long journey towards the criminalization of crimes against peace. Not since the Nuremberg and Tokyo tribunals has an international criminal tribunal been competent to adjudicate on the individual criminal responsibility of state leaders for engaging in aggressive wars. Although there have been numerous stumbling blocks in the quest to, once again, subject the crime of aggression to international jurisdiction, they have been overcome, one by one, along the road from Rome to Princeton2 to Kampala,3 and finally New York. After agreement in the Special Working Group on the definition of the crime, the Kampala Amendments to the Rome Statute endorsed that definition and set out the circumstances in which the crime of aggression would fall within the jurisdiction of the Court.4 However, in Kampala, states parties were not ready to take the final decisive step with regard to ICC jurisdiction over aggression. They decided that the Court’s exercise of jurisdiction over aggression would require 30 ratifications or acceptances,5 and also decided to postpone the ICC’s jurisdiction until the taking of a further decision by states parties to activate that jurisdiction, with such decision not to be taken before January 1, 2017.6 Nevertheless, they “Resolved to activate the Court’s jurisdiction over the crime of aggression as early as possible.”7

Almost as soon as the ink dried on the Kampala Amendments, a division of views emerged as to one aspect of the ICC jurisdictional regime with respect to the crime of aggression.8 This meant that the question of who would be subject to ICC jurisdiction over aggression was not one that could easily be answered. The dispute centered on ICC proceedings that are triggered by a state referral or by the Prosecutor taking up the matter proprio motu . In such a situation, according to one view, the Court would not have jurisdiction over an alleged crime of aggression committed by nationals of, or on the territory of, a state party to the ICC Statute that does not ratify or accept the Kampala Amendments. As will be discussed below, this “narrow position” is based on the second sentence of Article 121 (5) of the Rome Statute. However, according to the “wide position,” where a national of a state party commits the crime of aggression on the territory of a state party that has ratified the Kampala Amendments, that person would be subject to the ICC jurisdiction over the crime in accordance with Article 12 (2) of the Rome Statute, unless the state of nationality has opted out of ICC jurisdiction over the crime of aggression.9

This division of views came to the fore during the process instituted prior to the New York ASP to facilitate the making of the activation decision.10 Although states parties to the Rome Statute may choose to opt out of the ICC’s jurisdiction over aggression under Article 15 bis (4) of the amended ICC Statute, by simply lodging a declaration with the Registrar of the Court, some states, relying on the narrow position, took the view that they should not be required to opt out in order for their nationals to be exempt from ICC jurisdiction over aggression. In March 2017, Canada, Colombia, France, Japan, Norway, and the United Kingdom submitted a paper to that facilitation process setting out the narrow view.11 In response, Liechtenstein and then Argentina, Botswana, Samoa, Slovenia, and Switzerland, also submitted papers adopting the wide view of jurisdiction.12

The significance of the question can be seen from the names that came to be given, by some, to those in the different camps. Those who took the wide view13 referred to themselves as “camp protection” because, adoption of their position would mean that states that ratified the Kampala Amendments would be protected from aggression committed by states parties that had not ratified the amendments. The other side was characterized as “camp consent” because they insisted that the Court could only have jurisdiction to determine whether they had committed acts of aggressions where the alleged aggressor state had granted jurisdiction to the Court. Given that by the end of 2017 only 35 states parties to the Rome Statute had ratified or accepted the aggression amendments (fewer than 30% of the total number of state parties), adopting one view rather than the other would greatly expand or limit the range of persons over whom the ICC has jurisdiction with respect to the crime of aggression, in cases of state referrals and prosecutions proprio motu .

The dispute is also significant because it goes to the question of whether the ICC’s “normal jurisdictional regime,” according to which crimes committed on the territory of states that have accepted the jurisdiction of the Court, applies to the crime of aggression.14 Or is the jurisdictional regime for the crime of aggression, and other crimes brought within the jurisdiction of the Court by amendment to the Statute, different?

At the ASP, the supporters of the “narrow view” refused to budge on their position, and in the Assembly resolution, adopted by consensus, on December 15, 2018, the ASP:

1. Decides to activate the Court’s jurisdiction over the crime of aggression as of 17 July 2018;

2. Confirms that, in accordance with the Rome Statute, the amendments to the Statute regarding the crime of aggression adopted at the Kampala Review Conference enter into force for those States Parties which have accepted the amendments one year after the deposit of their instruments of ratification or acceptance and that in the case of a State referral or proprio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.

The resolution thus takes a stand on the central jurisdictional question, with the hope, by the adherents to the narrow position, of providing a definitive answer to the question of who will be subject to ICC jurisdiction over the crime of aggression. However, the resolution also conditions an additional operative paragraph, which:

3. Reaffirms paragraph 1 of article 40 and paragraph 1 of article 119 of the Rome Statute in relation to the judicial independence of the judges of the Court;

That paragraph was inserted, by those states that take the wide position, as a reminder that ultimately the question of who is subject to the Court’s jurisdiction is one for the Court to decide.

However, as will be shown below, the confirmation by the ASP of the narrow position may not, on its own, be sufficient to establish the correctness or legal validity of that position.

Since the early steps regarding any potential prosecution for aggression will be taken by the Office of the Prosecutor (OTP), that is the organ of the Court that will first have to engage with the question of who exactly is subject to ICC jurisdiction over the crime of aggression. In addition to taking a decision on the narrow or wide position, in cases of state referrals and prosecutions proprio motu , the OTP, and perhaps also the judges may have to consider other questions that remain unsettled regarding the ICC’s jurisdictional regime over aggression. Those other questions include the following:

  • What is the position with respect to states which ratify/accept the Rome Statute after the Kampala Amendments were adopted? Are they to be regarded as having ratified the amended ICC Statute of 2010 or only the original Rome Statute of 1998?15

  • May non-parties to the ICC Statute make declarations under Article 12 (3) accepting the jurisdiction of the Court over aggression, as they can and have done with respect to the other crimes within the Court’s jurisdiction?16

  • In the case of Security Council referrals, will the Court be entitled to exercise jurisdiction over an alleged act of aggression, committed by a party to the Rome Statute that has not ratified or accepted the Kampala Amendments?

This contribution focusses on the main issue that has, thus far, divided states and scholars with regard to the jurisdiction of the Court over alleged crimes of aggression committed by nationals of, or on the territory of nationals of those ICC state parties that do not ratify the Kampala Amendments. It will not consider all of the questions listed above, though some of the points made along the way will be of relevance in seeking to answer some of those other questions.

III. The Lack of Finality of the New York Decision

Given that the ASP has confirmed, by consensus, in its New York resolution, the narrow position, it might be thought that the dispute regarding the question of the jurisdiction of the Court over nationals of states parties who do not ratify the Kampala Amendments is settled. However, some of the statements that were made by state parties immediately after the adoption of the resolution, and by way of explanation of their positions, show that while no state was prepared to block consensus and thus prevent activation of the ICC’s jurisdiction over aggression, many states that take the wide view did not abandon their legal position.17 The question to be asked, is what is the legal effect of the confirmation of the narrow position in the ASP resolution activating the crime of aggression? To what extent is this resolution dispositive such that it provides a definitive legal answer to the question of jurisdiction in this circumstance?

As will be explored more fully below, the question regarding ICC jurisdiction over the crime of aggression is ultimately a dispute about the interpretation of the Rome Statute, and particularly about the interaction between the Statute adopted in Rome and the amendments to the Statute adopted in Kampala. A significant aspect of that dispute relates to the interpretation to be given to the amendment provisions of the Rome Statute. As has already been mentioned, those who take the narrow view base their position, on Article 121 (5) of the Rome Statute. According to that provision:

Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.

The adherents of the narrow position were of the view that the second sentence of that provision has the effect of precluding the ICC from exercising jurisdiction over nationals of states that do not ratify the Kampala Amendments. It is this view of the second sentence of that provision that is confirmed by the New York resolution which applies the second sentence of Article 121 (5) to the crime of aggression. Moreover, the resolution asserts that the position there “confirmed” is “in accordance with the Rome Statute.”

Given that the ASP resolution is a statement of the parties to the Rome Statute which explicitly purports to give meaning to a provision of the Rome Statute (Article 121, paragraph 5), and to set out how that provision applies in a particular circumstance, the resolution is practice of the parties to the Statute regarding the interpretation of that treaty. Furthermore, as the resolution was adopted by consensus, it might be thought that position taken in it is decisive in the interpretation of the treaty, either because it represents a subsequent agreement of the parties to the Rome Statute regarding its interpretation (within the meaning of Article 31 3(a) of the Vienna Convention on the Law of Treaties (VCLT), or amounts subsequent practice which establishes the agreement of the parties to the treaty regarding its interpretation (within the meaning of Article 31 3(b) of the VCLT).

Indeed, both the International Court of Justice (ICJ) and the International Law Commission (ILC) have expressed the view that resolutions of conferences of states parties to treaties, or of plenary bodies of international organizations may count as subsequent agreements or subsequent practice under Articles 31 3(a) and (b) of the VCLT. In the Whaling Case,18 the ICJ considered the effect of resolutions of the International Whaling Commission (IWC) on the interpretation of the Whaling Convention. It stated that:

First, many IWC resolutions were adopted without the support of all States parties to the Convention and, in particular, without the concurrence of Japan. Thus, such instruments cannot be regarded as subsequent agreement to an interpretation of Article VIII, nor as subsequent practice establishing an agreement of the parties regarding the interpretation of the treaty within the meaning of subparagraphs (a) and (b), respectively, of paragraph 3 of Article 31 of the VCLT.19

That statement implies that where resolutions are adopted with the support of all states parties they must be taken into account under Article 31 3(a) and (b). Furthermore, the Court seemed to take the view that when a resolution, which bears upon treaty interpretation, is adopted by consensus, it is of such a nature as to be regarded as an authentic interpretation of the treaty. Not only did the Court, make specific note, on several occasions, when a particular resolution that it relied on its judgment was adopted by consensus, it also stated more generally that:

These recommendations [of the IWC], which take the form of resolutions, are not binding. However, when they are adopted by consensus or by a unanimous vote, they may be relevant for the interpretation of the Convention or its Schedule.20

However, though the ILC also recognizes that a decision adopted within the framework of a Conference of State Parties may embody, explicitly or implicitly, a subsequent agreement or subsequent practice under Article 31 3(a) or (b) of the VCLT, it does not seem to accept that a consensus decision will necessarily qualify as an agreement or practice under those provisions, nor does it accept that the interpretative position taken in such a decision is to be regarded as binding on interpreters. According to the ILC, a decision will qualify under those provisions:

[I]n so far as it expresses agreement in substance between the parties regarding the interpretation of a treaty, regardless of the form and the procedure by which the decision was adopted, including by consensus.21

The words italicized in the last sentence were included:

[I]n order to dispel the notion that a decision by consensus would necessarily be equated with agreement in substance. Indeed, consensus is not a concept which necessarily indicates any particular degree of agreement on substance.22

The ILC went on to note that:

It follows that adoption by consensus is not a sufficient condition for an agreement under Article 31, paragraph 3(b).23

If the essence of a subsequent agreement or subsequent practice under VCLT Article 31 (3) is that the parties (meaning all the parties)24 to the relevant treaty are to be taken as agreeing in substance to the interpretation given, the question that arises is whether all ICC Statute parties are to be regarded as agreeing to the interpretation of the Rome Stature that is expressed in the New York activation resolution. While none of them objected to the resolution at the moment of adoption, some of them did, in their statements after adoption, make it clear that they did not share the position taken in the resolution.25 This leads to the question of whether the moment of adoption is to be regarded as the moment of agreement such that even if there were later to be a lack of agreement there was still a moment, even if fleeting, in which all the parties agreed on a particular interpretation. However, the ILC also notes correctly that accepting a consensus decision simply means that the state concerned has decided not to block the adoption of the decision but does not necessarily indicate its consent to all aspects of that decision. Thus, the view may be taken the statements made in explanation of votes after the aggression activation resolution was adopted really do indicate there was not agreement in substance, by all the parties, on the points covered in the resolution.

Furthermore, the New York activation resolution does not necessarily represent a subsequent agreement as to the interpretation of the Rome Statute, which must be taken into account in its interpretation, because not all the parties to the Statute were present at the moment of adoption.26 For that same reason, the resolution cannot be said to represent subsequent practice which establishes the agreement of (all) the parties as to the interpretation of the Rome Statute under Article 31 3(b) of the VCLT. Kevin Jon Heller has previously argued that the Kampala Understandings on the crime of aggression do not represent subsequent agreements or subsequent practice under Article 31 (3) of the VCLT for the same reason.27 One may argue that in the case of the Kampala Understandings, the fact that no state party to the Rome Statute, whether present in Kampala or not, has in the seven years since their adoption expressed the view that it disagrees with the interpretations there offered and that this may, at least at this point in time, represent agreement in substance. However, the fact that some parties immediately expressed a divergent view to that contained in paragraph 2 of the New York resolution does suggest that there was no agreement in substance in the way described by the ILC.

One further reason why the New York resolution does not necessarily provide finality regarding the question of over who the ICC will have jurisdiction with regard to aggression is that even if the resolution counted as subsequent agreement or subsequent practice establishing the agreement of the parties under VCLT Article 31 3(a) or (b), it is unclear whether an interpreter is bound by such an interpretation. In this regard, it should be recalled that the VCLT requires that subsequent agreements or practice which qualify under Article 31 (3) shall be “taken into account” without itself indicating what weight should be given them. Clearly, an interpreter must consider any subsequent agreement or subsequent practice that qualifies under Article 31 (2), unlike the case of supplementary means of interpretation under Article 32 recourse to which can only occur if certain conditions are met. However, while some are of the view that an interpretation agreed on by the parties is decisive and binding, others have argued that such an agreement or practice is only one of several factors that the interpreter is to consider in applying Article 31 of the VCLT.

The ILC does not seem to have a consistent view on this question. In elaborating the VCLT, the ILC stated that subsequent agreements represent “an authentic interpretation by the parties which must be read into the treaty for purposes of its interpretation.”28 Similarly, Sir Humphrey Waldock as ILC Special Rapporteur on the Law of Treaties stated that:

Subsequent practice when it is consistent and embraces all the parties would appear to be decisive of the meaning to be attached to the treaty, at any rate when it indicates that the parties consider the interpretation to be binding upon them.29

However, in its more recent work on Subsequent agreements and subsequent practice in relation to the interpretation of treaties, the Commission has taken the view that even when a subsequent agreement or subsequent practice falls within the meaning of VCLT Article 31 (3), it is only one of the different means of interpretation to be taken into account in the process of interpretation under Article 31.30 According to this more recent view of the ILC:

The interpreter must give appropriate weight to such an interpretative resolution under article 31, paragraph 3 (a), but not necessarily treat it as legally binding.31

If the more recent view of the ILC were to be applied to the 2017 New York ASP resolution activating the crime of aggression, the decision taken in paragraph 2 of that resolution (adopting the narrow view of ICC jurisdiction over aggression) would not be binding on the Court. It would merely be one factor to be taken into account in determining whether the Court does have jurisdiction over a crime of aggression allegedly committed by nationals of, or on the territory of, states parties to the Rome Statute that have not ratified the Kampala aggression amendment.

To conclude on the question of the legal effect of the 2017 ASP resolution, while the states that insisted on the insertion of paragraph 2 of that resolution pushed for it in an attempt to provide legal certainty that the Court would not exercise jurisdiction with respect to aggression allegedly committed by states parties that had not ratified the Kampala aggression amendments, the resolution does not necessarily provide such certainty.

However, this conclusion should not be taken to mean that the adoption of the resolution does not improve the position of the adherents of the narrow view. Even if the resolution does not qualify as a subsequent agreement or subsequent practice under VCLT Article 31 (3), it would nonetheless be a supplementary means of interpretation under Article 32 of the VCLT.32 Thus, it can (and should) be used to confirm the meaning of the Rome Statute that is reached by application of Article 31 of the VCLT. The resolution should also be taken into account by the Court were it to be determined that the relevant provisions of the Rome Statute are ambiguous. While the Court may not regard the resolution as binding, the resolution adds weight to the view that the narrow position is the correct interpretation to be given to the Rome Statute.

IV. To What Extent is Jurisdiction over Aggression Subject to Normal ICC Jurisdictional Rules? The Effect of the Rome Statute Amendment Provisions.

Ultimately, the answer to the question of ICC jurisdiction over nationals of ICC parties that do not ratify the Kampala Amendments is to be found in Statute adopted in Rome rather than in the amendment adopted in Kampala or the New York ASP resolution. What was done in Kampala could not have the effect of changing the treaty rights of Rome Statute parties that do not go on to ratify the Kampala Amendments.33 The crucial step in sorting out the jurisdictional issues relating to the crime of aggression is the resolution of the means by which those amendments enter into force under the Rome Statute.

On the central question of whether the ICC will have jurisdiction with respect to nationals of states parties to the ICC Statute that do not ratify or accept the Kampala Amendments, but also do not opt out of the regime, the main issue is whether the normal jurisdictional regime of the ICC largely applies to the Kampala aggression amendments. Article 15 bis (4) of the Kampala Amendments provides that: “The Court may, in accordance with Article 12, exercise jurisdiction over a crime of aggression…” thus suggesting that the normal jurisdictional regime, provided for in Article 12 of Rome Statute, based on either the state of nationality of the actor or the state of territoriality accepting the Court’s jurisdiction, is applicable to the crime of aggression. However, it is clear that Article 15 bis of the Kampala Amendments, dealing with State referrals and proprio motu investigations with respect aggression, makes one change to the normal jurisdictional rules of the ICC in that it excludes the jurisdiction of the Court with respect to aggression committed by a national of a non-party state or committed on its territory.34

Those who take the wide view of aggression jurisdiction argue, in effect, that, other than this change with regard to non-parties, the normal jurisdictional regime under Article 12 applies unless as is provided for under Article 15 bis (4).35 On this view, nationals of a state that has not ratified the Kampala aggression amendments who commit aggression on the territory of a state that has ratified the aggression amendments are subject to ICC jurisdiction on the basis of territoriality.

Whether the normal jurisdictional rules of the ICC Statute applies to the crime of aggression depends ultimately on how the Kampala aggression amendments entered into force. Basically there were four possibilities regarding entry into force of those amendments.

The first possibility is that the amendments could enter into force and become effective simply on adoption at the Kampala Review conference, without any need for ratification or acceptance by states. The argument that this was possible was based on Article 5 (2) of the Rome Statute which provided that: “[t]he Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123…”

The second possibility was that the amendments would come into force only when ths of the states parties had ratified or accepted them, and then for all states parties. This is what was provided for in Article 121 (4) of the Rome Statute.

The third possibility was that the amendments would come into force under Article 121 (5) for each state party that accepted or ratified it one year after such ratification/acceptance. The second sentence of that provision then goes to state that:

In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.

A fourth possibility, is that a special and previously unprovided for amendment procedure could be designed for the crime of aggression based on a mandate given to states parties in Article 5 (2) to negotiate a provision regarding the definition of the crime and the conditions for the exercise of jurisdiction by the Court over the crime.36 This possibility is really a variant of the first, in that it relies on the possibility that the aggression amendments could enter into force other than in accordance with the provisions dealing with amendments set out in Article 121.

However, though some of the negotiators of the Kampala Amendments seemed to think that this fourth possibility was an option open to them, and that this was what they actually did, such a possibility is neither in accordance with the text of the Rome Statute, nor with more basic principles of international law. The argument that Article 5 (2) would have enabled the aggression amendments to enter into force, in principle, merely on adoption or without having to go through the amendment procedures stipulated in the Rome Statute is not a plausible reading of that provision. It is implausible to suggest that in Rome when there was inability to agree to Court’s jurisdiction over aggression, states then accepted that mere adoption of the text (or design of other specialized amendment procedures) by two-thirds majority at a future conference would bring the aggression provisions into force, with binding effect, such that the agreement of states that were to be bound was bypassed and without having any opportunity to submit such a text to national parliaments.37 Furthermore, although Article 5 (2) speaks of adoption of the text, there is nonetheless a reference to Article 121. That reference is not just to the parts of that article that deals with adoption of the texts but a reference to the whole of Article 121.38 Article 121, in turn, assumes that any amendment adopted under paragraph 3 of that Article, will then enter into force under Article 121 (4) or (5) dealing with amendments.

Article 5 (2) of the Rome Statute ought to be interpreted in the light of the ordinarily applicable rules relating to the entry into force of treaty provisions.39 The law of treaties does not foresee that adoption alone will bring a provision into force. Adoption of a treaty simply signifies agreement on a text with that text remaining non-binding until it is brought into force. There is nothing in Article 5 (2) that speaks to a special procedure for the aggression amendments. Instead that provision refers to the normal amendment procedures contained in Article 121.

It is important to recall that the provisions of the Rome Statute, including Article 5 (2) which prevents the Court from exercising jurisdiction over the crime of aggression and Article 121 setting out how amendments come into force, are legally binding on the parties, unless they are amended through the amendment procedures provided for in the Statute, or through some other legally binding instrument. More importantly, the Rome Statute, including the amendment procedure is binding on the Court, which, in considering whether a particular provision is or not in force and binding under the Statute, has no authority to look beyond the Rome Statute and otherwise applicable rules of international law.

The best position under international law is that the aggression amendments come into force under Article 121 (5). First, this provision deals with amendments to substantive crimes within the jurisdiction of the Court. The text of Article 121 (5) is expressly stated to apply to amendments to Articles 5, 6, 7 & 8 of the Statute. It is true that the aggression amendments go beyond amendments to those particular provisions. However, a good case can be made that the amendments are all a package intended to bring into effect the “new” crime and that the intention behind Article 121 (5) is that it applies to amendments dealing with the creation of new crimes. The negotiators in Kampala could have included all the conditions for the exercise of jurisdiction over aggression within Article 8 bis and it ought to make no difference that they chose to put some of the package in a differently numbered paragraph. Second, it was agreed by the states parties in Kampala that the amendments “shall enter into force in accordance with Article 121, paragraph 5” of the Rome Statute.40 That decision is significant because it constitutes a subsequent agreement regarding the interpretation and application of Rome Statute. Not only was that decision reached by consensus it remains the case that it has not been objected to several years later by any party to the Rome Statute, whether present in Kampala or not.

The conclusion that the amendment enters into force under Article 121 (5) is of great significance. It means that the effects provided for in the second sentence of that article are to follow for any amendments. The attempt by some to separate out the entry into force of an amendment under the first sentence of Article 121 (5) from the consequences of such entry into force under the second sentence is unpersuasive. That attempted division is part of the argument that parties to the Rome Statute could negotiate a new amendment procedure for the crime of aggression which would somehow become binding and somehow supercede and replace the amendment procedures provided in the Rome Statute without respecting the binding procedures in the Statute as to who the Statute was to be amended. The second sentence of Article 121 (5) is a provision that is binding for all states parties and the Court and the law of treaties provides (and indeed logic suggests) that what is set out in this binding provision cannot be changed by an amendment except for those states that ratify or accept the amendment.

V. Over Whom Will the ICC have Jurisdiction With Respect to Aggression?

A. Security Council Referrals

In the case of referrals of situations by the Security Council, the Court will have jurisdiction over persons within the situation referred to the Court. They may be nationals of states that have ratified the Kampala amendment; nationals of states parties that have not ratified those amendments; or indeed nationals of non-states parties. These points are made clear by the Understandings regarding the aggression amendments which are annexed to the resolution which adopted the Kampala aggression amendments.41 Paragraph 2 of those Understandings states that:

It is understood that the Court shall exercise jurisdiction over the crime of aggression on the basis of a Security Council referral in accordance with Article 13, paragraph (b), of the Statute irrespective of whether the State concerned has accepted the Court’s jurisdiction in this regard.

In this regard, the jurisdictional regime provided for with respect to Security Council referrals is the same that which already exists in the Rome Statute for the other crimes.

On its face, the second sentence of Article 121 (5) of the Rome State would exclude jurisdiction of the ICC over crimes committed by nationals of states that do not ratify an amendment containing that amendment, even in cases of Security Council referrals. However, there was a wide, perhaps universally shared, understanding among states parties to the Rome Statute that the second sentence of Article 121 (5) was not to be regarded as applying in cases of Security Council referrals. This understanding of the meaning of Article 121 (5) is confirmed in the second paragraph of the Understandings on the Crime of Aggression reached in Kampala.42 No state seems to have objected to this understanding. Despite the points made above about how decisions adopted by consensus within the framework of conference of state parties do not necessarily qualifying as subsequent agreements or subsequent practice establishing the agreement of the parties regarding the interpretation of the treaty, within the meaning of Article 31 3(a) and (b) of the VCLT, understandings in Kampala appear to fall within those provisions of the VCLT.43 For one thing, there appears to have been agreement in substance among all states parties present in Kampala, and on the point relating to Security Council referrals, all state parties that took part in the Special Working Group on the Crime of Aggression. Even if not all state parties were present at the moment of the adoption of the Kampala aggression texts, those not present have now had ample time to express a contrary position and none has been expressed. This interpretation of Article 121 (5), (that its second sentence does not apply in cases of Security Council referrals) can now be regarded as an indication of subsequent practice which establishes the agreement of the parties as to the interpretation of the Rome Statute under Article 31 3(b) of the VCLT.

B. State Referrals and Prosecutions Proprio Motu

In reviewing the jurisdiction of the ICC over aggression it is useful to remember that states divide into three types for this purpose. First, states that are not party to the Rome Statute, second states parties to the Rome Statute that also ratify the Kampala Amendments, and three, states parties to the Rome Statute that do not ratify the Rome Statute.

In the case of state referrals and prosecution proprio motu we have already seen in relation to nationals of non-party states one change with regard to the ICC jurisdiction regime relating to from the ICC’s jurisdiction regime over other crimes. With other crimes, the Rome Statute allows the ICC to exercise jurisdiction over crimes committed by the nationals of non-parties on the territory of states parties.44 With respect to aggression, an act of aggression committed by a national of a non-party on the territory of state party is excluded from the jurisdiction of the Court under Article 15 bis (5).45

It may be asked whether non-parties can accept the jurisdiction of the ICC with respect to aggression by simply making a declaration to that effect under Article 12 (3) of the Rome Statute which allows such a declaration to be made relating to the other ICC crimes. In my view, the language of Article 15 bis (5) is categorical in precluding jurisdiction over aggression committed by third state nationals or on its territory.46 Also, accepting such declarations would put non-parties in a better position than state parties. State parties cannot do anything to allow the ICC to exercise jurisdiction over aggression committed by nationals of non-parties on the territory of a state party. It would then be strange to allow state parties to not only allow the court to exercise jurisdiction over aggression committed by their nationals but also by aggression committed by states parties on the territory of the non-party.

In the case of state referrals and prosecution proprio motu , the ICC will have jurisdiction over nationals of state parties that have ratified the aggression amendments when the aggression is committed against another state party that has also ratified the amendments, unless the former state has opted out of ICC jurisdiction over aggression.47

As indicated, the difficult jurisdictional question relates to aggression committed by a state party that has not accepted the Kampala aggression amendments? One should recall that states parties to the Rome Statute may choose to opt out of the ICC’s jurisdiction over aggression.48 However, what about the state party to the ICC that does not ratify the Kampala Amendments and has not opted out of the Court’s jurisdiction. If one starts with the Kampala Amendments Article 15 bis (4) might seem to suggest that the ICC will have jurisdiction over aggression committed by states parties whether they have ratified aggression amendments or not. Also if the normal rules of ICC jurisdiction set out in Article 12 of the Rome Statute apply then aggression committed by a state party that has not ratified on the territory of a state party that has ratified will be subject to ICC jurisdiction. However, for a number of reasons the narrow view regarding ICC aggression jurisdiction is to be preferred.

VI. Reasons why the ICC has no Jurisdiction with Respect to Aggression Committed by a State party that has not accepted the Kampala Amendments and not opted out

  1. Under the VCLT, and unless otherwise provided in a treaty, an amendment to a treaty does not bind a non-accepting state and cannot remove the rights of parties to the original treaty that have not accepted the amendment [Article 40 (4), VCLT]. Article 121 (4) of the Rome Statute is an example of a provision that does provide otherwise than the normal rule. However, Article 121 (5) is not such a provision, and in fact confirms the default rule in Article 40 (4) VCLT.

  2. The ordinary meaning of the text of Article 121 (5) of the Rome Statute prevents the Court from exercising jurisdiction over crimes covered by amendments when committed by the national of a state party that has not accepted the amendment or when committed on its territory.

    Questions have arisen as to how that sentence should be interpreted (with a dispute between a so called “negative understanding” of that provision, or of a “positive understanding”). One key reason for interpreting the words of Article 121 (5) as excluding jurisdiction over crimes committed by nationals of a non-party state, as well as over crimes committed on its territory is that the exact same language has been used in other provisions of the Rome Statute and also of the Kampala Amendments to mean precisely this. Article 124 which allowed states to opt out temporarily from jurisdiction for war crimes states that the court will not jurisdiction “when a crime is alleged to have been committed by its nationals or on its territory.” Even in the Kampala Amendments, Article 15 bis (5) provides that with respect to non-parties, the Court “shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.” In these other instances, it seems agreed that the court will not have jurisdiction both where the crime is alleged to have been committed by a national and also in cases were the crime was committed on the territory of the state concerned.

    Another indication that the second sentence of Article 121 (5) means that the Court will not have jurisdiction over crimes committed by nationals of non-accepting state is to be seen in the resolution adopted in Kampala regarding amendments to Article 8 of the Rome Statute dealing with war crimes amendments in Kampala. The 2nd preambular paragraph of the resolution indicates the understanding that Article 121 (5) prevents the Court from exercising jurisdiction over crimes committed by the nationals of non-ratifying state as well as on the territory of that state.49

  3. The second sentence of Article 121 (5) is an exception to the normal jurisdictional rules provided for in Article 12. One of the rules of treaty interpretation is that a treaty should not be interpreted so as not to render a provision redundant. If the second sentence of Article 121 (5) does not mean that it is creating an exception to the normal rules of jurisdiction it is unclear what it means.

  4. It has been argued that even if the second sentence of Article 121 (5) ordinarily excludes the Court from applying amended crimes to nationals of non-accepting state parties, this interpretation does not apply to the aggression amendments because states parties have already agreed to jurisdiction over aggressions in Article 5 of the Rome Statute.50 However, there is nothing in Article 121 (5) that includes such an exception. Indeed, state parties have also accepted jurisdiction of the ICC over war crimes, but in adopting the war crimes amendment in Kampala states parties agreed that the second sentence of Article 121 (5) applied to those amended crimes.51

  5. The Kampala Amendments do not establish the agreement of the parties to interpret second sentence of Article 121 (5) in a manner that confers jurisdiction over nationals of non-ratifying parties. It is possible for subsequent practice, which establishes the agreement of states parties to the ICC Statute to establish an interpretation of Article 121 (5) which departs from the interpretation of that provision that would otherwise be reached. While, as discussed above, a good case can be made that there is agreement of the parties that Article 121 (5) second sentence should not be interpreted to mean what it appears to say with regard to Security Council referrals the same cannot be said in relation to the general meaning of that sentence.

  6. It is argued that if states parties need to opt in before the court has jurisdiction over aggression committed by those states, why would there be an opt-out. Why would we have states opting-in only to opt-out? However, the text of the Kampala resolution adopting the aggression amendments itself suggests that the opt-out may occur prior to the state ratifying the agreement and seems to contemplate that a state both ratifies the amendment but opts out ICC jurisdiction.52 Second, there are at least two reasons why the opt-out provision in Article 15 bis (4) still makes sense even if the ICC has no jurisdiction over aggression committed by states parties do not ratify the Kampala Amendments.

    1. A state that wished to activate the provisions of the Kampala Amendments dealing with Security Council referrals may wish to ratify the aggression amendments to help get those amendments to the necessary 30 parties, while opting out of the state referrals and proprio motu provisions.

    2. An opt-out only excludes the jurisdiction of the Court over aggression committed by the state party opting out. The opt-out does not exclude the Court’s jurisdiction over aggression committed against the state party. So a state party that wishes to have ICC jurisdiction over aggression committed against that state may ratify the amendments but then opt out from ICC jurisdiction over aggression committed by that state.

  7. It is argued that to interpret Article 121 (5) as excluding ICC jurisdiction over crimes committed by non-accepting state parties is to privilege those non-accepting state parties over non-party states and create inequalities. However, the way the Kampala Amendment has been structured to exclude jurisdiction over aggression committed by or against non-party states avoids any such inequality. Furthermore, Article 121 (5) does create a more privileged position for states parties but that is part of the incentive of states to ratify the Rome Statute. They get to decide on whether amended crimes apply to their nationals. The Rome Statute already contains other provisions which favor states parties over non-parties. Article 124 of the original Rome Statute allowed states parties to exclude the application of the war crimes provisions to their nationals or crimes committed on their territories whereas non-parties did not get the opportunity to exclude the jurisdiction of the court over war crimes committed by their nationals.

  8. More broadly and outside the confines of the specific provisions of the Rome Statute, general principles of international law also point to a requirement that a state consent to the court determining whether that state has committed aggression. Aggression is a special crime where consent plays a special role. Unlike other international crimes within the jurisdiction of the ICC, the crime of aggression requires the Court to determine a question of state responsibility, i.e. that a state has committed an act of aggression. The fact that the court is required to determine the responsibility of a state implicates the principle that an international tribunal cannot determine the rights or responsibilities of states without the consent of that state. This principle is one that has been applied by a range of international tribunals. Even in cases where the decision of the tribunal will not be binding on the state tribunals have still held that they cannot exercise jurisdiction where they are essentially called upon to determine the responsibility of a state that has not consented. The ICJ refers to this as the Monetary Gold principle.53 This general principle of international law and the special position of the crime of aggression suggests that one should seek to interpret the Rome Statute and the Kampala Amendments to require consent.54

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Assembly of State Parties, Activation of the Jurisdiction of the Court Over the Crime of Aggression, ICC-ASP/16/Res.5 (Dec. 14, 2017), [hereinafter Activation of Jurisdiction], available online (advance version).

  2. 2.

    History of the Special Working Group on the Crime of Aggression, ICC, available online. (last visited Feb. 7, 2018).

    (Several sessions of the Special Working Group on the Crime of Aggression were held at Princeton University in New Jersey).

  3. 3.

    Assembly of State Parties, The Crime of Aggression, RC/Res.6 (Jun. 11, 2010) [hereinafter Kampala Amendments], available online.

    (The ICC Review Conference was held in Kampala in 2010).

  4. 4.

    See Claus Kreß & Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, 8 J. Int’l Crim. Just. 1179 (2010), available online.

    (Contains an overview of the Kampala Amendments and an overview of the negotiations in Kampala).

  5. 5.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Article 15 bis, paragraph 2, Article 15 ter, paragraph 2 available online.

  6. 6.

    Rome Statute, Article 15 bis, paragraph 3; Article 15 ter, paragraph 3.

  7. 7.

    Kampala Amendments, supra note 3, Preamble.

  8. 8.

    See Dapo Akande, What Exactly was Agreed in Kampala on the Crime of Aggression?, EJIL Talk, Jun. 21, 2010, available online.

  9. 9.

    Rome Statute, Article 15 bis, paragraph 4.

    (Provides that the states may, prior to any alleged act of aggression, declare that they do not accept the jurisdiction of the Court with respect to the crime of aggression).

  10. 10.

    Assembly of States Parties, Report on the Facilitation on the Activation of the Jurisdiction of the International Criminal Court Over the Crime of Aggression, ICC-ASP/16/24, at ¶¶ 11–22 (Nov. 27, 2017), available online.

  11. 11.

    Id. at Annex II A.

  12. 12.

    Id. at Annex II B and C.

  13. 13.

    See Stefan Barriga, The Scope of ICC Jurisdiction Over the Crime of Aggression: A Different Perspective, EJIL Talk, Sep. 29, 2017, available online.

  14. 14.

    See Rome Statute, Article 12, paragraphs 2 and 3.

  15. 15.

    See Andreas Zimmermann, Does 19 + 11 Equal 30?: The Nitty Gritty of the Law of Treaties and the Kampala Amendment to the Rome Statute on the Crime of Aggression, EJIL Talk, Nov. 27, 2014, available online.

  16. 16.

    See Stefan Barriga & Niels Blokker, Conditions for the Exercise of Jurisdiction Based on State Referrals and Proprio Motu Investigations, in The Crime of Aggression: A Commentary 656 (Claus Kreß & Stefan Barriga eds., 2017), paywall.

    (A brief consideration of this question).

  17. 17.

    See Nikolas Stürchler, The Activation of the Crime of Aggression in Perspective, EJIL Talk, Jan. 26, 2018, available online.

  18. 18.

    Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J. Rep. 226, 257 ¶ 83, Mar. 31, 2014, available online.

  19. 19.

    Id.

  20. 20.

    Id. ¶ 46.

  21. 21.

    International Law Commission, Report on the Work of the Sixty-Eighth Session, Chapter VI Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, UN Doc. A/71/10, Draft Conclusion 11 at 123 ¶ 3 (2016) (emphasis added) [hereinafter ILC 68th Session], available online.

  22. 22.

    International Law Commission, Report on the Work of the Sixty-Sixth Session, Chapter VII Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, UN Doc. A/69/10, Commentary, 214 ¶ 30 (2014) [hereinafter ILC 66th Session], available online.

  23. 23.

    Id. ¶ 31.

  24. 24.

    International Law Commission, Report to the General Assembly, 2 Y.B. Int’l L. Comm. 222 (1966) [hereinafter Yearbook 1966], available online.

    (See the ILC’s commentary to what become Article 31 3(b) of the Vienna Convention on the Law of Treaties, infra note 39:).

    (“The text provisionally adopted in 1964 spoke of a practice which ‘establishes the understanding of all the parties.’ By omitting the word ‘all’ the Commission did not intend to change the rule. It considered that the phrase ‘the understanding of the parties’ necessarily means ‘the parties as a whole.’ It omitted the word ‘all’ merely to avoid any possible misconception that every party must individually have engaged in the practice where it suffices that it should have accepted the practice.”).

  25. 25.

    See Stürchler, supra note 17.

  26. 26.

    Id. See also Yearbook 1966, supra note 24.

  27. 27.

    Kevin Jon Heller, The Uncertain Legal Status of the Aggression Understandings, 9 J. Int’l Crim. Just. (Jul. 17, 2011), available online.

  28. 28.

    Yearbook 1966, supra note 24, at 221 ¶ 14.

  29. 29.

    Humphrey Waldock, Third Report on the Law of Treaties, 2 Y.B. Int’l L. Comm. 60 at ¶ 25 (1964), available online.

  30. 30.

    ILC 68th Session, supra note 21, at 213 ¶ 37.

  31. 31.

    Id. ¶ 38.

  32. 32.

    ILC 68th Session, supra note 21, at 122.

    (“Depending on the circumstances, such a decision [adopted by a conference of state parties] may embody, explicitly or implicitly, a subsequent agreement under article 31, paragraph 3 (a), or give rise to subsequent practice under article 31, paragraph 3 (b), or to subsequent practice under article 32.” (emphasis added)).

    See also id. at 120 ¶ 4:

    (“Recourse may be had to other subsequent practice in the application of the treaty as a supplementary means of interpretation under article 32.”).

  33. 33.

    See Andreas Zimmermann, Amending the Amendment Provisions of the Rome Statute: The Kampala Compromise on the Crime of Aggression and the Law of Treaties, 10 J. Int’l Crim. Just. 209, 210 (Mar. 1, 2012), paywall.

    (“[A]s a matter of principle and subject, naturally, to the lex specialis rule, any amendment to a multilateral treaty cannot alter the position of the parties of the original treaty which decide not to join the later treaty providing for such an amendment.” (emphasis in original)).

  34. 34.

    Rome Statute, Article 15 bis, paragraph 5.

  35. 35.

    See Barriga & Blokker, supra note 16, at 652.

  36. 36.

    Id. at 667–8.

    (For an expression of this view).

  37. 37.

    See Zimmermann, supra note 33, at 212–3.

  38. 38.

    Id. at 213.

  39. 39.

    Vienna Convention on the Law of Treaties, Article 31 3(c), May 23, 1969, 1155 U.N.T.S. 331 [hereinafter VCLT], available online.

  40. 40.

    See Kampala Amendments, supra note 3, at ¶ 1.

  41. 41.

    Id. at Annex III, ¶ 2.

  42. 42.

    See Blokker & Barriga, supra note 16, at 646, 649–50.

  43. 43.

    See Heller, supra note 27.

    (Heller, writing not long after the Kampala conference, makes the opposite argument. However, while the points made by Heller may have been compelling at the time, the passage of time and the lack of objections to the Understandings perhaps indicate a broader agreement than was originally the case).

  44. 44.

    Rome Statute, Article 12, paragraph 2(a).

  45. 45.

    Rome Statute, Article 15 bis, paragraph 5.

    (“In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.”).

  46. 46.

    See Barriga & Blokker, supra note 16, at 656.

  47. 47.

    Rome Statute, Article 15 bis, paragraph 4.

  48. 48.

    Id.

  49. 49.

    See Activation of Jurisdiction, supra note 1.

  50. 50.

    See Barriga & Blokker, supra note 16, at 652.

  51. 51.

    See Activation of Jurisdiction, supra note 1, at Preamble, paragraph 2.

  52. 52.

    See Kampala Amendments, supra note 3, at ¶ 1.

  53. 53.

    See Case of the Monetary Gold Removed from Rome in 1943 (Preliminary Question), Judgment, 1954 I.C.J. Rep. 19, 33 (Jun. 15, 1954), available online.

  54. 54.

    See generally, Dapo Akande, Prosecuting Aggression: The Consent Problem and the Role of the Security Council, Working Paper, Oxford Inst. Ethics, L., Armed Conflict (May 2010), available online.

d’Aboville Avatar Image Benoît d’Aboville Associate Professor Sc Po/Paris School of International Affairs

What Should be the Policy and Approach of the Office of the Prosecutor in Conducting Investigations and Prosecutions with Regard to the Crime of Aggression?

This long delayed inclusion of aggression, together with war crimes, genocide, and crimes against humanity, within the scope of the ICC jurisdiction will present an important challenge for the investigation and prosecution of such crimes. Future difficulties should not be underestimated.

Summary

For the ICC, the consensus decision reached at the States Parties 16th session on the night of the 14th to 15th December 2017 represented an important date. It allowed, after twenty years of difficult debates, the activation of the Rome Statute dealing with the crime of aggression, starting on July 17, 2018. This long delayed inclusion of aggression, together with war crimes, genocide, and crimes against humanity, within the scope of the ICC jurisdiction will, however, present an important challenge for the investigation and prosecution of such crimes. Future difficulties should not be underestimated.

As it is often reminded, a long standing goal in the history of international justice is to allow the prosecution of the crime of aggression and thus to close a seventy year gap since the IMT and IMTFE decisions.1

However, the Court’s ability to investigate and prosecute the crime of aggression per se and not, as up to now (as, for example, in the Former Yugoslavia and Rwanda cases), through the indirect approach of war crimes (usually, but not always, associated with aggression) has been a contentious issue, even during the negotiation of the Rome Statute in 1998.

While the Court was formally vested in the Statute (Article 8) of the jurisdiction over the crime of aggression, the activation of this competence was, for the sake of reaching a consensus at the Rome conference, postponed until a future Review Conference would be able to reach an agreement about four major issues:

  • the definition of the crime (nullum crimen sine lege),

  • the role of the UN Security Council in the process of qualifying the act of aggression and allowing the case to be referred to the Court,

  • the adjudication of the responsibility of the principal individuals to be prosecuted, taking into account their principal role in the conduct of the military campaign of aggression, and

  • the exception to the competence of the Court on procedural grounds regarding acts committed by nationals—or on the territory—of States, either non parties to the Rome Statute or not accepting the aggression amendments necessary for the activation of the jurisdiction of the Court.

The Review Conference held in Kampala in 2010 reached an agreement on most of these issues and, accordingly, amended the Rome Statute. However some differences were not solved, including the effect of the activation for States parties that do not ratify the amendments adopted in Kampala.

Argument

According to a first interpretation expressed by some States—led by Liechtenstein and Switzerland—the States already parties to the Rome Statute, or becoming party to it, which did not wish to be bound by the jurisdiction of the Court over aggression had only one option: to opt out on the basis of Article 15 bis, paragraph 4, i.e. to lodge with the Registrar a declaration excluding the jurisdiction of the Court. There was, therefore, no need to further debate the effects of the non-acceptance by a given State party of the Kampala amendments dealing with the crime of aggression.

A second interpretation—expressed in particular by France, UK, Canada, Japan, and Norway (all countries which did not ratify the amendments)—was that States may accept the activation of the Court’s competence while, nevertheless, not being impacted by the Kampala amendments. They recalled that, according to Article 121, paragraph 5 of the Rome Statute, the Court has no jurisdiction on crimes which have been the subject of an amendment when committed by a national or on the territory of a State, which has not ratified such amendment. They noted that Article 40, paragraph 4 of the Vienna Convention on the Law of Treaties recognizes that those States which don’t accept an amendment to a treaty to which they are already party are not subject to it.

Therefore, the December 2017 Review Conference had to wrestle with a thorny procedural problem: how could the Assembly of States Parties solve this issue? Uncertainty on such an issue could raise confusion about the Court’s role as regards the future crime of aggression cases and also constitute a disincentive towards accepting the Court’s jurisdiction in those situations. Thus, a clarification was sought about the content and the effect of the Kampala amendments on the activation of the Court’s competence for those States Parties to the Rome Statute, which had not ratified them—still 89 out of 123 countries. To decide that, in the absence of a Security Council referral, the ICC would still have jurisdiction over crimes of aggression committed on the territory of (or by the nationals of) a state which had not ratified the Kampala amendments would, therefore, be in contradiction of the Vienna principle and explicitly contrary to Article 121, paragraph 5 of the Rome Statute.

The consensus reached in New York last December recognized the validity of the second interpretation, while at the same time recalling the independence of the judges of the ICC.

The definition of the crime of aggression has been in conventions so far but still raises difficult issues. In December 1974, UNGA Resolution 3314 (XXIX) agreed on a definition of the terms of aggression, in a formulation close to Article 2, paragraph 4 of the UN Charter. Following closely the definition found in UNGA Resolution 3314, the Kampala conference in 2010 adopted its definition of aggression and used it to amend the Rome Statute in Article 8 bis. In fact, paragraph 2 refers expressly to the definition of acts of aggression found in UNGA Resolution 3314.

However, the prosecution of those crimes are bound to raise many problems. The indicted individual must be a national of a State party which has ratified the Kampala agreement or have committed the crime on the territory of such a State, and have held a position allowing him “to exercise control over or to direct the political or military action of the State.”

To determine such a position of direct authority over the action leading to “aggression” will be even more difficult in the future,2 given the way the modern military operations are nowadays conducted through the permanent interface of many actors, both political and military leaders, electronically interconnected between themselves.

As most military operations are now the production of a coalition of States—whose nationals are both falling and not falling under the ICC’s jurisdiction—how to assess where the real leadership rests amongst those legally indictable individuals who could be considered to have the necessary decisive power at the very moment of the illegal act of aggression?

The same determination could be even more difficult in a majority of occurrences—or even impossible in the case of non State groups of rebels or terrorists, such as Boko Haram or ISIL. Individuals in a position of leadership of such groups have shifting roles and influence according to time and circumstance. In most of these situations, the notion of leadership has only a remote connection with the concept of a “central command,” which was inherited from WWII and brought into the UNGA Resolution of 2014.

Moreover the ICC will be in a quasi-impossible situation to assess the individual potential culprits in case of modern cyber or hybrid warfare. The current international approach, as in international humanitarian law,3 is to try to define cyber aggression by considering the character (accidental, voluntary or not) and, above all, the extent of damage caused, taking into account collateral effects on a civilian population.

But everybody agrees that trying to identify those responsible for such an action is fraught with uncertainty and doubts. A state may seem to be responsible due to technological abilities and political context, but those suspicions may not provide the legal certainty to formally impune it and, a fortiori the individuals responsible. In the case of hybrid warfare, which also includes cyber attacks, one of the motivating reasons to engage in such tactics is plausible deniability—the inability to be precisely identified as the source of the attack.

Autonomous or semi-autonomous weapons also raise well-known problems about the final responsibility of their command. Who, in such a case, would be the culprit of an “aggression” in terms of Article 8 bis: is it be the State using the automated device, the highest level of the command in charge of the operation, or the anonymous operator located thousands of kilometers from the target responding to data collected in a computerized way?

The very concept of crimes of aggression—always situated at the crossroad of a political reality and a legal judgment—as well as the evolution of the methods of modern warfare could therefore lead the ICC into a difficult situation: prosecuting low level leaders of terrorist and rebel groups who have been referred to the Court by local governments anxious to discredit them, or, at the other extreme, become a tribunal that can only prosecute the leaders of counties which have accepted the Court’s jurisdiction on aggression but can't prosecute the leaders of the most powerful military nations.

It is doubtful, that the UN Security Council role embedded in the processes of the ICC will help to facilitate the imputation by ICC of crime of aggression, at least for now.

Article 8 bis, adopted in Kampala, defines aggression in paragraph 1 as an act which, by its nature, gravity, and scale, constitutes “a manifest violation of the UN Charter.” In the absence of a referral or guidance from the UN Security Council, the ability of the ICC to qualify an act of aggression remains in dispute. Without an answer from the Security Council, the Prosecutor, according to Article 15 bis, paragraph 8, could ask for a decision of the Pre-trial Chamber of the Court to start investigations and prepare a possible indictment. However that could put the ICC in a difficult position if the Court has to determine whether a resolution of the Security Council based on Article VII of the Charter has been outrepassed (e.g. the position of Russia on Libya in 2011) or if the involved State invokes the right of self defense, enshrined in the UN Charter. Invoking the Charter for self defense has historically led to the most difficult debates within the UN Security Council.

How could the ICC get into these troubled political waters without risking the loss of its judicial credibility and reputation for impartiality? How can the interpretation of the ICC on self defense in a given case always be consistent with another case, if only because the circumstances, the State, and the individuals involved are changing?

Moreover, could the ICC’s determination of an act of aggression differ from that made by the International Court of Justice?

Article 15 bis, paragraph 9 states that once the Prosecutor considers there is a “reasonable basis to proceed with an investigation,” and there is no answer from the Security Council:

[A] determination of an act of aggression by an organ outside the Court shall be without prejudice to the Courts’ own finding under this statute.

But, as noted by Christopher Greenwood,4 “[i]nternational law is a single legal system and the judgments of other courts or tribunals on more general matters are sources from which the ICC can and should draw.”

One may ask whether, in activating the competence of the Court on the crime of aggression, the State Parties in December 2017 were sensitive to the approaching 20th anniversary of the Rome Conference and were politically motivated by the failure of the UN Security Council to take a stand on the Syrian war atrocities?

But the ICC, if only because it can indict only individuals and proceed on legal grounds, cannot be used, even with the best moral motives, as an alternative to the current political impasse and malfunctions of the UN Security Council.

The activation of the competence of the ICC on aggression remains, therefore, at that stage where it is both a landmark of progress within international criminal justice, but also contains significant political risk for the Court of “crossing a bridge too far.”

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    See Charter of the International Military Tribunal, Article 6, 1951 United Nations Treaty Series 286 (Aug. 8, 1945), available online.

    (At Nuremberg, the Charter defined “war of aggression” as part of the “crimes against peace” i.e. the “planning, preparation, initiation or waging of a war of aggression”).

    See The International Military Tribunal for Germany, 22 Nuremberg Trial Proceedings 410, 426 (Sep. 30, 1946), available online.

    (“To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”).

  2. 2.

    See David Scheffer, The Missing Pieces in Article 8 bis (Aggression) of the Rome Statute, 58 Harv. Int’l L.J. Online 83 (Apr. 11, 2017), available online.

  3. 3.

    See The Tallinn Manual on the International Law Applicable to Cyber Warfare (Michael N. Schmitt ed., 2013), available online.

  4. 4.

    Christopher Greenwood, What the ICC Can Learn from the Jurisprudence of Other Tribunals, 58 Harv. Int’l L.J. Online 71, 73 (Apr. 11, 2017), available online.

Dinstein Avatar Image Professor Yoram Dinstein Professor Emeritus of International Law Tel Aviv University, Faculty of Law

What should be the policy and approach of the Office of the Prosecutor in conducting investigations and prosecutions with regard to the crime of aggression?

It is noteworthy that the Kampala formula is much more rigorous than the often-repeated phrase—which used to be very common previously—namely, those who “shape or influence” the war policy of the State.

Summary

I. Introduction

I shall address the three specific questions posed in the ICC Prosecutor’s letter:

1. Should the Office of the Prosecutor decline to proceed with a proprio motu investigation of the crime of aggression unless there is a “green light” from the Security Council?

2. At what level of political or military leadership must a person be in order to cross the bar for investigation and prosecution for a crime of aggression before the ICC? Is it necessary to exclude from investigation and prosecution individuals who are not in leadership positions in the State yet contribute to the commission of the crime of aggression, e.g., through financial or material support?

3. What concrete actions may be taken by the Office of the Prosecutor to enhance the prevention of the crime of aggression? For example, should the Office of the Prosecutor proactively issue public statements intended both to deter the escalation of violence and to put potential perpetrators on notice that the commission of the crime of aggression may be punishable by the ICC? Would that be seen as encroaching on the role of the Security Council?

The way I look at it, the first and the third questions raise mixed legal and policy issues, whereas the second is purely legal. Moreover, the first and the third questions both relate to the interrelationship with the Security Council, while the second does not. I shall therefore deal with the questions in a different order, the second question coming first.

Argument

II. Answers to the Questions

Question 2

The Kampala Amendments to the Rome Statute (both Article 8 bis Paragraph 1 and Article 25 Paragraph 3 bis) focus on persons “in a position effectively to exercise control over or to direct the political or military action of a State.”

My interpretation of this dual text is as follows:

a. As noted in a footnote appended to the Elements of Crimes, more than one person may be involved.

b. However, the criteria for investigation and prosecution are not met unless the persons concerned “exercise control over or direct” the action of the State. Clearly, only the top leadership is covered, that is to say, policy-makers and high-ranking officials who are actually in charge of the action taken.

c. This formula excludes mid-level officials or other persons who merely contribute (even in a material way) by assisting, abetting or financing the aggressive action of the State. It is noteworthy that the Kampala formula is much more rigorous than the often-repeated phrase—which used to be very common previously—namely, those who “shape or influence” the war policy of the State (the source of the phrase is the Judgment rendered in the High Command trial, in the course of the “Subsequent Nuremberg Proceedings”). The final Kampala text was not adopted inadvertently, inasmuch as the “shape or influence” idiom had been openly debated for years prior to—and during—the drafting negotiations.

d. Indubitably, the crime of aggression can be committed by civilians, no less than by the highest-ranking military commanders. But these civilians must be members of the cabinet or very senior Government officials who orchestrate State action. Otherwise, they cannot qualify among those who “exercise control over or direct” the action of the State.

e. Not every type of State action is in play in the Kampala formula: only “political or military” action counts. Other types of State action—preeminently, economic or social in character—are thereby dismissed from consideration.

f. Whatever the legal status of financiers, industrialists or other material supporters of an aggressive policy of a State may have been in the past—especially, from the perspective of the “Subsequent Nuremberg Proceedings”—that status must be examined today through the exclusive lens of the Kampala text. At present, no person can be investigated or prosecuted for the crime of aggression unless he or she exercises control over or directs State action.

g. Plainly, this limitation means that the scope of individual criminal responsibility for the crime of aggression does not coincide with the wider contours of Article 25 Paragraph 3 of the Rome Statute (applicable to war crimes, crimes against humanity and genocide). That is precisely why it was deemed indispensable in Kampala to insert into Article 25 the new text of Paragraph 3 bis. That Paragraph expressly states that—in respect of the crime of aggression—”the provisions of this article shall apply only to persons” who satisfy the criteria of being “in a position effectively to exercise control over or to direct the political or military action of a State.” The significance of the restrictive adverb “only” is self-evident: “only” means no one else.

Question 1

Pursuant to Article 15 bis Paragraph 6 of the Rome Statute, before proceeding with an investigation in respect of the crime of aggression, the Prosecutor must ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned; and, in any event, the Prosecutor must notify the UN Secretary-General of the situation before the Court. Under Paragraph 7, a Security Council determination clears the way for an investigation. But, under Paragraph 8, in the absence of such determination—within six months after the aforementioned notification—the Prosecutor may proceed with the investigation (with the authorization of a Pre-Trial Chamber), provided that the Security Council has not decided otherwise in accordance with Article 16 of the Rome Statute. The latter clause (part of the original Rome Statute) prescribes that no investigation or prosecution may be commenced or proceeded with for a period of twelve months after the Security Council—in a resolution adopted under Chapter VII of the UN Charter—has requested a deferral, and that request may be renewed by the Council in the same manner.

My interpretation of these provisions is as follows:

a. In effect, whereas the Prosecutor does not need an explicit “green light” from the Security Council for a proprio motu investigation, it is clear that it is impossible to proceed—at least temporarily—in case of a “red light.”

b. The Prosecutor has a “green light” from the Security Council once the Council has made a “determination” that the State concerned has committed an act of aggression. Such a determination has to be made under Article 39 of the UN Charter (which opens Chapter VII). The Security Council’s practice shows that—although there have been multiple resolutions expressing grave concern over or even condemning acts of aggression—no formal (and binding) determination of aggression under Article 39 has been made so far. In the absence of a formal determination of aggression pursuant to Article 39 of the UN Charter, I do not believe that the requirement of the Rome Statute Article 15 bis Paragraph 6 has been met. However, in my opinion, it is possible to construe a Security Council formal determination that a “breach of the peace” has occurred—a determination that is rare but definitely on record (e.g., in the Korean and Gulf wars)—as a proper equivalent.1

c. The core question relates to a situation in which no formal determination of aggression (or a breach of the peace) has been made by the Security Council. In such circumstances, there may still be a “red light” in the form of a resolution, adopted by the Security Council under Chapter VII, with a request for a deferral (this is a request in name only: it is a decision binding all UN Members). The deferral is for twelve months, but it can be renewed.

d. Even in the absence of a “red light” from the Security Council, the Prosecutor is not free to proceed with a proprio motu investigation of the crime of aggression until notification has been served on the Secretary-General, plus a period of six months.

e. Legally speaking, it is clear from the language of Article 15 bis that, once more, the crime of aggression differs from the other crimes within the jurisdiction of the Court in that the Prosecutor’s discretion in proprio motu investigations is curtailed, although it is not eliminated altogether

f. As a matter of policy, I think that it would be unwise for the Prosecutor to rush into any proprio motu investigation of the crime of aggression—even within the constraints of Article 15 bis—without verifying first that the Security Council has no intention or ability to activate Article 16 (either because of the use of the veto by a Permanent Member or for any other reason). A potential clash with the Security Council must be avoided, regardless of any earnest desire in the Office of the Prosecutor to rapidly put the wheels of justice into motion.

Question 3

There is nothing in the Rome Statute or the Kampala Amendments to even remotely suggest that the Office of the Prosecutor has an active role to play in the prevention of the crime of aggression. Such prevention rests squarely within the primary responsibility of the Security Council, under the UN Charter, to maintain international peace and security. Seeking information in the course of an investigation (as per Article 15 of the Rome Statute) does not embrace the proactive issuance of public statements designed to deter potential perpetrators of the crime of aggression or to bring about de-escalation in tense situations.

To my mind, any initiative taken by the Office of the Prosecutor, with a view to “pushing the envelope” in this respect, would be counter-productive. My concerns are based on legal, factual and policy grounds:

a. Legally, the initiative might be viewed as encroaching on the powers vested by the UN Charter in the Security Council. After all, a crime of aggression—under the Rome Statute Article 8 bis Paragraph 1—is contingent on an act of aggression that “by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” In many instances, the Security Council has taken interim measures and even issued warnings to States that Chapter VII sanctions may be impending. If the Security Council is silent in a given crisis (a silence that may be momentary or provisional), is the Office of the Prosecutor the proper authority to intervene with a deterrent statement implying that a manifest violation of the UN Charter is brewing? What happens if (following prolonged negotiations among the Permanent Members), the Security Council subsequently takes a stand which is incompatible with an earlier position advanced by the Office of the Prosecutor?2

b. Legally as well as factually, the initiative—when taken—is likely to be controversial. The controversy may linger on for a long period of time (particularly if the crisis somehow peters out.

c. Factually, identifying individuals at whom deterrent proactive statements should be addressed is empirically fraught with difficulties. Legally, “planning” and “preparation” come within the bounds of the definition of the crime of aggression in the Rome Statute Article 8 bis Paragraph 1. Nevertheless, it must be borne in mind that “planning” and “preparation” of aggression are usually established only retroactively (i.e. after the execution stage of the crime), with the advantage of hindsight.

d. States often issue reciprocal threats and warnings; indulge in arms races; make contingency plans for war; and even conduct “war games.” By themselves, these acts do not amount to a crime of aggression in the absence of mens rea. The mental element of all the crimes under the jurisdiction of the ICC is sine qua non (see Article 30 of the Rome Statute). Proving the existence of such a mental element in advance of the execution of the crime of aggression is—more often than not—”mission impossible.”

e. Policy-wise, the initiative is liable to deter some wavering States from ratifying the Kampala Amendments.3 It must be recalled that the Kampala texts were forged after a lengthy process of negotiations that was crowned with success only thanks to a “go-slow” approach designed for confidence-building among the numerous wavering States. Why rock the boat?

III. Conclusion

I share the view that the crime of aggression is the “supreme international crime” (incidentally, the origin of this phrase is the Judgment of the International Military Tribunal at Nuremberg). But the critical importance of the crime of aggression does not affect either the jurisdiction of the ICC—as established in the Rome Statute and Kampala Amendments—or the prescribed role of the Prosecutor.

The common denominator of the three questions posed by the Office of the Prosecutor appears to be a latent desire to play a more active role in the suppression of the crime of aggression, in a manner transcending the Rome and Kampala parameters. Although that latent desire is understandable, I think that it should be resisted.

As far as Question 2 is concerned, the Kampala Amendments leave no legal latitude in terms of the echelons of prosecutable criminals: solely top leadership comes within the ambit of the crime of aggression under the jurisdiction of the Court. Influencing State policy is not enough. Any attempt to broaden the scope of individual criminal responsibility for the crime of aggression would run counter to the letter and spirit of the Kampala Amendments.

As for Question 1, it must be borne in mind that any premature proprio motu investigative action regarding the crime of aggression—taken by the Office of the Prosecutor—may prove to be in disharmony with subsequent Security Council resolutions. The Office of the Prosecutor would be well-advised to steer a cautious course, avoiding even a remote possibility of a head-on collision with the Security Council. In consequence, the Prosecutor should not rush with a proprio motu investigation of the crime of aggression (despite the absence of a “red light” from the Security Council).

With respect to Question 3, I believe that it would be imprudent for the Office of the Prosecutor to assume a proactive preventive role that has no roots in either the Rome or the Kampala text; runs into tremendous evidentiary difficulties in establishing a “probable cause” for any statement designed to deter those who plan or prepare for aggression (inter alia, in light of the need to assess the mental element of wrong-doers); and is almost bound to invite widespread criticism that may trigger erosion of confidence in the impartiality of the ICC mechanism.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    I do not regard a formal “threat to the peace” determination by the UN Security Council—which is almost routine nowadays—as an equivalent to a determination of aggression. First of all, in the practice of the Council, a threat to the peace encompasses domestic situations that are not even remotely linked to the crime of aggression. Secondly, it must be taken into account that a threat of aggression does not qualify as a crime of aggression.

  2. 2.

    It is important to keep in mind that, when two States are exchanging sabre-rattling statements and otherwise appear to be on the verge of a military clash, it is not always clear which one of them (if any) would turn out ultimately to be branded legally as the aggressor and which would be deemed the victim of aggression.

  3. 3.

    It must be added that—under Article 15 bis Paragraph 5 of the Rome Statute—nationals of States that are not Parties to the Rome Statute are not subject to the jurisdiction of the Court as regards a crime of aggression. As well, there is an opt-out provision in Article 15 bis Paragraph 4, which is subject to more than one interpretation but it palpably expands the circle of those not subject to the jurisdiction of the Court.

Ferencz Avatar Image Donald M. Ferencz Visiting Professor Middlesex University School of Law

Greatest challenges facing the ICC on crimes of aggression are equality before the law, evidence-gathering, and witness protection. Creative solutions which encourage non-ratifiers to ratify may be part of the solution.

Regardless of whether a criminal code is national or international in character, its enforcement “without fear or favour” is fundamental to any semblance of “equal justice under law.”

Summary

I. Introduction

It has been argued that the crime of aggression is so highly politicized that the Court should altogether avoid it.1 As to this issue, the ICC Prosecutor has already made clear her position:

By virtue of the nature of the court’s mandate, every situation in which the ICC prosecutor acts will be politically fraught. My mandate as prosecutor is nonetheless clear: to investigate and prosecute crimes based on the facts and exact application of the law in full independence and impartiality…I have made it clear in no uncertain terms that the office of the prosecutor will execute its mandate, without fear or favour, where jurisdiction is established and will vigorously pursue those—irrespective of status or affiliation—who commit mass crimes that shock the conscience of humanity.2

Regardless of whether a criminal code is national or international in character, its enforcement “without fear or favour”3 is fundamental to any semblance of “equal justice under law.”4 The Prosecutor has expressed her “firm belief that recourse to justice should never be compromised by political expediency,” adding that:

The failure to uphold this sacrosanct requirement will not only pervert the cause of justice and weaken public confidence in it, but also exacerbate the immense suffering of the victims of mass atrocities.5

The Office of the Prosecutor currently has three crimes within its active remit.6 As of July 17, 2018 the crime of aggression7 will become the fourth.8 It will be the first time since the International Military Tribunal at Nuremberg9 that an international court has had such jurisdiction.

Argument

II. Summary of the Kampala Amendments

A. Background

When the Rome Statue was adopted in 1998, it nominally included the crime of aggression within the Court’s jurisdiction, but left it in a state of suspended animation. The actual exercise of such aggression jurisdiction would depend on the later adoption of provisions defining the crime and providing the jurisdictional conditions under which the Court could investigate and prosecute for its commission.10

In June of 2010 the Assembly of States Parties met at the ICC Review Conference in Kampala, Uganda to consider definitional and jurisdictional provisions which had been prepared for consideration by a special working group on the crime of aggression. In Kampala, the definitional provisions were not considered particularly contentious, yet the same could not be said for proposals regarding the conditions under which the Court might finally exercise its aggression jurisdiction.

Prior to Kampala, the permanent members of the Security Council had consistently expressed the view that Article 39 of the UN Charter11 gives the Council an exclusive right to determine whether an act of aggression has occurred,12 and this view was reiterated in Kampala.13Going into the Review Conference, it was very much an open question whether a compromise solution could be found, whereby the Court would not be seen as being little more than an arm of the Council as to the crime of aggression.

The amendment package that was negotiated and agreed to in Kampala consists of a definitional section, found in new Article 8 bis, and jurisdictional provisions, set forth in Articles 15 bis and 15 ter.14 It is with respect to the issue of the Court’s jurisdiction over the crime of aggression that the compromises and concessions which were brokered in Kampala are most evident.

B. The ICC Definition of Aggression

Article 8 bis begins with a general statement of the definition of the crime, followed by an enumerated list of acts, each of which will “qualify as an act of aggression.”15

1. For the purpose 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.

2. 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…16

Article 8 bis, paragraph 2 further provides that, “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,” after which it enumerates various acts, including invasion, attack, bombardment, and blockade. Paragraph 2, subparagraph (f) includes in the list of aggressive acts the somewhat more passive “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.”17 It is clearly a provision with significant implications for those who allow their territories to be used by others for military interventions which may, themselves, amount to acts of aggression.

C. ICC Jurisdiction over the Crime of Aggression

Article 15 ter is generally unremarkable in that it provides for broad jurisdiction over aggression cases incident to situations referred by the Security Council. It parallels the Court’s jurisdictional regime applicable to the other three core crimes which may occur within the context of situations similarly referred by the Council.18

By contrast, Article 15 bis, which concerns itself solely with the Prosecutor’s proprio motu and State Party referral jurisdiction for acts of aggression, diverges considerably from the jurisdictional regime applicable to the other core crimes.19 Article 15 bis is clearly the product of negotiated compromise and concessions. One the one hand, it allows investigations to proceed even in cases where the Security Council has not affirmatively determined that an act of aggression has occurred. Yet on the other, it entirely exempts non-party States from its jurisdiction and offers a mechanism whereby States Parties may immunize their leaders from prosecution for the crime of aggression, simply by opting out of its reach.20 To date, Kenya is the one State Party that has affirmatively opted out of the Court’s jurisdiction under Article 15 bis.21

Although Article 15 bis does not require pre-clearance by the Security Council, it does require, at paragraph 6, that the Council be advised, in advance, of intended aggression investigations:

Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned.

If notified that such a determination has been made by the Council, the Prosecutor may proceed to investigate. If not, the provisions of Article 15 bis, paragraph 8 apply:

Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15, and the Security Council has not decided otherwise in accordance with article 16.

Finally, Article 15 bis, paragraph 9 provides that:

A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute.

By their terms, neither Article 15 bis nor 15 ter could become effective until at least 30 ASP members had ratified them and until the ASP had re-approved them, with such re-approval decision required to be delayed until at least January 1, 2017. The delaying provisions are, at this point, no longer functionally relevant. Yet the reluctant attitude of the States which demanded their inclusion in the Kampala amendments presents an ongoing challenge to be reckoned with.

Though activation of the jurisdictional provisions may be seen as representing a critical milestone on the road to criminalizing aggression, the provisions have been heavily, and accurately, criticized for significantly deviating from the jurisdictional scheme applicable to the other crimes of the Rome Statute.22 Such concerns are exacerbated by the terms of the recent decision activating the Court’s aggression jurisdiction, discussed below, in section III. C 1.The concessions and compromises which they reflect validate concerns raised by Professor M. Cherif Bassiouni23 a decade ago, questioning whether “a piece of Swiss cheese with a lot of holes in it” runs the risk of doing more harm than good.24

III. Policy Implications

A. Aggression Jurisdiction Presents a new Opportunity

Above a plinth in the north garden at UN Headquarters in Manhattan stands a solitary, larger-than-life bronze figure. Though not a messenger, he nonetheless has a message to share. He firmly grips a dramatically misshapen sword, tipping downward toward an anvil. In grudging submission to the blows of the mallet which he wields from high over his head, the lower half of his sword has been splayed into a twisting, broadly bended curve. He wears little more than a look of fierce dedication to his task. Etched beneath him, the words “We Shall Beat Our Swords into Plowshares”.25

He has stood in that spot, frozen over his sword, for over half a century.26 To those determined to end the scourge of war, he lays down a silent challenge: “Take up your implements of change, and use them as I do.”

Today, 71 years after the IMT branded aggression as “the supreme international crime”, the ICC is finally poised to provide a platform for its deterrence. By activating the Kampala amendments, the ASP has forged a new tool in the arsenal of the law—a hammer of justice, waiting to be tested.

B. Relationship to the Security Council

The question of whether the Security Council should have the exclusive right to control adjudication of the crime of aggression was addressed five years before the Kampala Review Conference by Professor Mark S. Stein, who concluded that such an exclusive right is unsupportable from both a legal and a policy perspective.27 His conclusions are consistent with the approach to the Security Council reflected in the Kampala amendments.

Whether the Court must necessarily wait for a clear “green light” from the Council has already been answered in the negative by the terms of Article 15 bis itself. Yet what of the potential situation which could arise if the Council takes it upon itself to offer up a “red light” by way of notifying the Court that not only has it not made a determination that an act of aggression has occurred, but that it has done precisely the opposite—determining instead that a particular act was not an act of aggression? Notwithstanding the fact that Article 15 bis, paragraph 9 implies that the Court is free to make its own findings on the matter, to proceed in light of such a “red light” may be not only be impractical, but may perhaps also conflict with Article 103 of the UN Charter.28 Needless to say, the Court should proceed cautiously, if at all, in such a case.29

C. The Issue of Equality Before the Law
1. Non-ratification by the UK and France

The sovereign equality of states is a well-established principle.30 Yet, to borrow a phrase from George Orwell, some states seem to be considerably “more equal than others.”31

It is an inescapable fact that the U.K. and France, the only two permanent members of the Council who are also members of the ASP, have thus far failed to ratify the Kampala amendments.32 Moreover, they prevailed at the 16th session of the ASP in insisting that the activation decision which was recently adopted should include language to the effect that no State Party that has failed to ratify the Kampala amendments on aggression can be subjected to the Court’s 15 bis jurisdiction, regardless of whether they have affirmatively opted out or not.33

The terms of the activation decision may impact the Court’s relationship with the U.K., France, and other non-ratifying States Parties. Its operative paragraphs are as follows:34

The Assembly of States Parties…

1. Decides to activate the Court’s jurisdiction over the crime of aggression as of 17 July 2018;

2. Confirms that, in accordance with the Rome Statute, the amendments to the Statute regarding the crime of aggression adopted at the Kampala Review Conference enter into force for those States Parties which have accepted the amendments one year after the deposit of their instruments of ratification or acceptance and that in the case of a State referral or proprio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments;

3. Reaffirms paragraph 1 of article 40 and paragraph 1 of article 119 of the Rome Statute in relation to the judicial independence of the judges of the Court;35

4. Renews its call upon all States Parties which have not yet done so to ratify or accept the amendments to the Rome Statute on the crime of aggression.

Paragraph 1 is self-explanatory, authorizing activation of the Court’s aggression jurisdiction to coincide with the twentieth anniversary of the adoption of the Rome Statute.

Paragraph 2 is not as straightforward as it may appear. Earlier proposals, which were acceptable, under the circumstances, to the vast majority of States Parties, had provided that non-ratifying States Parties which expressed the view that the second sentence of Article 121, paragraph 5 must be followed literally36 would effectively be exempted from the application of the Court’s 15 bis jurisdiction without having to do anything further to formally opt-out. While such proposals may have been expected to satisfy the need of non-ratifiers who had expressed their adherence to this view (or who intended to do so within a reasonable window of opportunity), the proposals were rejected by the very small minority of non-ratifiers, who wanted more. The language of paragraph 2 may understandably be viewed by many as a direct assault on the delicately balanced compromise agreement hammered out in Kampala, in that it indicates that any State which fails to ratify the Kampala amendments cannot be subjected the Court’s Article 15 bis jurisdiction, regardless of what was seemingly agreed to and unanimously approved at the Review Conference.

While paragraph 2 limits itself to the Court’s Article 15 bis jurisdiction, one wonders whether non-ratifiers might also consider arguing that a literal reading of Article 121, paragraph 5 should likewise exempt them from the jurisdiction provided for under Article 15 ter, applicable to Security Council referrals. This, of course, only scratches the surface of the discussion. It should be noted that all States Parties have an obligation, as set forth in Article 86 of the Statue, to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court”—whether they have ratified the Kampala amendments or not.

Paragraph 3 was added in the final moments before the activation decision was taken, as a counterbalance to paragraph 2. To anyone unfamiliar with the dynamics which were in play at the ASP in New York during the night on which the activation decision was taken, paragraph 3 may well appear unnecessary, self-evident, and oddly out of place. It was intended to counter what was seen by many as an effort on the part of the U.K., France, and a handful of other non-ratifying states, to, in effect, re-negotiate what was agreed to in Kampala. The insertion of paragraph 3 in the activation decision was a signal to the ICC judges that, with respect to the language of paragraph 2, the activation decision reached in New York was, agreed to under duress by the vast majority of States present. It is a reminder that it is the ICC judges, rather than a small minority of powerful states, who should determine the legal effect of the Kampala amendments. It would seem, however, in light of the unambiguous language of paragraph 2, that the ICC judges will have little, if any, judging left to do on this particular point.37A consequence of the fact that activation by unanimous consensus, rather than by a vote, was a high priority for the ASP was that each and every State Party represented had the power to scuttle the activation decision if it wanted to. Because of the uncompromising position of the small handful of States whose position was championed by the U.K. and France, it seemed to be a clear case of either going home with nothing, or accepting the activation resolution on terms which were dictated to the conciliatory many by the intransigent few.

Though the Court need not necessarily defer to the Security Council as such, it will surely need to contend with the fact that the United Kingdom and France have not yet ratified the Kampala amendments and may not do so any time soon. Given that the other three permanent members of the Council are not States Parties, and are, therefore beyond the reach of the Court’s Article 15 bis jurisdiction, there is already a serious lack of equality before the law as to the crime of aggression. Non-ratification by Britain and France simply makes it noticeably worse.

Non-ratifying states should be reminded that the ground-breaking principle established at Nuremberg that leaders of all nations should be made accountable for the crime of aggression38 was also unanimously affirmed by the UN General Assembly.39 The crime of aggression’s hard-fought 1998 inclusion in the Statute and its hard-fought activation as of this July 17th will be only a Pyrrhic victory if nations of goodwill shrink from supporting its broad acceptance.40

To erode the principle of equality before the law is to erode confidence in the global justice system itself. Because of this, the Office of the Prosecutor may seriously consider working arm in arm with diplomats and civil society representatives to assist the Court in making known the importance of ratification of the Kampala amendments and, in particular, the critical role that Britain and France—as members of both the Court and the Council—can play in sending a clear signal that the rule of law is not only for the little people. Such messaging should surely include the fact that these two ASP member states played a critical role at Nuremberg in establishing the waging of illegal war as a universally recognized international crime.

Finally, there is perhaps another level on which equality before the law may need to be emphasized to non-ratifying States, relating not simply to the unequal application of the law as among states, but rather to the unequal application of the law as between citizens of the same state. In States which have incorporated the Rome Statute’s other core crimes into their national codes, ordinary foot soldiers can be held criminally accountable for war crimes. If the leaders who send them out to fight do so in criminal violation of the jus ad bellum should they not similarly be held to account? Awareness of such a double standard among the citizens of non-ratifying States may perhaps play a part as a stimulant in consideration of the question of ratification by national leaders who may prefer not to be seen as hypocritical.

2. Separate Ratification Possibility for Articles 15 bis and 15 ter

Only a few days after the Kampala Review Conference, Harold Koh, then Legal Advisor to the U.S. Secretary of State and a key negotiator in Kampala, was on a panel addressing the import of the aggression amendments. In his remarks as to their implications, and, in particular, with regard to the fact that each of the provisions contained therein formed part of a carefully negotiated and delicately balanced compromise package, he emphasized that “Every single piece of it was a critical part of what was decided.”41

The language of paragraph 2 of the activation decision may reasonably be seen as part of an effort to have the terms of the amendments on aggression interpreted in a manner which reflects something different than what many states believed had been agreed in Kampala. It undercuts a key feature of the Kampala amendments that, in order to avoid Article 15 bis jurisdiction, States Parties would need to pay the “political cost” of having to affirmatively opt out of the jurisdiction conferred by Article 15 bis, whether they had ratified 15 bis or not.42

In considering next steps pertaining to non-ratifying States Parties, before looking forward, it may be worth glancing backward for a moment to the recent activation decision itself—not in terms of analyzing its substantive content, but rather in looking at its structure. It was structured as an integrated decision covering activation of jurisdiction under two distinct Articles, 15 bis and 15 ter.

Article 15 bis and Article 15 ter each contain the following language as to a required activation decision:

The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.

Thus, it would appear that had anyone suggested that the ratification decisions specified in each of Articles 15 bis and 15 ter should have been considered separately by the ASP, rather than taken up together in one integrated activation resolution, they would seemingly have been well within their rights to have done so. It is not hard to imagine that any such suggestion would likely have been roundly criticized as an attempt to “cherry-pick” with respect to the Kampala amendments, which should rightly be seen as an integrated compromise package.43

The question of whether such “cherry-picking” during the activation decision would have been permissible or acceptable may now be rightly perceived as fairly moot. Nonetheless, there are some potential “cherry-picking” issues still to be considered with respect to the Kampala amendments. Given that there is a credible argument that Articles 15 bis and 15 ter, by their own terms, could perhaps have allowed for separate activation decisions with respect to the Court’s 15 bis and 15 ter jurisdictions, the notion of “cherry-picking” as to ratification options may not seem quite so far-fetched.

Here’s the point: is it possible that the non-ratifiers—including the UK and France—who insisted on seeing the language of Article 121, paragraph 5 affirmed with respect to its application to Article 15 bis, might be willing, instead of ratifying nothing at all, to at least ratify Article 15 ter? Even raising such a question may be anathema to those nations of goodwill which have already fully ratified the Kampala amendments or may do so in the future, and to others as well. Yet it is conceivable that the U.K. and France could see ratification of Articles 8 bis and 15 ter as an attractive solution to the public relations problem arising from their having completely turned their backs on the crime of aggression through their failure to ratify any part at all of the Kampala amendments.44 This is by no means to say that they should not ratify the entire package included in the Kampala amendments, but is simply to say that, until the political realities are such that they are in a position to fully embrace Article 15 bis, they should at least do something to show that they consider themselves at least nominally subject to the rule of law on aggression. That their own exposure to the Court’s jurisdiction under Article 15 ter is clearly limited by the veto power they each have the right to exercise on non-procedural matters which come before the Security Council should go a long way toward making such a suggestion politically palatable.45 It must, of course, be observed that, in addition to being inconsistent with the spirit of the unified compromise package negotiated in Kampala, such an approach is also inconsistent with the spirit, though not necessarily the letter, of the Rome Statute’s absolute prohibition on reservations.46 Nonetheless, it may still be something worth considering as a potential point of outreach by the Court or by civil society, or both.47

D. Evidence-gathering and Witness Protection Concerns

Unquestionably, the conjoined issues of evidence-gathering and witness protection will be of paramount importance in considering the Office of the Prosecutor’s approach to the crime of aggression. Those who share sensitive intelligence reports and processes or confidential information relating to military policy or practices may well be put at risk of criminal prosecution, or worse.48 As pointed out by representatives of Norway at the ICC Review Conference, evidence-gathering for the crime of aggression may be particularly difficult due to problems with the cooperation of states and the problem of potentially being asked to investigate “on the basis of allegations without access to substantial evidence on all relevant elements.”49

The problem of obtaining information about who knew what and when, and how they knew it, may well be expected to become even more difficult as governments consider clamping down on whistleblowers who reveal sensitive information.

Consider, for example, the case of Katharine Gun.50 She was employed by a British intelligence agency as a translator when she intentionally leaked sensitive information during the run-up to the 2003 war in Iraq. The information showed that the U.S. government’s National Security Agency was spying on certain members of the UN Security Council in an effort to push the Council to approve a resolution authorizing war with Iraq.51 She was arrested and charged with criminal violation of Section 1 of the Official Secrets Act 1989.52 The case against her was eventually dropped, ostensibly because the Crown Prosecution Services were unable to develop sufficient evidence to disprove the defense that what she did was necessary,53 but there is more to the story.

There is suspicion that the case was dropped for a number of unspoken reasons. Among them may have been an interest in limiting further bad publicity, limiting the further details about those behind the spying which she had revealed, limiting access to embarrassing U.K. government files pertaining to the illegality of the Iraq war, and limiting the prospect that if she were acquitted, other potential whistleblowers might be encouraged in claiming the defense of necessity, as she did. Tellingly, in the process of reporting to Parliament as to why the case was dropped, the then Attorney General, Lord Goldsmith, advised that he could not give specific details, explaining that “as the matter concerns issues of intelligence it is not appropriate for me to do so, even to this House.”54

A recent law commission report on reforms to the Official Secrets Act disclosed that increasing the criminal penalties for breach of the Act from to 2 to 14 years imprisonment was suggested by the government’s Intelligence and Security Committee shortly after the Katharine Gun case arose.55 The law commission report, issued in 2017, has, likewise, proposed that the penalties for violating the Act should be increased.56 Moreover, it recommended that there should be no defense for whistle-blowers who claim that their breaches of the law were necessary as being in the public interest.57 As to the general defense of necessity, it should be noted that section 3 of the Criminal Law Act 1967, permits the necessity defense for the use of “such force as is reasonable in the circumstances in the prevention of crime.”58 Whether it may be successfully raised in the context of future leaked information cases remains to be seen.59

As a footnote to Katharine Gun’s story, it should be noted that though the Chilcot inquiry completely ignored her offer to testify,60 it nonetheless confirmed the suspicion, as Sir John Chilcot put it, that Tony Blair had not been “straight with the nation” on Iraq.61

Unfortunately, long-term witness protection programs can be rather costly, and the Court may not, as yet, have sufficient resources to support such programs.62 All of this is to say that the issue of evidence gathering and witness cooperation and protection may present practical problems which will need to be considered in deciding whether prosecution for the crime of aggression in a given case will be viable. Among the actions which the Court might consider is working with civil society and government officials toward strengthening the rights of whistle-blowers in their own national courts, either by working to develop protocols to assure availability of the necessity defense or other protective mechanisms. Moreover, if the Court has not already done so, it may explore the possibility of “piggy-backing” arrangements, whereby the burden of long-term witness protection may be shared by or shifted to cooperating states which may already have established such programs or which may be willing to do so.

Though investigation will likely present a somewhat lesser threshold of concern than actual prosecution at trial, Article 15 bis requires that either the Security Council or the Pre-Trial Division must authorize any formal aggression investigation prior to it commencement. Accordingly, sensitivity to issues of evidence-gathering and witness protection will likely arise fairly early in the process of considering such an investigation.

E. Definitional Issues
1. Acts of Aggression may Include Those not Specifically Enumerated in the Statute

With regard to potential prosecutions for any crime within its jurisdiction, it is axiomatic that the Court must not stray from the statutory definition of the crime in question.63

Although each of the specific acts enumerated in the second sentence of Article 8 bis, paragraph 2 will “qualify as an act of aggression,” the first sentence of paragraph 2 defines the term “act of aggression” without reference to any of them. Rather, an act of aggression is defined more broadly with reference to:

[T]he 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.

Although there is no express indication that what is being proscribed in Article 8 bis is the first use of armed force by a State in contravention of the UN Charter, the reference in Article 8 bis, paragraph 2 to G.A. Res. 3314 would certainly seem to imply it.

This said, whether a particular act comes within the definition of aggression should be construed by both the Office of the Prosecutor and by the ICC judges as broadly as the provisions of Article 8 bis will appropriately allow. And why not? For example, homicide statutes cannot be expected to enumerate, and do not attempt to enumerate, the various ingenious and nefarious means by which people may commit murder—nor should the Rome Statute be expected to.

One emerging form of attack that has received significant attention recently, yet which is omitted from the list of aggressive acts enumerated in the Statute, is cyber-attack. Whether such an attack, in a given case, could be seen to constitute the use of “armed force” within the meaning of the Statute is a question which is as yet untested. However, it may be of interest to note, if only for illustrative purposes, that, according to its mission statement, the United States Army Cyber Command (ARCYBER) “directs and conducts integrated electronic warfare.”65 ARCYBER is clearly part of the country’s armed forces. It may, therefore, reasonably be argued that attacks by such means should certainly constitute the “use of armed force” within the meaning of the Statute.66

2. Fact-based Culpability Testing for Direction or Control

As noted above, in order to be charged with the planning, preparation, initiation or execution of an act of aggression, the accused must be:

[A] person in a position effectively to exercise control over or to direct the political or military action of a State.

This is clearly a facts and circumstances test. Someone may well be in a position to “direct” the political or military action of a state, even though not in a position to assert “control” over either of them. As to potential prosecution for the crime of aggression, the test of causation will be controlling, rather than the trappings of title or nomenclature associated with the status of the accused. For example, where a chief legal officer knowingly gives incorrect legal advice to others in positions of power, with the reasonable belief that they will rely on it in determining whether to proceed with an act of aggression, such person may arguably be seen to have “directed” the political or military action of the State within the meaning of Article 8 bis, paragraph 1. Similarly, a national politician or even a key advisor who knowingly misleads other decision-makers, in the reasonable belief that such deception will lead to the commission of acts of aggression should be seen to qualify as having been in a position effectively to exercise control over or to direct the political or military action of the State.

There are clearly many possible scenarios where effective control or the ability to direct others may reasonably be inferred and each must, and surely will, be assessed on its own merits. In setting policy on the matter, the Office of the Prosecutor should send a clear signal that those in positions effectively to control or direct the military or political actions of a State will not be able to hide behind vague or less influential-sounding titles. The old adage, “action speaks louder than words” may certainly apply to any such analysis—though, naturally, words will certainly still be of probative value.

i. Unreasonable Reliance on Legal Opinions or Other Advice is no Excuse

With regard to the issue of reliance on legal opinions or other advice which may be considered by those in positions of power, it should be noted that any reliance on such advice must, itself be reasonable. For example, factors such as whether the opinion or advice may have been either altered or coerced,68 whether it is based on factual assumptions which are themselves suspect, or whether it has been prepared by a person or persons whose competence, impartiality, or reliability is questionable must be taken into account in determining whether it was reasonably relied on. Advice or legal opinions prepared by those appointed to office by the person or persons who have requested the opinion should rightly be subject to an even higher level of scrutiny as to whether they have reasonably been relied on as compared to advice or opinions requested from sources having no personal or political ties to the person or person requesting the opinion. To avoid over-reliance on any one person as the provider of legal advice pertaining to the legality of military, it may be prudent that such advice come, for example, from a cabinet-level committee which has considered the matter or, perhaps better yet, from a truly independent and credible “independent counsel”, if one can be found.69

Any formal policy regarding the crime of aggression may wish to consider addressing such issues.

3. Manifest Violation of the Charter Threshold

Perhaps the most subjective of the elements imbedded in the statutory definition of the crime of aggression is the requirement of Article 8 bis, paragraph 1, that the act in question must rise to the level of:

[A]n act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

Presumptively, any such act would violate the UN Charter’s prohibition on the threat or use of force, as provided in Article 2, paragraph 4 of the Charter;70would not be a use of force authorized by the Security Council, as is allowed pursuant to Article 41 of the Charter;71 and would not be in self-defense after an attack, as is allowed under Article 51 of the Charter.72

The precise parameters of what does or does not rise to the level of a manifest violation of the UN Charter as to its character, gravity, and scale is an open question, which will have to be considered on a case by case basis. Much of justice and judging has to do with balancing competing interests, whether they be those of so-called military necessity versus those of civilians who have a right to life,73 or the tension between the desire of governments to keep their actions covert and the wishes of their citizens to know what is being done, often behind their backs, but ultimately in their name. Yet one thing is fairly clear: an honest case of true humanitarian intervention—akin to a citizen who must break the law to prevent a greater crime—will certainly not fall within the ambit of the definition of aggression.74

The principles underlying the necessity defense which apply in domestic jurisdictions should be recognized at the international level. Yet it should be kept in mind that although “lady justice” wears a blindfold, she is neither blind nor deaf. With respect to the question of humanitarian intervention as an exculpatory principle, she may well ask whether those who wish to cloak themselves in the mantle of the necessity defense must, themselves, come to the Court with clean hands. That is to say, perhaps those who put forward “humanitarian intervention” as a defense should be scrutinized as to whether they, themselves, were in any way complicit in contributing to the commission of the very atrocities which they claim they must now intervene to put an end to. Such complicity may take many forms, for example, it could be in the form of the sale or conveyance of arms by which the atrocities on the ground are being committed.75 Such a restriction, if published in advance as part of an official ICC policy, might help to focus the mind of those who up until now, have not given the matter sufficient attention.

IV. Concluding Thoughts

The brief discussion set forth above in no way pretends to represent a comprehensive analysis of the Kampala amendments or the issues which confront the Court in addressing them.

As noted above, there is much not to like about the amendments on the crime of aggression—including the manner in which their activation decision was taken. But having them activated is far better than having nothing at all. At the very least, they send a clear message that the crime of aggression is illegal in international law and that it may soon be prosecuted before the ICC, albeit with restrictions as to jurisdiction.

Fulfillment of the promise of Nuremberg has been slow in coming, and is certainly not yet entirely realized—but activation of the Kampala amendments is a meaningful beginning. At a minimum, legal advisors to heads of state who may be contemplating military interventions in violation of the UN Charter will, if asked, be forced to report that the Court is now in a position to potentially prosecute them for the crime of aggression.76

Moreover, bringing the crime of aggression within the active jurisdiction of the Court sends a message confirming the seriousness of the crime of aggression itself. In this regard, it may be of interest that, as reported by Professor Jay Silver:

Experiments have long revealed the symbiosis of law and morality: being told that a behavior is illegal makes it also seem more immoral.

Had the ASP not agreed to activate the Court’s jurisdiction over the crime of aggression, it may unwittingly have contributed to giving the impression that aggression is not a crime to be taken seriously.

Civil society must do its share in working to help plug the loopholes for those who either fail to ratify or who opt out of the Court’s Article 15 bis jurisdiction by encouraging them to do otherwise.

Given the choice of an ICC with no jurisdiction over the crime of aggression or a Court which can only fight aggression with the as yet incomplete toolbox provided by the Kampala amendments, I would choose the Kampala amendments, and it is not a hard choice.

Some may see it as accepting the lesser of two evils, but they are two very different sorts of evils. At Nuremberg, Robert Jackson spoke of those who use their power “to set in motion evils which leave no home in the world untouched.”78 The evil of impunity for those of whom he spoke far outweighs the evils or shortcomings which may be associated with the imperfect beginnings of an effort to hold perpetrators of the crime of aggression to account in a court of law.

Anyone unpersuaded by such logic might perhaps consider the somewhat more idiosyncratic logic of Mae West, the American star of stage and screen of an earlier era, who revealed in a film that “Between two evils, I always pick the one I never tried before.”79 If there is any question that an imperfect Court with an imperfect jurisdiction over the crime of aggression represents the lesser of two evils, there can surely be no disputing that it represents the one that hasn’t been tried yet.

At the risk of sounding either plagiaristic or trite or both, in essence, all we are saying is give law a chance. Beating swords into ploughshares deserves no less. Neither do the countless victims of the supreme international crime of aggression. And neither do people like Katharine Gun.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    See e.g. Matthew C. Weed, International Criminal Court and the Rome Statute: 2010 Review Conference, Cong. Research Serv. (Mar. 10, 2011), available online. But see Donald M. Ferencz, Current U.S. Policy on the Crime of Aggression: History in the Unmaking?, 48 Case W. Res. J. Int’l L. 189 (2016), available online.

  2. 2.

    Fatou Bensouda, The Truth About the ICC and Gaza, The Guardian, Aug. 29, 2014, available online.

  3. 3.

    Adolph S. Ochs, Without Fear or Favor, N.Y. Times, Aug. 18, 1896, available online.

    (An early modern use of this phrase is attributable to a statement of principles set forth in 1896 by Ochs, then the publisher of the New York Times, reprinted exactly 100 years later).

  4. 4.

    See Thucydides, History of the Peloponnesian War, 2.34–2.46, available online.

    (This maxim, notably found on the portico of the U.S. Supreme Court, is traceable to the prominent Greek statesman, Pericles, who circa 341 BCE is said to have extolled Athenian law as affording “equal justice to all”).

  5. 5.

    Bensouda, supra note 2.

  6. 6.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Article 5 available online.

    (That is, genocide, crimes against humanity, and war crimes).

  7. 7.

    See Assembly of State Parties, The Crime of Aggression, RC/Res.6 (Jun. 11, 2010) [hereinafter Kampala Amendments], available online.

    (The amendments defining the crime of aggression, and setting forth the conditions under which the Court may exercise its aggression jurisdiction, were initially adopted by consensus at the Review Conference of the ICC held in Kampala, Uganda, in June of 2010).

    For a comprehensive discussion, see Stefan Barriga & Leena Grover, A Historic Breakthrough on the Crime of Aggression, 105 Am. J. Int’l L. 517, 533 (2011), paywall; see also Claus Kreß & Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, 8 J. Int’l Crim. Just. 1179 (2010), available online.

  8. 8.

    See Assembly of State Parties, Activation of the Jurisdiction of the Court Over the Crime of Aggression, ICC-ASP/16/Res.5 (Dec. 14, 2017) [hereinafter Activation of Jurisdiction], available online (advance version).

    (The ASP resolution activated the Court’s aggression jurisdiction as of July 17, 2018, the 20th anniversary of the adoption of the Rome Statute. It was approved by consensus during the 16th Session of the ASP, meeting in New York from December 4–14, 2017, although the resolution on aggression was not actually adopted until approximately 40 minutes past midnight on the morning of December 15th).

  9. 9.

    See Charter of the International Military Tribunal, Article 6, 1951 United Nations Treaty Series 286 (Aug. 8, 1945), available online.

    (The Charter of the International Military Tribunal at Nuremberg included the waging of a war of aggression within “crimes against peace”).

  10. 10.

    Rome Statute, Article 5.

  11. 11.

    Charter of the United Nations [hereinafter UN Charter], Article 39.

    (“The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”).

  12. 12.

    Definition of Aggression, G.A. Res. 3314, A/Res/29/3314, Dec. 14, 1974, available online.

    (The definition of aggression agreed by unanimous consent of the General Assembly in 1974, had also provided that the Council had the authority to decide that a particular act would, or would not, be deemed to constitute an act of aggression).

  13. 13.

    See Assembly of State Parties, Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May–11 June 2010 Official Records, at 121 et seq. (Jun. 11, 2010) [hereinafter Kampala Official Records], available online.

    (Annex VIII and IX includes the separate statements of the United Kingdom, France, China, Russia and the United States).

  14. 14.

    See Kampala Amendments, supra note 7. For a comprehensive discussion, see Barriga & Grover, supra note 7; Kreß & von Holtzendorff, supra note 7, available online. For a comprehensive two volume work on the subject, see The Crime of Aggression: A Commentary (Claus Kreß & Stefan Barriga eds., 2017).

  15. 15.

    Rome Statute, Article 8 bis. Compare G.A. Res. 3314, supra note 12, Article 2.

    (Although a good deal of Article 8 bis tracks, verbatim, the language of G.A. Res. 3314, it notably omits the language of Article 2):

    (“The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.”).

  16. 16.

    Kampala Amendments, supra note 7, at 18.

  17. 17.

    Rome Statute, Article 8 bis, paragraph 2(f).

  18. 18.

    See Rome Statute, Article 15 ter.

    (“The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraph (b), subject to the provisions of this article.”).

  19. 19.

    As to the other three core crimes of the Statute, State Party referral jurisdiction and the Prosecutor’s proprio motu referral jurisdiction are provided by Rome Statute, Article 13, paragraphs (a) and (c), yet without the further limitations imposed by Article 15 bis, discussed immediately below.

  20. 20.

    Rome Statute, Article 15 bis.

    (“4. The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years.

    5. In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.”).

  21. 21.

    See Republic of Kenya, Declaration of Non Acceptance of Jurisdiction of the International Criminal Court Pertaining to the Crime of Aggression Pursuant to Paragragh [sic] 4 of Article 15 bis of the Rome Statute, MFA. Int. 8/14A Vol. X (86) (Nov. 30, 2015), available online.

    (Though never having ratified the Kampala amendments on aggression, Kenya opted out on November 30, 2015).

  22. 22.

    See e.g. Kevin Jon Heller, The Sadly Neutered Crime of Aggression, Opinio Juris (Jun. 13, 2010), available online (last visited Feb. 3, 2018).

    (Heller observes that the asymmetrical application of jurisdiction permitted by Article 15 bis allows States Parties “to take a completely hypocritical approach to aggression.”).

  23. 23.

    M. Cherif Bassiouni (1937-2017) was a professor and emeritus professor of law at DePaul University College of Law for many years and, among other important international assignments, was Chairman of the Drafting Committee of the Rome Statute.

  24. 24.

    The International Criminal Court and the Crime of Aggression—Panel 4, YouTube, at 13:25 (Sep. 26, 2008), available online.

    (Bassiouni made these remarks at the War Crimes Research Symposium presented by the Frederick K. Cox International Law Center at Case Western Reserve University School of Law).

  25. 25.

    Isaiah 2:4 (American Standard Version), available online.

    (The message is in clear reference to the words of the Book of the Prophet Isaiah):

    (“And he will judge between the nations, and will decide concerning many peoples; and they shall beat their swords into plowshares, and their spears into pruning-hooks; nation shall not lift up sword against nation, neither shall they learn war any more.”).

    See also John Louth, Isaiah’s Echo: Progress, Prophecy, and the UN Charter, EJIL Talk, Mar. 27, 2013, available online.

    (Includes a beautifully crafted essay on the connection of the message of the Prophet Isaiah to the United Nations).

  26. 26.

    The statue, which is the work of Evgeny Vuchetich (1908-1974), was donated to the UN in 1959 by the Soviet Union.

  27. 27.

    See Mark S. Stein, The Security Council, the International Criminal Court, and the Crime of Aggression: How Exclusive is the Security Council’s Power to Determine Aggression?, 16 Ind. Int’l & Comp. L. Rev. 1 (2005), available online.

  28. 28.

    UN Charter, Article 103.

    (“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”).

    See Kreß & Barriga, supra note 14, at 1147.

    (Edwig Belliards’s comments on the subject discusses the potential tension between Article 103 and the Court’s jurisdiction over the crime of aggression).

  29. 29.

    Query where the Council has made an affirmative finding of a state act of aggression, whether a contrary finding by the Court would also raise issues under UN Charter, Article 103?

  30. 30.

    UN Charter, Chapter 2, paragraph 1, available online.

    (One of many places this is acknowledged).

  31. 31.

    George Orwell, Animal Farm, at chapter 10 (1944), available online.

    (“All animals are equal, but some animals are more equal than others.”).

  32. 32.

    See Status of Ratification and Implementation, The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression (Dec. 8, 2017), available online (last visited Feb. 3, 2018).

    (Web page tracks those states which have ratified. It is perhaps worth noting here that the thirty-five States which have already ratified the Kampala amendments on aggression include over half the members of NATO).

  33. 33.

    See Assembly of States Parties, Report on the Facilitation on the Activation of the Jurisdiction of the International Criminal Court Over the Crime of Aggression, ICC-ASP/16/24, at Annex II (Nov. 27, 2017), available online.

    (Annex II contains the position paper on this issue submitted on behalf of Canada, Colombia, France, Japan, Norway, and the United Kingdom. In their separate formal statements following the activation decision, France, the UK, and Japan expressed the view that the language of the activation decision was itself authoritative confirmation of the accuracy of their view that the provisions of the Rome Statute, Article 121, paragraph 5 must be taken literally in the context of the amendments on aggression—though I believe it is fair to say that there are those who disagree with this assertion).

  34. 34.

    Activation of Jurisdiction, supra note 9.

  35. 35.

    Rome Statute, Article 40, paragraph 1.

    (“The judges shall be independent in the performance of their functions”).

    Rome Statute, Article 119, paragraph 1.

    (“Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.”).

  36. 36.

    Rome Statute, Article 121, paragraph 5.

    (“In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.”).

    (Its application with respect to the aggression amendments is the subject of continuing controversy and debate).

  37. 37.

    See Dapo Akande, The International Criminal Court Gets Jurisdiction Over the Crime of Aggression, EJIL Talk, Dec. 15, 2017, available online (last visited Feb. 3, 2018).

    (Concludes that the effect of the activation decision is tantamount to a subsequent agreement of the parties to the Rome Statute under Article 31(3)a of the Vienna Convention on the Law of Treaties).

    See Nikolas Stürchler, The Activation of the Crime of Aggression in Perspective, EJIL Talk, Jan. 26, 2018, available online (last visited Feb. 3, 2018); see also Annegret L. Hartig, Dubious Negotiations in New York: Did France and the UK Come to Blow It Up?, IntLawGrrls, Jan. 18, 2018, available online (last visited Feb. 3, 2018).

    (Further discussion of the activation decision itself and its possible consequences).

  38. 38.

    The International Military Tribunal for Germany, Second Day, 2 Nuremberg Trial Proceedings 154 (Nov. 21, 1945), available online.

    (In his opening statement at the International Military Tribunal at Nuremberg, the American Chief of Counsel Robert H. Jackson spoke to this principle):

    (“[T]he ultimate step in avoiding periodic wars […] is to make statesmen responsible to law. And let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment.”).

  39. 39.

    Affirmation of the Principles of International Law recognized by the Charter of the Nurnberg Tribunal, G.A. Res 95(I), A/Res/1/95 (Dec. 11, 1946), available online. See Antonio Cassese, Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal, UN Audiovisual Lib. of Int’l L. 1 (2009), available online.

    (A discussion of the resolution).

  40. 40.

    See R. G. Grant, Commanders: History’s Greatest Military Leaders 18 (D.K. Pub., 2010), available online.

    (A reminder as to how the Greek general, Pyrrhus of Epirus (318-272 BCE), managed to become associated with victories which seem not to bring a meaningful advantage, e.g., his victory over the Romans at the battle of Asculum in 279 BCE).

  41. 41.

    American Society of International Law, The U.S. and the International Criminal Court: Report from the Kampala Review Conference, YouTube, at 1:04:17 (Jun. 18, 2010), available online.

    (Statement of Harold H. Koh).

  42. 42.

    See Kreß & Barriga, supra note 14, at 1127.

    (That such a “political cost” was, in fact, an integral part of the Kampala compromise has been remarked on by Marcel Biato and Marcelo Böhlke).

  43. 43.

    Rome Statute, Article 5, paragraph 2.

    (It is worth noting, incident to this discussion, that Article 5, paragraph 2 of the 1998 Rome Statute, concerned itself with the potential later adoption of provision “a” defining the crime and setting out the conditions under which the Court shall exercise jurisdiction. Query whether this lends itself to the argument that the Kampala Amendments, in keeping with the spirit of Article 5, paragraph 2, should reasonably be seen as a unified set of amendments, which should not be in any way bifurcated).

  44. 44.

    See e.g. Owen Bowcott, UK Calls for ‘Greater Clarity’ on ICC’s New Crime of Aggression, The Guardian, Nov. 15, 2017, available online.

    (Recent criticism).

  45. 45.

    UN Charter, Article 27.

  46. 46.

    Rome Statute, Article 120.

    (“No reservations may be made to this Statute.”).

  47. 47.

    See Donald M. Ferencz, The Crime of Aggression: Some Personal Reflections on Kampala, 23 Leiden J. Int’l L. 905 (Nov. 22, 2010), paywall.

    (As a matter of full and fair disclosure, I should perhaps add that, from the Review Conference in Kampala, I blogged as follows):

    (“But if the final formulations on jurisdiction considered here in Kampala vest only the Security Council with the right to initiate a case (as the P-5 would like), I think it’s fair to say that when the roll-call is taken on this, in addition to translation headsets, there will be many who’d like nose-clips to be provided as well.”).

    See also Donald M. Ferencz, Great Powers try to Prevent the Activation of the Jurisdiction of the ICC over the Crime of Aggression, Derechos Hum. Rts., Nov. 29, 2017, available online (last visited Feb. 2, 2018).

  48. 48.

    See Romina Beqiri, Witness Protection in International Criminal Court, Master’s Thesis, Faculty of L. of Lund U., 2011, available online.

    (Contains an overview of the Court’s witness protection measures, including a listing of articles pertaining to this field).

    See also International Bar Association, Witnesses Before the International Criminal Court (Jul. 2013), available online.

  49. 49.

    Kampala Official Records, supra note 13, at 123.

  50. 50.

    See Martin Bright & Katharine Gun, Ten Years On: What Happened to the Woman Who Revealed Dirty Tricks on the UN Iraq War Vote?, The Guardian, Mar. 2, 2013, available online.

  51. 51.

    See Sandra Coliver & Zsolt Bobis, The United Kingdom’s Official Secrets Act 1989, OSJI (Dec. 14, 2011), available online.

    (A discussion of the Official Secrets Act).

  52. 52.

    Id. See also Mark Oliver, GCHQ Whistleblower Cleared, The Guardian, Feb. 25, 2004, available online.

    (Oliver writes a very revealing and informative article regarding the manner in which the charges against her were eventually dropped. I strongly encourage all readers of this comment to have a look at it).

  53. 53.

    See Press Release, U.K. Crown Prosecution Service, Statement on R v Katharine Gun, 108/04 (Feb. 26, 2004), available online.

  54. 54.

    See Gail Bartlett & Michael Everett, The Official Secrets Act and Official Secrecy, Briefing Paper CBP07422, at 38 (May 2, 2017), available online.

  55. 55.

    See Law Commission, Protection of Official Data, Consultation Paper No. 230, at 87 (2017), available online.

  56. 56.

    Id. at 88.

  57. 57.

    Id. at 175. See also Coliver & Bobis, supra note 51, at 4.

    (The proposal has met with subsequent resistance):

    (“While the Law Commission has proposed a wide range of revisions […] some negative stakeholder reaction has focused on the length of sentences for leaking offences, the fact that there is no restriction to the people that could be subject to the certain offences in the new Espionage Act, and the lack of a statutory public interest disclosure defence.”).

  58. 58.

    See Criminal Law Act 1967, Part I, Section 3 (1967), available online.

  59. 59.

    See R v Jones, Judgment, UKHL 16 (Mar. 29, 2006), available online.

    (Held that the defense was unavailable to Iraq war protesters because the crime of aggression had not been brought within the domestic laws of the United Kingdom).

  60. 60.

    See Katharine Gun, Take it from a Whistleblower: Chilcot’s Jigsaw Puzzle is Missing a Few Pieces, The Guardian, Jul. 8, 2016, available online.

  61. 61.

    Chilcot: Tony Blair was not ‘Straight with the Nation’ over Iraq War, The Guardian, Jul. 6, 2017, available online. See also Resignation Letter from Elizabeth Wilmshurst, Deputy Legal Advisor to the Foreign Office, to Michael Wood, the Legal Advisor (Mar. 18, 2003), available online.

    (Anyone who had read the resignation letter of Elizabeth Wilmshurst, which stated that the war with Iraq amounted to “the crime of aggression,” would certainly already have had such suspicions).

  62. 62.

    See Jake Rossen, 12 Secrets of the Witness Protection Program, Mental Floss (Mar. 29, 2016), available online (last visited Feb. 3, 2018).

    (An interesting article about the witness protection program in the United States, including how much it costs).

    See also Alemayehu G. Mariam, Saving the ICC: A Proposal for a Witness Protection Program, Waagacusub Media (Apr. 7, 2014), available online (last visited Feb. 3, 2018).

  63. 63.

    Rome Statute, Article 22, paragraph 2.

    (“The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.”).

  64. 64.

    See Kampala Amendments, supra note 7.

  65. 65.

    About, U.S. Army Cyber Command, available online (last visited Feb. 3, 2018).

  66. 66.

    Kreß & Barriga, supra note 14, at 1483.

    (Discusses possible amendment to the Statute regarding cyber-attack; see commentary therein by Ambassador David Scheffer).

  67. 67.

    See Kampala Official Records, supra note 13, at 15.

  68. 68.

    See e.g. Simon Walters, Iraq Inquiry bombshell: Secret Letter to Reveal New Blair War Lies, Daily Mail, Nov. 28, 2009, available online.

    (Contains an interesting discussion of Prime Minister Tony Blair’s interaction with Lord Peter Goldsmith, the Attorney General of the United Kingdom, in the run-up to the Iraq war of 2003).

  69. 69.

    See James Tapsfield, ‘Far from Satisfactory’: Iraq Report’s Verdict on how Blair Ally Lord Goldsmith Hardened his Legal Advice During the March to War, Daily Mail, Jul. 6, 2016, available online.

    (Suggestion by the former UK Attorney General, Lord Peter Goldsmith, while testifying before the Chilcot Inquiry on the Iraq war).

  70. 70.

    UN Charter, Article 2, paragraph 4, at 4, available online.

    (“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”).

  71. 71.

    UN Charter, Article 41.

    (“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”).

  72. 72.

    UN Charter, Article 51.

    (“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”).

  73. 73.

    See e.g. European Convention on Human Rights, Article 2, available online. (“Everyone’s right to life shall be protected by law.”); see also The Declaration of Independence para. 2 (U.S. 1776), available online.

    (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”).

  74. 74.

    See Jennifer Trahan, Defining the ‘Grey Area’ Where Humanitarian Intervention may not be Fully Legal, but is not the Crime of Aggression, 2 J. Use of Force & Int’l L. 42 (Jun. 24, 2015), paywall.

  75. 75.

    See e.g. Mark Nicol, Britain Sent Poison Gas Chemicals to Assad: Proof that the UK Delivered Sarin Agent to Syrian Regime for Six Years, Daily Mail, Sep. 8, 2013, available online.

  76. 76.

    Compare e.g. Secret Memorandum from Lord Peter Goldsmith, Attorney General of the UK, to Tony Blair, Prime Minister (since declassified) (Mar. 7, 2003), available online.

    (The Attorney General advises Tony Blair, who had appointed him, that the Court had no jurisdiction over the crime of aggression).

    See also Richard Norton-Taylor, Chilcot Inquiry: Iraq Papers Show Lord Goldsmith’s Warning to Tony Blair, The Guardian, Jun. 30, 2010, available online.

  77. 77.

    Jay Sterling Silver, Can the Law Make Us Be Decent?, N.Y. Times, Nov. 6, 2012, available online.

  78. 78.

    Nuremberg Trial Proceedings, supra note 38, at 99.

  79. 79.

    Klondike Annie (1936), IMDB, available online (last visited Feb. 3, 2018).

Ruys Avatar Image Tom Ruys, Ph.D., LL.M. Professor of international law Ghent Rolin-Jaequemyns International Law Institute (GRILI)

Office of the Prosecutor (OTP) investigations into crimes of aggression should not depend on a green light from the UN Security Council. The OTP should, however, be careful not to exercise its competence in such a way as to undermine the legal framework governing the use of force.

The implication of [the Kampala activation] compromise—disappointingly lacking in ambition and difficult to reconcile with the original promise of Article 5 of the Rome Statute—is that prosecutions will be possible only in respect of leaders of a small circle of countries.

Summary

I. Introduction

On December 14, 2017, the Assembly of States Parties to the Rome Statute decided by consensus to activate the ICC’s jurisdiction over the crime of aggression as of July 17, 2018.1 The historical decision finally makes true on the promise created by the original inclusion of the crime of aggression when the Rome Statute was adopted in 1998 (Article 5 (1) of the Rome Statute). What is more, the decision at long last revives the legacy of the post-War Nuremberg and Tokyo Tribunals, where military and political leaders were first (and—so far—last) criminally prosecuted for “crimes against the peace.”

The consensus decision did come at a heavy price. While it was previously affirmed (at the time of the adoption of the 2010 Kampala amendments)2 that the jurisdiction over the crime of aggression would not be exercised against nationals of non-States parties to the Rome Statute3 or of States Parties making use of the opt-out mechanism,4 jurisdiction was further curtailed by the activation decision. In particular, the decision stipulates that in the case of a State referral or proprio motu investigation, “the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted [the Kampala amendments].”5

The implication of this compromise—disappointingly lacking in ambition and difficult to reconcile with the original promise of Article 5 of the Rome Statute—is that prosecutions will be possible only in respect of leaders of a small circle of countries. More than seven years after their adoption, some thirty-five States have effectively ratified the Kampala amendments. It follows that investigations into crimes of aggression will in all likelihood remain exceptional and that it may take years for the first such investigation to materialize. On the other hand, inasmuch as every cross-border operation potentially raises questions as to its legality,6 sooner or later the OTP will inevitably have to address allegations that a crime of aggression has been committed.7

When (rather than if) this happens, the OTP will be confronted with a range of challenges, some of which are ostensibly unique to the prosecution of aggressors. The present essay briefly focuses on two such challenges, specifically the relationship with the UN Security Council (UNSC), and the application of the primary rules on the use of force (the so-called jus contra bellum)8.

Argument

II. OTP investigations into crimes of aggression should not depend on a green light from the UNSC.9

In spite of the post-War trials, where individuals were first prosecuted for “crimes against the peace” (notably at the initiative of the United States), and in spite of its inclusion in the Rome Statute, some continue to resist the idea that the crime of aggression constitutes a justiciable crime. In the words of Koh and Buchwald:

Aggression determinations are fundamentally different in kind [from determinations of atrocity crimes]: they fundamentally require a political assessment and political management.10

Or as Rostow puts it: “[d]eterminations of aggression are political and rightly so.”11

Attempts to conceive determinations of aggression as a purely political question are illustrative of the perverse and flawed tendency, still very much en vogue today, to surgically detach the political decision-making process leading up to the launch of a military intervention from the loss of life (among civilians and combatants) and destruction (e.g., in terms of damage to the economy or governmental institutions) that all too frequently follows. This tendency is also reflected in the dominant normative account which views the crime of aggression as a political crime, which “yields an abstract harm,”12 rather than as a compound of wrongs against individuals (civilians and combatants), that entails “the slaughter of human life, the infliction of human suffering, and the erosion of human security.”13

Furthermore, this approach ignores not only the legacy of the 1928 Pact of Paris—which first outlawed the recourse to war14—and the Nuremberg proceedings, it is also fundamentally at odds with the fact that the International Court of Justice has repeatedly pronounced (directly or indirectly) on the compatibility of State conduct with the rules governing the use of force15—as have a number of arbitral tribunals.16 This case-law unequivocally confirms that, notwithstanding the politically sensitive nature of the charges, State responsibility for aggression is a justiciable matter that international courts and tribunals can rule upon independently (within the confines of their jurisdiction).

In the 1980s, the International Court of Justice (ICJ) did not shy away from assessing the legality of the US military intervention in the famous Nicaragua v. U.S. case—notwithstanding US’ objections that the case involved an inherently political problem and notwithstanding warnings that the ICJ’s bold approach would destroy its legitimacy and result in an empty docket (which has certainly not been the case). By analogy, the OTP should not shy away from actively seeking to investigate and prosecute the crime of aggression. Only by acting in such manner will it be possible to undo the myth that high-level decisions to deploy armed forces abroad are beyond the reach of judicial scrutiny, and hold political and military leaders to account for the harm caused. This is all the more so since the (remote) prospect of the State being held internationally responsible for ignoring the jus contra bellum is unlikely to play a determining role in decisions over the use of armed force. By contrast, the risk of facing individual criminal responsibility may weigh heavier in the minds of the decision-makers concerned. As Dinstein puts it:

Only if it dawns on the actual decision-makers that—when they carry their country along the path of war in contravention of international law—they expose themselves to individual criminal accountability, are they likely to hesitate before taking the fateful step.17

The OTP should not let itself be shackled by making investigations into the crime of aggression dependent on a green light from the UNSC. No such legal requirement follows from the Charter of the United Nations, [hereinafter UN Charter]. Article 39 of the UN Charter, which decrees that the UNSC can take enforcement action in case of a “threat to the peace,” a “breach of the peace” or an “act of aggression,” is merely an institutional provision, which defines the situations in which the UNSC may use its Chapter VII powers. Such enforcement action is not limited to situations where there has been a prior breach of international law: a “threat to the peace,” for instance, does not necessarily presuppose the commission of an internationally wrongful act by any State. Article 39 of the UN Charter was never intended to have the UNSC act as a judicial body, asserting legal responsibility for wrongful conduct.

It has moreover amply been affirmed that the UNSC’s competence to determine an act of aggression is not exclusive. Thus, the absence of a prior finding of aggression by the UNSC has not stopped the ICJ or arbitral tribunals from pronouncing on the legality of the use of force by States.18 Nor has it stopped the UN General Assembly from pronouncing on the legality of military interventions.19 Suggestions that there is a legal requirement under international law which makes ICC investigations into the crime of aggression dependent upon prior approval by the UNSC are all the more absurd in light of the (extremely) narrow jurisdiction ratione personae in respect of this crime. Indeed, inasmuch as jurisdiction is limited to political and military leaders of countries that have ratified the Kampala amendments (without having used the opt out), this dispels any lingering doubts that the exercise of jurisdiction would somehow contravene the so-called Monetary Gold principle.20

Making OTP investigations contingent on a green light from the UNSC is not only not legally required, it would also be detrimental to the Court’s legitimacy and nullify the potential of the Kampala amendments. It would make OTP investigations hostage to political interests and create a perception of victor’s justice and double standards. Investigations into the conduct of any P-5 ally would be all but excluded. More generally, the prospect of any investigations into crimes of aggression would be extremely remote: Security Council resolutions referring to “(acts of) aggression” indeed remain rare—not a single such resolution has been adopted since the end of the Cold War.21 By voluntarily subjecting itself to the whims and vagaries of the UNSC, the OTP would undo the main achievement of the Kampala negotiations, where it was indeed decided to essentially decouple the jurisdiction of the Court, as an independent judicial organ, from the UNSC decision-making process.22

In conclusion, the OTP should make full use of its competence under the Kampala amendments—including in respect of military operations by coalitions that encompass both States that have ratified the amendments and States that have not.23 At the same time, the preferred approach must be for investigations to be started pursuant to a State referral, rather than on a proprio motu basis. Indeed, to the extent that a crime of aggression presupposes an act of aggression which, in light of its scale, effects and character, qualifies as a manifest breach of the UN Charter, it can normally be assumed that the victim of such aggression will declare itself as such and will raise the matter before the ICC.24 When the “victim State” refrains from so acting, this raises doubts as to whether there indeed exists a manifest breach of the UN Charter. Admittedly, there may be situations where a State referral is de facto unlikely or impossible and which call for a proprio motu investigation, e.g., where an aggressor overruns another country and installs a puppet regime. It is also conceivable that a victim State uses the threat of a State referral as leverage in negotiations with the aggressor (e.g., to arrive at a peace agreement). Such situations may call for restraint from the OTP and must be assessed on a case-by-case basis.

III. The OTP should be careful not to exercise its competence in such a way as to erode the legal framework governing the use of force25

A specific challenge resulting from the—now activated—ICC jurisdiction over the crime of aggression is that it will force the Court to tackle a new domain of international law, which it has hitherto not had to explore. As is well-known, the jus contra bellum is one of the oldest branches of international law—and also one of the most hotly debated. In spite of the somewhat utopian assertion in the Nicaragua v. U.S. case that there exists “general agreement” on what amounts to an “armed attack” in the context of the right of self-defence,26 the truth is that the “law on the use of force” is rife with controversies. In particular, there has been strong pressure in recent years to loosen some of the traditional legal restrictions on the recourse to force. To some extent, this tendency is understandable, given the evolving nature of threats to State security (chiefly the advance of trans-national terrorist groups, such as ISIL/Daesh). At the same time, calls for a more flexible regime on the recourse to force tend to create a slippery slope, opening room for abuse and threatening to erode the fundamental prohibition of Article 2(4) of the UN Charter.

One implication of the activation of the ICC’s jurisdiction over the crime of aggression is that the ICC (and the OTP in particular) will henceforth play a key role in the interpretation of the jus contra bellum. Just as the case-law of the ICC (and the ICTY and ICTR before it) has left, and continues to leave, its mark on the interpretation of the law of armed conflict, the same will become true in the realm of the jus contra bellum. It is imperative in this context that the ICC build on the existing acquis in this domain, as reflected in the case-law of the ICJ, legal doctrine and State practice, and, moreover, that it be aware of the implications that its approach may have for this legal regime.

The Rome Statute provides for a variety of tools that can potentially be used to justify a refusal to investigate, or prosecute, alleged crimes of aggression. Possible escape routes include the presumption of innocence and the requirement to construe the definition of crimes strictly (Articles 66 and 22 of the Rome Statute); the notion of mistake of fact (Article 32 of the Rome Statute),27 and; duress and defence of others (Article 31 (c)–(d) of the Rome Statute). By contrast, a leader’s alleged lack of an aggressive intent or an alleged mistake of law will not normally shield him or her from prosecution.28 An additional route results from the substantive threshold introduced at Kampala. Indeed, pursuant to the Kampala definition, not any recourse to force can give rise to a crime of aggression: only uses of force that, by their “character, gravity and scale,” constitute a “manifest” violation of the UN Charter can qualify as such. Thus, an isolated and relatively small-scale drone strike or a minor border skirmish would not possess the gravity and scale required under Article 8 bis (1) of the Rome Statute. Although the ICC has been given “very little guidance as to where to draw the line in the sand,”29 the Court should use the above tools when appropriate. At the same time, it should do so cautiously, without turning the crime of aggression into a dead letter and signing off on a climate of impunity.

The most controversial of the above-mentioned tools concerns the requirement pertaining to the “manifest character” of the breach. This criterion was introduced specifically to exclude prosecutions in respect of military interventions falling in the grey zone of the jus contra bellum, that is, interventions that are not manifestly unlawful but which are nonetheless of ambiguous legality. The archetypical example of such intervention is that of a bona fide unilateral humanitarian intervention (such as NATO’s Kosovo intervention in 1999), where one or more third States intervene militarily to protect foreign nationals from ethnic cleansing or massive human rights violations in a third State, yet absent proper authorization from the UNSC. Even if the majority view—to which the present author subscribes—holds that unilateral humanitarian interventions remain unlawful de lege lata and require the imprimatur of the UNSC, there is a strong, and legitimate, feeling that the authors of such intervention should not be put on par with the Nazi leaders put on trial in Nuremberg, and should not become the subject of criminal prosecution. Apart from the much-debated humanitarian intervention doctrine, several other borderline cases have been put forward. Possible candidates include action in self-defence against an allegedly imminent threat of an armed attack, action in self-defence against a non-State armed group conducting cross-border attacks (without substantial involvement of a third State), or so-called “protection of nationals” operations abroad. Two observations are nonetheless in order.

First, the OTP should be cognizant that any finding that a recourse to force is not of such character as to qualify as a “manifest” violation of the UN Charter will reinforce the perception that interventions of the type concerned are not “unambiguously unlawful.” This will be the case even if the Prosecutor (or the Court) would refrain from taking an express position on the application of the jus contra bellum (and simply find there to is no “manifest” breach of the UN Charter). As Murphy aptly observes:

[A] distinction of this type will likely be lost in the public domain; when the ICC determines that the leaders of an intervention will not be investigated or indicted for aggression, the natural perception is that the ICC believes the intervention to be legal. Arguing that an intervention might still be a violation of Article 2 (4) but just is not within the scope of the ICC’s jurisdiction is the type of position that will likely gain little traction in the realm of political and popular discourse, which tends to approach such issues in more a black/white (legal/illegal) fashion.30

Thus, a decision of this type would probably leave its mark on State practice and opinio juris, possibly leading a growing number of States to (more) explicitly embrace the legality of the category of interventions concerned, e.g. in national military doctrines, and potentially leading to a shift in the justificatory discourse at the international level, from which the legal regime on the use of force derives much (if not most) of its compliance pull. It follows that, in order to avoid undue damage to the primary rules of the jus contra bellum framework, the ICC should exercise the necessary restraint in applying the “manifest character” criterion. In particular, it may be preferable to use other approaches to close an investigation into alleged crimes of aggression, for instance, by holding that a relatively minor intervention is not sufficiently manifest in terms of scale or gravity, rather than by playing the card of the “borderline case.”

Second, in examining alleged crimes of aggression, the ICC should not stop at verifying the existence of an initial casus fœderis or “just cause” (in the olden “just war” terminology), but should also verify whether other jus contra bellum parameters are duly complied with. By way of illustration, in respect of unilateral humanitarian intervention, the ICC should arguably first verify whether the operation constituted a reaction to a grave and large-scale humanitarian crisis (produced either by State action, State neglect or a failed State situation), and whether other options were reasonably exhausted. In this context, relevant indications (rather than autonomous requirements) may include, among other things, the collective nature of an operation carried out by multiple States, or the fact that an attempt was made to secure prior UNSC approval. Yet, beyond this, the Court should also pay heed to the proportionality question. In particular, the Court should verify, having regard to the planning and implementation, that the operation did not manifestly exceed the aim of ending the humanitarian catastrophe that triggered it. Similar considerations apply mutatis mutandis in respect of protection of nationals operations.

In a similar vein, in respect of the generally established exceptions to the prohibition on the use of force, the ICC should not content itself with ascertaining that a military operation constitutes a reaction to a prior “armed attack” (in case of self-defence) or was undertaken pursuant to a formal authorization of the UNSC. Rather, the Court should additionally verify that the State did not deliberately engage in a manifestly disproportionate response in the aftermath of an armed attack, or that it did not manifestly overstep the boundaries of the UNSC mandate. By the same token, with respect to so-called “interventions by invitation,” in addition to verifying the existence of a valid request to intervene, the Court must ascertain that the intervening State did not manifestly exceed the scope of the invitation. Whether the ICC should feel called upon to tackle the permissibility of intervention by invitation in situations of civil war31 is a different matter altogether. One possible answer could be that, in such scenario, what is at stake is not so much a breach of the prohibition on the use of force, but rather a possible breach of the non-intervention principle and especially the right of self-determination, implying that no crime of aggression could be said to arise.

It goes without saying that the activation of the ICC’s jurisdiction over the crime of aggression presents the Court with daunting challenges. It forces the ICC to assume the role of key interpreter in one of the most sensitive domains of international law. Depending on how it implements this role, the ICC may well contribute to a certain erosion of the legal framework governing the use of force, indirectly lending credence to some more “expansionist” claims in legal doctrine. Conversely, if the ICC manages to strike the right balance, it may well contribute to bringing greater legal certainty in the jus contra bellum and provoking a rapprochement between competing interpretations of the outer limits of the legal framework governing the use of force.

Given its unprecedented nature, the prosecutions of individual leaders of “crimes against the peace” proved to be one of the most controversial aspects of the Nuremberg proceedings,32 yet it was undoubtedly also one of its main achievements. The time is ripe for the ICC to pick up the legacy of Nuremberg, reminiscent of its hard-learnt lesson that:

To initiate a war of aggression… is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.33

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Assembly of State Parties, Activation of the Jurisdiction of the Court Over the Crime of Aggression, ICC-ASP/16/Res.5 (Dec. 14, 2017), [hereinafter Activation of Jurisdiction], available online (advance version).

  2. 2.

    Assembly of State Parties, The Crime of Aggression, RC/Res.6 (Jun. 11, 2010), available online.

  3. 3.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Article 15 bis (5), available online.

  4. 4.

    Rome Statute, Article 15 bis (4).

  5. 5.

    Activation of Jurisdiction, supra note 1, ¶ 2.

  6. 6.

    Even if the ICC’s jurisdiction does not operate retroactively, it is worth observing that several of the ratifying States, e.g. Spain, Belgium, or the Netherlands, have previously been involved in controversial military operations abroad, e.g., in Serbia, 1999, or Iraq, 2003.

  7. 7.

    Especially if the number of ratifications of the Kampala amendments were to further augment.

  8. 8.

    Or jus ad bellum.

  9. 9.

    This section draws, in part, on Tom Ruys, Justiciability, Complementarity and Immunity: Reflections on the Crime of Aggression, 13 Utrecht L. Rev. 18 (2017), available online.

  10. 10.

    Harold Hongju Koh & Todd F. Buchwald, The Crime of Agression: The United States Perspective, 109 Am. J. Int’l L. 257, 263 (2015), available online.

  11. 11.

    Nicholas Rostow, The International Criminal Court, Aggression and Other Matters: A Response to Koh and Buchwald, 109 Am. J. Int’l L. Unbound 230, 232 (Mar. 2, 2016), available online.

  12. 12.

    Erin Creegan, Justified Uses of Force and the Crime of Aggression, 10 J. Int’l Crim. Just. 59 (Mar. 1, 2012), paywall.

  13. 13.

    Tom Dannenbaum, Why Have We Criminalized Aggressive War?, 126 Yale L.J., 1242, 1270 (2016), available online.

  14. 14.

    For an excellent work on the origins and impact of the Pact of Paris (officially General Treaty for Renunciation of War as an Instrument of National Policy, 94 League of Nations Treaty Series 57 (Aug. 27, 1928), available online), see Oona A. Hathaway & Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2017).

  15. 15.

    See, in particular, The Corfu Channel Case (United Kingdom v. Albania), Judgment, 1949 I.C.J. Rep. 4 (Apr. 9, 1949), available online; Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. U.S.), Merits, Judgment, 1986 I.C.J. Rep. 14 (Jun. 27, 1986) [hereinafter Nicaragua v. U.S.], available online; Case concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, 2003 I.C.J. Rep. 161 (Nov. 6, 2003), available online; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. Rep. 163 (Jul. 9, 2004), available online; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 2005 I.C.J. Rep. 116 (Dec. 19, 2005), available online.

  16. 16.

    Eritrea-Ethiopia Claims Commission, Partial Award—Jus ad Bellum—Ethiopia’s Claims 1-8, Decision, 26 Rep. Int’l Arbitral Awards 457 (Dec. 19, 2005), available online; Arbitral Tribunal, Award in the Arbitration Regarding the Delimitation of the Maritime Boundary Between Guyana and Suriname, 30 Rep. Int’l Arbitral Awards 1 (Sep. 17, 2007), available online.

  17. 17.

    Yoram Dinstein, War, Aggression and Self-Defence 132 (6th ed. 2017).

  18. 18.

    See Hathaway & Shapiro, supra note 14; also see generally, supra note 15.

  19. 19.

    See e.g., The Situation in Grenada, G.A. Res. 38/7, Nov. 2, 1983, available online (concerning the US intervention in Grenada); see further Dapo Akande, Prosecuting Aggression: The Consent Problem and the Role of the Security Council, Oxford L. Res. Paper S., Paper No. 10/2011, nt. 26 (May 2010), available online.

  20. 20.

    Case of the Monetary Gold Removed from Rome in 1943 (Preliminary Question), Judgment, 1954 I.C.J. Rep. 19, 33 (Jun. 15, 1954), available online.

    (According to the Monetary Gold principle, international courts must abstain from deciding a case where the rights and obligations of the non-consenting third State form “the very subject-matter” of the case).

    Also see e.g., Akande, supra note 19, 17 et seq.

    (On the application of the principle to ICC prosecution of aggressors).

  21. 21.

    See Nicolaos Strapatsas, The Practice of the Security Council Regarding the Concept of Aggression, in The Crime of Aggression: A Commentary 178, 180-182, 201-202 (Claus Kreß & Stefan Barriga eds., 2017).

  22. 22.

    Save for the six month cooling period envisaged under Article 15 bis (7)–(8) of the Rome Statute.

  23. 23.

    As long as actual prosecutions are limited to nationals of states that have ratified the amendments.

  24. 24.

    That is, if both victim and aggressor have ratified the Kampala amendments.

  25. 25.

    This sections draws, inter alia, from Tom Ruys, Criminalizing Aggression: How the Future of the Law on the Use of Force Rests in the Hands of the ICC, EJIL (Forthcoming 2017), available online.

  26. 26.

    Nicaragua v. U.S., supra note 15, ¶ 195.

  27. 27.

    Consider, e.g., an accidental incursion of a state’s territory or airspace by troops or aircraft from a neighboring state.

  28. 28.

    See International Criminal Court, Elements of Crimes, RC/11 as adopted Kampala (Jun. 11, 2010) [hereinafter Elements of Crimes], available online.

    (In particular, see where it is stressed that in the context of the crime of aggression, “there is no requirement to prove that the perpetrator has made a legal evaluation as to the ‘manifest’ nature of the violation of the Charter of the United Nations.” Elements of Crimes 43. Instead the Elements of Crimes require that the perpetrator “was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations.” ).

  29. 29.

    Carrie McDougall, The Crime of Aggression Under the Rome Statute of the International Criminal Court 132 (2013).

  30. 30.

    Sean D. Murphy, Criminalizing Humanitarian Intervention, 41 Case W. Res. J. Int’l L. 341, 369 (2009), available online.

  31. 31.

    See further Erika de Wet, The Modern Practice of Intervention by Invitation in Africa and Its Implications for the Prohibition of the Use of Force, 26 EJIL 979 (Nov. 1, 2015), available online.

  32. 32.

    Controversy at the time focused not so much on the allegedly political nature of the offense, but primarily on the compliance with the non-retroactivity principle in criminal law.

  33. 33.

    The International Military Tribunal for Germany, Judgment, 22 Nuremberg Trial Proceedings 410, 426 (Sep. 30, 1946), available online.

Sewall Avatar Image Sarah Sewall, D. Phil. Speyer Family Foundation Distinguished Scholar Johns Hopkins School of Advanced International Studies

The ICC’s new legal responsibility risks jeopardizing its broader human rights purpose. Given its limited state support, the ICC would relinquish little positive impact and preserve scope for the Responsibility to Protect by relying primarily upon UN Security Council determinations of state aggression.

Definitional uncertainties [of Humanitarian Intervention], coupled with the difficulties of creating a humanitarian carve-out within the crime of aggression, creates significant individual liabilities for state officials contemplating any decision to direct the state to assume risks and costs on behalf of suffering foreign civilians.

Summary

Recent activation of the ICC’s responsibilities for the crime of aggression complicates prospects for the evolution of the emerging norm of the Responsibility to Protect (R2P). Yet R2P’s potential to prevent mass atrocities is a critical complement to the ICC’s post-facto prosecution of such crimes. While the ICC cannot be expected to prioritize support for R2P above its own role, it has a responsibility to ensure that it does not deter action to prevent mass atrocities.

Humanitarian intervention, like aggression, is undertaken by states. There is as yet no humanitarian exception to the UN Charter prohibition on the states’ uses of force that would parallel the Charter’s recognition of a state’s right to self-defense. The norm of humanitarian intervention lacks conceptual clarity, operational maturity and legal codification. Defining humanitarian intervention remains a fundamentally political exercise akin to defining aggression, which has long been the purview of the UN Security Council (UNSC). The ICC’s responsibility for the crime of aggression therefore will concern those states that might consider future humanitarian interventions. Definitional uncertainties, coupled with the difficulties of creating a humanitarian carve-out within the crime of aggression, creates significant individual liabilities for state officials contemplating any decision to direct the state to assume risks and costs on behalf of suffering foreign civilians.

As the Office of the Prosecutor (OTP) develops its approach to prosecuting individuals for the crime of aggression, the office should weigh competing and distinct objectives such as institutional relevance, legal standards, practical impact, and the Court’s broader normative purpose. A frank assessment suggests that the number and types of states currently adopting the Amendments regarding the crime of aggression will produce few opportunities for the OTP to investigate or prosecute crimes of aggression whose character, gravity, and scale could constitute a manifest violation of the UN Charter. Accordingly, the OTP would not compromise its likely contributions, and could avoid unintended broader consequences, by articulating a highly conservative approach to its mandate, one that privileged UNSC action and set Iraq’s 1991 invasion of Kuwait as a standard. Particularly in its first decade, the Court can afford such a posture, which may also increase states’ willingness to ratify the Amendments relating to aggression. Activation of the ICC’s mandate in the political realm of state-conducted aggression should not impede the UN’s imperfect but encouraging progress toward articulating human rights limitations upon the very state sovereignty it has so assiduously privileged.

Argument

With the December 2017 activation of the Amendments on the crime of aggression, the ICC theoretically is poised to realize the boldest ambitions of international law, addressing individual accountability for what the Nuremberg Trials deemed the “supreme” crime of aggression. Yet the Court simultaneously finds itself at risk of undermining its mandate to protect individuals from genocide, war crimes and crimes against humanity.

This comment explores this dilemma. It begins by tracing the gap that has emerged between international law and an evolving international norm regarding the use of force to protect civilians. It reviews the complexities of military operations that aim to protect civilians and the attendant difficulties of clearly distinguishing humanitarian intervention from other uses of force. The comment explains why the activation of ICC jurisdiction over the crime of aggression may deter states from using military forces for civilian protection. The comment then considers how the OTP should weigh competing and distinct objectives such as its institutional relevance, legal standards, and the Court’s broader normative purpose as the Office develops an approach to its new responsibility for prosecuting individuals for the crime of aggression.

For both practical and idealistic reasons, this comment suggests that the OTP adopt a highly conservative approach to the crime of aggression.

The Court’s apparent dilemma emerges from the rise of a global human rights culture—a development which largely tracks the evolution of the United Nations. Since the UN General Assembly’s 1948 Universal Declaration of Human Rights to its 2005 endorsement of the R2P, states have acknowledged and gradually codified the expectation that persons, in addition to states, enjoy inalienable rights. The ICC, charged initially with establishing individual accountability for grave crimes against persons, itself was born of this dynamic.

The protection, and de facto elevation, of human rights creates friction with sovereignty, the basic building block of international politics. R2P lies at the center of this friction. The nascent doctrine of military intervention as an international responsibility when states cannot or will not protect their citizens offers a proactive, pragmatic response to the recurring scourge of state-committed mass atrocities. It is a signal triumph in the evolution of world governance, suggesting that global rules may protect persons as much as states. Yet in its immaturity (and perhaps its audacity), R2P challenges the current legal and political order. The UN Charter does not yet accommodate the emerging norm; there is no “humanitarian intervention” exception for the use of force such as exists for self-defense. Only the UNSC can legally authorize a military operation to protect civilians in another state without its consent. Thus, the Court has been cast into a normative and political conundrum which it is ill-suited to navigate.

At this point in history, the UN General Assembly’s unanimous endorsement of R2P cannot guarantee UNSC support for military operations undertaken for humanitarian reasons. NATO’s 1999 air campaign to protect Kosovars illustrates the gap between norms and law. Security Council members had political allegiances and sensitivities about protecting sovereignty, making it impossible to obtain legal authorization for Operation Allied Force. Supporters of Allied Force were left defending it as “legitimate,” if not legal, and appealing to a higher morality than the UN Charter. Even the UN’s subsequent authorization of follow-on peacekeeping efforts in Kosovo was insufficient to remove from coalition members the political taint of having acted illegally.

Global support for R2P was then gravely wounded by the evolution of the 2011 French, American, and British air campaign in Libya. Critics charged these governments with deception, arguing that bombing portrayed as civilian protection became dedicated to regime change as the campaign progressed. Critics also condemned the civilian casualties resulting from Western bombing. When the mission in due course left Libya effectively ungoverned, unstable, and violent, buyers’ remorse set in. Brazil’s stinging rebuke, which found wide resonance, called for modifying the R2P doctrine to “responsibility while protecting.”

If the UNSC authorization made the operation legal, critics nonetheless deemed it illegitimate either because it was not a true or an effective humanitarian intervention. This raises interesting questions about how to judge an R2P operation. Must state leaders’ intentions be pure, devoid of self-interest or other motivation? If personal or national ego or fealty to an ally reinforced desires to stop Gaddafi’s troops from massacring inhabitants of Benghazi, does that undermine humanitarian purpose? The initiators of the air campaign did not launch the attack for revenge, punishment or conquest. Yet it toppled the government and led to Gaddafi’s death. Was it deceit, ineptitude or unavoidable?

I believe the campaign’s evolution reflected lack of clarity about initial objectives and the operational implications of the civilian protection mission, which was then assigned to military organizations whose standard operating procedures enabled a slippery slide into alignment with an armed party in a civil war. Whether inexcusable or understandable, the Libya intervention revealed ignorance and institutional autopilot, not mendacity or conspiracy. But the ongoing public disputes suggest how malleable and imperfect humanitarian intervention can be.

Three widely cited early examples of humanitarian interventions reinforce this point: Vietnam’s 1979 invasion of Cambodia, Tanzania’s intervention in Uganda in 1978, and India’s 1971 entry into the Pakistani civil war. These were not tailored, defensive operations designed primarily to save lives. Each facilitated a form of regime change. Each is properly understood as an effort to advance the intervening state’s interests as much as advance humanitarian goals. Does that make them crimes of aggression? Should they have not occurred? Would the world nonetheless desperately plead for military intervention to end the next auto-genocide?

The 1994 French intervention in Rwanda offers yet another twist on the theme of complexity in humanitarian action. With UN authorization, France created a “safe zone” after the peak of 1994 genocide. French actions by design largely served to protect not the Tutsi victims, but the very French-supported Hutu who had prosecuted the Rwandan genocide. It was protection, but with a macabre twist. Did the evil that Operation Turquoise shielded from retribution normatively disqualify the French intervention as humanitarian?

The tensions among operational realities, motives and outcomes, and legal status become more complex the closer one looks at humanitarian intervention. Should we prefer an “illegal” humanitarian intervention regarded as nonetheless legitimate, or a legal military operation that masks other objectives or has negative humanitarian effects? How should the ICC consider the legality of humanitarian intervention, knowing that the UNSC cannot be relied upon to authorize the use of force when vulnerable citizens are most in need? Could the OTP countenance prosecution of officials for seeking to fulfill the same mandate that the ICC itself has pursued for fifteen years?

The OTP must consider the impact of its approach to the crime of aggression upon the future prospects for R2P. States do not undertake humanitarian intervention lightly. By definition, the military protection of foreign civilians involves sacrifice that cannot be justified purely on realpolitik grounds. This is why humanitarian intervention is rare, and why it is often carried out by coalitions that spread political, economic and military risks which might overwhelm a single nation. This is also why these operations tend to be economical—and sometimes miserly—in their scope, time, size, and exposure of forces, which in turn shapes their outcomes. Arguably the single biggest impediment to effective humanitarian action, though, is weak “political will” to take any risk at all on behalf of a non-citizen.

This gives rise to concern that the ICC’s new role will narrow the aperture for R2P. Why would political leaders risk possible prosecution to take what they regard as optional and selfless action? This is the reality now facing officials in states that have ratified or acceded to the amendments on the crime of aggression to the Rome Statute of the ICC. At the moment, that group includes few countries that historically have participated in humanitarian operations, but the total number of nations willing to invest their blood and treasure on behalf of humanitarian interests is itself small.

One possible route to protect government leaders from the uncertainties of the ICC’s response to humanitarian action would be state notification of intent to opt out of the ICC’s jurisdiction over the crime of aggression, as the amendments adopted by the parties specifically permit.

Despite uncertainties regarding how this could occur, “opting out” offers a creative solution to the dilemma—and by voting with their feet, states could create a de facto humanitarian exception in the ICC’s mandate. But encouraging the opting out also normalizes an a la carte justice model. This workaround would be unhealthy for the ICC institutionally and for global justice generally.

The ICC’s new role also may affect states that are not party to the Rome Statute and state parties that have not yet adopted Amendments regarding the crime of aggression. This includes a majority of states with a record of participating in humanitarian interventions—both the most militarily powerful and a larger number of states of more modest capability such as members of ECOWAS.

One possible effect is political turbulence created by a court whose very existence now suggests that humanitarian action might be considered a crime. For states that have led humanitarian interventions, the possibility that the ICC theoretically might investigate such an effort weakens government arguments to justify saving foreigners from mass atrocities. Further, the ICC is sure to become a highly visible magnet for politically-motivated requests for action—even where the Court lacks jurisdiction to do so. Already NATO has faced what it considers a spurious investigation by an international tribunal; the International Criminal Tribunal for the Former Yugoslavia’s investigation of potential war crimes during the Kosovo conflict left a toxic legacy long after the Tribunal declined to proceed further.

Because humanitarian action will fail to obtain UNSC authorization when Council members are divided, an absence of legal authorization virtually guarantees high-profile political charges of illegality. Those protests likely will invoke the ICC, regardless of whether the Court has jurisdiction over the state leaders involved. The Court provides a platform for questioning the legitimacy of those seeking to do the right thing. It may also have potential ripple effects if states attempt to mirror the ICC by adopting national legislation or invoke claims of universal jurisdiction to investigate or indict state leaders for humanitarian intervention.

Given the ICC’s status as an international body, any investigation or commentary on a military operation would be seen as highly detrimental to the nations involved—to their global reputations, by association to their friends and allies, and to their domestic constituencies. Even allegations made to the Court may be politically costly. The ICC predictably will be exploited by political enemies to discredit humanitarian intervention they oppose on other grounds. For states considering leading or joining military action to protect civilians abroad, this could be a critical straw tipping the balance against saving foreign lives.

A different unintended consequence for the Court could be sustained reluctance to accept the crime of aggression Amendments on the part of states that might otherwise do so until such time as it is clear that the ICC would not consider humanitarian intervention a crime of aggression.

How might the OTP achieve this goal? Some countries, including the United States, have urged the Court to create a humanitarian intervention carve-out. The OTP might issue a policy paper that articulated its general intention to exempt humanitarian intervention from consideration as a potential crime of aggression. It could take the position that there is sufficient uncertainty about whether military action intended primarily to protect civilians consistent with the doctrine of R2P is “manifestly” unlawful, thereby signaling its intention to preserve space for states to act on humanitarian grounds. This might over time assist with “normalizing” R2P as a matter of international law, assuming that subsequent OTP action regarding investigation or prosecution remained consistent with the policy statement.

Of course, the OTP would face difficulties if it—either privately or in a public policy statement—in doing so. How would the OTP surely distinguish a true humanitarian intervention from an act or crime of aggression? The OTP might parse an act of aggression from a crime of aggression, but this begs the question of the respective elements of each. In a real world of mixed motives and unintended consequences, should one rely upon stated or implied intentions? Operational conduct? Humanitarian effect? At what point in time does one evaluate the action?

Moreover, if the OTP dared make such a distinction, declaring that that intervention in the name of humanitarian protection would not be equated with the crime of aggression, different consequences would follow. States would more boldly mask or rationalize all manner of force abroad as protection missions. Already we have countless historical examples of incursions and occupations conducted in the name of protecting abused minorities in other states. More recent Russian actions in Crimea and Eastern Ukraine can be defended in the same vein. A humanitarian carve-out protecting individuals from prosecution for the crime of aggression might simply make R2P a flag of convenience.

International aggression is action undertaken by states, and the UNSC alone has been responsible for determining whether states have committed aggression under the UN Charter. As many have observed, such determinations are fundamentally political, a reality that underlies many nations’ unease with the ICC’s venture into this territory. If the UNSC’s determination of aggression is fundamentally political, so too is its willingness to authorize (or not) actions taken to fulfill R2P. The UNSC remains the institution positioned to reconcile the normative vision of R2P and the UN Charter. The ICC has been tasked with a taut legalism that threatens its broader purpose.

Even if the risks of deterring humanitarian action should not be the ICC’s primary concern, the risks are real. The OTP’s most direct means of protecting the ICC from this dilemma is to rely primarily upon the UNSC as the threshold for action. Of course, setting the bar so high for taking investigatory or prosecutorial action has its own costs, primarily in disappointing expectations for an independent body that would apply more consistent and objective criteria than the UNSC has been willing to countenance. Still, the practical question must be asked—what would the OTP be giving up if it were to adopt such a posture at least in its initial phase? Or, if preserving scope for R2P suggests that the OTP should follow a conservative posture, might it also serve the Court to do so for very different reasons?

The ICC faces formidable barriers to action against individuals for the crime of aggression in all but a small minority of cases. It can act only in cases where both the victim and aggressor have ratified the relevant amendments. Most of the militarily powerful and active states appear unlikely in the short term to accept the vulnerabilities of external jurisdiction over matters of politics and international security that have belonged to the UNSC. These “outsider” states beyond the OTP’s reach include the P5 members and many that historically have been engaged in territorial disputes. Certainly the amendment-ratifying states’ governments will change over time, and leaders and circumstances can surprise. Thus some of the small number of states currently within reach of the Court might become subjects of OTP concern. The current list of signatories, though, suggests that the OTP is unlikely to face near term choices regarding the crime of aggression.

Furthermore, as much as the Court will want to demonstrate its relevance, it must not trivialize itself. With a mandate to examine action in cases whose character, gravity, and scale could constitute a manifest violation of the UN Charter, Iraq’s 1991 invasion and occupation of Kuwait provides a useful standard. The ICC cannot afford to pursue the small-bore cases of occasional shooting or skirmish across national lines. To do so would evince an overweening ambition that would validate skeptic’s fears and undermine the Court. Given the number and the character of states accepting the ICC’s new role thus far, the OTP has little hope of fulfilling high expectations of independent action outside of UNSC action.

Why not turn this into a virtue by adopting a conservative approach, linking ICC investigations and prosecutions to the UNSC determinations? The Court may find further advantage in this approach. The “outsider” states remain an important audience for the OTP if the Court aims to become a truly universal instrument. Their questions and concerns regarding definitions, subjects, and scope for action will take time to address in practice, if the Court can do so at all. While a conservative approach theoretically relinquishes scope for independent action by the OTP, it offers hope of becoming a more universal Court. And, in turn, it would preserve room for military actions protecting individuals from mass atrocities.

The ICC was created to prosecute crimes of genocide, war crimes, and crimes against humanity. Humanitarian intervention seeks to prevent these acts from occurring. The ICC must not, in the name of prosecuting the crime of aggression, dissuade states from acting to protect individuals from mass atrocity crimes.