Background Materials — Aggression

  • Relevant Treaties (in reverse chronological order)

  • Governments and Intergovernmental Organizations (alphabetical by organization, then reverse chronological order)

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

    • 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 (Nov. 27, 2017). Available online.

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

    • Assembly of State Parties, Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May–11 June 2010 Official Records, (Jun. 11, 2010) . Available online (part 1), (part 2).

    • International Criminal Court, Elements of Crimes, RC/11 as adopted Kampala (Jun. 11, 2010). Available online.

    • Review Conference of the Rome Statute, Kampala (Uganda) 31 May–11 June 2010, ICC. Available online (last visited Jan. 24, 2018).

      A collection of documents and records relating to the adoption of the crime of aggression amendments at Kampala in 2010.

    • Matthew C. Weed, International Criminal Court and the Rome Statute: 2010 Review Conference, Cong. Research Serv. (Mar. 10, 2011). Available online.

  • Non-Governmental Organizations (NGOs) (alphabetical by organization, then reverse chronological order)

  • Articles (alphabetical by author, then reverse chronological order)

    • Dapo Akande, The ICC Assembly of States Parties Prepares to Activate the ICC’s Jurisdiction over the Crime of Aggression: But Who Will be Covered by that Jurisdiction? EJIL Talk, Jun. 26, 2017. Available online (last visited Jan. 24, 2018).

      Akande argues that the ICC would not have jurisdiction in crime of aggression cases raised propio motu or by a state referral against States Parties who do not ratify the Kampala amendments, even if they do not specifically opt out of those provisions. He acknowledges that other scholars take a contrary view.

    • Dapo Akande & Antonios Tzanakopoulos, The Crime of Aggression in the ICC and State Responsibility, 58 Harv. Int’l L.J. Online 33 (2017). Available online.

      Akande and Tzanakopoulos argue that jurisprudence developed by the International Court of Justice on use of force questions is relevant in interpreting crime of aggression cases.

    • Buhm-Suk Baek, The Definition and Jurisdiction of the Crime of Aggression and the International Criminal Court, Cornell L. Sch. Grad. Student Papers, Paper 19 (Dec. 14, 2006). Available online.

      Article provides a historical background of the crime of aggression, and argues for specific definitions based on history.

    • Pavel Caban, The Definition of the Crime of Aggression—Entry into Force and the Exercise of the Court’s Jurisdiction over this Crime, 6 CYIL 61 (Oct. 10, 2015). Available online.

      From the abstract: “This article describes the specific process of the entry into force of the Kampala amendments on the crime of aggression and the activation of the Court’s jurisdiction, as well as a very complex scope of the Court’s jurisdiction over this crime. Differences between the exercise of the Court’s jurisdiction over the crime of aggression in case of State referrals and proprio motu investigations on the one hand, and, on the other hand, the exercise of jurisdiction in case of the United Nations Security Council referrals are mentioned. The main part of the article is focused on the differences concerning the interpretation and application of Article 121(5) of the Rome Statute, namely the differences between the “positive” and “negative” understanding of the second sentence of Article 121(5) and its relationship to Article 15 bis adopted at the Review Conference. In this connection, the article also touches upon the conformity of the amendments on the crime of aggression with the law of treaties. The article concludes by questioning the coherence of the opt-out system contained in Article 15 bis with the general jurisdictional scheme of the Rome Statute and by supporting the “negative” understanding of Article 121(5), second sentence, as a legally well-founded and more persuasive approach.”

    • Roger S. Clark, Negotiating Provisions Defining the Crime of Aggression, its Elements and the Conditions for ICC Exercise of Jurisdiction Over It, 20 EJIL 1103 (Nov. 1, 2009). Available online.

      From the abstract: “In February 2009, the International Criminal Court’s Special Working Group on the Crime of Aggression concluded its efforts to draft the ‘provision’ called for in Article 5(2) of the Rome Statute ‘defining the crime [of aggression] and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime’. It produced two draft Articles: Article 8 bis, the ‘definition’, and Article 15 bis, the ‘conditions’. There was substantial agreement on the definition (and on ‘Elements’ of the crime produced in June 2009); there was much disagreement concerning the conditions. The author examines the most significant drafting issues.”

    • Leslie Esbrook, Exempting Humanitarian Intervention from the ICC’s Definition of the Crime of Aggression: Ten Procedural Options for 2017, 55 Va. J. Int’l L. 791 (2014). Paywall.

      Esbrook argues that the current definition of the crime of aggression is untenable and suggests nations consider strategies for limiting it.

    • 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.

      Ferencz examines current U.S. policy on the crime of aggression, highlighting the historic role that the U.S. played in establishing aggression as an international crime after World War II, and concludes that activation of ICC jurisdiction over the crime of aggression would be a significant step forward in the development of international law.

    • Matthew Gillett, The Anatomy of an International Crime: Aggression at the International Criminal Court, 13 Int’l Crim. L. Rev. 1 (2012). Available online.

      Written by a member of the prosecutor’s office of the ICTY, this article highlights issues that the author believes are unresolved in the Kampala amendment to the Rome Statute. He systematically addresses the elements of the crime in order to contribute to the application of the crime of aggression, and to highlight areas requiring further judicial or legislative action.

    • MacKennan Graziano & Lan Mei, The Crime of Aggression under the Rome Statute and Implications for Corporate Accountability, 58 Harv. Int’l L.J. Online 55 (2017). Available online.

      The authors argue that the crime of aggression amendments will make it more difficult to prosecute corporate actors for their roles in atrocity claims.

    • Nu Ri Jung, A Study on the Efficacy of the Kampala Amendments for Suppression of Aggression: Examined by the Case of Armed Conflicts in the Korean Peninsula, 10 Loy. U. Chi. Int’l L. Rev. 157 (2013). Available online.

      A theoretical analysis of how the Kampala Amendments would apply to the North Korea/South Korea conflict. Jung presents the argument that the jurisdictional limits on Non-Party States effectively limits the applicability of the increased jurisdiction to already non-warmongering nations.

    • Nidal Nabil Jurdi, The Domestic Prosecution of the Crime of Aggression after the International Criminal Court Review Conference: Possibility and Alternatives, 14 Melb. J. Int’l L. 1 (2013). Available online.

      Jurdi examines the complementarity regime following the Kampala Conference. It remains uncertain how the complementarity mechanism will interact with the crime of aggression since domestic courts traditionally have avoided prosecuting acts by other States. Following Kampala, the crime of aggression will be prosecuted by a separate jurisdictional structure, different from the one currently governing the Article 17 mechanism. As a consequence, State Parties will need to deal with unnecessary complexities when prosecuting individuals for aggression and other core crimes. Jurdi provides suggested solutions to overcome the now complex jurisdictional regime. The relative success of Kampala was hampered by political concessions, which the author hopes will not affect future negotiations and clarifications regarding the interplay between the crime of aggression and domestic prosecutions under complementarity.

    • Jocelyn Getgen Kestenbaum, Closing Impunity Gaps for the Crimes of Aggression, 17 Chi. J. Int’l L. 51 (Jul. 1, 2016). Available online.

      Kestenbaum examines if the ICC is truly the best avenue for prosecuting leaders who have committed crimes of aggression. She argues that crimes of aggression must first be criminalized at the domestic level in order to truly hold state leaders accountable. She then examines three types of extraterritorial jurisdiction which could lead to these state leaders being held accountable.

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

      Koh and Buchwald are two lawyers who represented the U.S. at the 2010 Review Conference in Kampala. They detail the U.S. perspective on background leading up to Kampala Conference, the particular amendments, and where the U.S. might or should be headed.

    • Surendran Koran, The International Criminal Court and Crimes of Aggression: Beyond the Kampala Convention, 34 Hous. J. Int’l L. 231 (2012). Available online.

      Surendran Koran discusses the definition of crimes of aggression as introduced in the Kampala Amendments. He argues that this definition is too ambiguous and fails to address some non-traditional crimes of aggression, such as cyber aggression, as well as aggression by non-state actors. He finally introduces a new definition which he believes clears up some of the ambiguity present in the current definition.

    • Marko Milanovic, Aggression and Legality: Custom in Kampala, 10 J. Int’l Crim. Just. 165 (2012). Available online.

      Milanovic examines the theoretical implications of the Kampala Conference on the principle of legality. One challenge arising from the Kampala amendments concerns the grounds a defendant can use to challenge a crime of aggression charge. The author explores whether the Rome Statute is substantial in character or is only jurisdictional in nature. Under the former theory, the Rome Statute creates the prohibitions listed—preventing defendants from challenging charges based on incompatibility with international customary law (unless, of course, in relation to statutory interpretations). Under the latter theory, the Court is merely given jurisdiction over pre-existing crimes, enabling any defendant to bring legality challenges to aggression charges. Milanovic does not provide definitive answers to these theoretical issues, but instead seeks to point out the implications of the Kampala agreement.

    • Kevin L. Miller, The Kampala Compromise and Cyberattacks: Can There be an International Crime of Cyber-Aggression?, 23 S. Cal. Interdisc. L.J. 217 (Feb. 2014). Available online, archived.

      Miller discusses the definition of the crime of aggression agreed upon at the Kampala Review Conference in 2010 and considers whether the definition can be applied to cyberattacks in order to decelerate an aggressive cyberspace. He argues that although the definitions can be interpreted to incorporate cyberaggression, it is unlikely that the crime of aggression will be applied in the context of cyberaggression for the time being.

    • Sanji Mmasenono Monageng, The Crime of Aggression: Following the Needs of a Changing World? 58 Harv. Int’l L.J. Online 79 (2017). Available online.

      Monageng, a sitting appellate judge of the ICC, posits that the definition of armed conflict within the Kampala commitment is already outdated and does not fully fit the changing nature of armed conflict in the world today—specifically aggression by non-state actors.

    • Andreas Paulus, Second Thoughts on the Crime of Aggression, 20 EJIL 1117 (2009). Available online, archived.

      Paulus argues against the codification of the crime of aggression through four main points: “the inherent indeterminacy of the definition of aggression, its uncertain application to recent cases concerning the use of force, the involvement of the Security Council in the exercise of jurisdiction, and, finally, the danger of concentrating issues of jus in bello and jus contra bellum is one single court or tribunal.” Paulus further argues that, because the ICC is still working to establish itself, now is not the time to codify the crime of aggression.

    • 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.

      Tom Ruys considers the impact that ICC prosecution will have on the interpretation of legal uses of force. Presently, it is not clear whether potential prosecution of alleged crimes of aggression will deter future military intervention. The ICC will presumably avoid indictments in the context of legitimate humanitarian intervention. As a result, this would not have the effect of discouraging any future legitimate military action for humanitarian reasons. Ruys argues that humanitarian interventions would not possess the “gravity, scale, and character” requirements to constitute a UN Charter breach anyway. The author contends that the charges of the crime of aggression being solely a political crime are inaccurate. Prosecutions will instead serve to clarify the murky waters surrounding legal uses of force, as opposed to delegitimating the Court as a political organ.

    • Tom Ruys, Justiciability, Complementarity and Immunity: Reflections on the Crime of Aggression, 13 Utrecht L. Rev. 18 (2017). Available online.

    • Michael P. Scharf, Universal Jurisdiction and the Crime of Aggression, 53 Harv. Int’l L.J. 357 (2012). Available online.

      Scharf argues that current precedent in international law under Nuremberg creates universal jurisdiction for the crime of aggression. He explores the fears some countries, such as the U.S., have with universal jurisdiction for this set of crimes and also lays out some suggested means of addressing those concerns.

    • Michael P. Scharf, Dialog on the Crime of Aggression Transcripts of Panels from Prosecutors Sessions, 43 Stud. Transnat’l L. Pol’y 237 (2011). Paywall.

      This article is a transcript of a talk given at Case Western Reserve Law School featuring Bill Caming an original Nuremberg prosecutor, Ben Ferencz another Nuremberg prosecutor and a well-known advocate for adding the crime of aggression to the Rome Statute, William Pace of the International Coalition for the ICC, and John Washburn of the American Non-Governmental Organizations Coalition for the ICC. It provides an easily-digestible overview of how the crime of aggression was included in the Rome Statute and how it was later discussed in Kampala.

    • Oscar Solera, The Definition of the Crime of Aggression: Lessons Not-Learned, 42 Case W. Res. J. Int’l L. 801 (2010). Available online.

      Solera argues that the current debate at the ICC on the definition of the crime of aggression fails to adjust for the lessons of history. Specifically, he argues that the current discussion focuses on ideas and definitions, such as the 1974 definition of aggression, that have been shown to be unworkable through time. Drawing on these lessons, Solera proposes alternative definitions of the crime of aggression in intent and subjective elements.

    • 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.

      Stein argues that the UN Charter permits ICC prosecutions for the crime of aggression where the Security Council has not previously determined the existence of an act of aggression. In addition, he argues that schemes in which a Security Council determination of aggression is not a precondition are more consistent with the Charter than schemes in which a Security Council determination is required.

    • 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 (2015). Paywall.

    • Julie Veroff, Reconciling the Crime of Aggression and Complementarity: Unaddressed Tensions and a Way Forward, 125 Yale L.J. 730 (2016). Available online, archived.

      Veroff argues that the crime of aggression fits poorly within the ICC’s complementarity regime, where the ICC must give preference to domestic prosecutions and act only as a court of last resort. She argues there is tension caused by domestic prosecutions of the crime of aggression on the one hand, and bringing aggression prosecutions only at the ICC on the other. She argues policymakers must address how prosecutions for the crime of aggression fit within the complementarity regime, and suggests four possible interventions for dealing with the complementarity question.

    • Noah Weisbord, Judging Aggression, 50 Colum. J. Transnat’l L. 82 (2011). Available online.

      Weisbord considers a wide array of possible problems with the current defintion of the crime of aggression. He especially considers the interplay of the justice goals of the ICC with the general aim of achieving peace.

    • Noah Weisbord, Conceptualizing Aggression, 20 Duke J. Comp. & Int’l L. 1 (2009). Available online.

      Weisbord provides in-depth analysis of the proposed provisions of the ICC definition of the crime of aggression. He also offers some suggestions for how to strengthen and modernize the language to include things like cyber-attacks.

    • Jack Williams, Biting Off More Than It Can Chew? The International Criminal Court and the Crime of Aggression, 30 Austl. Year Book Int’l L. 201 (Jan. 2012). Available online.

      Williams begins by discussing the history behind the introduction of the Crime of Aggression in the Rome Statute and the Kampala Amendments. Williams then spends a majority of the paper arguing that the ICC is not a sufficiently established body to deal with the highly politicized crime of aggression. Williams concludes that taking it on is going to overburden the court.

    • Tal Ziskovich, The Crime of Aggression: Should Aggression be Prosecuted as a Crime in the ICC? 224 Mil. L. Rev. 373 (2016). Paywall.

      Written by an Israel Defense Forces prosecutor, Ziskovich presents an argument against the crime of aggression being a viable crime as prosecuted by the ICC. He argues for a strictly narrow interpretation that does not impede other sovereign rights. A good overview—albeit a skewed one—of the various rights and defenses in consideration.

  • Books (alphabetical by author)

    • Gerhard Kemp, Individual Criminal Liability for the International Crime of Aggression (2d ed. 2016).

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