While arguably being the main authoritative body in making declarations of aggression, the Council did not, at the founding of the UN, have any guidelines on what amounted to aggression. Widely-accepted definitions had, in the past, proven elusive.6 However, in 1974, the UN General Assembly passed Resolution 3314,7 which marked the first time that a definition of aggressive action had been widely agreed upon.8 The Resolution was adopted as a non-binding recommendation to the Council in the hope of assisting future declarations of aggression.9 Article 1 provided that aggression constituted:

[T]he use of armed force by a State against the sovereignty, territorial integrity or political independence of another State.10

In deciding whether an act of aggression had, in fact, occurred, the Council would consider the totality of the circumstances.11 This provided the Council room to decide whether such a determination would be justified in light of all of the available facts.12 However, Article 5 does explicitly state that there would be no justification for aggression.13

Resolution 3314 Article 5 presents two different questions that can be addressed in light of the Kampala Amendments. First, what action will amount to aggression, and second, whether the Court will recognize any justifications for aggression. This comment is only concerned with the former issue.

First presented in Resolution 3314, the current definition for an act of aggression has centered the discussion of when state action amounts to aggression within the political realm. The Security Council, as the primary body for maintaining peace, has unparalleled authority in deciding what does (and does not) constitute aggressive state behavior.

II. The Rome Statute and Subsequent Kampala Amendments

With the adoption of the Rome Statute, the ICC was given subject-matter jurisdiction over the crime of aggression.14 However, the Court was unable to exercise such jurisdiction until the Assembly of State Parties defined the crime and set provisions for when the Court could exercise its jurisdiction in relation to aggression.15 This definition, accompanied by an elaboration of the trigger mechanisms, was set forth in the 2010 Kampala Amendments.16

The Kampala Amendments first differentiates between an act of aggression and the crime of aggression. Art. 8 bis (2) of the Rome Statute adopts the definition for an act of aggression first put forth by Resolution 3314.17 The crime of aggression is defined as follows:

[T]he 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.18

Article 15 bis elaborates upon the conditions which enable the Prosecutor to commence investigations using their proprio motu power or a State Party referral.19 The Prosecutor, upon determining that a reasonable basis exists for an investigation, will consider whether the Security Council has previously made a determination of aggression for the relevant incident.20 If not, then the Prosecutor is directed to delay proceedings by six months.21 If a determination has been made by the UNSC, then the Prosecutor may proceed with an investigation as planned.22 Article 15 bis is more stringently limited than Article 15 ter, which regulates the initiation of an investigation following a UNSC referral.23 The Prosecutor is neither directed to consider previous determinations of aggression or delay proceedings by a six-month interval. While the OTP is able to utilize their proprio motu power to commence proceedings for an alleged crime of aggression, they should decline to do so in practice, instead deferring to Parties better placed to make determinations of aggressive action.

A. How the Kampala Amendments Should be Applied in Practice

Before the Kampala Conference, questions arose over whether or not jurisdictional triggering mechanisms would limit the scope of the Prosecutor in pursuing crime of aggression cases.24 The ICC has previously exercised jurisdiction over atrocity crimes. These crimes (i.e. crimes against humanity, war crimes, and genocide) primarily target human beings.25 However, the crime of aggression is largely victimless.26 Aggressive actions are primarily directed against states by other states. More specifically, the crime of aggression is one in which state leaders direct attacks against the abstract interests (i.e. sovereignty) of another state.27

To commit an act of aggression is to make a political decision. As a result, some scholars have argued that the crime of aggression is a political crime outside the purview of judicial institutions.28 However, the crime of aggression has been litigated in the past,29 so this Comment will not explore whether the crime should continue to be the subject of prosecution. Regardless, it is important context for this discussion that the Security Council traditionally has been the primary body in making declarations of aggression.

1. UNSC Referrals

The Kampala Amendments are unlikely to have a noticeable effect upon the Security Council, who will continue to make declarations of aggression as deemed necessary. Declarations of aggression have admittedly been rare and will likely continue to be so.30 The crime of aggression has previously been referred to as the “supreme international crime”31 whereas acts of aggression have been almost unilaterally discouraged in the international community. Thus, it is reasonable that such declarations of aggression are few and far between.

The Security Council will continue to be the best judge on what action constitutes aggression. The decision and defenses to the possible use of force will be politically motivated. Rulings on aggression should consequently stem from a political body that can consider the political underpinnings behind the decision to use force. The Security Council is one such body that will take politics into account when making declarations of aggression, better placing the Council to make such rulings over a politically-neutral body, like the Court.

Therefore, the Prosecutor should primarily derive their basis for investigation upon Security Council referrals. When considering whether to open an investigation into potential aggressive incidents, the Prosecutor normally must consider whether the UNSC has made a declaration of aggression.32 This Comment strongly recommends that the Prosecutor rely on such declarations before proceeding with any investigation.

When considering case selection, the OTP has placed great weight on the gravity requirement in other criminal charges.33 However, this factor will not amount to a restrictive legal bar,34 keeping in mind the purpose of the Rome Statute being to end impunity for the core international crimes.35 In determining whether or not the gravity requirement has been met, the Prosecutor will take account of facts, such as the “scale, nature, and manner of commission.”36 Manner of commission has been defined to include whether or not there was a systematic plan or policy that resulted from an “abuse of power or official capacity.”37 Interestingly, this would likely always be met when looking at potential incidents of aggression.

However, the gravity requirement, if read to a high enough standard, would be a convenient doctrinal hook for the Prosecutor to disclaim their ability to investigate without a Security Council referral. A simple test, such as whether the UNSC has referred the issue or in limited instances of state referrals, may be the best way to legitimize the Prosecutor’s charging of the crime of aggression.

i. Arguments for Reliance on UNSC Referrals

The Kampala Amendments require the Prosecutor to determine whether the military action in question comprises a “manifest violation” of the UN Charter.38 This will require a totality of the circumstances consideration that is best based on prior determinations of the Security Council. Resolution 3314 enables the UNSC to utilize the same totality test when making their own declarations of aggression.39 Therefore, it is reasonable to assume that such declarations from the Prosecutor and the Security Council will come in tandem on most occasions.

There will undoubtedly be occasions when a state’s actions amount to force such that prosecution for aggression could commence but such force is deemed legitimate by the international community or the Security Council itself.40 This will not include self-defense, which has been recognized as a right in the UN Charter and, therefore, is likely to be imparted into the Court’s definition of aggression.41 Regardless, some scholars have argued that what actually matters is the purpose of the force, as opposed to the force itself.42 For instance, the UN Security Council is unlikely to make a declaration of aggression in the event of genuine humanitarian intervention.43 Pre-emptive strikes, while controversial, may also be legitimate if attack by a potential aggressor nation is clear and unequivocal.44

Nevertheless, the international community has changed their perception on what may be considered a legitimate use of force over time.45 If some force (outside of self-defense) can be deemed justifiable in the circumstances, then it must also be accepted that the current definitions for aggression and crime of aggression will not be the best guideline for the Prosecutor when deciding whether or not a reasonable basis exists for the initiation of proceedings.46

Consider, for example, Article 8 bis that prohibits the blockade of ports and coasts by the armed forces of another state.47 The Cuban Missile Crisis of 1962, in which the United States blockaded Cuban ports to prevent delivery of further missiles, could have made President Kennedy criminally liable under the Rome Statute (given, of course, that the Rome Statute was in force and the United States was a State Party).48 However, preventing the catastrophe of further Cold War escalation was clearly a legitimate excuse for the use of aggression.49 While the UN Security Council would not hold such action as a declaration of aggression, the ICC could easily have prosecuted by their crime of aggression definition.

Taking into account that legitimate uses of force have changed over time, it stands to reason that the ICC will likely influence what is (and is not) considered a legitimate use of force, although there is no certainty such changes would be accepted by the Security Council.50 This may lead to tension between the Council and the Court over what amounts to actual aggression. If the Court were to decide humanitarian intervention did not amount to a “manifest violation” of the UN Charter, that would give legal significance to the principle and further legitimize it within the international community.51 This will place the Prosecutor in a difficult position of formalizing possible defenses to aggression that may not have been fully accepted by the Security Council, and will cause the Prosecutor to step further into a political limelight which she has sought to avoid.52

Lastly, Article 15 ter of the Rome Statute amends individual criminal responsibility in relation to the crime of aggression. In order to be found criminally liable, a person must hold a position that controls either the “political or military action” of a State Party.53 By its very definition, the crime of aggression will implicate the leadership of the aggressor state.54 This also complicates the Prosecutor’s decision in deciding the proper scope of liable parties. Additionally, the Court has previously encountered difficulty in enforcing arrest warrants against State Party leadership. This would certainly arise in regards to aggression charges. However, the problem could be mitigated through an initiation of investigation via Security Council referral. A declaration of aggression by the UNSC would legitimatize aggression charges. While neither institution has security forces, the Security Council could utilize their Chapter VII powers to induce states to fulfill arrest warrants (e.g. through placement of embargos and sanctions against non-compliant aggressor states).

2. State Party Referrals

While Security Council referrals should be the primary basis for the initiation of aggression proceedings, State Party referrals may also be relied upon to a limited extent. The Council has not adopted a Resolution declaring an act of aggression in over a decade.55 In fact, only in the rarest of circumstance would Russia, China, and the United States (which only constitute one-fifth of the Council) agree on making such a declaration. If the Prosecutor limits themselves to UNSC referrals as their basis for investigation, it is possible that the Court will not prosecute aggression for the foreseeable future. Therefore, State Party referrals must also be considered as a basis for investigation initiation. However, this should only occur in certain situations.

In the event that a declaration has been considered by the Court, but such a measure has been defeated through veto, then the Court should consider a State Party referral for that particular incident if one is made. With that being said, the Prosecutor must take into consideration current international sentiment regarding the alleged aggression. For example, if there is genuine international sentiment that an act of aggression has occurred, then the Court should feel more comfortable about reliance on the State Party referral.

Arguably, the Security Council may be deemed as reflecting international sentiment at any given time. However, the Prosecutor may take advantage of a broader set of perspectives—such as reports and commentary provided by non-governmental organizations, State Parties to the Rome Statute, and any evidence within the OTP’s possession. Therefore, the Prosecutor need not take the failure of the Security Council in making a declaration of aggression as necessarily reflective of current international sentiment.

Reliance on State Party referrals should only occur absent UNSC referral and as a result of genuine overwhelming international sentiment (which the Prosecutor may determine through a variety of resources).

III. Conclusion

Following the Kampala Amendments, the International Criminal Court has the opportunity to further its mandate for ending impunity of the most serious international crimes.56 With the introduction into its exercisable subject-matter jurisdiction, the crime of aggression will present fresh challenges for the Court to overcome. The Office of the Prosecutor must adopt strategies to effectively navigate the somewhat political minefield of the crime of aggression. Aggression is inherently political and recognizing actions as such may be best left to political institutions. Therefore, as the Prosecutor looks to incorporating potential aggression incidents into future investigations, she should rely primarily on Security Council referrals. The UNSC has been the primary body in making declarations of aggression since the adoption of the UN Charter and will continue to be the main authoritative body on aggression for the foreseeable future. Absent declarations by the Council, the Prosecutor may also rely on State Party referrals to a limited extent. This two-part prosecutorial approach will enable the Court to actually prosecute aggression without risking criticism that the Court has become unnecessarily—and inappropriately—political.

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

1. 1.

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

2. 2.

   Id. at 830. ↩

3. 3.

   Charter of the United Nations [hereinafter UN Charter], Art. 39 (emphasis added), available online. ↩

4. 4.

   Id. at Art. 41. ↩

5. 5.

   Id. at Art. 48. ↩

6. 6.

   Gillett, supra note 1, at 833. ↩

7. 7.

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

8. 8.

   Gillett, supra note 1, at 832. ↩

9. 9.

   G.A. Res. 3314, supra note 7. ↩

10. 10.

    Id. at Art. 1. ↩

11. 11.

    Id. at Art. 2. ↩

12. 12.

    Id. ↩

13. 13.

    Id. at Art. 5. ↩

14. 14.

    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], Art. 5(1)(d), available online. ↩

15. 15.

    Id. at Art. 5(2). ↩

16. 16.

    Gillett, supra note 1, at 829. ↩

17. 17.

    Rome Statute, supra note 14, Art. 8 bis. ↩

18. 18.

    Id. ↩

19. 19.

    Id. at Art. 15 bis. ↩

20. 20.

    Id. ↩

21. 21.

    Id. ↩

22. 22.

    Id. ↩

23. 23.

    Id. at Art. 15 ter. ↩

24. 24.

    Erin Creegan, Justified Uses of Force and the Crime of Aggression, 10 J. Int’l Crim. Just. 59, 60 (Mar. 1, 2012), paywall. ↩

25. 25.

    Id. at 68. ↩

26. 26.

    Id. at 63. ↩

27. 27.

    Id. at 62. ↩

28. 28.

    Id. at 62. ↩

29. 29.

    Tom Ruys, Justiciability, Complementarity and Immunity: Reflections on the Crime of Aggression, 13 Utrecht L. Rev. 18, 21 (2017), available online. ↩

30. 30.

    Id. at 22. ↩

31. 31.

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

32. 32.

    Rome Statute, supra note 14, at Art. 15 bis. ↩

33. 33.

    Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritisation 4 (Sep. 15, 2016), [hereinafter OTP Policy Paper] available online, archived. ↩

34. 34.

    Id. at 12. ↩

35. 35.

    Rome Statute, supra note 14, at Preamble. ↩

36. 36.

    OTP Policy Paper, supra note 33, at 12. ↩

37. 37.

    Id. at 13. ↩

38. 38.

    Rome Statute, supra note 14, Art. 8 bis. ↩

39. 39.

    G.A. Res. 3314, supra note 7, Art. 2. ↩

40. 40.

    Creegan, supra note 24, at 65. ↩

41. 41.

    UN Charter, supra note 3, Art. 51. ↩

42. 42.

    Creegan, supra note 24, at 65. ↩

43. 43.

    Id. at 70. ↩

44. 44.

    Id. at 72. ↩

45. 45.

    Id. at 65. ↩

46. 46.

    Id. at 81. ↩

47. 47.

    Rome Statute, supra note 14, Art. 8 bis. ↩

48. 48.

    Creegan, supra note 24, at 76. ↩

49. 49.

    Id. ↩

50. 50.

    Tom Ruys, Criminalizing Aggression: How the Future of the Law on the Use of Force Rests in the Hands of the ICC, EJIL 12 (Forthcoming 2017), available online. ↩

51. 51.

    Id. at 16. ↩

52. 52.

    Id. ↩

53. 53.

    Rome Statute, supra note 14, Art. 8 ter. ↩

54. 54.

    Creegan, supra note 24, at 62. ↩

55. 55.

    Ruys, supra note 29, at 22. ↩

56. 56.

    Rome Statute, supra note 14, at Preamble. ↩