The Crime of Aggression at the ICC Review Conference

As many readers may know, over the past few weeks governments (including Ireland’s), academics (including two from Ireland: Prof. William Schabas (NUI Galway) and Dr Yassin M’Boge (UCD)) and NGOs have been gathered in Kampala, Uganda for the Review Conference of the International Criminal Court. The ICC—established by means of the Rome Statute of 1998—has had a number of issues hanging over it since its establishment. In particular, the crime of aggression—included in the Rome Statute—had neither been defined nor made operational. Making progress on the crime of aggression was certainly one of the main priorities of the Review Conference and yesterday it was announced that a compromise position had been reached.

This compromise position involves including Article 8 bis in the Rome Statute by means of defining the crime of aggression. This is essentially the draft definition proposed by the Special Working Group on the Crime of Aggression is adopted, together with two understandings (understandings 6 and 7) and Elements of Crimes. The definition of the crime of aggression to be included in the Statute is thus:

Article 8 bis

Crime of aggression

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. 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:

a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

c) The blockade of the ports or coasts of a State by the armed forces of another State;

d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

f) The 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;

g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

Not a simple definition by any means… It seems clear that it will be necessary for an act to fulfil both Article 8(1) and 8(2) in order to be found to have perpetrated a crime of aggression. It also seems clear that, pursuant to Article 8(1), the crime of aggression is conceptualised as a state crime (i.e. not a crime that can be carried out by a non-state actor such as a terrorist group). Whether something is of a “character, gravity and scale” to “constitute[] a manifest violation of the Charter of the United Nations” appears to me to be something that will cause much spilling of ink and gnashing of teeth as the operation of the crime plays itself out over the coming years. In fact, looking at this definition in its totality it is very difficult to disagree with our colleague William Schabas’ conclusion that “Legal academics like myself will be eternally grateful to the Review Conference for providing us with such complicated and at times incoherent provisions. They will provide us with fodder for journal articles, books and conferences for many years to come”.

The crime of aggression will not enter into force until at least January 1, 2017 and there are some interesting jurisdictional issues that arise. First of all it appears that thirty member states must ratify Article 8 bis before jurisdiction can be exercised even after 2017. In addition—even after thirty states have ratified—there will have to be a decision to exercise jurisdiction supported by two-thirds majority of states parties. The Security Council will be able to refer a crime of aggression to the Prosecutor even in relation to a state that is not a state party.

Making some progress on the crime of aggression is a success of kinds for the Review Conference, however the progress made appears to be incredibly complex and whether the crime of aggression will really play any role in the operation of the Court remains to be seen. One can imagine that Security Council politics are likely to play a not insignificant role in the future unfolding of the crime. However, from a human rights perspective any kind of regulation of aggression is, of course, very welcome if it is effective. There is, of course, very little that puts individual rights of every kind (civil, political, social, economic and cultural) at catastrophic risk in the way that violent conflict does. Augmenting the civilian protections of international humanitarian law and international human rights law with a solid international criminal law basis may—if that ICL basis is actually operationalised—help to move us towards security not just for the state but also for people.

UPDATE: Kevin Jon Heller assesses the changes well at Opinio Juris including providing a very useful chart on jurisdiction and on the EJIL: Talk! blog Joanne Harrington has a more optimistic outlook

The Crime of Aggression at the ICC Review Conference

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