The International Criminal Court: The Crime of Aggression

As previously mentioned, the Rome Statute granted the ICC jurisdiction over the crime of genocide, crimes against humanity and war crimes.[1]

In addition, the Rome Statute also assigned “the crime of aggression” to the ICC. But the diplomats at the Rome Conference that drafted the Statute could not agree on a definition of this crime. As a result, the Statute’s Article 5(2) provided that the Court could exercise jurisdiction over this crime only after there was an amendment to the Statute “defining the crime and setting out the conditions under which the Court shall exercise jurisdiction.”

In June 2010 the Review Conference of the States Parties adopted an amendment to the Rome Statute to add a definition of the crime of aggression.[2]  Amazingly the U.S. news media had virtually no coverage of this important Conference or its adoption of the amendment for the crime of aggression.

The amendment states that “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.” This makes clear that the crime applies only to a country’s highest officials.

The term “act of aggression” too is defined in the amendment as “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 . . . [including]

• (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.”

The amendment also has “statements of understandings” of the scope of these provisions. One of them provides that “in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself.”

This amendment, however, will not take effect unless and until 30 States Parties have ratified or accepted the amendment.  In addition, the Court cannot exercise such jurisdiction unless and until there has been an affirmative vote of two-thirds of the Assembly of States Parties to approve the amendment after January 1, 2017. As a result, the amendment will not be circulated for ratification unless and until there is such an affirmative vote after January 1, 2017.

Moreover, the amendment will only apply to crimes of aggression that were committed one year after the ratification or acceptance of the amendment by 30 States Parties. In addition, there are the following other conditions or limitations on the ICC for this crime:

• ICC States Parties that ratify the amendment have the option of filing a declaration with the ICC that they do not accept aggression jurisdiction.

• Another provision will prevent the Court from exercising jurisdiction over nationals of non-States Parties or persons for alleged aggression on their territories.

• Also, once jurisdiction is activated, non-Security Council situations will need to be approved by the entire Pre-Trial Division of the Court.

The amendment also included a mandatory review of the provision seven years after coming into effect in order to examine the performance of the Court with respect to the crime and to make any necessary changes to the provision.

Many of these conditions or limitations on jurisdiction over the crime of aggression were the result of lobbying at the Review Conference by the U.S. observers.

As a result of these conditions or limitations as well as the crime’s definition itself, most believe that U.S. officials could never be prosecuted for the crime of aggression because the U.S. is not a party to the Rome Statute and even if it became a party it could declare that it did not accept the aggression jurisdiction.  Indeed, immediately after the Review Conference, U.S. State Department Legal Advisor, Harold Koh, stated that the U.S. successfully had pressed at the Conference for the addition of safeguards that “ensure total protection for our Armed Forces and other U.S. nationals” with respect to this crime.[3]

Finally, there are many who believe it is highly unlikely that the ICC ever will prosecute anyone for this crime for similar reasons.[4]