On 11 June 2010, the Assembly of States Parties (ASP) to the Rome Statute of the International Criminal Court (ICC) reached an agreement on the definition of the crime of aggression during the ICC Review Conference in Kampala, Uganda (hereafter Kampala Conference).[1] The ICC may become enabled to exercise jurisdiction over crimes of aggression after 1 January 2017, provided that the crime of aggression is activated following the process set out in the Kampala Resolution. However, before and since the Review Conference, many have identified problems with the crime of aggression that would challenge the ICC upon activation of its jurisdiction over it. The 15th ASP Session serves as a last chance for the States Parties to clarify and resolve these issues before the Court officially activate its jurisdiction.
Background to the Crime of Aggression
During the 1998 Rome Conference that led to the establishment of the ICC in 2002, State Parties were not able to agree on the definition and jurisdictional details of the crime of aggression. As a way out, Article 5(2) of the Rome Statute was agreed on, which provided that once States Parties would be able to agree on its definition and modalities, the ICC would be able to exercise jurisdiction over the crime of aggression.[2] After negotiations and explorations in the Special Working Group since 2003, the ASP reached a compromise in Kampala that relies extensively on the definition of aggression provided by the 1974 Resolution 3314 of the UN General Assembly.[3]
The Kampala Resolution amended the Rome Statute to incorporate, among others, Article 8bis containing definitions on the crime and act of aggression, and Article 15bis and 15ter, containing detailed provisions on the exercise of jurisdiction. According to Art. 8bis, the crime of aggression entails:
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.[4]
Moreover, there was debate on how the amendments would enter into force. The majority agreed that in accordance with Article 121(5) Rome Statute, the amendments will enter into force one year after the submission of the instrument of ratification by each State Party. Thirty States Parties need to ratify the amendments before the Court can exercise jurisdiction, and there needs to be a one-time activation vote by at least a majority of two-thirds of the States Parties after 1 January 2017. Jurisdiction will then only spread over crimes of aggression committed after the crime of aggression gets activated. A State Party can opt-out of the jurisdiction of the Court by filing an official declaration with the Registrar, in line with Art. 15 bis (4) of the Rome Statute.[5]
Current Status of Ratification and Implementation
As of 23 September 2016, 32 States have ratified the Kampala Amendments, fulfilling the 30 ratifications threshold. Additionally, six countries have incorporated the Kampala Amendments into their domestic legislation, namely Croatia, Czech Republic, Ecuador, Luxembourg, Slovenia and Samoa. The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression estimates that 15 more States Parties to the ICC will consider domestic incorporation.[6] The Republic of Kenya was the first State Party to use the opt-out procedure by lodging a declaration of non-acceptance of the ICC jurisdiction over the crime of aggression on 30 November 2015.[7]
Expectations and Challenges at the 15th ASP Meeting
The 15th ASP session of 16-24 November 2016 will be the last ASP before the ICC’s jurisdiction over the crime of aggression may be activated (after 1 January 2017), particularly now that the threshold of 30 ratifications is reached. It is therefore crucial for State Parties to consider any residual substantial and jurisdictional difficulties. According to the Provisional Agenda, the 15th ASP will discuss, among others, the Amendments to the Rome Statute, the progress of the Court, and of course allow discussion during the General Debate.[8]
The States Parties are expected to discuss the fulfillment of the threshold of the 30 States Parties ratification of the Kampala Amendments, and the ability of the Court to proceed with the activation vote in the next ASP. Moreover, they are expected to discuss a number of challenges and issues concerning the crime of aggression amendment. This includes disagreement on whether the crime of aggression also encompasses use of force with “humanitarian intent” and how this highly political assessment of whether force is used for “the good” can be taken into account in the judicial process without further politicization of the ICC and its reputation. Another but related concern is whether prosecuting the crime of aggression will do more good than harm to the peaceful relations between states, that usually fundamentally disagree on whether use of force was aggressive or somehow legitimate (even if illegal). See for instance the discussions around the 1999 NATO intervention in Serbia regarding Kosovo, the 2003 US/UK intervention in Iraq and the 2014 Russia intervention in Crimea. Another example is the issue of the compatibility of prosecuting the crime of aggression with the principle of complementarity, which received limited attention prior and during the Kampala Conference.[9] Both domestic and international prosecutions of the crime of aggression might threaten international political stability. The principle of complementarity provides that domestic prosecution should in principle be the preferred situation. However, domestic prosecutions of the alleged aggression of another state may raise severe political tensions, possibly undermining state cooperation and the acceptance of international criminal law and the ICC among states,[10] as well as tensions with state and head of state immunity.[11] The crime of aggression activation moreover challenges states not only on how to incorporate the crime of aggression in their domestic criminal codes but also on how to organize the decision-making over military missions to protect their state leaders against being prosecuted for committing the crime of aggression when it uses force for what itself believes legitimate reasons but that others may deem to be aggression.
It is important to understand the wider context that the legitimacy of the ICC is currently already under severe challenges. In October 2016, three African states declared their intent to withdraw from the ICC. Burundi (18 October), South Africa (21 October), and Gambia (24 October) declared their intention to submit an official withdrawal from the Rome Statute. Other African states have also announced that they may leave the Court and the African Union has adopted several anti-ICC resolutions these past years. In this light, the crime of aggression discussions are another issue which may have consequences for future cooperation between remaining, departing and non-State Parties. It should therefore be seriously considered what the consequences are for the functioning and support of the ICC if the crime of aggression gets activated and how to move forward that limits negative consequences as best possible.
From and organizational aspect, the provisional Work Program of the 15th ASP specifically includes a Working Group on the Amendments that will probably take up discussion on the remaining challenges prosecuting crimes of aggression entails. Furthermore, side events organized by State Parties and accredited delegations to the ASP will provide an opportunity for broader discussion and debate. Amongst some of them are the “Activation of the Kampala Amendments on the crime of aggression,” hosted by Liechtenstein, and “The Future of ICC: facing the challenges and strengthening its legitimacy” co-hosted by The Netherlands and PILPG.
Conclusion
The amendments adopted in the Kampala Process have been hailed as historic, since they officially incorporate a definition of the crime of aggression to the Rome Statute, and set up in detail the conditions for the exercise of the Court’s jurisdiction. So far 32 States Parties have ratified the amendments, and more are expected to follow. Nonetheless, some remaining issues of complementarity and domestic jurisdiction for the crime of aggression have been brought up in academic and policy debates. The 15th Session of the ASP will therefore be a significant opportunity for the States Parties to address all remaining questions with the regard to the crime of aggression and issues of practical implementation both in domestic and ICC level.
Footnotes
[1] Assembly of States Parties, Resolution on Crime of Aggression, RC/Res.6, (June 11, 2010), available at: https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf.
[2] Rome Statue of the International Criminal Court Art. 5(2) (1998).
[3] General Assembly Resolution on Definition of Aggression, Resolution 3314 (XXIX), Annex, UN. Doc. A/9631, (Dec. 14, 1974), available at: http://legal.un.org/avl/pdf/ha/da/da_ph_e.pdf.
[4] Assembly of States Parties, Resolution on Crime of Aggression, RC/Res.6, (June 11, 2010), available at: https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf.
[5] Handbook of Ratification and Implementation of the Kampala Amendments to the Rome Statute of the ICC, Liechtenstein Institute of Self Determination, 5-6 (2012), available at: http://crimeofaggression.info/documents/1/handbook.pdf.
[6] Status of Ratification and Implementation of the Kampala Amendments on the Crime of Aggression, Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression, (2015), available at: http://crimeofaggression.info/the-role-of-states/status-of-ratification-and-implementation/.
[7] Declaration of non-acceptance of jurisdiction of the International Criminal Court pertaining to the crime of aggression pursuant to paragraph 4 of Article 15bis of the Rome Statute, Republic of Kenya, (Nov. 30, 2015), available at: https://www.icc-cpi.int/iccdocs/other/2015_NV_Kenya_Declaration_article15bis-4.pdf.
[8] Assembly of States Parties to the ICC, Provisional Agenda for the 15th Session, ICC-ASP/15/1/Rev.1 (Oct. 4, 2016), available at: https://asp.icc-cpi.int/iccdocs/asp_docs/ASP15/ICC-ASP-15-1-ENG.pdf.
[9] See for instance Julie Veroff, Reconciling the Crime of Aggression and Complementarity: Unaddressed Tensions and a Way Forward, 125 Yale Law Journal, 730, 735 (2016).
[10] See for instance Harold Hongju Koh, Legal Advisor, Statement Regarding the Crime of Aggression at the Resumed Eighth Session Assembly of States Parties of the International Criminal Court, U.S. Department of States, (Mar. 23, 2010), available at: http://usun.state.gov/remarks/4646.
[11] Nidal Nabil Jurdi, The Domestic Prosecution of the Crime of Aggression after the International Criminal Court Review Conference: Possibilities and Alternatives, 14 Melbourne Journal of International Law, 1, 14, (2013), available at: http://law.unimelb.edu.au/__data/assets/pdf_file/0005/1687442/05Jurdi1.pdf.