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The ‘End’, the ‘Beginning of the End’ or the ‘End of the Beginning’? Introducing Debates and Voices on the Definition of ‘Aggression’

Published online by Cambridge University Press:  22 November 2010

CARSTEN STAHN
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Extract

On 11 June 2010, the first Review Conference of the International Criminal Court (ICC) adopted Resolution RC/Res. 6 on the ‘Crime of Aggression’ by consensus, after years of debates and negotiations in the framework of the Preparatory Commission for the International Criminal Court and the Special Working Group on the Crime of Aggression. The resolution includes a definition of the crime of aggression and the conditions under which the Court could exercise jurisdiction with respect to the crime, while making the actual exercise of jurisdiction ‘subject to a decision to be taken after 1 January 2017’ by states parties. This outcome has triggered a broad variety of reactions. The UN praised it as a ‘historic agreement’ and a significant step towards a new ‘age of accountability’. Some non-governmental organizations (NGOs) have expressed concerns that the compromise deepens the gaps between states and leaves accountability loopholes. US legal advisor Harold Koh qualified the compromise as an opportunity for further constructive dialogue and positive engagement with the ICC.

Type
HAGUE INTERNATIONAL TRIBUNALS: The Kampala Compromise on the Crime of Aggression
Information
Leiden Journal of International Law , Volume 23 , Issue 4 , December 2010 , pp. 875 - 882
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

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References

1 Resolution RC/Res. 6, available at www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf.

2 For a survey of documents, see Assembly of States Parties, Crime of Aggression, at www.icc-cpi.int/Menus/ASP/Crime+of+Aggression/Special+Working+Group+on+the+Crime+of+Aggression.htm.

3 Art. 15 ter(3).

4 Secretary-General, Statement Attributable to the Spokesperson for the Secretary-General on the Outcome of the ICC Review Conference in Kampala, 14 June 2010, available at www.un.org/apps/sg/sgstats.asp?nid=4617.

5 Citizens for Global Solutions, ‘ICC Conference in Kampala Takes Steps to End Aggression’, available at www.globalsolutions.org/press_releases/icc_conference_takes_steps_end_aggression.

6 US Department of State, ‘US Engagement with the International Criminal Court and the Outcome of the Recently Concluded Review Conference’, 15 June 2010, at www.state.gov/s/wci/us_releases/remarks/143178.htm.

7 Art. 8 bis(1).

8 This is reflected in the last sentence of Art. 5(2) of the Statute.

9 This rationale is reflected in para. 3 of the preamble of the Rome Statute, which recognizes that ‘such grave crimes threaten the peace, security and well being of the world’, and the Court's special relationship to the United Nations. Art. 2 of the Rome Statute.

10 See also House of Lords, Jones et al. (2006), Opinion of Lord Bingham, para. 16 (‘as was held at Nuremberg and other post-war trials, . . . aggression is a leadership crime: it cannot be committed by minions and foot soldiers’).

11 Art. 8 bis(1).

12 See proposed amendment of Art. 25(3) of the Statute.

13 For a study of the ‘shape’ and ‘influence’ test v. the ‘direction’ and ‘control’ test see K. Heller, ‘Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression’, (2007) 18 EJIL 477.

14 Art. 8 bis(1) and the Elements make it clear that this ‘leadership’ requirement applies to perpetrators. The proposed Article 25(3) bis extends it to other modes of liability.

15 See para. of GA Resolution.

16 Art. 8 bis(1) (action of a state).

17 Art. 8 bis(2).

18 A. Cassese, ‘On Some Problematic Aspects of the Crime of Aggression’, (2007) 20 LJIL 841, at 846 (emphasis in original).

19 Resolution 3314 is open-ended. Art. 8 bis(2) uses deliberately ambiguous language, noting that ‘any of the following acts . . . shall in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression’ (emphasis added). See also Elements of Crimes, Article 8 bis Introduction. Direct parallels to Art. 7(1)(k) (‘other inhumane acts’) were invoked in the negotiations, but rejected in the light of the principle of legality (Art. 22(2)).

20 Art. 15 bis(6), first sentence.

21 Ibid.

22 Art. 15 bis(9) and 15 ter(4).

23 Art. 15 bis(8).

24 For a survey, see N. Blokker, ‘The Crime of Aggression and the United Nations Security Council’, (2007) 20 LJIL 867. See also the critique by Judge Simma in ICJ, Congo v. Uganda, Separate Opinion: ‘[t]he unlawful military intervention by Uganda was of such a magnitude and duration that the Court considers it to be a grave violation of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter”. So, why not call a spade a spade?’

25 Para. 4 of the preamble and Art. 54(1)(b) of the Statute.

26 See e.g. the position of the Coalition for the International Criminal Court on the crime of aggression, at www.iccnow.org/?mod=aggression (‘The CICC as a whole did not take a position concerning the adoption of specific provisions on the crime of aggression at Kampala. This was because CICC members developed varying positions concerning the complex discussions on the crime’).

27 See, e.g., Discussion Paper on the Crime of Aggression proposed by the Chairman (Revision of January 2009), ICC-ASP/7/SWGCA/INF.1., 19 February 2009.

28 This follows from a comparison of Art. 15 bis and Art. 15 ter, which contains no opt-out option, nor the exclusion in relation to non-state parties. See also para. 2 of the Understanding on ‘Referrals by the Security Council’, which states, ‘It is understood that the Court shall exercise jurisdiction over the crime of aggression on the basis of a Security Council referral in accordance with article 13, paragraph (b), of the Statute, irrespective of whether the State concerned has accepted the Court's jurisdiction in this regard.’

29 For a defence see D. Akande, ‘Prosecuting Aggression: The Consent Problem and the Role of the Security Council’, Working Paper, Oxford Institute for Ethics, Law and Armed Conflict, May 2010, at www.elac.ox.ac.uk/downloads/dapo%20akande%20working%20paper%20may%202010.pdf.

30 It reads, ‘In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals or on its territory.’

31 Note that para. 1 of Res. RC/Res. 6 mentions Art. 121(5) in relation to entry into force of amendments.

32 The opt-out effect might potentially be justified a majore ad minus, i.e. if a state is entitled to decline the amendment, the right to accept with opt-out (which is subject to review) might be a lesser included measure.

33 The opt-out mechanism stands in contrast to Art. 12(1) which is mentioned in the preamble of Res. RC/Res. 6. For a full examination see R. Manson, ‘Identifying the Rough Edges of the Kampala Compromise’, (2010) Criminal Law Forum (forthcoming).

34 Art. 121(5) only speaks of ‘States Parties’.

35 Note that Art. 15 bis(4) is limited to states parties (‘unless that State Party has previously declared’). A similar objection has been formulated in relation to the opt-out mechanism for war crimes under Art. 124.

36 See also para. 4 of the Understandings (‘Domestic jurisdiction over the crime of aggression’).

37 Art. 7(2).

38 Art. 8(1).

39 Para. 6 of the Understandings.

40 Art. 8 bis(1) and para. 7 of the Understandings.

41 One exception may be jus cogens. But its scope remains controversial, particularly in the context of the use of force. Both the ICC and defendants will need thorough advice by public international lawyers and advisers to judge and litigate whether armed force meets this threshold. The Elements specify that there is no requirement to prove that the perpetrator has made a legal evaluation as to the ‘illegality’ of the use of force under the UN Charter or the ‘manifest’ nature of the violation. See Elements of Crimes, Art. 8 bis, Introduction.

42 For a defence of aggression as a ‘special intent’ crime, see Cassese, supra note 18, at 848.

43 Rule 44, sub-rule 2.

44 For a discussion see N. Strapatsas, ‘Complementrity and Aggression: A Ticking Time Bomb?’, in C. Stahn and L. van den Herik (eds.), Future Perspectives on International Criminal Justice (2009), 450.

45 Case Concerning the Arrest Warrant of 11 April 2000 (DRC v. Belgium), Merits, [2002] ICJ Rep. 25, para. 58.

46 Art. 17(3) of the Statute.

47 A. Reisinger Coracini, ‘Evaluating Domestic Legislation on the Customary Crime of Aggression under the Rome Statute's Complementarity Regime’, in C. Stahn and G. Sluiter, The Emerging Practice of the International Criminal Court (2009), 725.

48 See, however, the cautious Understanding 5 (‘It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State’).

49 Rule 85 of the Rules of Procedure and Evidence.

50 See also H. P. Kaul, ‘From Nuremberg to Kampala – Reflections on the Crime of Aggression’, 30 August 2010, available at www.icc-cpi.int/NR/rdonlyres/6756D8C1-98A1-47D3-BC13-EA8D8AA860F1/282450/03092010_IHLDialogs_Chautauqua_Speech1.pdf.