Groningen Journal of International Law

International Law Under Construction

The Challenges of Prosecuting Wars of Aggression

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By Benjamin Dürr |

Twenty years after its creation, the International Criminal Court (ICC) is on the verge of gaining jurisdiction over a new crime, enabling the court to prosecute high-level individuals for waging war. During the annual Assembly of States Parties in December, the ICC’s member states decided to activate the ICC’s jurisdiction over the crime of aggression as of 17 July 2018 – twenty years after the court’s founding treaty, the Rome Statute, entered into force. While the activation is seen as a historic step in international law, the political compromises that enabled it raise doubts about the applicability of jurisdiction over the new crime.

Years of negotiations about the crime of aggression

On 17 July 1998 more than a hundred governments decided to establish the ICC as the world’s first permanent international criminal court by adopting the Rome Statute. The treaty limits the ICC’s jurisdiction to genocide (Article 6), crimes against humanity (Article 7), war crimes (Article 8) and the crime of aggression (Article 8bis). At the 1998 conference in Rome, however, governments were unable to reach an agreement on a definition of the crime of aggression and decided to leave it open for discussion at a later moment.

After years of negotiations, they finally agreed on the definition of the fourth crime at a conference in Kampala, Uganda in 2010 but imposed a number of conditions in a delay mechanism before the articles on the crime of aggression could come into force. 30 states needed to ratify the so-called Kampala amendments, and the Assembly of States Parties needed to activate them.

After the 30th state had ratified the amendments last year, they were put to vote at the Assembly of States Parties in December where the states decided, by consensus, to activate the jurisdiction.  According to the resolution, the ICC will be able to prosecute crimes of aggression as of 17 July 2018. The decision was hailed as historic as it is the first time since the Nuremberg and Tokyo tribunals after World War II that an international court has been able to prosecute high-level individuals for waging war.

What conduct does the new ICC crime of aggression cover?

According to the Kampala definition, a crime of aggression means the planning, preparation, initiation or execution of an act of aggression, such as the invasion, attack or bombardment of the territory of another state or the blockade of of ports or coasts. In order to qualify as acts of aggression they must constitute a “manifest violation” of the UN Charter by their character, gravity and scale.

This excludes self-defense and military interventions authorised by the UN Security Council. Experts also agree that the definition excludes humanitarian interventions as well because they do not constitute a manifest enough violation of the UN Charter. Critics have argued in the past, however, that the definition imposes a very high threshold that makes the application of the definition almost impossible. In practice, few military operations would qualify as “manifest” violations.

Besides the “manifestness” of the violation, the two other elements of the crime of aggression are the position of the perpetrator and his acts. The ICC will be able to only prosecute political or military leaders – in other words, persons that effectively exercise control over or direct the political or military action of a state. The prosecutors need to prove that prove that the perpetrator was involved in the planning, preparation, initiation or execution of the crime of aggression.

Controversy about the scope of crime of aggression

After an agreement on the definition was reached, the scope of the ICC’s jurisdiction became a major point for debate. According to Article 12(2) of the Rome Statute, the court can prosecute crimes committed on the territory or by nationals of countries that have accepted the jurisdiction of the ICC. Since the crime of aggression requires an additional ratification, the issue was whether the ICC was able to exercise jurisdiction over crimes committed on the territory or by nationals of states that are party to the Rome Statute but have not ratified the Kampala amendments. In practice, this interpretation makes a significant difference: the court’s founding treaty has 123 States Parties but so far only 35 have ratified the amendments.

Similar to the situation with respect to genocide, crimes against humanity and war crimes, a group of states wanted the ICC to have jurisdiction also where a crime of aggression is committed on the territory or by nationals of countries that are States Parties but have not ratified the Kampala amendments. Another group of states – mainly France and the UK – lobbied for a narrower jurisdiction. After intense negotiations until the last minute, the Assembly of States Parties adopted this narrow view. According to the resolution on the activation “the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.” It appears that the resistance against a broad interpretation among the powerful states was so strong that a rejection of this approach would have meant the complete rejection of the activation.

This decision means that, absent a UN Security Council referral, the ICC has jurisdiction only over crimes of aggression committed by citizens of countries like Liechtenstein, Argentina and Iceland, but not of France, the UK and other major States Parties that have not ratified the Kampala amendments. The compromise that no State Party is automatically covered by the crime of aggression unless it actively ratifies the amendment limits the ICC’s ability to prosecute the new crime even further. In light of the political circumstances, however, it was the only possibility and, despite its limitations in practice, the activation remains an important step in the development of international law. For the first time since the Nuremberg and Tokyo tribunals after World War II, an international court will be able to prosecute the crime of aggression. This step enables the ICC to prosecute not only crimes committed during wars, but also, crucially, the act of waging of war as such – thus, expanding the jurisdiction of the court from violations of the ius in bello, the laws of war, to ius ad bellum, the conditions under which states are allowed to use armed force.

27394875_10211553857468290_1666733440_nBenjamin Dürr is a legal analyst and consultant in The Hague focusing on the prosecution of international crimes. In 2016, he published a book on the ICC and the challenges the court faces due to its operations in a highly political context (available in German: “Im Namen der Völker”). He is currently working for the Dr. Denis Mukwege Foundation on international law relating to sexual violence in conflict. The views expressed in this article do not necessarily represent the views of the organisation.

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