The crime of aggression, formerly known as crimes against peace, has been under discussion since the Nuremberg trials concluded over 60 years ago, but it was not until the negotiations seeking the creation of the International Criminal Court that the adoption of this crime became a real possibility.
The Rome Statute of the ICC was adopted on July 17, 1998 and its art. 5 acknowledges the following crimes under its jurisdiction: genocide, crimes against humanity, war crimes, and the crime of aggression. However, differences regarding the scope of the crime of aggression led to postponement of its negotiation until the recently held first review conference was convened.
It must be noted that an act of aggression is expressly prohibited under the United Nations Charter and the Security Council has a leading role in addressing these breaches of the peace, as stated under Chapter VII of the charter. Therefore, in addition to the legal elements of the crime, there are intrinsic political elements weighed in the determination of an act of aggression.
When the Rome Statute entered into force on July 1, 2002, it marked a significant step in the fight against impunity for the perpetration of international crimes and the possibility of rendering justice when a state is unable or unwilling to do so.
So far, 111 states have ratified the statute and the court is currently investigating crimes in five situations: the Democratic Republic of Congo, Uganda, Darfur (Sudan), Central African Republic, and Kenya. As of today, 12 warrants of arrest have been issued, including one against Omar Hassan al-Bashir, the president of Sudan, for crimes against humanity, war crimes, and genocide.
In this sense, the first review conference of the Rome Statute, which took place in Kampala, Uganda from May 31 to June 11, had the main purpose of finishing the task that was not concluded during the Rome negotiations: to adopt the crime of aggression as a crime under the jurisdiction of the ICC.
As expected, deliberations were difficult due to the complex issues at hand. A main challenge was to harmonize the role of the Security Council under the UN Charter with the ICC mandate to determine the perpetration of a crime of aggression. Another element was to define the crime of aggression. Although in this case, state parties adopted the text of the UN General Assembly Resolution 3314 of 1974 on the subject as a way of reaching consensus.
Another pressing issue was that, unlike other crimes under the jurisdiction of the ICC, the crime of aggression can only be perpetrated by the highest civil or military leaders (leadership clause) with the capacity to effectively control or direct the military or political action of a state. The final elements that were of special concern were the mechanisms that would trigger the jurisdiction of the ICC over the crime.
These issues had been previously discussed by a special working group that presented a formal proposal to delegations before they reached Kampala, thus serving as a starting point. After intense negotiations and on the final day of the conference, the crime of aggression was adopted by consensus.
The Rome Statute was amended and now at a point in time in the future (2017 or later), the ICC will have the ability to prosecute this crime.
However, not everything is as good as it seems. As stated before, the crime of aggression has joint political and legal considerations that must be taken into account. In the final negotiations, tension focused on the means to activate the jurisdiction of the court and safeguards to avoid politically motivated prosecutions.
According to art. 13 of the Rome Statute, the exercise of the jurisdiction of the ICC is based either on the element of territoriality or nationality. This means anyone who perpetrates an international crime in the territory of a state party, regardless of his or her nationality, can be prosecuted by the ICC. In addition, a national of a state party who commits an international crime in the territory of a state, whether party or not to the statute, can also be prosecuted by the ICC.
This “egalitarian element” permeates the body of the statute stating that regardless of what the political or economical situation of a state is, anyone suspected of perpetrating international crimes could be subject to the jurisdiction of the ICC. With the adoption of specific rules for the exercise of jurisdiction on the crime of aggression, the system swiftly changes.
The final text requires that both the state where the territory of the alleged offence and the state of nationality of the person accused of the crime of aggression must have accepted the amendment as a pre-condition for the ICC to exercise its jurisdiction.
Therefore, if State A attacks State B but the aggressor state has not ratified the amendment (even if it is a state party to the Rome Statute), the ICC cannot initiate legal proceedings. This rule is not applicable to any of the other crimes established in the Rome Statute.
The problem here is not the sole analysis of the crime of aggression but how it plays in the context of the Rome Statute. It is important to be clear. The crime of aggression has an exceptional nature and it will take many years for a case, if any, to arrive before the ICC.
The proposal shatters the egalitarian element by requiring that all affected states must ratify the amendment, legitimizing a differentiated level of crimes. However, the most problematic issue is that it gives a political excuse for states involved in human rights violations not to ratify the Rome Statute or to delay the adoption of implementing legislation, especially regarding the protection of victims.
After decades of debate, we have the crime of aggression and it is a step forward. However, the cost was high and the consequences remain to be seen. It is indeed a curious case.
Salvador Herencia Carrasco is a researcher at the Human Rights Research and Education Centre of the University of Ottawa and can be reached by e-mail at [email protected].