Astrid Reisinger Coracini is a Lecturer at the Institute of International Law and International Relations, University of Graz and Executive Director of the Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law. She was in Kampala as part of the delegation of Austria. Her publications include: ‘Amended Most Serious Crimes”: A New Category of Core Crimes Within the Jurisdiction but out of the Reach of the International Criminal Court?’, 21 Leiden Journal of International Law 2008, 699-718; ‘Defining the Crime of Aggression for the Rome Statute of the International Criminal Court’, in: Stahn & van den Herik (eds.), Future Perspectives on International Criminal Justice (2010) 425-49.
In an earlier post Dapo Akande asked: “What Exactly was Agreed in Kampala on the Crime of Aggression?”, a question that indeed mandates some reflection. The Resolution on the Crime of Aggression is a sophisticated conglomerate of four documents of divergent legal value: an enabling Resolution, amendments to the ICC Statute that are subject to ratification or acceptance, amendments to the Elements of Crimes and “Understandings”. Let aside the complexity of these texts, legal interpretation is challenged by the fact that there was no plenary debate on the last three versions of the President’s non-paper and the Draft Resolution. The preparatory works are therefore of limited help with regard to the interpretation of some parts of the Resolution.
Inspired by the vivid online discussion on the crime of aggression, I would like to contribute some preliminary thoughts (which represent my personal views and do not necessarily reflect the views of the Austrian delegation) with a particular focus on aspects of the conditions under which the ICC may exercise its jurisdiction over the crime of aggression and the amendment procedure.
1. Further delay for the Court’s exercise of jurisdiction over the crime of aggression
In 1998, when the crime of aggression was listed as one of the most serious crimes of concern to the international community as a whole for which the ICC has jurisdiction (Art. 5 (1) ICC Statute), the Court’s exercise of jurisdiction was delayed until a time when the Assembly of States Parties would adopt a provision defining the crime and setting out the conditions for the Court’s exercise of jurisdiction (Art. 5 (2) ICC Statute). The provision adopted in 2010 further postpones the ICC’s exercise of jurisdiction. “The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendment by thirty states parties” (common para. (2) of Art. 15bis and Art. 15ter). In addition, the jurisdictional regime requires activation by a decision to be taken after 1 January 2017 (common para. (3) of Art. 15bis and Art. 15ter). This further delay is unfortunate, but limited by an acceptable time-span. Any solution to adopt the definition and defer deliberations of the conditions (or parts of them) would have entailed the potential threat of infinite negotiations. In its final form, the package adopted in Kampala comprises all relevant substantive and procedural issues. The activating decision should be a merely formal act, if states parties stand behind the consensus adoption and, especially, if a significant number of states parties will have ratified the amendments by then.
2. Who is bound and who is covered by the ICC’s exercise of jurisdiction over the crime of aggression?
Entry into force according to Art. 121 (5) Read the rest of this entry…