The Kampala Amendments to the Statute of the International Criminal Court (ICC) adopted in June 2010 define the crime of aggression for the purposes of the ICC Statute and set out the conditions under which the ICC will exercise jurisdiction with respect to that crime. It was decided in Kampala that the aggression amendments will only become operational, in the sense that the ICC can only exercise jurisdiction over the crime of aggression: (i) one year after the aggression amendments have come into force for at least 30 States and (ii) if the ICC Assembly of State Parties adopts a further decision to activate that jurisdiction, with 1 January 2017 being the earliest date for the adoption of that decision [Arts. 15 bis (2) & (3) & 15ter (2) & (3), ICC Statute]. Given that 23 states have now ratified or accepted the aggression amendments and that 1 January 2017 is under 18 months away, the activation of the ICC’s jurisdiction over the crime of aggression is not very far away at all [see this report on action by other states considering ratification]. As that moment – when the ICC is able to exercise jurisdiction over aggression approaches – attention will turn (back) to a couple of issues that remain unresolved with respect to the interpretation of the Kampala amendments. One of those issues is whether the Court will be entitled to exercise jurisdiction over the nationals of a party to the Rome Statute which has not accepted the aggression amendments but which is alleged to have committed aggression on the territory of a state party that has ratified or accepted those amendments (see previous discussion here & here). The second issue is the interpretation to be given to the definition of the crime of aggression under the Kampala amendments.
Article 8 bis(1), of the ICC Statute provides that: “For the purpose of this Statute, “crime of aggression” means 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.”
The relationship between the concept of the “crime of aggression” and of “act of aggression” under the ICC Statute and under general international law respectively remains unclear. Under the Kampala amendment only an “act of aggression” which by “character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations” can amount to the “crime of aggression” attracting individual criminal responsibility. Despite attempts in interpretive Understandings adopted in Kampala to give guidance with respect to the definition of the crime, the ICC will have its work cut out in establishing what amounts to a manifest violation of the UN Charter such that it should be regarded as the crime of aggression.
As the concept of aggression is one which relates not merely to individual criminal responsibility but builds on state responsibility for unlawful uses of force, it is instructive to examine how the International Court of Justice (ICJ) has dealt with the concept of aggression. Read the rest of this entry…