AJIL Unbound Symposium on the Crime of Aggression

In June 2010, parties to the Statute of the International Criminal Court (ICC) meeting in Kampala, Uganda agreed amendments to the ICC Statute which would allow the ICC to prosecute the crime of aggression. However, they also agreed that the Court would only be able to exercise jurisdiction with respect to the crime of aggression subject to a further decision to be taken after 1 January 2017 and only after the ratification or acceptance of the amendments by thirty States Parties [Arts. 15bis(2) & (3); Arts. 15ter(2) & (3), ICC Statute].  In 2010, this may have seemed a long delay before the Court would be able to exercise jurisdiction over the crime. However, with 26 ratifications or acceptances of the amendments and more seemingly to follow, ICC jurisdiction over aggression appears to be just round the corner. This is therefore a good time to give serious consideration to the implications that ICC jurisdiction over the crime of aggression will have both with regard to international law but also in international politics.

The American Journal of International Law’s online Companion AJIL Unbound has just published a symposium on the crime of aggression under the Statute of the International Criminal Court, which I had the pleasure of editing. The symposium publishes a number of responses to the lead article in the April 2015 issue of the American Journal of International Law by Harold Koh and Todd Buchwald: “The Crime of Aggression: The United States Perspective“, 109 AJIL 257, 292 (2015). In that piece, Harold Koh and Todd Buchwald, both of whom were leaders of the U.S. delegation at the Kampala review Conference, consider a range of issues raised by the impending activation of the ICC’s jurisdiction over the crime of aggression. They provide a critique of the definition of the crime of aggression provided for in the amendments to the ICC Statute agreed in Kampala, Uganda in 2010; examine issues relating to the jurisdiction of the Court and domestic courts over that crime; and consider the role of the Security Council with respect to aggression. One of the main focuses of their piece is a consideration of how best to prevent the new jurisdiction over the crime of aggression from chilling uses of force they consider legitimate, particularly humanitarian intervention that is not authorized by the Security Council. In the July 2015 issue of the American Journal of International Law, Alain Pellet and Bing Bing Jia respond to Koh and Buchwald. The AJIL Unbound symposium, in addition to an introduction by me, includes four pieces which provide further consideration of issues relating to the crime of aggression and some responses to the Koh & Buchwald article.  The pieces are written by Nicholas Rostow (Colgate University and formerly Legal Counsel to the US Permanent Rep to the UN and to the US National Security Council), Tom Dannenbaum (University College London), Andreas Zimmerann (University of Potsdam and member of the German delegation at the Rome Conference) and Sarah Williams (University of New South Wales).

In my introduction, I provide some background to the ICC aggression amendments and note that:

“Many questions regarding the crime and the jurisdiction of the Court over it remain unresolved. Some basic questions regarding the material scope of the crime seem no clearer now than they were in 2010. Under the amendments, only acts of aggression, which by character, gravity and scale, constitute a manifest violation of the UN Charter would amount to the crime of aggression. But what exactly amounts to a “manifest violation of the Charter”?  . . .  Furthermore, questions remain as to who will be subject to the jurisdiction of the Court with respect to the crime of aggression. . . . [and], it remains unclear whether the Court will be able to exercise jurisdiction over nationals of parties to the Rome Statute who do not ratify or accept the aggression amendments. . . . Which jurisdictional regime will apply to aggression requires clarification as this will have significance for those states party to the ICC Statute who choose not to ratify or accept the aggression amendments. Likewise questions remain as to whether the Court will be acting in accordance with international law were it to seek to adjudicate on a use of force by a state that has not given its consent to the adjudication by the Court on that question.”

Nicholas Rostow’s piece in the AJIL Unbound symposium – “The International Criminal Court, Aggression, and other Matters” – is largely sympathetic to the approach taken by Koh & Buchwald. He expresses a concern that ICC jurisdiction over aggression will upset the minimum degree of world public order that has been achieved to date and that arrogating responsibility of matters with respect to peace and security to the ICC is inconsistent with a proper balance between judicial and political power.

Tom Dannenbaum also shares the concern that the aggression amendments agreed upon in Kampala might be interpreted so as to cover, unjustifiably in his view, humanitarian intervention. However, he argues that prosecutions of nationals of states who have not accepted the aggression amendments (particularly what Koh & Buchwald term “proxy prosecutions”) would not be contrary to international law and that the nature of aggression is not unique so as to make its prosecution different from the other crimes included in the Rome Statute. He also engages with one of the points made by Alain Pellet in his response to Koh, namely that the drafters of the aggression amendments ought to have included attacks by nonstate actors in the scope of the crime, arguing that to have done so would have missed the point of criminalizing aggression.

In his piece, Andreas Zimmermann tries to look forwards rather than backwards. He concerns himself with the options available for those actors that will be concerned with activating the Court’s jurisdiction in 2017 (as well the challenges posed by that process). In particular, he addresses the challenges that will be faced by the Assembly of States Parties in making the activation decision after 1 January 2017; the United Nations Security Council in referring situations involving aggression to the Court; and individual states.

Looking still further ahead, Sarah Williams considers one particular challenge that is likely to arise if (or perhaps when) the ICC actually engages in prosecution for aggression. The Court will of course only prosecute individuals but given that the crime of aggression, unlike other crimes within the court’s jurisdiction, requires a link to state conduct, the interests of states will loom large in such prosecution. She argues that the existing legal framework does not include an adequate right of participation for affected states and considers one way of providing a clearer legal basis for states to participate directly in ICC proceedings in respect of the crime of aggression.

Needless to say, these issues will continue to provoke discussion and debate in the lead up to 2017 and beyond. The symposium (and the pieces in AJIL itself) provide a nice overview of the challenges relating to the crime of aggression. There is much to chew over, from big picture issues about the balance between the political and the judicial function in international law, to theoretical questions about the role and purpose of the crime, to doctrinal, technical and procedural issues around how ICC jurisdiction will actually operate.