The International Criminal Court (ICC) recently released the latest report of the Special Working Group (of the Assembly of States Parties) on the Crime of Aggression. Art. 5 of the ICC Statute includes the crime of aggression as one of the crimes within the jurisdiction of the Court. However, the Court may only exercise jurisdiction over it once a provision has been adopted defining the crime and setting out the conditions under which the Court shall exercise over it. In anticipation of the ICC Review Conference to be held in 2010, the Special Working Group has been developing proposals on aggression. The latest report reveals that the members of the Group are largely agreed on the definition of the crime of aggression which is based on General Assembly Resolution 3314 (1974) on the “Definition of Aggression.” According to the definition proposed by the Group:
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.
“Act of aggression” is then said to mean:
the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: . . .
However, deep divisions remain over the role of the Security Council when attempts are made to invoke the jurisdiction of the ICC over aggression. In particular there is no agreement on whether the approval of the Security Council is required for the Prosecutor to proceed with an investigation regarding aggression and on whether a determination of aggression by the General Assembly or the International Court of Justice should suffice for the Prosecutor to proceed. Questions also remain as to how the amendments regarding aggression are to become operatonal and as to whether the Security Council may refer a situation concerning aggression to the ICC before the entry into force of the amendments but after the Review Conference adopts a definition. The latter issue raises questions about the interpretation of Art. 121(5) of the Statute and whether there is a difference between the position of State parties and non-parties under the Statute.
As regards the entry into force of the amendment the division is as to whether it is paragraph 4 or paragraph 5 of Art. 121 of the ICC Statute. Para. 4 requires a 7/8th majority for an amendment to come into force and then the amendment is then binding on all parties. However, para. 5 says any amendments to the provisions defining the crimes (i.e Arts. 5, 6, 7, 8) shall enter into force for those parties that accept them, a year after their deposit of ratification. Given that para. 4 is said to apply “Except as provided for in paragraph 5”, it should be fairly clear that it is para. 5 that applies. There is therefore no need for a 7/8th majority.
There seems to be a prevailing view within the Special Working Group that the Security Council will be able to make referrals on the situation regarding aggression once a definition has been adopted by the Review Conference and without regard to whether the State concerned has accepted that definition or not. The Group has drafted text that provides that:
It is understood that the Court shall exercise jurisdiction over the crime of aggression on the basis of a Security Council referral in accordance with article 13 (b) of the Statute irrespective of whether the State concerned has accepted the Court’s jurisdiction in this regard.
The thinking is that since the Security Council can refer situations relating to non-parties then it should be able to refer situations about aggression even if a State has failed to accept the definition. In my view, this is only partly true. It seems to me to be right that the SC can refer a case concerning a non-party, once a definition is adopted. The position here would be no different from the position regarding other crimes. Non-parties have not accepted the jurisdiction of the Court with respect to any crime and Art. 13 allows the SC to impose that jurisdiction. However, I am not sure that this is the case with regard to parties to the Statute. This is one of at least two places where the language of the second sentence of Art. 121 (5) of the Statute appears to create an unfortunate distinction between the position of parties and non-parties. That sentence reads:
In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.
This is a provision that is binding on the Court unless amended. On its face it prohibits the court from exercising jurisdiction over a State party with respect to an amended crime unless that party has accepted the amendment. The Security Council may pass a resolution under Chapter VII referring a case but the Court is not bound by that resolution unless it accords with the Court’s Statute. As presently drafted, the Statute prevents the Court from exercising its jurisdiction over a State party with regard to aggression unless it has accepted that amendment.
The second area where the language of Art. 121(5) leads to a distinction between States parties and non–parties is where an act of aggression is committed against a State party that has accepted the amendment regarding aggression. If committed by the non-State party against that State party, the ICC has jurisdiction under Art. 12(2)(a) because the crime was committed in the territory of a State party. But what if the crimes is committed by a State party that has not accepted the amendment? The “or” in Art. 121(5) seems to say that the ICC has no jurisdiction over nationals of State parties that have not accepted the amendment. The ICC may have jurisdiction on the basis of territoriality but Art. 121(5) appears to bar the exercise of it. The US, rightly, complained about this provision and this distinction when it refused to join the ICC (see here). The Special Working Group is working a draft text on the issue but is unable to agree on whether to make it clear that the ICC has jurisdiction or that it does not have jurisdiction in this situation. It is unclear what format the draft text regarding Art. 121(5) and that regarding referrals by the SC will take. Perhaps they will simply be statements expressing the views of the parties. If they express the views of all the parties, then they amount to subsequent interpretation which establishes the agreement of the parties as provided for in the Vienna Convention on the Law of Treaties. Otherwise, they will be ineffective unless they constitute an amendment to that provision. The problem is such an amendment must be ratified by 7/8ths of the States parties.