The ICC and the Crime of Aggression: The Consent Problem and the Security Council Issue

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The first conference to the review the Statute of the International Criminal Court opens next week in Kampala Uganda. The major proposal to be considered at the conference will be proposals to amend the Statute so as to define the crime of aggression and to set out the conditions under which the Court can exercise jurisdiction over the crime of aggression. There appears to be substantial (even overwhelming) agreement amongst ICC parties that the ICC should be allowed to prosecute the crime of aggression. There is also agreement on the definition of aggression. However, substantial disagreement  remains about the conditions which should exist before the ICC may exercise jurisdiction over aggression. In particular, the key question appears to be whether the ICC should be able to make independent determinations about whether aggression has been committed by a State or whether the ICC should only be able to prosecute where the Security Council has made a prior determination that a State has committed aggression. It has also been suggested that the ICC should be competent to proceed where either the General Assembly or the International Court of Justice has made a prior determination that aggression has been committed.

The issues raised by the proposals to amend the Statute with regard to aggression were discussed in the last EJIL issue of 2009 (Vol. 20, Issue 4). That issue contains four thoughtful papers by Andreas Paulus, Claus Kress, Roger Clark and Sean Murphy (two of whom have been intimately involved in the negotiations in the Special Working Group on the Crime of Aggression). I highly recommend this set of papers. That discussion in EJIL was preceded by discussion on this blog by Andreas Paulus and by me.

I would like to draw readers attention to a paper (see here) I have just completed which focuses on a fundamental problem with the aggression proposal which appears not to have been considered at all by the negotiators and which I hope will be addressed in Kampala next week. This is the issue of whether the aggression amendment, if accepted, should permit the ICC to prosecute leaders of States which are not party to the Rome Statute or have not accepted the aggression amendment. The problem arises because the Statute of the ICC (Art. 12) permits the Court to exercise jurisdiction over individuals where they are nationals of State parties or have committed a crime within the territory of a State party. It has thus far been assumed that this normal jurisdictional rule of the ICC will also apply to aggression, if the aggression amendment is approved. This would mean that the leaders of  non-party States (or of States Parties that don’t accept the aggression amendment) would be subject to the jurisdiction of the ICC, where the alleged victim has accepted the aggression amendment. In 2003, Iargued (in this paper) that it was legitimate for the ICC to exercise jurisdiction over nationals of non-parties. However, I noted then that aggression was different. In my recent paper (posted as a Working Paper on the site of the Oxford Institute for Ethics, Law and Armed Conflict), I set out why aggression is different. I also argue that limiting to the jurisdiction of the ICC to situations referred by the Security Council (in addition to jurisdiction over aggression committed by consenting States) is not a limitation of a competence which the Court would otherwise have but rather an expansion of the Court’s jurisdiction to areas whether it would otherwise lack competence.  The abstract of this recent paper is below:

This paper focuses on the conditions which ought to exist before the International Criminal Court can exercise jurisdiction over the crime of aggression. In particular, it addresses (i) whether the Court should be competent to exercise jurisdiction where the alleged aggressor State has either not accepted the amendment on aggression, or is not a party to the ICC Statute and (ii) whether ICC jurisdiction on aggression should be made dependent on the prior approval of the United Nations Security Council. The first issue is referred to here as the “consent problem” and the second the “Security Council problem/issue”.

This paper argues that the consent problem raises a fundamental question of deeper significance than the textual or perhaps technical issues concerning the way in which the amendment concerning aggression might come into force under Article 121 of the Statute. The consent problem raises fundamental issues about the nature of the ICC as an international tribunal and about the principles governing the competence of international tribunals under international law. In particular, the consent issue raises important questions about the jurisdiction of international tribunals over non-consenting States and whether the ICC is to be regarded as bound by rules of international law that would ordinarily bind other international tribunals.

This paper, outlines and explains the principle of consent as applied to the competence of international tribunals. There is a detailed discussion, in Section 2, of the application of the principle to cases before international tribunals where the tribunal is called upon to determine the rights and obligations of States not before the tribunal. In particular, this section discusses the Monetary Gold principle enunciated by the International Court of Justice. According to that principle, the Court will not adjudicate on a case where the Court would be required, as a necessary prerequisite, to adjudicate on the rights or responsibilities of a non-consenting and absent third State. It is argued that this principle is simply an application of the more general principle of consent and that the principle is derived from the more fundamental principle of the independence of States, i.e. the idea that States are not subject to external authority of other States or institutions created by other States.

The paper argues, in Section 3, that because a determination that an individual has committed the crime of aggression requires a prior determination that a State has committed an act of aggression and a breach of the UN Charter, the ICC would act in violation of the consent principle in cases contemplated by the aggression amendment. The paper then turns, in Section 4, to an examination of whether the consent principle and the Monetary Gold principle (which is an application of that more general principle) are applicable to international criminal tribunals in general and to the ICC in particular. Referring to the case law of other tribunals, it is argued that these principles apply to all international tribunals and that the form in which the proceedings involving adjudication of the responsibilities of other States takes place is irrelevant to their application. Section 5 examines which States are to be regarded as non-consenting States for the purpose of the application of the consent principle. I then turn to the Nuremberg and Tokyo precedents in Section 6. I argue that the establishment and operation of these tribunals would not support the view that a rule has developed permitting departure from the consent principle in international criminal tribunals. I argue that neither tribunal was truly international and that in any event, in both cases, there was the consent of the relevant sovereign authority.

The paper considers, in Section 7, whether the jurisdiction of the ICC over aggression can be justified on the basis of a transfer of authority from the State that is the alleged victim of aggression. It is argued that though victim States can prosecute for aggression and though transferred jurisdiction is an appropriate justification for the jurisdiction of the ICC in general, the principles and precedents which support transfers of jurisdiction to international tribunal do not apply to aggression. Section 8 returns to the Security Council issue and considers whether prior determination by the Council (or by the General Assembly or ICJ) would fall within an exception to the Monetary Gold principle. It is argued that the best way to expand the jurisdiction of the Court to non-consenting States while respecting the principle of consent is by referral of situations to the Court by the Council. When the consent problem is taken into account, the role of the Security Council in making referrals to the ICC with regard to aggression is not a limit on the competence of the Court. Rather the Security Council comes to the aid of the Court and expands its jurisdiction to situations where the ICC would otherwise be legally incompetent to act. On this view, giving the Security Council almost exclusive competence with regard to aggression cases is not to be regarded as a problem to be overcome, but rather as a means of overcoming an existing problem.

The final section is the main theoretical contribution of the piece, considering whether the deviation from the consent principle contemplated with regard to the ICC’s jurisdiction over aggression is to be regarded as an evolution of the law or instead a violation.

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