The crime of aggression seeks to criminalize the use of armed force by one state against another in contravention of the UN Charter. It has been the subject of a working group of the ICC’s Assembly of States Parties for seven years after delegates in Rome in 1998 failed to agree on it, and dominated discussions at the recent review conference in the Ugandan capital.
The Kampala conference adopted a compromise position that allows state parties to decide whether the court may act on the crime of aggression where either the UN Security Council refers a matter to the ICC or the alleged aggressor and victim states are parties to the ICC treaty. The decision takes effect in 2017.
It broadly defined the crime of aggression as the use of force that manifestly breaches the UN Charter and includes an invasion, a bombardment, the blockade of ports or coasts of a state by the armed forces of another, an attack by the armed forces of a state on the land, sea or air forces, or marine and air fleets of another state; or a country allowing another state to use its territory to attack a third nation, without the justification of self-defence or without authorization by the UN Security Council.
Individual crimes of aggression were defined as the planning, preparation, initiation or execution by a person in a leadership position of an act of aggression, in violation of the UN Charter.
But the Kampala compromise, according to Antoinette Louw and Anton du Plessis of the Pretoria-based Institute for Security Studies (ISS), “is complicated and potentially damaging to the ICC as it creates expectations that cannot be met. It also risks linking the court – which should be an independent judicial body – to highly politicized disputes between states.”
William Pace, convener of the Coalition for the ICC, described the agreement on the definition of the crime as a step forward for international justice, but said conditions agreed by states for prosecution of the crime would leave many out of the reach of justice.
"There also remains a question mark over when the court will be able to exercise its jurisdiction over this crime of concern to the international community as a whole,” he said.
According to the agreement, the court may exercise jurisdiction over the crime arising from an act of aggression committed by a state party, but that state may be exempted from any liability if it has previously declared that it does not accept such jurisdiction to the Court’s Registrar.
In respect of a state that is not party to the statute, the court shall not exercise its jurisdiction over the crime when committed by that state’s nationals or on its territory, a provision that experts at the conference said negated the principles of the Rome Statute.
The determination of an act of aggression by a body outside the court shall not prejudice the court’s own findings under the Rome Statute.
Individuals in positions to have effectively exercised control over or directed the political or military action will personally be held responsible. The amendments also provide that no person who has been tried by another court shall be tried by the ICC for the same action.
“Many states, including most from the developing south, were strongly opposed to any move that might strengthen the role of the UN Security Council [UNSC] in deciding which cases could be brought before the ICC,” the ISS experts said in a statement. “Although the Kampala agreement does not grant the UNSC exclusive control over the court’s authority to prosecute aggression, in practice the UNSC provides the only alternative for aggression-related prosecution of individuals from non-state parties, and non-consenting states parties.
“Without the UNSC, the ICC’s powers to prosecute aggressive wars will therefore be limited to consenting state parties, from both sides of the conflict.” The court will not be able to exercise jurisdiction until at least 1 January 2017, and only after 30 states have ratified the amendment.
“The agreement may extend the court’s role to cover the crime of waging aggressive war in the future,” said Richard Dicker, director for international justice at Human Rights Watch (HRW). “This could pose challenges to the ICC’s effectiveness by creating expectations that today’s compromise won’t meet.”
The agreement could, however, link the ICC to highly politicized disputes between states, posing a danger to perceptions of the court's role as an impartial judicial arbiter of international criminal law. According to HRW, the amendment bordered on taking away with one hand what was being offered with the other.
"What we saw was tremendous resistance by the permanent members of the Security Council to keep their exclusive power and on the other side the staunch insistence of states to preserve the principle of independence of the court from interference," Dicker told IRIN at the conference.
"With this agreement, the court, its Assembly of States Parties, and individual state members need to get to work explaining what this decision means and what it does not.
"The court's mission and mandate are not well understood, and it will require real effort to convey the reach and the constraints of this crime if activated after 2017."
Discussions about the crime of aggression in Kampala divided delegates, especially over the role of the UN Security Council. Civil society participants hailed the compromise, arguing that granting the Security Council sole power to authorize investigations would have compromised the court's independence.
"We believe that moving forward now on the crime of aggression without genuine consensus could undermine the court," Stephen Rapp, US ambassador-at-large for war crimes, told the conference.
However, Anita La Rose, a civil society delegate from Latin America, told IRIN: "This is surely a compromise as people made concessions. This is a deal which I think we should be happy with."
Latin American and African nations, she added, were wary of ceding authority to a body dominated by the five permanent Security Council members - Britain, the US, China, Russia and France - some of whom are non-members of the ICC, but have veto powers at the world body.
Uganda’s Justice Minister and Attorney-General, Khiddu Makubuya, told IRIN the final position reached rhymed with the law, which is that the Security Council has the primary mandate under the UN Charter over issues of peace, security and aggression.
Some 4,600 representatives of states, inter-governmental and non-governmental organizations attended the 31 May-11 June review conference, according to the ICC.
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