Bringing the crime of aggression within the active jurisdiction of the ICC.

• Author: Ferencz, Donald M.
• Position: International Criminal Court

Although aggression is listed among the four core crimes within the purview of the International Criminal Court (ICC), the Court has thus far been powerless to exercise jurisdiction over the crime. The Rome Statute of the ICC prohibits the Court from doing so until provisions are adopted defining the crime and setting forth the conditions under which jurisdiction may be exercised. A review conference is scheduled for 2010, where this issue is expected to be addressed. The following article discusses the significant differences between various amendment protocols specified within Article 121 of the Rome Statute and explores how such differences may be strategically relevant to the adoption of provisions on aggression. Regardless of the amendment regime employed in making the crime of aggression actionable before the ICC, the author concludes that adoption of provisions on aggression are an important step in strengthening the rule of law and the Nuremberg principles.

1. INTRODUCTION

   When the Rome Statute of the International Criminal Court (ICC) was adopted on July 17, 1998, it included provisions granting the ICC jurisdiction over four core crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. (1) The first three of these crimes are defined within the Statute itself and were, from inception, brought within the Court's active jurisdiction. (2) By contrast, the Statute provides that the Court's jurisdiction over the crime of aggression cannot be exercised until such time as a provision is adopted by the member countries of the Assembly of States Parties (ASP) (3) defining the crime and establishing the conditions under which the Court may exercise its jurisdiction. (4) The challenge of developing proposals for such further provisions relating to the crime of aggression has been vested in a subgroup of the ASP, known as the Special Working Group on the Crime of Aggression. (5) The Working Group has met in both formal and informal sessions, where representatives from States Parties, along with certain non-States Parties and NGO observers, have endeavored to craft workable proposals on the crime of aggression for consideration at a Review Conference, expected to be held in 2010. It is at such a Review Conference that the States Parties will decide whether to move forward with bringing the crime of aggression within the active jurisdiction of the Court.

   Against this backdrop, on September 26, 2008 the Case Western Reserve University School of Law hosted a symposium on the crime of aggression, providing a forum where international law experts met to explore a number of critical issues still confronting the Working Group. (6) It was my privilege to chair one of the symposium panels, entitled A Roundtable Discussion About the Process by Which Aggression is Included in the Statute and Its Effect on Non-Party States. (7) Among the most significant aspects of this admittedly rather arcane-sounding topic is that, depending upon the placement of proposed provisions on aggression within the Statute, the Court's effective jurisdiction over the crime of aggression may vary quite dramatically. This article will highlight some of the key technical issues raised during the panel discussion and will offer several personal observations regarding enabling the Court, at long last, to exercise its active jurisdiction over the crime of aggression. (8)

   At the outset of any discussion of this topic, a clear distinction must be drawn between the general rule of how amendments to the Statute are adopted---and, therefore, become part of the textual fabric of the Statute--as opposed to how amendments actually enter into force for States Parties---and, therefore, become legally effective and enforceable from a juridical point of view.

   The general rule for adoption of substantive amendments to the Rome Statute is found in Article 121(3), which provides that amendments may either be adopted by way of consensus or by a two-thirds vote of the ASP. (9) Articles 121(4) and 121(5) govern the procedures by which such amendments come into force, and they differ markedly as to their effects.

   For example, pursuant to Article 121(5), amendments to Articles 5, 6, 7 and 8 of the Statute will only be effective as to crimes committed on the territory of or by the nationals of States Parties who independently ratify such amendments. (10) Thus, if the proposed provisions on aggression come within the ambit of Article 121(5), States Parties would appear to be able to exempt themselves from the application of such provisions--with respect to the Court's jurisdiction under Article 12, but not necessarily with respect to situations referred by the Security Council (11)--merely by electing not to independently ratify them, and they need not withdraw from the Statute itself to do so.

   By stark contrast, Article 121(4) provides that amendments not covered by Article 121(5) shall enter into force for all States Parties after ratification of such amendments by a seven-eighths vote of the members of the ASP. (12) Because of this, if an amendment is seen as coming within the purview of Article 121(4), such amendment could potentially come into force with respect to all States Parties, including States Parties opposed to it. In such case, States Parties opposed to the amendment have two choices: they may either do nothing, thereby accepting its coming into force as to them, or they may elect to completely withdraw from the Statute, thereby ceasing to be States Parties. (13)

   Before proceeding to a discussion of the issues raised by the symposium panel which I chaired, a few words are in order regarding a major policy issue which has confronted the Working Group relative to the issue of the Court's jurisdiction over the crime of aggression. Article 39 of the U.N. Charter vests the Security Council with authority to determine whether an act of aggression by a State has occurred. (14) Relying on this, representatives of each of the permanent members of the Security Council, as well as a number of States Parties, have posited that there can be no exercise of jurisdiction by the Court over the crime of aggression without some sort of predetermination by the Security Council that an act of aggression by a State has occurred. (15) When the General Assembly, in resolution 3314, adopted a definition of aggression by consensus in 1974, it paid due deference to this principle, fully recognizing, certainly at least as its powers under Chapter 7 of the U.N. Charter are concerned, that the Security Council has the right to determine whether acts which might presumptively constitute acts of State aggression would, in fact, be so characterized. (16) In opposition to this view, others in the Working Group have argued that a pre-determinative role for the Security Council with respect to whether an act of State aggression has occurred may hamper the independence of the Court, that such a role would be inconsistent with the impartial judicial functioning of the Court, and that such a role is not mandated by the U.N. Charter. (17)

2. REVIEW OF ROUNDTABLE ISSUES

   As discussed above, the Rome Statute allows for markedly different regimes with respect to the application of the Court's exercise of jurisdiction over the crime of aggression, depending upon whether provisions on aggression are adopted as a matter of amendment to Articles 5, 6, 7, and 8 or whether such provisions on aggression come into the Statute via some other means.

   On its face, Article 121(5) signifies a clear intention, at least insofar as amendments to Article 5 are concerned, to give States Parties the right to opt out of prospective provisions pertaining to the crime of aggression without having to withdraw from the Statute to do so. (18) Yet, by its express terms, Article 121(5) applies only in case of "amendment" to the articles of the Statute currently delineating or...