Abstract
This chapter gives an overview over the process how the International Criminal Court gained jurisdiction over the crime of aggression and puts it into a wider perspective. It highlights the milestones in that development, from the Diplomatic Conference in 1998 adopting the Rome Statute over the Kampala Review Conference in 2010 introducing the provision on the crime of aggression to the Assembly of States Parties in New York in December 2017 which after a nail-biting poker gamble eventually took the decision to activate the Court’s jurisdiction over the crime of aggression. The chapter particularly focuses on the conflict about the conditions for the exercise of the jurisdiction which nearly caused the activation to fail. It analyses the underlying legal provisions, the different positions deducted from them and the process that was set up to find a compromise solution. Particular attention is paid to the mechanisms behind the scene of the official negotiations also pointing at the role the individual human actors have as representatives of States Parties in international decision-making processes.
The views expressed in this chapter are entirely personal and do not necessarily reflect the position of the Federal Republic of Germany.
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Notes
- 1.
IMT Nuremberg, Judgement of 1 October 1946 (Prosecutor v. Goering et al.), in: Trial of the Major War Criminals before the International Military Tribunal, Volume I, Nürnberg; Editors 1971, p. 186.
- 2.
http://legal.un.org/ilc/texts/instruments/english/draft_articles/7_1_1950.pdf (accessed 1 March 2021).
- 3.
Article 5 (1) Rome Statute. Similar Article 1: ‘jurisdiction over persons for the most serious crimes of international concern’.
- 4.
Articles 6–8 Rome Statute, containing long exhaustive lists of individual acts that constitute international crimes.
- 5.
In detail on the Rome negotiations, see Kreß and Barriga 2017, pp. 201 et seq.
- 6.
Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Annex I F, https://asp.icc-cpi.int/iccdocs/asp_docs/Publications/Compendium/Compendium.3rd.27.ENG.pdf (accessed 1 March 2021).
- 7.
Final Act, Annex I F, para 7: ‘The Commission shall prepare proposals for a provision on aggression, including the definition and Elements of Crimes of aggression and the conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this crime. The Commission shall submit such proposals to the Assembly of States Parties at a Review Conference, with a view to arriving at an acceptable provision on the crime of aggression for inclusion in this Statute. The provisions relating to the crime of aggression shall enter into force for the States Parties in accordance with the relevant provisions of this Statute.’
- 8.
Kreß and von Holtzendorff 2010, p. 1183.
- 9.
- 10.
ICC Resolution RC/Res. 6 of 11 June 2010, Annex I.
- 11.
Quintana 2018, p. 245.
- 12.
UNGA Resolution 3314 (XXIX) of 14 December 1974.
- 13.
ICC Resolution RC/Res. 6 of 11 June 2010, Annex I, para 5.
- 14.
ICC Resolution RC/Res. 6 of 11 June 2010, Annex I, para 4.
- 15.
ICC Resolution RC/Res. 6 of 11 June 2010, Annex I, para 3.
- 16.
However, the specific significance of the Security Council is nevertheless recognized in Article 15bis (6)–(8) Rome Statute. These provisions assign to the Security Council a key role in the further course of investigation proceedings. According to this rather complicated procedure, the Prosecutor will have to ascertain whether the Security Council has made a determination that the State concerned has committed an act of aggression. If so, the Prosecutor may proceed with his investigation. If not, the Prosecutor has to wait for six months whether the Security Council will still make such a determination. If not, the Prosecutor has to ask authorisation from the Pre-Trial Division of the Court to commence investigation while the Security Council under Article 15bis (8) in conjunction with Article 16 Rome Statute can still defer further investigation.
- 17.
For details on the road to the Kampala breakthrough, see in great detail Kreß and von Holtzendorff 2010, pp. 1202 et seq.
- 18.
Quintana 2018, p. 245. By the time the Assembly of States Parties gathered in December 2017, 35 ratifications had been deposited.
- 19.
Quintana 2018, p. 248.
- 20.
Provided the State has not made an opt-out declaration under Article 15bis (4) Rome Statute, see below.
- 21.
Quintana 2018, p. 240.
- 22.
ICC Resolution RC/Res. 6 of 11 June 2010, para 1.
- 23.
Kreß 2018, p. 8.
- 24.
Quintana 2018, p. 240.
- 25.
- 26.
Kreß 2018, p. 8.
- 27.
Stürchler 2018, printout p. 4.
- 28.
Zimmermann 2018, p. 23: ‘Article 15bis (4) Rome Statute has become completely redundant and superfluous’; p. 27: ‘de facto amendment of the Kampala amendment (including the de facto abolition of Article 15bis (4)’.
- 29.
Strongly opposing: Quintana 2018, p. 244 arguing that the two sentences of Article 121 (5) cannot be separated and that the reference to Article 121 (5) in the Kampala Resolution naturally covers both sentences.
- 30.
ICC Resolution ICC-ASP/15/Res. 5 of 6 December 2019, Annex I, para 18(b).
- 31.
- 32.
ICC Report ICC-ASP/16/24 of 27 November 2017.
- 33.
Stürchler 2018, printout p. 3.
- 34.
According to Articles 15bis (3) and 15ter (3) Rome Statute ‘[t]he Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.’ which refers to Article 121 (3) Rome Statute requiring a two-thirds majority of States Parties.
- 35.
- 36.
Zimmermann 2018, p. 24: ‘opting-out light approach’.
- 37.
Kreß 2018, p. 10.
- 38.
At this point and for the remainder of the Assembly Vice-President Ambassador Sergio Ugalde from Costa Rica as acting President.
- 39.
Article 40 (1) Rome Statute: ‘The judges shall be independent in the performance of their function.’ Article 119 (1) Rome Statute: ‘Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.’
- 40.
- 41.
Quintana 2018, p. 249.
- 42.
Kreß and von Holtzendorff 2010, p. 1180 describe the crucial moment of the Kampala Review Conference in a remarkably similar way.
- 43.
ICC Resolution ICC-ASP/16/Res. 5 of 14 December 2017.
- 44.
‘The Assembly of States Parties […] 1. Decides to activate the Court’s jurisdiction over the crime of aggression as of 17 July 2018’.
- 45.
Cf. the citations in Kreß 2018, footnotes pp. 13 et seq.
- 46.
In the same spirit Stürchler 2018, printout p. 5.
References
Editors (1971) Trial of the Major War Criminals before the International Military Tribunal, Volume I, Nuremberg, 14 November 1945–1 October 1946 (The Blue Series). For more information, see https://www.loc.gov/rr/frd/Military_Law/NT_major-war-criminals.html
Kreß C (2018) On the Activation of ICC Jurisdiction over the Crime of Aggression. Journal of International Criminal Justice 16:1–17
Kreß C, Barriga S (eds) (2017) The Crime of Aggression: A Commentary. Cambridge University Press
Kreß C, von Holtzendorff L (2010) The Kampala Compromise on the Crime of Aggression. Journal of International Criminal Justice 8:1179–1217
Quintana J (2018) A Note on the Activation of the ICC’s Jurisdiction over the Crime of Aggression. The Law and Practice of International Courts and Tribunals 17:236–250
Stürchler N (2018) The Activation of the Crime of Aggression in Perspective. Blog of the European Journal of International Law, https://www.ejiltalk.org/the-activation-of-the-crime-of-aggression-in-perspective/ (accessed 1 March 2021)
Zimmermann A (2018) A Victory for International Rule of Law? Or: All’s Well that Ends Well? The 2017 ASP Decision to Amend the Kampala Amendment on the Crime of Aggression. Journal of International Criminal Justice 16:19–29
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Henrichs, C. (2022). Negotiating Aggression: From Rome over Kampala to New York. In: Bock, S., Conze, E. (eds) Rethinking the Crime of Aggression. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-467-9_1
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