The Crime of Aggression: The Birth of a Crime
The crime of aggression officially emerged for the first time in international criminal law as a crime committed by individuals and not States in August 1945. This coincided with the signing of the London Agreement at the International Military Tribunal in Nuremberg (IMTN). Article 6 of the Nuremberg Statute, which constituted the London Agreement’s annex, explicitly referred to “crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.”
Yet it is a fact that after the trials and respective convictions at the IMTN and the International Military Tribunal for the Far East (IMTFE), the crime of aggression disappeared from the map of international law primarily for three reasons analysed succinctly by Antonio Cassese.
During the summer of 1998, after a marathon session of negotiations, the crime of aggression was incorporated into the Rome Statute of the International Criminal Court and thus featured among the crimes that fall under the jurisdiction of the ICC. However, it was expressly clarified at the second paragraph of Article 5 (d) ICCRSt that “[t]he Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations”.
Consequently, Article 121§5 ICCRSt states that “[a]ny amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. 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”.
In the Kampala Review Conference in 2010 it was eventually decided that the definition of the crime of aggression will be materialised would be confirmed by the addition of Article 8B ICCRSt and concomitantly the removal of the ‘vacant’ Article 5§2 ICCRSt, which had merely stated that the crime of aggression was to be defined over time. However, the final decision regarding the activation of the ICC’s jurisdiction over the crime of aggression was placed on the agenda of the 16th session of the Assembly of States Parties held between 4 and 14 December 2017 in New York pursuant to Articles 15 bis(2) and (3) and 15 ter(2) and (3) ICCRSt. The extremely restrictive approach adopted by the 16th session of Assembly of States Parties casts serious doubts on whether a sui generis, incapacitated crime has been legally established in the place of a true crime.