Abstract
In the early hours of 15 December 2017 at the United Nations’ headquarters in New York, the Assembly of States Parties to the Rome Statute (ASP) decided to activate the crime of aggression amendments. With the aggression mandate in Article 5(2) of the Rome Statute fulfilled, this treaty is finally complete. States have managed to negotiate a definition of the crime of aggression with accompanying elements of crimes and interpretive understandings that can be applied by judges of the Court for the purpose of making findings of individual culpability. The Court’s jurisdiction over this crime has also been established and activated, making it the first permanent international court possessing such jurisdiction. The amendments are the product of negotiations that were open to all States and began in 1999. They are the product of decisions by States parties to the Rome Statute that were adopted by consensus. All of this suggests that activation of the aggression amendments in 2018 was a constitutional moment in the history of international criminal justice that invites critical reflection on the future. In this contribution, the potential implications of the aggression amendments for the Court, for the ASP, for individual States and their citizens, as well as for international law generally will briefly be considered.
At the workshop, ‘The ICC in Turbulent Times’, I was invited to debate with Harold Koh the significance of the activation decision, whether it represents a keystone or final straw for the Rome Statute of the International Criminal Court. This contribution grew out of that presentation. For their constructive feedback on my presentation, I sincerely thank Stefan Barriga, Harold Koh and Christian Wenaweser. For their helpful comments on this chapter, I am most grateful to Dapo Akande, Roger Clark and Claus Kreß. This chapter is written in my personal capacity and does not necessarily reflect the views of the Permanent Mission of Liechtenstein to the United Nations.
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Notes
- 1.
- 2.
ICC ASP, The Crime of Aggression , Resolution RC/Res.6, 11 June 2010.
- 3.
ICC ASP, Activation of the Jurisdiction of the Court over the Crime of Aggression , Resolution ICC-ASP/16/Res.5, 14 December 2017 (Activation Decision).
- 4.
See Kreß and Barriga 2016.
- 5.
Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (as amended as of 29 November 2010), Article 8bis(1). https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf. Accessed 3 December 2018. This is complemented by Interpretive Understanding 6, which limits aggression to ‘the most serious and dangerous form of the illegal use of force’ in light of ‘all of the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations’.
- 6.
Ibid., Article 15bis(8).
- 7.
Ibid., Article 15bis(9).
- 8.
On intertemporality and crimes in the Rome Statute, including the crime of aggression , see Grover 2014, chapter 9.
- 9.
Grover 2016.
- 10.
ICC ASP, Report on the Facilitation on the Activation of the Jurisdiction of the International Criminal Court over the Crime of Aggression , ICC-ASP/16/24, 27 November 2017; Kreß 2018.
- 11.
Akande and Tzanakopoulos 2018.
- 12.
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), Article 32 Vienna Convention (emphasis added).
- 13.
- 14.
Clark 2009, ibid., pp. 423–424.
- 15.
Ibid., p. 421, n 38.
- 16.
Vienna Convention, above n 13, Article 40(4): ‘The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement; article 30, paragraph 4(6), applies in relation to such State.’
- 17.
See Barriga and Kreß 2011, in particular Princeton Report, ibid., pp. 451–453.
- 18.
Barriga 2017. See also Akande 2010: ‘There is perhaps another view that would argue that it is consistent with Art. 121(5) for all States parties who do not opt out to be bound. On this view, one would have to argue that a State party is presumed to accept the amendment unless it opt outs. So only those who opt out are to be regarded as not accepting the amendment and in that way the principle of consent is maintained though consent is presumed.’
- 19.
Barriga and Blokker 2016, p. 633. The authors analogise the activation decision to a ‘flick [of] the switch’. This view is confirmed by conditions for the Court’s exercise of jurisdiction over the crime of aggression , which allow for States to ratify the aggression amendments prior to an activation decision being taken.
- 20.
Emphasis added. ICC ASP, Strengthening the International Criminal Court and the Assembly of States Parties, Resolution ICC-ASP/15/Res.5, 26 November 2016, annex I, para 18(b).
- 21.
Kreß 2018, pp. 10–11. These proposals are also on file with the author.
- 22.
Stürchler 2018. Upon adoption of the activation decision, some States that supported the Kampala opt-out compromise understandably sought to benefit from the literal application of Article 121(5), second sentence, by expressing views to that effect. Notes on file with author.
- 23.
Activation Decision, above n 3, para 3.
- 24.
Akande and Tzanakopoulos 2018, p. 952.
- 25.
Ibid., pp. 953–954.
- 26.
Barriga and Kreß 2011. This phrase was repeatedly invoked throughout the negotiations. See, e.g., 2009 Chairman’s Paper, ibid., pp. 637–640, para 4.
- 27.
The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression : https://crimeofaggression.info/the-role-of-states/status-of-ratification-and-implementation/. Accessed 7 May 2019.
- 28.
Ibid., Albania, Australia, Bolivia, Brazil, Bulgaria, Burundi , Dominican Republic, Ecuador, Greece, Honduras, Hungary, Italy, Lesotho, Madagascar, Mongolia, Montenegro, New Zealand, Paraguay, Peru, Romania, Senegal, Serbia and Venezuela. For seven States parties, the process is in its early stages: Ghana, Guatemala, Japan, Mexico, Moldova, Republic of Korea and Tunisia.
- 29.
Akande and Tzanakopoulos 2018, p. 951.
- 30.
- 31.
Grover 2016, pp. 399–404.
- 32.
Akande and Tzanakopoulos 2018, pp. 943–946.
- 33.
Crawford 2018, p. 4.
- 34.
Akande and Tzanakopoulos 2018, p. 943 claim that the Court’s jurisdiction over the crime of aggression is unclear with respect to: (1) new States parties to the Rome Statute; (2) non-States parties; and (3) States parties that have not ratified the aggression amendments but for whom a situation is referred to the Court by the Security Council. However, all of these jurisdictional questions were debated leading up to and in Kampala . Very deliberate decisions were taken on all of them (e.g., deliberately removing the Article 12(3) declaration option for non-States parties with respect to the aggression regime as States considered it unfair for non-States parties to benefit from the regime without being themselves bound by it).
- 35.
Grover 2011.
- 36.
The author’s notes and those of other members of the Liechtenstein delegation of these explanations of vote are on file with the author.
- 37.
See Stürchler 2018, for a summary of the number of States comprising the majority.
- 38.
UK Supreme Court, R (on the application of Miller and another) (Respondents) v. Secretary of State for Exiting the European Union (Appellant), Judgment, 24 January 2017, [2017] UKSC 5. Following executive notification to withdraw from the European Union pursuant to Article 50 of the Treaty on European Union, the United Kingdom Supreme Court ruled that withdrawal under Article 50 could not be based on the Crown’s prerogative but instead required parliamentary action. In December 2017, it could not have been far from the minds of the UK delegates in New York whether opting out of the aggression regime in accordance with Article 15bis(4) of the Rome Statute is analogous to treaty withdrawal and therefore also requires parliamentary action, which would presumably attract greater public scrutiny than non-ratification of the aggression amendments if Article 121(5), second sentence, was literally applied to them.
- 39.
Charney1978, p. 43.
- 40.
UN Charter Article 18; Rosenne 1954, pp. 312–313.
- 41.
Crawford 2018, p. 21.
- 42.
UCDP Dyadic Dataset, version 18.1. http://ucdp.uu.se. Accessed 5 January 2019; Harbom et al. 2018. The UCDP defines conflict as: ‘a contested incompatibility that concerns government and/or territory where the use of armed force between two parties, of which at least one is the government of a state, results in at least 25 battle-related deaths.’ These were organised conflicts that were mostly State-based, although some were between non-State actors or one-sided.
- 43.
http://ucdp.uu.se. Accessed 5 January 2019.
- 44.
UCDP Battle-Related Deaths Dataset, version 18.1 and using the best estimate of battlefield deaths (bdbest). http://ucdp.uu.se. Accessed 5 January 2019. Pettersson and Eck 2018.
- 45.
The UCDP database used does not contain an assessment of the legality of the initial use of force. It is therefore not possible, without further analysis, to determine how many battlefield deaths since 1989 can be traced to armed conflicts involving an act of aggression .
- 46.
Koh 1997, p. 2603.
- 47.
UK High Court of Justice Divisional Court of the Administrative Court, R (Al Rabbat) v. Westminster Magistrates Court, Judgment, 31 July 2017, [2017] EWHC 1969 (Admin). The High Court ruled that PM Tony Blair cannot be prosecuted for the crime of aggression , as it is not criminalised under English law. Parliamentary action is required for domestic criminalisation.
- 48.
https://crimeofaggression.info/the-role-of-states/status-of-ratification-and-implementation/. Accessed 7 May 2019. Luxembourg, Slovenia, Croatia, Czech Republic, Ecuador, Samoa, Austria and The Former Yugoslav Republic of Macedonia.
- 49.
Ibid., Belgium, Botswana, Chile, Costa Rica, Greece, Guatemala, Honduras, Lithuania, Madagascar and Peru. Ibid: ‘In some countries, implementing legislation or possible changes to existing laws are expected to be considered after ratification, e.g. in Argentina, Germany, Liechtenstein, Switzerland, Trinidad and Tobago and Uruguay.’
- 50.
Ibid., Armenia, Azerbaijan, Bangladesh , Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, Cuba, Czech Republic, Estonia, Germany, Georgia, Hungary, Kazakhstan, Kosovo, Latvia, Lithuania, The Former Yugoslav Republic of Macedonia, Moldova, Mongolia, Montenegro, Paraguay, Poland, Russian Federation, Serbia, Slovakia, Slovenia, Tajikistan, Timor-Leste, Ukraine , Uzbekistan and Vietnam. For a rich comparative study of domestic legislation on aggression , see Reisinger Coracini 2016.
- 51.
Crawford 2018, p. 4.
- 52.
On the rebuttable legal presumption that the definitions of crimes in the Rome Statute are consistent with definitions for these crimes under customary international law, see Grover 2014, chapter 9, section 9.2.2; Grover 2016, p. 392 (crime of aggression ). On the treaty definition of act of aggression being reflective of custom, see Kreß 2016, pp. 421–422; Akande and Tzanakopoulos 2016, p. 225.
- 53.
Commenting on the possible crystallisation of this definition into custom, Bing Bing Jia similarly posited that the ‘impact of that development may dwarf the significance of specific instances in which the ICC exercises jurisdiction’ over this crime. Jia 2015, p. 570.
- 54.
Kreß 2016, p. 422.
- 55.
Kreß 2018, p. 16. There is also Article 31(3) of the Rome Statute, which the United States insisted be included with a view to justifying uses of force: ‘At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21.’
- 56.
Grover 2016, pp. 390–392.
- 57.
ICC ASP 2002, Article 7, Introduction.
- 58.
Grover 2016, pp. 381–384.
- 59.
US Supreme Court, Grayned v. City of Rockford, Judgment, 25 June 1972, 408 US 104 (1972), p. 109. Ibid., p. 110: ‘Condemned to the use of words, we can never expect mathematical certainty from our language. The words of the Rockford ordinance are marked by flexibility and reasonable breadth, rather than meticulous specificity, but we think it is clear what the ordinance as a whole prohibits.’
- 60.
Benjamin Ferencz: http://www.benferencz.org. Accessed 5 January 2019.
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Grover, L. (2019). Activating the Crime of Aggression Amendments: A Look Ahead. In: Werle, G., Zimmermann, A. (eds) The International Criminal Court in Turbulent Times. International Criminal Justice Series, vol 23. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-303-0_10
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