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ICC Jurisdiction Set to Expand: Will States be Deterred from War?

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This article was originally published by IPI Global Observatory on 4 December 2017.

The International Criminal Court (ICC) is set to gain jurisdiction over the crime of aggression. For the first time since the end of World War II, world leaders could be held accountable for waging war. States parties are expected to vote on an amendment that will close the last major gap in the court’s founding treaty, extending the ICC’s jurisdiction beyond the crimes of genocide, crimes against humanity, and war crimes. Should the amendment be activated, however, the hurdles to its application, interpretations of its meaning, and the political interests involved cast doubt on whether aggression will be prosecuted any time soon.

According to the new definition in Article 8bis of the Rome Statute, the crime of aggression means the planning, preparation, initiation, or execution of “an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” Examples of such acts are: the invasion, bombardment, or attack of the territory of another states; military occupation or annexation; the blockade of the ports or coasts of a state; and the sending of armed bands or groups to other countries. For the ICC to prosecute such acts, however, three legal requirements must be met.

First, the alleged perpetrator must be a political or military leader who exercises control over or directs state armed forces—the ICC will not prosecute soldiers. Second, the ICC’s prosecutor has to prove that the leader was involved in the planning, preparation, initiation, or execution of the attack, for example by providing evidence of military orders, strategy documents, or insider testimony from high-ranking individuals. Third, the act must amount to an act of aggression and a manifest violation of the UN Charter, which allows the initiation of a war only in cases of self-defense and with a mandate of the Security Council.

While the first two elements are fairly clear, the exact meaning of the third element, particularly of the word “manifest,” is controversial. Some scholars, among them the German law professor Claus Kreß who was involved in the drafting process, explain that only a war of conquest and a hegemonic war would constitute a crime of aggression. In his view, not even a situation like the 2003 Iraq war would fall under the definition because it lacks the “manifest” nature. While the US-led intervention violated the UN Charter, according to Kreß the intention to destroy weapons of mass destruction would make the violation less absolute. Under such an interpretation, all humanitarian interventions would be excluded as they do not constitute a “manifest” violation, and aggression only apply in the rare clear-cut case, like the 1990 attack on Kuwait by Saddam Hussein’s’ forces.

The crime of aggression also cannot be applied retroactively, making the prosecution of, for example, US and Russian leaders for starting the Iraq war or annexing Crimea in 2014 impossible. Moreover, the crime is only applicable when committed by state parties or when the Security Council decides to refer a situation to the court. Since major powers like the US, Russia, and China are not members of the court and could veto a referral, wars started by the nationals of these states will likely not be referred to the ICC. Member states can also declare that they do not accept the jurisdiction of the court over the crime of aggression by lodging a declaration with the registry of the court, complicating the application even further.

Were the ICC to prosecute the crime of aggression, at least one of the states involved in the act would need to have ratified the amendment to the Rome Statute, and the aggressor state cannot have opted out. Currently only 34 of the 123 states parties have ratified the amendment. Kenya is the only country which has formally opted out.

There are a number of countries who are actively supporting the crime’s activation. A representative of Switzerland, for example, said during a debate of the General Assembly at the end of October that the activation would be in the core interest of the UN and its member states, giving the Security Council an additional instrument in its toolbox to enforce peace and security. A representative of Brazil argued that aggression would give additional meaning to the prohibition of the use of force, “thus fostering a more stable, just and democratic world order.” Poland’s representative, noting that their own country had repeatedly fallen victim to aggression, said they would like to save others from such “cruelties.”

However, more than a few states seem to fear the activation of the new crime and are attempting to block it. According to a document obtained by The Guardian, the UK, Canada, France, Japan, and Norway are teaming up to delay the activation, arguing there is a need for more clarity regarding which states and what conduct would be covered. The US government is also opposed saying that the perceived uncertainty around the application of the crime of aggression could deter states from participating in humanitarian interventions or military missions where the legal basis is controversial. When the State Department presented its position in 2015, Under Secretary of State Sarah Sewall said, “we fear that one of the effects of activating the ICC’s aggression jurisdiction will be to create new potential obstacles to military action when it is urgently needed to save innocent lives.”

The conditions, requirements, and political interests of UN member states make the application of the amendment to the ICC a complex matter. As with the crime of genocide, crimes against humanity, and war crimes, the ultimate potency of this expansion of the ICC’s jurisdiction will be determined by the willingness of member states to activate it. The matter is on the agenda of the annual Assembly of States Parties which opens this week in New York. However, major powers are likely to try until the last minute to delay the vote on the activation. Given the complexity and the considerations at stake, the application of the crime of aggression in the foreseeable future is highly unlikely.


About the Author

Benjamin Duerr is an international criminal law analyst based in The Hague. Follow @benjaminduerr.

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