Crime of Aggression

Question 1

Where is crime of aggression found in ICC Statute?

Answer 1

Art 8bis

Question 2

Where was crime of aggression originally derived from?

Answer 2

Art 6(a) of Nuremburg IMT: Crimes against peace

Judgment: Aggressive war had been a crime under international law.

GA: Affirmed principles of IL recognised by London Charter and Nuremburg IMT and directed new ILC to codify offences.

Question 3

What three ways was ICC divided during negotiations?

Answer 3

1) Whether the crime of aggression should be included in the statute;
2) How it should be defined;
3) And how and whether a role for the SC should be reflected in statute.

Question 4

What was the compromise of crime of aggression in ICC Statute?

Answer 4

Art 5(1) and (2) of ICC Statute;

However, Art 5(2) says court shall exercise jurisdiction once provision is adopted in accordance with Articles 121 and 123 defining crime and setting out the conditions.

Question 5

When was crime of aggression finally included?

Answer 5

Review Conference at Kampala (2010)

Question 6

Where is definition of aggression?

Answer 6

Art 8bis

Question 7

Where can we find jurisdiction of aggression?

Answer 7

Art 15bis

Question 8

What are the material elements of crime of aggression? (Art 8bis)

Answer 8

1) By a perpetrator in a leadership position in a state
2) Who has participated
3) In an act of aggression by the state
4) Which ‘by its character, gravity and scale, constitutes a manifest violation of the Charter of the UN.’

Question 9

Who can the perpetrator be?

Answer 9

Leaders and high level policy makers

Question 10

What does ICC Definition and Elements of Crime require perpetrator to be?

Answer 10

A person who exercises control or directs the political or military action of the state which committed the act of aggression.

Question 11

How was this criminality confined in Von Leeb and others?

Answer 11

To those who participate in waging aggressive war at policy level.

Question 12

What is meant by participation?

Answer 12

Planning, preparation, initiation or execution.

Question 13

How does ICC definition (para 1) describe act of aggression?

Answer 13

1) Collective act
and
2) Use of armed force;

3) Against the sovereignty, territorial integrity or political independence of another state;
4) Or in any other manner inconsistent with UN Charter.

Question 14

What General Assembly resolution sets out examples of acts of aggression?

Answer 14

GA Res 3314 (XXIX)

Question 15

What are the mental elements of a crime of aggression? (ICC Elements of Crimes)

Answer 15

• Element 4: Perpetrator is aware of the factual circumstances establishing the inconsistency of the use of armed force by the State with the Charter of the UN.
• Element 6: Perpetrator is aware of the factual circumstances establishing the manifest violation of the Charter.

Question 16

Why was jurisdiction over crime of aggression such a controversial issue?

Answer 16

Now entering UNSC territory.

What if SC already made a determination with regard to crime of aggression? Who would be right?

Question 17

How did ICC statute resolve this conflict?

Answer 17

Art 15(6) - prosecutor should first ascertain whether SC has made a determination of an act of aggression committed.

Art 15(7) - If yes, can proceed.

Art 15(8) - If no, if hasn’t determined within six months after notification, can proceed where pre trial division authorities.

Question 18

Does ICC have to comply with SC decision?

Answer 18

No, might differ in opinion as to whether there was an act of aggression.

Justification: (1) UNSC makes political decisions; (2) UNSC deals with responsibility of states, whereas ICC deals with individuals.

Question 19

What were the two hurdles to gain jurisdiction for aggression at Kampala?

Answer 19

1) Only had jurisdiction one year after 30 states have ratified the amendments

–> Occurred in 2016.

2) Only subject to a decision to be taken after 1 Jan 2017 by the same majority of states parties as is required for adoption of amendment to statute.

• -> Achieved on 14 December 2017.
• -> After this, agreed to activate from 17 July 2018.

Question 20

How does jurisdiction differ from other crimes?

Answer 20

Other crimes:

• Art 12: Court has jurisdiction if committed by national of state party or occurred on territory of state party .
• No possibility for state parties opting out and jurisdiction can extend to nationals and territories of non-state parties if conditions of Art 12 are met.

Aggression:

• State parties have choice as to jurisdiction they wish to accept.
• No jurisdiction over aggression committed by nationals or territories of non-state parties.

Question 21

What is exception to jurisdiction over aggression?

Answer 21

Will have jurisdiction regardless if SC refers situation of aggression to court: no need for state to have accepted the amendments.

Question 22

What is the principal uncertainty of the Kampala amendments?

Answer 22

Whether nationals or territory of state who hasn’t accepted amendments are subject to court’s jurisdiction.

Question 23

What causes this principal uncertainty?

Answer 23

• Art 15bis(4) –> state party may make a declaration that it does not accept the jurisdiction of court in respect of acts of aggression it commits.
• Art 121(5) –> Contrasts: for state party which hasn’t accepted amendment relating to crimes under court’s jurisdiction, there will be no jurisdiction if crime under that amendment is committed by state.

Question 24

What does cryer believe is the ‘better view’ with regard to these conflicting provisions?

Answer 24

Nationals and territory of state party aren’t exposed to Court’s jurisdiction until state ratifies or accepts Kampala amendments.

If it accepts amendments, has choice to opt out but only in relation to acts of aggression itself. (Art 15 bis)

Question 25

What are the 5 main concerns about crime of aggression?

Answer 25

1) Ambiguity and indeterminacy of the definition
2) Use of criminal law to regulate use of force between states
3) entering into highly political and controversial questions of public international law.
4) Principle of complementarity and evidence
5) Practicalities