Lesson 5: The Crime of Aggression: The Supreme Crime, Preventing Future Wars - Just not in Ukraine?

Question 1

What is the history of the CoA? What issues existed during the Nuremberg trials? What is the role and content of GA res. 3314? What was agreed regarding the CoA at Rome?

Answer 1

During the Nuremberg trials, the concept of aggression was discussed and included in the indictment against the defendants. However, at that time, there was no universally agreed-upon definition of the crime of aggression. The GA Resolution 3314 provides a definition of aggression and identifies various acts that can constitute aggression, such as invasion, military occupation, bombardment, and blockade. It also outlines the general principles governing the crime of aggression, including the prohibition of aggression and the duty to refrain from acts of aggression. The ICC Statute includes the crime of aggression as one of the core international crimes falling under the jurisdiction of the Court. However, at that time, no consensus was reached on a definition of aggression, and the jurisdiction of the ICC over the crime of aggression was suspended until a provision defining the crime and its conditions of exercise could be adopted.

Question 2

What is the ICC definition of the CoA? What are the differences to Nuremberg? What role does GA res. 3314 play for the ICC?

Answer 2

• Def: 1) The perpetrator is a political or military leader of a state or a person acting on behalf of a state, 2)The perpetrator plans, prepares, initiates, or executes an act of aggression 3)The act of aggression involves the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state. 4) The act of aggression manifestly violates the United Nations Charter, 5) The act of aggression is a manifest violation of the prohibition on the use of force.
• GA res. 3314 serves as a valuable reference for the ICC in determining the elements and characteristics of the Crime of Aggression. It provides guidance on what constitutes aggression under international law and helps establish a common understanding among states and the international community.

Question 3

Is the CoA the ”supreme crime”? Or is genocide the ”crime of crimes”? Does this kind of label matter?

Answer 3

(Referred to as the supreme crime during nuremberg trials)

Question 4

What are the ”understandings” regarding the CoA about?

Question 5

Is the CoA different from the other ICC crimes? Is it less defined? How does that matter and for whom? What does complementarity mean for the CoA?

Answer 5

It is defined very narrowly - It only applies in situations of 1) “manifest” violations of the Charter (Character, gravity, scale), 2) Only people in senior leadership, 3) without SC referral, only applicable when it is state against state, 4) needs to be ratified (39), 5) countries can opt-out
- Complementarity means that the primary responsibility for investigating and prosecuting the crime of aggression lies with individual states, and the ICC’s intervention is a last resort (This is difficult when it is the senior personel in the state that is on the line).

Question 6

What is the role of the SC regarding the CoA? Is this in line with the ICC Statute and the UN Charter?

Answer 6

• ICC prosecution: State referral, SC referral evn if not party, the ICC prosecutor initiates
• SC can decide to halt the investigations for 1 year indefinitely (art 16)

Question 7

What impact (if any) does the Kampala solution have on jus ad bellum? Any impact on humanitarian intervention? What is the threshold for the CoA? Will the CoA strengthen the ICC?

Answer 7

• First tribunal to include it in its jurisdiction
• What does it mean for an act to be a ‘manifest violation? Will acts that are done to stop atrocities (such as HI) be deferred from intervening?
• Its impact lies more in the normative value rather than the prosecuting

Question 8

Should Denmark/your home country ratify the CoA or not? Why is this an important question? What questions are there to consider when ratifying?

Question 9

When did the CoA enter into force and for whom? What is the ”opt out” clause about and who does it matter to? What is meant by the ”activation” of the CoA? What was the dispute about at the ASP2017?

Answer 9

• Entered into force in 2018, and It applies to states that have ratified or accepted the amendments to the Rome Statute that include the CoA provision.
• According to Article 15 bis of the Rome Statute, a state that ratifies or accepts the CoA amendments can choose to opt out by submitting a declaration to the ICC Registrar.
• The Court’s jurisdiction can be activated one year after the ratification or acceptance of the amendments by at least 30 states.
• he main point of contention was the role of the United Nations Security Council (UNSC) in the activation of the CoA jurisdiction. Some states argued for a more restrictive interpretation, requiring a UNSC determination of an act of aggression before the ICC could exercise jurisdiction. Others favored a broader interpretation that would allow the Court to exercise jurisdiction without a UNSC determination.
• compromise: the ICC could exercise jurisdiction over the CoA only when a state party has not opted out and the ICC Prosecutor has initiated an investigation or prosecution with the authorization of the ICC’s Pre-Trial Division.

Question 10

What is the status of non-state parties regarding the CoA? Does that make sense?

Question 11

Which current conflict would the CoA matter for and why so? Which government could benefit of ratifying the CoA?

Answer 11

If either of the parties had ratified, it would be relevant in regards to the Russian invasion of Ukraine and the prosecution of Putin