Monday, June 14, 2010
Just before the close of the Review Conference on the International Criminal Court (ICC) on Friday, the Review Conference voted to adopt an amendment to the Rome Statute defining the crime of aggression and identifying the jurisdictional requirements for prosecution of the crime. The crime of aggression has been part of Article 5 of the ICC Statute since its inception in 1998, but no one could be charged with the crime because the parties were unable to agree on its definitional and jurisdictional elements.
Under the new definition, the crime of aggression means "the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over the political or military action of a State, of an act of aggression, which, by its character, gravity and scale, constitutes a manifest violation of of the Charter of the United Nations. . . An "act of aggression" means the use of armed force by a State against the sovereignty, territorial integrity, or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations." The definition then goes on to list several specific acts that qualify as aggressive acts.
Under the new definition, the United Nations Security Council has the primary role in determining when a crime of aggression has occcured. This role for the UNSC is appropriate given that it is the body charged with maintaining and restoring international peace and security under the UN Charter. However, if the UNSC fails to act, the ICC prosecutor is authorized to commence an investigation on his or her own initiative or at the request of a State Party. The prosecutor must have the approval of a trial chamber. The UNSC can still block the investigation by passing a resolution, but the resolution must be renewed annually. In addition, the crime may only be pursued against states that have accepted the ICC's jurisdiction, a significant limitation. Some international scholars are already criticizing the amendment because the difficulty of charging a state with an action of aggression makes it unlikely such jurisdiction will ever be exercised.
The ICC will not have jurisdiction over any crimes of aggression until at least 2017. In addition, the amendment must first be adopted by the States Parties to the ICC.