Academic journal article Duke Journal of Comparative & International Law

Whose Crime Is It Anyway? the International Criminal Court and the Crime of Aggression

Academic journal article Duke Journal of Comparative & International Law

Whose Crime Is It Anyway? the International Criminal Court and the Crime of Aggression

Article excerpt


In the early hours of June 12, 2010, a vote was taken in Kampala, Uganda that changed the face of international criminal law forever. It was at this time that the Assembly of States Parties to the International Criminal Court (ICC) came to a consensus regarding the definition of the crime of aggression and the mechanism by which the ICC will eventually exercise jurisdiction over it. However, the process of these negotiations was far from straightforward; the final text of the amendments consisted of numerous provisions and understandings in an attempt to appease the concerns of the varying factions that had descended on Kampala for this occasion. As a result, the text of the crime of aggression amendments remains ambiguous with regard to both the definition of the crime as well as its entry into force and exercise of jurisdiction provisions.

This paper seeks to parse through this ambiguity by addressing the questions that will require resolution by the judges at the ICC. The first section will provide a brief overview of the negotiations at Kampala as well as discuss the final text that became the crime of aggression amendments to the Rome Statute. The second section will analyze nine key questions that have arisen regarding the elements of the crime as well as the ICC's ability to exercise jurisdiction over it and suggest how judges at the Court will likely interpret the text when these situations come about. As the amendments will not enter into force until January 1, 2017 at the very earliest, this analysis will function as the beginning of a dialogue on these topics in order to generate a consensus over their answers and provide for a smooth transition into a new era of international criminal law.


A. The Rome Conference

On July 1, 2002 the Rome Statute of the International Criminal Court entered into force (1) giving the Court jurisdiction over three of the four crimes within its mandate. (2) The fourth crime, the crime of aggression, makes it a crime for an individual to wage an illegal war. (3) Despite being listed as one of "the most serious crimes of concern to the international community," (4) this crime had been left undefined and without a mode for the Court to exercise jurisdiction over it. (5) This purposeful oversight was done in order to placate countries that were hesitant about an international institution having jurisdiction over such a controversial crime. (6) This is not to say that there had not been consensus as to the need for protection against the crime of aggression; even at Nuremberg aggression had been called the "supreme international crime" (7) and this belief was very much alive during the Rome Conference. (8) However, the crime of aggression imposes unique factors that are not present in the other three crimes under the ICC's jurisdiction. (9) For instance, in determining if a war crime or crime against humanity has occurred, the ICC does not account for military deaths or civilian deaths, which are often considered "collateral damage;" (10) however, both factors influence a determination as to whether a situation constitutes an act of aggression. (11) A more contentious problem, however, is that a decision regarding a crime of aggression indirectly impacts the legal sovereignty of a State as opposed to simply influencing the rights of the accused. (12) In this sense, more so than the other crimes enumerated in the Rome Statute, the crime of aggression carries with it a political aspect that made the delegates at Rome uneasy. (13)

Instead, these delegates, aware of the fact that the entire process might unravel if they forced the debate revolving around aggression, (14) inserted two provisions into the Rome Statute that bought some time before any decisions had to be made. The first, Article 5(2), provided for the possibility of including the crime of aggression into the Court's mandate by stating that "[t]he Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. …

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