THE INTERNATIONAL CRIMINAL COURT
AND THE CRIME OF AGGRESSION
A. Walter Dorn
Original version published in Peace Magazine, Vol. 26, No. 3, p.31, available online.
The first review conference of the Rome Statute—the founding document of the International Criminal Court—met in Uganda. On the final day, 11 June 2011, the member states of the Court responded to a widespread demand, amending the Statute to formally include the Crime of Aggression. After years of debate the Crime of Aggression was defined, as were the conditions by which the court can exercise partial jurisdiction. This amendment gave victory to NGOs who had lobbied the 111 ICC member states.
The ICC already has a mandate to bring to trial individuals who have committed the "most serious crimes of concern to the international community": genocide, crimes against humanity, and war crimes. Now aggression has taken its rightful place among these infamous crimes. Aggression was last prosecuted in an international courtroom in the Nuremberg/ Tokyo trials, when the term applied was “crimes against the peace.”
Many powerful nations were opposed to giving the ICC having this power. The US, China, and Russia—though not members of the Court—were pressing to avoid this result. They managed to slow but not to halt this progress.
Most provisions of this amendment were similar to those already envisioned in the Rome Statute, including the ability of the Security Council to defer the start of investigations and the ability of a State Party to opt out of such amendments. These unfortunate concessions were necessary in 1998 to get support for the Statute in the first place. Aggression is defined along the lines of the 1974 General Assembly definition, essentially as a violation of the UN Charter. This will enhance the credibility of the United Nations. It will bring international political organization and international law enforcement closer into alignment.
Unfortunately, the “exercise of jurisdiction” for this crime was made subject to a further vote that will not be held before 2017. In the meantime, however, the ratification process can proceed before that date; some thirty states must ratify for the entry into force of the Statute amendment. Those opposing the move could further delay the vote or try to prevent the required 2/3 majority, but this is doubtful, given the political will that exists now.
The US could not vote (since it is not a signatory or member) but it lobbied hard to prevent its nationals or leaders from ever being prosecuted. This displays little faith in the legality of its own decision-making or the capability of the ICC to judge fairly on issues of international criminal law. However, the US has supported the ICC in other cases, such as the issuing of an arrest warrant for Sudanese President Omar Bashir. The Obama administration is less negative than the Bush administration, which “unsigned” the Statute President Clinton had approved in his last days of office.
In the future, one can hope that a mechanism will be developed to snatch the accused and bring them to the court, though this may need authorization from the Security Council. It is certainly better to bring a national leader to trial than to wage a war or stage an invasion of entire country.
Source: Professor Walter Dorn
Chair, Canadian Pugwash Group