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12 June 2010

The Result: Prosecuting Aggression at the International Criminal Court

Definition of aggression (art. 8 bis). The definition of aggression that emerged more than a year ago as a result of the work of the Special Working Group on the Crime of Aggression is adopted, together with two understandings (understandings 6 and 7) and Elements of Crimes. The definition is comprised of two paragraphs, the first establishing that the crime of aggression ‘means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct 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 the Charter of the United Nations’, the second providing a detailed seven-paragraph enumeration of acts that qualify as an act of aggression.


Entry into force. The resolution accompanying the amendments specifies that they ‘shall enter into force in accordance with article 121, paragraph 5’. This means that the amendments enter into force for a State one year after it has ratified or accepted them. The paragraphs added at the end of the final session are referred to colloquially as ‘delayed entry into force’, but in fact they are actually addressed to the exercise of jurisdiction rather than the actual entry into force. Nevertheless, because a State must exclude itself from the jurisdiction over aggression by making a declaration, a State that does nothing is in effect bound by the amendment. Moreover, ratification by thirty States is necessary before the Court can exercise jurisdiction. So, despite the words of article 121(5), the regime of entry into force is really sui generis.

Exercise of jurisdiction. There are several limits on the exercise of jurisdiction by the Court. Two of them apply regardless of whether the situation is referred by the Security Council, by a State Party or on the initiative of the Prosecutor.
A decision must be taken, at some point after 1 January 2017, authorizing the exercise of jurisdiction. The decision will require a two-thirds majority of the States Parties. The reference to the majority is meant to indicate that consensus will not be necessary, or even desirable. In practice, this should be virtually automatic.
Moreover, the amendment must have been ratified or accepted by at least thirty States Parties. This is presented in the amendment as a condition for 'exercise of jurisdiction' but it is really more like a condition for entry into force.

Exercise of jurisdiction pursuant to a Security Council referral (art. 15 ter). The Court may exercise jurisdiction in accordance with article 13(b) of the Statute irrespective of whether the State concerned has accepted the Court’s jurisdiction. The Security Council may refer a situation involving a State that is not a State Party.

Exercise of jurisdiction pursuant to referral by a State Party or on the Prosecutor’s own initiative (art. 15 bis). The Court may exercise jurisdiction over an act of aggression committed by a State Party unless it has previously made a formal declaration that it does not accept such jurisdiction. The Court may not exercise jurisdiction over aggression committed by the nationals of a State that is not a party to the Statute. The Prosecutor can only proceed when this has been authorized by the Pre-Trial Division of the Court.

Legal academics like myself will be eternally grateful to the Review Conference for providing us with such complicated and at times incoherent provisions. They will provide us with fodder for journal articles, books and conferences for many years to come.

3 comments:

  1. Dear prof. Schabas, thank you very much for sharing your experiences from the ICC Review Conference with us, it was exciting to follow your posts full of detailed information since the first day of the Conference!

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  2. This is amazingly helpful info! Could you post the final documents to confirm the texts?

    I have some questions. How do the changes really accomplish anything new? The UN Security Council already has the power under Ch. VII to bring about an investigation/prosecution of the crime of aggression. The ICC has only made this an easier matter administratively. States Parties can easily reject jurisdiction if aggression becomes an issue for them. Nothing changes for non-States Parties.

    It seems it would have been better to achieve resolution on the crime of aggression but wait to deal with the jurisdictional filter until later. Now that these provisions are in place, it will take much longer to have further changes that grant the ICC real independent jurisdiction than if the jurisdictional filter issue had been postponed; there would have been ongoing pressure to deal with jurisdiction (e.g. there would be huge pressure in 2017), and now reopening jurisdiction will be very difficult (most likely impossible in 2017, and 2024 will also be unlikely as it will have been only 7 years after these provisions go into effect).

    Scheffer mentioned the potential for a "toxic" dispute between the UNSC and the ICC. That is an important point, but shouldn't be considered in a vacuum. That risk needs to be weighed in comparison with the toxicity of the crime of aggression; unlawfully waged war is a far greater problem (and an actual one) than is the hypothetical toxicity of a UNSC-ICC dilemma.

    Thank you again for all of your insightful blogging!

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  3. Seems complicated indeed. The full text is not available online yet?

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