Monday 16 Jul 2018 | 12:53 | SYDNEY
Monday 16 Jul 2018 | 12:53 | SYDNEY

ICC: Debate on aggression heats up

26 May 2010 09:19

Tobias Hanson is working with the Coalition for the International Criminal Court and will attend the forthcoming ICC Review Conference in Kampala. This post is written in his personal capacity.

When the US, Chinese, British and French delegations make supporting interventions in a working group of the International Criminal Court (ICC), ears prick up and you can hear the tapping of fingers on keyboards.

That was the reaction two weeks ago when a rare US intervention signaled that, less than a month out from the ICC's historic Review Conference, we might finally be witnessing progress towards the inclusion of the crime of aggression in the ICC's Statute.

In a week's time we should know more, when the Court's 111 member states, around 600 accredited NGOs and other observers descend on Kampala for the Review Conference, convened to consider amendments to the Court's statute and to conduct a stocktaking of major issues facing the Court's operational success.

There are a couple of modest amendments on the table and one big one. One of the proposals is to delete an article which allows states to defer the Court's jurisdiction over war crimes committed by their nationals or on their territory for a period of seven years after they join the Court. This provision has only ever been invoked by France and Colombia, and is no longer in force, but the discussion of its removal is still likely to be controversial.

Also on the agenda is a Belgian proposal to extend the jurisdiction of the Court over the use of poisonous gases and expandable bullets when used in non-international armed conflicts. At the moment their use only constitutes a war crime in the context of an international armed conflict under the statute. This proposal is unlikely to provoke intense debate although legitimate concerns regarding their use in hostage scenarios have been raised.

The big agenda item is the crime of aggression.

In a compromise reached when the statute was negotiated in 1998, Article 5 lists the crime of aggression as one of the core crimes under the Court's jurisdiction. However, in contrast to the other crimes (genocide, crimes against humanity and war crimes), the Court remains unable to exercise jurisdiction over the crime of aggression because the statute does not go on to define the crime or set out the conditions under which it can exercise jurisdiction.

As it stands, the proposed text of the amendments defines the crime of aggression as the planning, preparation, initiation or execution of an act of aggression. An act of aggression is defined as the use of armed force, without justification of self-defence or authorisation by the UN Security Council, by one state against another. While this definition looks to be relatively settled, the main sticking points relate to the conditions for the exercise of jurisdiction – and in particular the role of the UN Security Council.

Unsurprisingly, the permanent members of the Security Council favour a so-called 'green light' proposal which would only allow the ICC prosecutor to initiate an investigation after the passage of a UN Security Council determination that a state has committed an act of aggression. This proposal has raised concerns about the Court's independence when its powers as a judicial body are made subject to a determination by a political body.

The crime of aggression has been on the international agenda since the Nuremberg and Tokyo Military Tribunals in the aftermath of WWII (then known as 'crimes against the peace'). Despite this, its inclusion in the jurisdiction of the ICC is seen by many to be likely to have a significant bearing on international relations as well as the perceptions of the Court, and is consequently proving to be highly contentious.

The Review Conference is mandated to consider bringing this so-called 'supreme crime' within the Court’s jurisdiction, but even after more than half a century of debate and negotiation, nothing is settled. States and NGOs alike are preparing for a tumultuous journey to Kampala next week.

Photo by Flickr user ekenitr's photostream, used under a Creative Commons license.