Activation of the International Criminal Court’s Jurisdiction Over the Crime of Aggression & Challenges Ahead

[Jennifer Trahan is a Clinical Professor at the NYU Center for Global Affairs.]

July 17, International Justice Day, not only marked the 20^th anniversary of the Rome Statute of the International Criminal Court (“ICC”), but also activation of the ICC’s fourth crime, the crime of aggression. These milestones were celebrated by an event at the UN entitled “20^th anniversary of the Rome Statute: the need for universality and the International Criminal Court’s jurisdiction over the crime of aggression,” as well as events in The Hague and Rome.

At the UN event, many States Parties expressed support for the activation of the crime of aggression, with reservations expressed by the UK and France. Non-States Parties—who might also have expressed reservations—did not appear to attend the event. (There were also many calls for working towards universal ratification of the Rome Statute, and other support for the work of the Court, as well as calls for assessment of “lessons learned.”)

States Parties generally hailed activation of the ICC crime of aggression’s jurisdiction as significant for: (1) completing the crimes originally envisioned under the Rome Statute; (2) furthering the legacy of the International Military Tribunal at Nuremberg which prosecuted “crimes against peace” and deemed the crime of aggression as “the Supreme crime”; (3) essentially reinforcing the core norm against aggressive use of force found in article 2(4) of the UN Charter; and (4) supporting international peace and security.

Benjamin Ferencz, who prosecuted the Einsatzgruppen case at Nuremberg, was in attendance at the July 17 UN event and for the screening of a film on July 16 about his life and legacy, entitled “Prosecuting Evil.” Ferencz closed the July 17 UN event by noting what had been accomplished but berating states that they are doing far too little to combat aggressive war, which poses a global threat to mankind.

Some States Parties welcomed that the Security Council will now be able to refer four crimes to the ICC, including the crime of aggression, while others noted that the permanent members of the Security Council far too often utilize their veto power even in the face of atrocity crimes and that “veto restraint” should also be exercised when the issue of referral to the ICC arises.

How much deterrence will there be?

Given the celebratory mood of the UN event, States Parties did not mentioned the significant limitations on the ICC’s crime of aggression jurisdiction that exist, at least under the text of the activating resolution from last December’s Assembly of States Parties meeting. These limitations pertain to situations initiated by State Party referral or the Prosecutor’s own initiation (under Rome Statute article 15bis). Because of these restrictions, if they are effective (see my article questioning their effectiveness), there is far less jurisdiction that the ICC has over the crime of aggression than it has over the crimes of genocide, crimes against humanity, and war crimes. This then would seem to diminish any potential for deterrence as well, at least under article 15bis. (These jurisdictional limitations did not all occur at the last ASP; for example, non-States Parties were completely excluded from ICC crime of aggression jurisdiction already at the 2010 Kampala Review Conference under article 15bis, para. 5.)

As to the deterrence potential created by the ability of the Security Council to make referrals including the crime of aggression, this could be potentially significant. No state will know for certain that it won’t be referred, except of course the permanent members of the Security Council and their close allies, who can be “protected” from referral by the veto power of the Permanent Members. (I put “protected” in quotes, because it is also possible that the people of the state at issue might in fact want their leader tried, for instance, for launching an irresponsible and/or illegal war; thus, it is only “protection” from a certain vantage point.) The fact that referral (and deferral) will not function apolitically before the Council was an important reason why many States Parties pressed hard over the years for another way for crime of aggression cases to be able to start, other than through Security Council referral under article 15ter. This now exists, under article 15bis, but with seemingly significant jurisdictional limitations.

Thus, activation is a step forward for the rule of law, but an imperfect step forward, due to all the jurisdictional carve-outs. One way to minimize the impact of such carve-outs is for more States Parties to ratify the crime of aggression amendment, thereby expanding jurisdiction under article 15bis; another way is for non-States Parties to newly ratify the Rome Statute as amended; yet another way is for States Parties (or even non-States Parties) to implement crime of aggression legislation into their domestic criminal codes, where it need not have any jurisdictional carve-outs and could potentially create additional deterrence.

While it is notoriously difficult to prove that deterrence works, an additionally factor regarding crime of aggression is that it is a “leadership crime.” That is, the crime only encompasses “a person in a position effectively to exercise control over or to direct the political or military action of a State” per article 8bis, para 1. Thus, should such leaders take note of the ICC’s crime of aggression jurisdiction activating? Indeed, they should.

Future challenges for the ICC to prepare to address this crime

Activation of the crime also poses challenges for the ICC to prove itself a responsible institution, capable of addressing the crime of aggression in an impartial, fair, and responsible manner.

To begin with, the ASP should start to consider knowledge of jus ad bellum law when evaluating candidates to serve as ICC judges, as jus ad bellum law is a different area of law than the law related to genocide, crimes against humanity, and war crimes.

The OTP will also have to consider what new policy guidelines need to be developed regarding the 4^th crime. For instance, “gravity” as to the crime of aggression is not necessarily the same as “gravity” vis-à-vis the other crimes, and may well require a new policy paper. (For example, de minimis instances of aggression are intended to be excluded from the crime, namely, under article 8bis para. 1, acts of aggression that are not “manifest” UN Charter violations by their “character, gravity, and scale”—but gravity here refers to gravity of the act of aggression (e.g., that an aberrant missile strike caused by a map error should be excluded). This is a new type of gravity evaluation.) Now that the Security Council can make referrals encompassing the crime of aggression, it is time for the ICC to grapple with its 4^th crime.

A significant new tool for Security Council in advancing international peace and security

Under the UN Charter, the first purpose and principle of the UN listed is to “maintain international peace and security” (article 1.1), and the Security Council has “primary responsibility” for that task (article 24.1). Despite widespread disenchantment with the Security Council’s performance in this respect, activation of the ICC’s crime of aggression jurisdiction provides it a significant new tool. It could use this in at least two ways: (1) by utilizing its referral powers (and minimizing its deferral powers) with the goal of both increasing deterrence and ensuring appropriate situations may be prosecuted; and (2) in an early warning capacity, to try to stave off potential acts of aggression before they launch, by indicating it is watching a state’s actions.

             The Security Council’s role in referrals and deferrals

Will the Security Council make referrals covering the crime of aggression? It no doubt depends on what acts of aggression are committed in the future and by whom. It will also depend whether the members of the Council (particularly the permanent members who wield veto power) support making such referrals, which is unknown. If permanent members categorically state opposition to such referrals (which could be the case, or could be the case for at least some permanent members) that would unfortunately start to unwind the significantly large deterrence potential they might otherwise be able to exercise. Conversely, a heavy-hand at deferring situations involving the crime of aggression (as the Council will also be able to exercise Rome Statute article 16 deferral powers) could also start to unwind any such deterrence potential.

           The Security Council’s potential role as to early warning

The Security Council could also play something of an early warning function regarding the crime of aggression. As to the other crimes, the Prosecutor has sometimes indicated she is watching a situation, in an effort to try to deter crimes (e.g., letting it be known that she is watching elections, in an effort to deter post-election violence). As to the crime of aggression, however, there will be fewer situations over which the ICC Prosecutor will have jurisdiction, and she will be less able to play this role. It is here that the Security Council could play such a deterrent function. Imagine a troop buildup is detected on the border of one country, suggesting forces could be poised to enter, or launch force into, a neighboring state; the Security Council could indicate that it is closely watching such a situation, sending a reminder to the state in question of the Council’s referral powers. This would seem to provide significant potential for deterrence. (The more States Parties ratify the crime of aggression amendment, there more jurisdiction will exist under article 15bis, which would increase the numbers of situations where the Prosecutor could play such a role.

Conclusion

Activation of the ICC’s 4^th crime is very significant. Activation is no doubt an advance for international criminal law, but the challenge will be to ensure that it is also an advance for international peace and security. Tasks ahead include: (1) for the ICC to demonstrate itself capable of impartially, fairly. and responsibly adjudicating this crime; (2) for the Security Council to refer situations involving aggression to the ICC (and not exercise its deferral powers), so that the Security Council’s ability to refer may create deterrence, potentially worldwide, and to ensure that appropriate situations are referred; and (3) for States Parties that have not yet ratified the crime of aggression amendment to do so, and thereby increase ICC jurisdiction under article 15bis, which, in turn, could also increase deterrence. The author stresses the importance of deterrence because activation of the 4^th crime is not designed to generate ICC cases; in a perfect world, there will be no ICC crime of aggression cases to prosecute because deterrence has worked.

Thus, while the decades of drafting work and negotiations are now finished, there is much remaining work to be accomplished regarding the ICC’s 4^th crime. The path forward—resuming the long-dormant legacy of the Nuremberg Tribunal—is just beginning.