The ICC’s Special Working Group on Aggression Meets

The ICC’s Special Working Group on the Crime of Aggression has released an annotated agenda of its intersessional meeting last week at Princeton. The meeting addressed four interrelated issues:

[1] The relationship between the crime of aggression and Article 25(3) of the Rome Statute, which establishes the possible forms of participation in a crime. Two different approaches have emerged: the “monistic” and the “differentiated.” The monistic approach would exclude reference to Article 25(3) in favor of a definition of aggression that specifically included possible forms of participation. The differentiated approach, by contrast, would make Article 25(3) applicable to aggression in the same way that it currently applies to acts of genocide, war crimes, and crimes against humanity. The Working Group has also discussed whether individuals should be criminally liable for “attempted” aggression.

[2] The conditions for the Court’s excercise of jurisdiction over aggression. According to Article 5(2) of the Rome Statute, the Court can only exercise such jurisdiction “once a provision is adopted… defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime” — a provision that cannot be adopted until July 1, 2009. The Special Working Group addressed a number of important questions regarding those jurisdictional conditions:

Should the ICC exercise jurisdiction over the crime of aggression only after receiving an explicit/implicit approval from another organ? Which organ(s) would make that decision (Security Council, General Assembly, ICJ)? Would such a decision – namely, that a State act of aggression has occurred – be a prejudicial determination for the ICC (i.e. a legally binding determination which can not be refuted in Court by the accused), or only a procedural pre-condition? What are the consequences for the rights of the accused under any of these approaches?

[3] Defining the act of aggression itself — i.e., what kinds of State acts qualify as aggression. The current Coordinator’s text defines the act of aggression in reference to General Assembly Resolution 3314 (XXIX) of 14 December 1974, which includes an illustrative list of acts. The Special Working Group continued to debate whether such a specific approach was desirable, or whether it would be better to define the act of aggression more generically. The agenda indicates that earlier discussions favored the generic approach. The Special Working Group also discussed whether acts of aggression should be limited to “flagrant” or “manifest” violations of the U.N. charter and whether a State could attempt aggression.

[4] When a definition of aggression would enter into force. Two different positions were discussed. The first position, based on Article 121(4), is that the definition would become operative for all State Parties once ratification by seven-eights of those Parties is reached. The second position, based on Article 121(5), is that the definition would become operative only for those State Parties that accepted the definition.

The Special Working Group’s has not yet released the results of its meeting. Earlier discussion papers on the topics summarized above, however, are available on the ICC’s website here.