Récentes activités de l’UIA à l'ONU, en particulier sur le crime d'agression

The latest activities for the UIA at the UN, specifically on the crime of aggression

Update on the Crime of Aggression Under the Rome Statute of the International Criminal Court:

The Number of Ratifications of the Kampala Amendments Continues to Grow and Support the Activation of the Court’s Authority to Exercise Jurisdiction Over the Crime

When the international community adopted the Rome Statute of the International Criminal Court in 1998, it gave the Court jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression. Yet the exercise of jurisdiction over the crime of aggression remained suspended until the adoption of the definition and of the jurisdictional conditions for the crime, a step accomplished in 2010 in Kampala, Uganda, at the first Review Conference for the Statute (RC/Res.6, 11 June 2010). In line with one of the UIA objectives under its statutes,  – namely “to contribute to the establishment of an international legal order based on the principle of justice between nations, through law and in the cause of peace” –, the UIA has attended the negotiations concerning the crime of aggression since the preparatory stage for the Rome Statute. 

According to the amendments on the crime of aggression adopted in Kampala, the Court’s exercise of jurisdiction over the crime remains further dependent on the ratification of the amendments by thirty States (plus one year) and on an activating decision by the Assembly of States Parties after 1 January 2017. These two markers, whichever one will occur later, determine also the Court’s temporal jurisdiction, i.e. the Court will not be able to prosecute crimes of aggression that might have happened earlier. (For the relevance of both markers for temporal jurisdiction, see beyond article 15 bis paragraph 2 and article 15 ter paragraph 2 also Understandings 1 and 3 in RC/Res.6.) 

In accordance with the definition in the Kampala amendments, the crime of aggression is a leadership crime: “For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or 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 “act of aggression” refers to the State act planned, prepared, initiated or executed by the leader and is defined as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” The definition adds a specific list of State acts that would qualify as an act of aggression. The Charter of the United Nations expressly permits a State’s use of force when authorized by the Security Council or undertaken in self-defense, including collective self-defense.

Assuming that the requirements of thirty ratifications and activation are fulfilled, and assuming that the crime occurred subsequently, the Court’s exercise of jurisdiction may be triggered by a Security Council referral, by a State Party referral or by the Prosecutor ex proprio motu. In the case of the latter two triggers, the Court may not exercise its jurisdiction over a crime of aggression committed by the national or on the territory of a State that is not a Party to the Rome Statute. With regard to an act of aggression by a State Party, the Court may only exercise jurisdiction over the crime of aggression if that State has not previously declared that it does not accept such jurisdiction. The whole Pre-Trial Division must authorize the commencement of the investigation.

In the case of a Security Council referral, the exercise of jurisdiction works essentially the same as for other crimes under the Court’s jurisdiction (except of course for the temporal jurisdiction requirement): According to the history of the negotiations and according to Understanding 2, it is here irrelevant if the respective State has accepted jurisdiction over the crime or not. It is similarly irrelevant if the State of the accused and the State of the territory of the crime are Parties to the Statute. Exclusions in this regard apply only for the other two triggers. The Security Council’s universal referral authority is derived from its wide authority under the Charter of the United Nations and comparable to its ability to establish ad hoc tribunals. While the veto power of the Permanent Members of the Security Council may work as a barrier against Security Council referrals and ‘protect’ in particular the leaders of Permanent Members or of their allies against this trigger mechanism (but not necessarily against the other two trigger mechanisms), such a veto barrier is not assured in the long term.  For example, different governments of a Permanent Member can hold quite different positions about a prior use of armed force and about the soundness of a referral to the International Criminal Court.  Thus, to an admittedly limited degree, even the leaders of a State that is both a Permanent Member of the Security Council and a Non-Party to the Statute may experience the additional measure of deterrence emanating from the Kampala amendments and benefit from a better ability to resist being drawn into crimes of aggression.

At the time of this writing, twenty-three States have ratified the Kampala amendments on the crime of aggression. Thirty and more ratifications may very well be reached already before 2016.  The growing list of ratifications adds political momentum for the activation of the Court’s authority over the crime as soon as possible after 1 January 2017, either at a resumed fifteenth session of the Assembly in early 2017 or at the regular sixteenth session later in that year. Activation cannot come early enough. It is high time to strengthen the accountability for crimes of aggression. In the absence of an adequate legal basis for the use of force, soldiers must not be ordered to kill other human beings nor be put at risk of death or injury. Civilians must not be turned into ‘collateral damage’. It is high time in particular to reaffirm that military necessity within a war and abidance by the rules of humanitarian law applicable within a war do not suffice for justification. The unleashing and perpetuation of the use of force as a whole must have been justified in the first place. In sum, it is high time to better protect the peace and freedom of all. Most urgently, in an age of weapons that endanger all life on Earth, efforts to prevent crimes of aggression bear no waiting. The prospect of prosecution by the International Criminal Court promises to add to the deterrence of the crime: Prosecution will be no longer solely dependent on the establishment of ad hoc courts, as in Nuremberg after World War II, or on national jurisdiction. Importantly, the Court’s stature will help to make the criminalization of aggression more visible, hopefully helping to sharpen human conscience. At the same time, due process under the Statute, specifically the non-prejudicial effect of a determination by an organ outside the Court of a State act of aggression, - as expressly affirmed by the Kampala amendments -, might make proceedings before the International Criminal Court preferable over ad hoc or national proceedings, while also offering a pattern for fair trial procedures everywhere.

On 29-30 June 2015, a ““Strategic meeting on the ratification and activation of the Kampala Amendments on the crime of aggression”, brought supportive States and a small number of representatives of non-governmental organizations (including the UIA) together at the Liechtenstein Institute on Self-Determination at Princeton University. In the years before the Kampala Review Conference, inter-sessional meetings of the Assembly of States Parties to the Rome Statute had been held at the same venue and been instrumental for progress in the negotiations towards the provisions for the crime of aggression.

The strategic meeting in 2015 discussed challenges in general currently before the Assembly of States Parties, heard about experiences and lessons learned from States that have ratified the amendments, examined the ratification campaign from now until 2017, considered ways to address criticisms of the amendments, and looked ahead to the activating decision. Especially the latter topic might deserve a further meeting, in order to anticipate organizational requirements for the Court, such as with respect to the assignment of judges with competence in international law to the Pre-Trial, Trial and Appeals Divisions. Such competence will be particularly necessary for the evaluation of the State act of aggression brought about by the individual crime.

The full inclusion of the crime of aggression in the Rome Statute will help to preclude substantive selectivity in the reach of the Court. It would be highly discriminatory to prosecute the crimes committed in the course of a war by persons belonging to a victim State of aggression, and not the very crime of aggression at the root of the war. Moreover, increased deterrence of crimes of aggression means fewer breeding grounds for the other crimes under the Court’s jurisdiction.

Critics of the provisions on the crime of aggression have found them too under-reaching or too over-reaching, too weak or too forceful, too vague or too complicated. No matter how understandable such concerns may be, no matter how much they are based on a complete or incomplete reading of the provisions, and no matter if they come from a more basic aversion to international criminal prosecution or not, the strategic meeting in Princeton sought to take them seriously and find the most effective approaches for response. Just as the consensus adoption in Kampala built on a negotiating process that proved to be uniting rather than dividing, the activating decision will best be born from common determination rather than half-heartedness or discord. 

Since the criticisms come from quite opposite directions and focus on different aspects of the provisions, a search for short or simplistic replies may prove futile. Expanding on relevant detail, including from the negotiating history, promises to be more fruitful, all while using as guide post one overarching goal, the protection of both peace and justice. Future Updates in the UIA News may provide opportunity and space for additional information and consideration.

One thing seems fairly clear from listening to States Parties to the Rome Statute: Most, if not all, are highly wary of calls to ‘improve’ the provisions before activation, worried about unraveling what has been achieved. Any need to re-examine and possibly ‘improve’ the provisions, one way or the other, has been already taken into account by the adopting resolution in Kampala. The resolution has scheduled a review conference seven years after the beginning of the Court’s exercise of jurisdiction over the crime. 

Not only will the activating decision constitute a historical legal development, it is likely to contribute to further legal development. International law knows so-called ‘grey areas’ where States have not been able to agree on the legality or illegality of certain types of uses of armed force, ‘grey areas’ that are effectively excluded from the definition of the individual crime of aggression: The requirement of a “manifest violation” of the Charter of the United Nations means, among other things, that the use of armed force must have been clearly without justification, with the benefit of doubt going to the accused.  Thus, the threshold of a “manifest violation” and consequent exclusion of ‘grey areas’ acknowledges the state of legal development and adjusts in line with it.  In essence, for the finding of individual guilt, the international community has opted for a narrow definition demanding certainty of the existence of an act of aggression, including certainty of the absence of justification. Activation of the Court’s ability to exercise jurisdiction over the crime of aggression may very well provide fresh political space to achieve fuller agreement and clarity where international law has remained under debate.

by Jutta F. Bertram-Nothnagel