The ICC acquires jurisdiction over
the crime of aggression
On 17 July 2018, the International Criminal Court (ICC) acquired jurisdiction over the crime of aggression, an historic development, you might think, which could lead to individuals responsible for actions similar to the US/UK invasion of Iraq in 2003 being prosecuted by the Court in future.
In reality, the Court’s jurisdiction over the crime of aggression is very limited – initially, it is able to prosecute an individual for aggression committed by one of only 35 states, most of them unlikely aggressors, and then only if that state hasn’t opted out of the Court’s jurisdiction in respect of aggression, which it can do at any time by a simple declaration. It’s unlikely that there will ever be any prosecutions.
The Rome Statute
The ICC began operations on 1 July 2002, the Rome Statute of the Court having been adopted on 17 July 1998 at an international conference in Rome. Then, 120 states voted in favour of the Statute and 7 against (including China, Israel and the US) with 21 abstentions.
Originally, the Statute defined (in Articles 6, 7 & 8) three offences – genocide, crimes against humanity and war crimes – for which ICC may be able to prosecute individuals.
But, absent a referral by the Security Council (of which more later), the Court has no authority to prosecute unless a state grants it that authority by becoming a state party to the Statute. Then, the Court can prosecute individuals for these offences committed
(a) in that state’s territory by any individual, and
(b) by nationals of that state anywhere in the world
(unless the case is already being prosecuted under domestic law).
Under (a), the ICC prosecutor has been able to investigate possible war crimes committed by US service personnel in Afghanistan, which is a party to the Statute, even though the US is not (and even though it is US policy to prevent the ICC trying any US nationals).
Under (b), the ICC prosecutor has been able to investigate possible war crimes committed by British service personnel in Iraq (for example, killing or abusing civilians) even though Iraq is not a party to the Statute.
Under Article 12(3) of the Statute, a state may also make a declaration accepting the jurisdiction of the Court without becoming a party to the Statute.
Today, 123 states are parties to the Statute, including Ireland, the UK and every other state in the EU, but around seventy in the world are not, including the US, Russia, China and Israel (see here).
The crime of aggression
From the outset, it was intended that the Rome Statute would include a fourth offence – the crime of aggression – but agreement to do so wasn’t reached at the original conference in Rome in 1998. However, in June 2010 a definition of the crime itself, and a procedure for prosecuting it, was agreed at a Review Conference of the state parties to the Statute in Kampala.
The Rome Statute (Article 8 bis) now defines the crime of aggression as:
“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”
where “act of aggression” means
“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”.
Examples of such acts include:
1. “The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;”
2. “Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;”
3. “The blockade of the ports or coasts of a State by the armed forces of another State;”
4. “An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;”
So, armed action against another state such as the US/UK invasion of Iraq in March 2003 amounts to aggression as defined in the amended Statute (under 1 above), as does the US/UK/France bombing of Syria on 14 April 2018 (under 2). It also appears that the following Israeli actions constitute aggression:
Who can the ICC prosecute for the crime of aggression?
ICC’s jurisdiction over the crime of aggression is very limited, for a variety of reasons, as we will see.
First, absent a Security Council referral (of which more later), the Court can only exercise jurisdiction over the crime of aggression if the alleged aggressor and the victim of the aggression are both state parties to the Statute. This is made clear in Article 15 bis (5), which states:
“In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.”
In other words, the Court cannot prosecute
(a) when the alleged aggressor is not a party to the Statute, or
(b) when the alleged aggression takes place on the territory of a state that is not a party to the Statute.
Second, at any time a state that is a party to the Statute can declare that it doesn’t accept the jurisdiction of the Court in respect of the crime of aggression. Article 15 bis (4) of the Statute says:
“The Court may … exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar.”
So, a state contemplating military action against another state can insure its leaders against being prosecuted for the crime of aggression by making such a declaration in advance.
Third, the Court’s jurisdiction over the crime of aggression is restricted to those states that have formally accepted the aggression amendments to the Statute adopted at Kampala in 2010. This severe restriction was agreed by the Assembly of State Parties at its meeting last December when it activated the crime of aggression (see below).
At that time, only 35 out of the 123 state parties to the Statute had ratified or accepted the aggression amendments. These are:
Andorra, Argentina, Austria, Belgium, Botswana, Chile, Costa Rica, Croatia, Cyprus, Czech Republic, El Salvador, Estonia, Finland, Georgia, Germany, Iceland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Panama, Poland, Portugal, Samoa, San Marino, Slovakia, Slovenia, Spain, State of Palestine, Switzerland, The former Yugoslav Republic of Macedonia, Trinidad and Tobago, Uruguay
Very few of these states are likely to commit aggression. More likely aggressors, such as the UK and France, both of which are parties to the Statute, are noticeable by their absence.
(Ten of the twenty-eight states of the EU, including the UK and Ireland, have not accepted or ratified the aggression amendments. This is surprising given the EU’s consistent support for the ICC and its policy of promoting the extension of its jurisdiction to every state on earth. This was formally established by EU Council decision 2011/168/CFSP of 21 March 2011, which states that “the Union is convinced that universal accession to the Rome Statute is essential for the full effectiveness of the ICC”. The decision committed the EU and its member states to “make every effort to further this process by raising the issue of the widest possible ratification, acceptance, approval or accession to the Rome Statute and the implementation of the Rome Statute in negotiations”. The EU seems to have abandoned this policy now that the Statute includes the crime of aggression.)
Assembly of State Parties in December 2017
The Kampala Review Conference agreed that the Court would be able to exercise jurisdiction over the crime of aggression after 1 January 2017, providing
(a) 30 state parties had ratified or accepted the Kampala amendments and
(b) the Assembly of State Parties had voted to activate the crime by a two-thirds majority at least.
On 29 June 2016, the ICC announced that Palestine had become the thirtieth state to have ratified the amendments. This paved the way for the activation to take place at a meeting of the Assembly of State Parties in December 2017.
Prior to this meeting, a number of state parties, with the UK and France in the van, argued that the Court should not be able to exercise jurisdiction over nationals of a state or on the territory of a state with respect to the crime of aggression unless that state had accepted the aggression amendments (see Annex II here for paper to that effect by Canada, Colombia, France, Japan, Norway and the UK).
After considerable argument, the Assembly of State Parties accepted this principle and it was incorporated into the resolution activating the Court’s jurisdiction over the crime of aggression (beginning on 17 July 2018). The resolution, which was passed by consensus, confirmed
“that the amendments to the Statute regarding the crime of aggression adopted at the Kampala Review Conference enter into force for those States Parties which have accepted the amendments one year after the deposit of their instruments of ratification or acceptance” and
“that the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments”
The introduction of this principle means that, at present, only 35 of the 123 state parties are subject to the jurisdiction of the Court with respect to the crime of aggression. Furthermore, as we have seen, any or all of these 35 can refuse to accept the jurisdiction of the Court with respect to the crime of aggression at any time by simply lodging a declaration to that effect with the Registrar.
If the present circumstances had existed in March 2003, it would not have been possible for the Court to prosecute any individual for the US/UK aggression against Iraq, first and foremost because Iraq is not a state party to the Statute. And even if it had been a party, no US national could have been prosecuted because the US is not a party to the Statute and neither could a UK national because the UK has not ratified the aggression amendments.
Deferral by the Security Council
The ICC likes to portray itself as an international judicial body, whose actions are free from political interference. This is simply untrue since the Security Council has a significant role in its operations.
First, the Security Council can defer an investigation or prosecution. This power is enshrined in Article 16 of the Statute, which says:
“No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”
Theoretically, therefore, this allows the Security Council to defer an investigation or prosecution indefinitely. However, it is unlikely that a deferral resolution would pass even once, since it needs at least nine Council members to vote in favour and none of the five permanent members to vote against and thereby veto the resolution. To the best of my knowledge, this power has never been exercised.
Referral by the Security Council
The Security Council can impose Court’s jurisdiction on states that have chosen to reject it by refusing to become a party to the Statute. This is provided for in Article 13 of the Statute, which states that the Court may exercise its jurisdiction if:
“A situation in which one or more of such crimes [that is, war crimes, crimes against humanity, genocide and aggression] appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;”
In the light of this, it is difficult to view the Court as an independent judicial body, the jurisdiction of which states can choose to reject, as many states in the world, including the US, Russia, China and Israel, have done. On the contrary, its jurisdiction can be extended by the Security Council to states that have chosen to reject its jurisdiction, a body which, it is worth noting, includes members who themselves have rejected its jurisdiction.
Of course, this cannot happen to veto-wielding members of the Security Council, who have chosen not to become a party to the Statute – since they can block an attempt by the Security Council to extend the Court’s jurisdiction to their territory. So, China, Russia and the US, which have chosen not to become parties to the Statute, will never have ICC jurisdiction extended to their territories. And neither will Israel, since the US can be relied upon to use its veto to block it.
An international court with universal jurisdiction is fair (but impossible to achieve in the world as it is today). An international court, the jurisdiction of which states can choose to accept, has a semblance of fairness. But an international court, like the ICC, the jurisdiction of which can be extended by the Security Council to some states that have chosen not to accept its jurisdiction but not to others, is grossly unfair.
Sudan and Libya
Sudan was the object of a Security Council referral in March 2005. Then the Council passed Chapter VII resolution 1593 “to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court”. On that occasion, three states – Philippines, Russia, Tanzania – which are not parties to the ICC and don’t accept its jurisdiction voted to impose its jurisdiction on Sudan. That is blatant hypocrisy.
As a result of this referral, the ICC charged the President of Sudan, Omar Hassan al-Bashir, with genocide and other Sudanese nationals with lesser charges. None of them have been taken into ICC custody so that they can tried.
Libya was the object of Security Council referral on 26 February 2011. Then the Council passed Chapter VII resolution 1970 “to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court”. Amongst those states who voted for this referral were 5 states – China, India, Lebanon, Russia and the US – who are not parties to the ICC and don’t accept its jurisdiction. This is blatant hypocrisy.
As a result of this referral, Colonel Gaddafi, his son Saif and his head of security, Abdullah Al-Senussi, were indicted by the ICC for crimes against humanity. Colonel Gaddafi was killed; Saif, who is alive and well in Libya, is still being sought for trial by the ICC; and the ICC consented to Al-Senussi being tried by Libyan courts, which has taken place and he is now under sentence of death in Libya.
In all, the Court has issued indictments against 34 individuals for war crimes and/or crimes against humanity. President Omar Hassan al-Bashir of Sudan was also indicted for genocide. All of those indicted are from Africa. However, only 10 of these have been handed over to the Court for trial (of which three have been convicted). The rest are either still fugitives or dead.
The ICC has often been accused of singling out Africa for its prosecutions. It is true that of the ten situations under investigation by the Court nine are in African countries. The ten, in chronological order of the investigations beginning, are
However, the ICC itself initiated the investigations in only two of these situations (Kenya and Georgia). Five of them (Uganda, Democratic Republic of Congo, Central African Republic, Mali and Central African Republic II) were referred to the ICC by their governments and two (Darfur, Sudan and Libya) by the Security Council). And Côte d’Ivoire voluntarily accepted the jurisdiction of the ICC. So, the ICC can hardly be accused of choosing to prosecute Africans only – in reality, the choosing was largely done by state governments seeking to prosecute their own nationals.
Preliminary examinations by the Court are also ongoing with regard to events in Afghanistan, Burundi, Colombia, Gabon, Guinea, Iraq/UK, Nigeria, Palestine, Greece and Cambodia, and Ukraine.
The purpose of these examinations is to enable the ICC Prosecutor to decide whether to proceed to a full investigation, which might eventually lead to the indictment of individuals.
The Palestine investigation presents a novel challenge for the ICC. There, for the first time, the ICC Prosecutor will be faced with the possibility of indicting individuals for actions carried out on behalf of a state, namely Israel, in the Palestinian territories it has occupied since 1967, a state that has powerful friends in the world and is sure to move heaven and earth to resist the prosecution of its agents. Members of Hamas and other Palestinian paramilitary groups may also be prosecuted.
The ICC Prosecutor accepted Palestine’s offer of jurisdiction on 1 January 2015 and opened a preliminary examination into the “situation in Palestine” on 16 January 2015 (see ICC press release, 16 January 2015). Over three years later this preliminary examination is still going on.
Will individuals eventually be indicted? Possibly. It is difficult to see how the ICC Prosecutor can avoid the conclusion that Israelis responsible for settlement building in the West Bank, including East Jerusalem, are guilty of war crimes – since, according to Article 8.2(b)(viii) of the Rome Statute, “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” is a war crime. However, even if individuals are indicted, it’s unlikely that they will ever face trial in The Hague, since the ICC cannot try people in absentia – and, since Israel is not a party to the ICC, it has no obligation to hand people over to the ICC for trial.