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ICC activates jurisdiction over crime of aggression (December 2017)

by Fergus Watt, Executive Director, World Federalist Movement – Canada

Marathon up-to-the-last-minute diplomatic negotiations in New York recently led to a historic decision to “activate” the International Criminal Court’s jurisdiction over the crime of aggression. The negotiations took place at the ICC’s December 4-14 meeting of its Assembly of States Parties.

While the Court has since its inception had jurisdiction to prosecute those who commit genocide, war crimes and crimes against humanity, the Court’s founding treaty also provides that the Court may assert jurisdiction over a fourth category of crimes – aggression. However, negotiators of the Rome Statute made adoption of the ICC jurisdiction over aggression subject to agreement on a definition of aggression and on conditions for the activation of ICC jurisdiction for the crime.

At a 2010 review conference in Kampala Uganda, ICC parties agreed on amendments to the Rome Statute that satisfied the requirements for including aggression among the ICC’s core crimes. Those amendments stipulated a requirement for ratification by 30 governments, and also a political decision, by a minimum of two-thirds of states parties, to “activate” the Court’s jurisdiction over aggression, no earlier than seven years following the Kampala review conference.

The crime of aggression includes “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.”

Earlier this year the number of ratifications (30) required to codify the Kampala amendments to the Rome Statute was surpassed. 34 states have now ratified. However, the fragility of the Kampala compromise became clear this Spring when several states, led by the UK and France and including Canada, Norway and Japan circulated a paper seeking “clarifications” of the Kampala amendments at the time of any decision to activate the Court’s jurisdiction.

The main point of contention revolved around questions relating to the application of ICC jurisdiction over states parties that had not ratified the aggression amendments. UK, France, Canada et al argued that the amendment should apply only to states that ratify the amendments. Other states (e.g. Liechtenstein, Switzerland) argued that the amendment would apply to all states parties, as agreed at Kampala, and that if states desired not to be subject to the Court’s jurisdiction over the crime of aggression they could utilise the “opt-out” provisions of the Kampala agreements that allow states to file a declaration with the Court’s registrar and be exempt from the Court’s jurisdiction over this crime.

The compromise language that was agreed in New York reflected for the most part the views of the group of states led by the UK and France. It confirms that the amendments “enter into force for those States Parties which have accepted the amendments one year after the deposit of their instruments of ratification.”

Members of the NGO Coalition for the ICC have historically been divided on whether to support the Court’s adoption of jurisdiction over the crime of aggression. In a press release following the ASP, CICC convenor Bill Pace said that, “With this historic activation, for the first time since the post-WWII trials in Nuremburg and Tokyo, an international court may be able to hold leaders individually criminally responsible for the crime of aggression. The Coalition congratulates all those who have strived for this fourth ICC crime to be activated and looks forward to a strengthened Rome Statute system and global order based on the rule of law.”

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