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ICC nations lack consensus on crime of aggression

By Sarah Miley

[JURIST] Nations attending the final day of the Review Conference of the Rome Statute [materials] on Friday in Kampala, Uganda, have been unable to reach a consensus on the adoption of the crime of aggression by the International Criminal Court (ICC) [official website]. The crime of aggression is listed under Article 5 of the Rome Statute [text, PDF] along with war crimes, crimes against humanity and genocide, but the ICC remains unable to exercise jurisdiction over the crime of aggression as the statute does not define the crime or set out jurisdictional conditions. In a draft amendment to the statute [text, PDF], the Special Working Group on the Crime of Aggression defined it 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.

Critics argue that the crime's definition is too broad and could lead to politically motivated investigations into use of force. Proponents of the amendment claim that the provision is consistent with the objectives of the Rome Statute, which aims to deliver justice to the victims of crimes that threaten international peace and security and to deter the future commission of atrocities. The nations are also divided on the issue of the amendment's implementation and whether the UN Security Council should have oversight on the ICC's application of the crime. A coalition of 30 African countries, which form the largest continental bloc of membership to ICC, unanimously agree [Daily Monitor report] that the ICC and not the Security Council should determine whether a crime of aggression has been committed. The bloc argues that the ICC should be independent and able to exercise its jurisdiction free from interference by any political body. Nations in favor of the Security Council's role argue that the oversight is necessary to regulate the use of the crime and deter countries form politicized investigations. The non-state parties to the Rome Statute like US, Russia, and China have warned that Africa should institutionalize the crime slowly [Reuters report], but the African bloc wants the amendment enacted immediately. The lack of consensus among the nations casts a pall over the review conference, which was supposed to determine whether the crime would become operational.

Earlier this month at the review conference, US Ambassador-at-Large for War Crimes Issues Stephen Rapp expressed concern [JURIST report] over the potential adoption of the state aggression law by the ICC, claiming that it could undermine the integrity of the court. Addressing the review board, Rapp said that the proposed aggression charge is overly broad and could result in politicized investigations into use of force. Additionally, Rapp stated that the US government is concerned that the broad definition of aggression will create legal uncertainties is terms of state action. He held that "a fundamental principle of legality is that individuals must know whether conduct crosses the line into that which is forbidden before they act and not learn the answer in the crucible of trial." Delegates opposed to the ICC mandate are wary of its impact on the use of force, such as NATO's bombing of Kosovo in the 1990s, Tanzania's invasion of Uganda to overthrow military dictator Idi Amin, or more recently Colombia's raids in Ecuador against Marxist rebels. Under the latest proposal, the court could not investigate an act of aggression committed by a non-member state.

Full post as published by JURIST - The Paper Chase on June 11, 2010 (boomark / email).