JURIST - Paper Chase: ICC nations define crime of aggression

[JURIST] The International Criminal Court (ICC) [official website] on Friday adopted an amendment [press release] to the Rome Statute [text, PDF] including a definition for the crime of aggression and creating jurisdictional conditions for prosecution. The amendment was adopted after ICC nations reached a compromise on the definition and implementation of the offense as the Review Conference of the Rome Statute [materials] came to a close in Kampala, Uganda. Under the new amendment, the UN Security Council [official website] will serve as the primary body in determining whether a crime of aggression has occurred. If the Security Council fails to make a determination, the ICC prosecutor is authorized to commence an investigation on his own initiative or upon a request from an ICC state party. The Security Council can halt an investigation of a crime of aggression at any time through a resolution, but this resolution must be reinstated every 12 months. Non-state parties do not fall under ICC jurisdiction when the prosecutor initiates the investigation, and state parties can exempt themselves from jurisdiction over the crime of aggression by submitting a declaration of non-acceptance to the court. These exemptions, however, do not apply when the Security Council has determined that a crime of aggression has occurred. The new amendment will not applicable until 2017 at the earliest.

As the final rounds of the review conference commenced on Friday, ICC nations had been unable to reach a consensus [JURIST report] on the adoption of the crime of aggression. The crime of aggression is listed under Article 5 of the Rome Statute along with war crimes, crimes against humanity and genocide, but the ICC remained unable to exercise jurisdiction over the crime of aggression because the statute did not define the crime or set out jurisdictional conditions. Nations attending the conference were divided on the issue of the amendment's implementation and whether the Security Council should have oversight on the ICC's application of the crime. 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 the proposed aggression charge is overly broad and could result in politicized investigations into use of force. 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.