Crime of aggression


A crime of aggression is a specific type of crime where a person plans, initiates, or executes an act of aggression using state military force that violates the Charter of the United Nations. The act is judged as a violation based on its character, gravity, and scale.
Acts of aggression include invasion, military occupation, annexation by the use of force, bombardment, and military blockade of ports.
The crime of aggression is a crime under the Rome Statute of the International Criminal Court. The definitions and the conditions for the exercise of jurisdiction over this crime were adopted by consensus on 11 June 2010 at the Kampala Review Conference by the States Parties to the Court.

History

In 1998, at the Rome Conference that adopted the Rome Statute of the International Criminal Court, the crime was included as one of the crimes within the jurisdiction of the Court and over which any State that becomes party to the Statute accepts the Court's jurisdiction. However, participants to the Rome Conference could not agree on the definition of the crime nor on further conditions for the Court's exercise of jurisdiction; the Statute did not allow the Court to exercise such jurisdiction until these outstanding issues were solved. At the 2010 Review Conference, States Parties agreed by consensus to adopt resolution RC/Res.6 accepting the amendments to the Statute adding the definition of the crime and the conditions for the exercise of jurisdiction over this crime.

Adopted amendments

Under the Statute, the definition of "crime of aggression" is stated as follows:

Article 8 bis

Exercise of jurisdiction

Under the Statute, the conditions for the exercise of jurisdiction for the "crime of aggression" by the Court are as defined below. With these provisions, the Court may exercise its jurisdiction over the "crime of aggression" in one or all of the following ways.
  1. State referral, proprio motu
  2. Security Council referral

    Article 15 bis

Exercise of jurisdiction over the crime of aggression
  1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraphs and, subject to the provisions of this article.
  2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.
  3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.
  4. The Court may, in accordance with article 12, 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. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years.
  5. 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.
  6. Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents.
  7. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression.
  8. Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15, and the Security Council has not decided otherwise in accordance with article 16.
  9. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court's own findings under this Statute.
  10. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5.

    Article 15 ter

Exercise of jurisdiction over the crime of aggression
  1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraph, subject to the provisions of this article.
  2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.
  3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.
  4. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court's own findings under this Statute.
  5. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5.

    Activation of the Court's jurisdiction

Since the amendments on the crime of aggression were adopted under Article 121.5, they enter into force for each ratifying State individually. In addition, the amendments require two further conditions to be fulfilled for the Court to exercise jurisdiction, both for state referrals and proprio motu investigations and for Security Council referrals :
  1. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.
  2. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.
At the 16th annual session of the Assembly of States Parties to the Rome Treaty, it was decided to activate jurisdiction of the Crime of Aggression starting July 17, 2018.

States Parties to the Amendments

As of 29 November 2017, thirty-four State Parties have ratified or acceded to the amendments to the Rome Statute.
On 8 May 2012, Liechtenstein ratified the Amendments on the crime of aggression to the Rome Statute of the International Criminal Court thereby becoming the first state to ratify the amendments. On 13 January 2013, the amendments were ratified by Luxembourg, the first current non-permanent member of the Security Council to do so. Luxembourg also became the first state to implement the amendments into domestic legislation. because it has revised its criminal code and its code of criminal procedure in February 2012. During the High-Level Week of the United Nations General Assembly from 25–26 September 2013, the amendments were also ratified by Andorra, Cyprus, Slovenia, and Uruguay, respectively.
The states parties are shown in alphabetical order according to their official name within the Assembly of States Parties.
See Amendments to the Rome Statute of the International Criminal Court for the list of states parties to the amendments.

Statements by states

Liechtenstein

Liechtenstein, which served the Presidency of the Review Conference, issued a statement upon ratification to the amendments:

Japan

At the Review Conference, Japan issued two statements before and after the adoption of the amendments took place:
In 2006, the House of Lords ruled in the case or R v Jones that the crime of aggression did not exist in English law as it applied within the United Kingdom.

United States

After its formal participation in the Review Conference as Observer, on 15 June 2010 the United States government held a special briefing on the Conference outlining what they deemed as accomplishments.

Related provisions

The following article are related with the adopted amendments concerning the provision on "crime of aggression".

Article 13

Exercise of jurisdiction