By Malcolm Wu, LLM candidate (Dist.), London School of Economics.
Introduction
The crime of aggression surfaced in the post-WWII Nuremberg and Tokyo trials from 1946-1948. 70 years later, with the 2010 Kampala amendments and the 2017 activation resolution, the crime of aggression has found itself a working definition and jurisdiction under the International Criminal Court (ICC). At the 2018 UN event titled ‘20th anniversary of the Rome Statute: the need for universality and the International Criminal Court’s jurisdiction over the crime of aggression’, several State parties have hailed this as a historical milestone. However, is that really the case?
This analysis argues that the crime of aggression as developed by the ICC is not only ineffective in contributing to international law’s attempts to prohibit the use of force, but it also entrenches preconceived notions of victor’s justice and threatens to undermine the principles developed under the law of use of force. To that extent, it is here examined how the crime of aggression’s jurisdictional scope is curtailed by State consent, and how the accommodation of genuine humanitarian intervention in the definition of the ICC’s crime of aggression undermines the law governing use of force.
Problems with the jurisdictional scope of the crime of aggression
The most pressing problem with the crime of aggression (CoA) lies in its jurisdictional scope. Despite aspirations from the African and Caribbean delegations for the CoA to be universally applicable, negotiations at the Kampala amendments resulted in the CoA only being applicable on the basis of State consent (as advocated by Western States). The result of which is that the CoA under article 15bis of the Rome Statute would only apply to State Parties which have ratified the Kampala amendments and did not opt out of its jurisdiction. Additionally, State Parties that have ratified the amendments are entitled to withdraw consent and opt out of jurisdictional regime of the CoA. For a more thorough analysis on the complex negotiations and compromise of the CoA’s jurisdictional scope, one may like to refer to Barriga and Grover’s ‘A Historic Breakthrough on the Crime of Aggression’.
Nonetheless, article 15ter might provide an alternative measure. Article 15ter grants the UNSC the authority to refer a State to the ICC for CoA, thus entailing the possibility of bringing a non-ratifying State under the ICC jurisdiction. However, the willingness for the UNSC to resolve to such a referral is questioned. One should recall the inherent problems of veto abuse among the Permanent 5 members of the UNSC that have been frequently observed in prior resolutions. The resolving of an act of aggression is yet another politically charged matter and as such, there is nothing to indicate that veto abuse would not be strife when article 15ter is in question, rendering the possibility of non-ratifying states being brought under the CoA, unlikely.
Where does this leave the efficacy of the CoA? Firstly, as of 2019, only 39 out of 123 State Parties have ratified the amendment. Countries that are not parties to the Rome Statute are excluded altogether. This leaves the vast majority of countries outside its scope, severely curtailing any potential it may have had on signalling the seriousness of aggression and deterring those from breaching the UN Charter. The prerequisite of State consent has essentially rendered the CoA a ‘toothless tiger’. Secondly, one should recall that the CoA was first introduced under questionable grounds. At the Nuremberg trials, while the P5 were trying Nazi leaders under the CoA for Germany’s annexation of Europe, the P5 conveniently decided to take a Nelsonian blind-eye to the USSR’s annexation of Poland and Finland that similarly took place during WWII. This has led to the view taken by some, such as Justice Pal in the Tokyo trials, that the CoA is nothing but ‘victor’s justice’. While the Kampala Amendments had an opportunity to rectify this preconceived notion by applying the jurisdiction of the CoA to every State party, the adoption of State consent as its jurisdictional basis has rendered this a disappointingly missed opportunity.
Problems with the definition of crime of aggression
Another problem lies in the definition of the crime of aggression. Its content as stipulated in article 8bis of the Rome Statute closely mirrors the wording of the prohibition of the use of force in article 2(4) UNC, i.e. use of force against the sovereignty; territorial integrity; political independence; or in any other manner inconsistent with the Charter of the United Nations. Additionally, article 8bis(2) enshrines a comprehensive list of acts that has been deemed to constitute aggression previously determined by UNGA Resolution 3314 (1974).
Concerns that such a definition may encompass ‘minor breaches’ and ‘legally uncertain’ violations of the UNC led to the act of aggression being qualified by the ‘character, gravity and scale’ in its manifest violation of the UNC, as stipulated in article 8bis(1). This is accompanied with the inclusion of several interpretive ‘understandings’ of the article 8bis – that all three elements of character, gravity and scale had to be met for the act to amount to a manifest violation of the UNC and thus the CoA. Barriga and Grover argued that this was specifically intended so that good faith use of force without UNSC authorisation or ‘genuine humanitarian interventions’ may not be caught by the CoA; it has been argued by Kleb that a genuine humanitarian intervention would not meet the elements of gravity and character.
While the pro-humanitarian intervention camp, such as the UK Government, may welcome this flexibility in accommodating genuine humanitarian interventions unauthorised by the UNSC, one must recall that upon a strict positivist interpretation of the law of use of force, one would reach the ‘inescapable conclusion’ that humanitarian intervention cannot be accommodated for in the UNC and in customary international law, and is thus unlawful. Hence, by accommodating for humanitarian intervention in the definition of the CoA, what kind of signalling effect does this give to the international community about the lawfulness of humanitarian intervention? Indeed, as pointed out by both Ruys and Murphy, when the ICC adjudicates on how humanitarian intervention interacts with the thresholds of the 3 elements to qualify for the CoA, this would entail clarifying and adding to the doctrine of humanitarian intervention such as establishing principles and criteria to ascertain ‘genuine’ humanitarian interventions from non-genuine ones. In doing so, this will create and strengthen perceptions that humanitarian interventions are not unlawful contrary to its standing in the law on use of force, unduly adding impetus to its legitimacy and legality.
This would also mean that the ICC, a criminal court, will have to grapple with highly sensitive and politically charged principles of use of force that even the ICJ has only approached tangentially and with caution. Where the ICC has to ascertain whether the defendant’s alleged humanitarian intervention meets the threshold of the 3 elements so as to qualify for an act of aggression, this would entail setting precedential standards and thresholds i.e. proportionality. However, in doing so, the ICC risks setting precedential standards that would render prior politically controversial humanitarian interventions such as the NATO bombing of Kosovo as manifest acts of aggression and a violation of the UNC. Conversely, the ICC risks setting standards that are too low so that it erodes the principles developed under the law of use of force. While the ICJ may be a better forum to resolve such matters, the findings of prior politically controversial humanitarian interventions as amounting to CoA may come at the cost of displeasing relevant State Parties, which may inadvertently lead to their pulling out of the court’s jurisdiction. This may perhaps offer an explanation as to why even the ICJ has been hesitant in approaching the matter.
Hence, through the recognition and accommodation of genuine humanitarian intervention through article 8bis, the ICC risks undermining the principles developed under the law of use of force through signalling the legality and legitimacy of humanitarian intervention and shaping its doctrine. It is thus submitted that the definition of the crime of aggression should not accommodate ‘genuine humanitarian interventions’.
Conclusion
While hailed as a historical milestone, the weaknesses of the crime of aggression as enacted and activated by the ICC speak louder than its strengths. With its jurisdictional basis of State consent and the unlikeliness of the UNSC to resolve towards a referral, this has led to the majority of States unaffected by the crime of aggression. Any deterrent effect that the crime was intended to produce has been severely curtailed. Ironically, the workings of articles 15bis and 15ter have led to a situation which leaves the P5 unaffected by the crime but able to impose it on others. This entrenches the notion of the CoA being illegitimate, that of ‘victor’s justice,’ and may signal to the international community that the P5 are above the laws of the use of force. Additionally, the accommodation of genuine humanitarian interventions in the definition of the crime of aggression risk the ICC shaping and granting undue legality and legitimacy to a doctrine that has been widely regarded as unlawful under the international law of use of force.
International Law Blog 
Dear Malcolm,
Thank you very much for this insightful piece.
I would like to raise few points with regards to your argument – the first one, pertaining to the ‘failure of success’ that was achieved during achieved through the Kampala Amendments and the definition of the Crime of Aggression, while the second one pertains to the allegedly accommodation of genuine humanitarian intervention into the definition of the crime.
With respect the its deterrent power, at least for the short-term, I fully agree with your argument that the Crime of Aggression, and its jurisdictional scope, has a very little effect, if at all. Nevertheless, it is my humble view that we should acknowledge the political climate through which the Kampala Amendments was conducted, with heavy pressure from more powerful state (such as United States. UK etc) to limits as much as possible the definition and the scope of the crime. Considering these challenges during the Kampala Amendments, it is my humble view, that the inclusion of a single and workable definition for the Crime of Aggression, 70 years after being regarded as the ‘supreme international crime’ – is a major success and it is indeed a historical milestone.
It is my humble view, that the drafters of the crime and the diplomats during the Kampala process, were more occupied with the mission to include the crime withing the Court’s jurisdiction, rather than achieve a deterrent effect.
In addition, it is possible that as a compromise, the drafters had to make a decision – whether to include the Crime of Aggression into the Rome Statute, or keep pushing to a more effective jurisdictional scope, which might have led to concluding the Kampala process without agreement on the definition of the Crime of Aggression.
With regards to the accommodation of genuine humanitarian intervention into the definition of the crime – It is mi humble view that the definition of the crime neither accommodates neither negates genuine humanitarian intervention.
With respect to the accumulative elements: “character, gravity and scale’ – it is not clear whether in order to qualify as aggression, an act must fulfill all three components (See, Kevin Jon Heller, ‘The Illegality of Genuine Humanitarian Intervention, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3492412)
Secondly, as the Author may be aware of, a draft understanding that would bar the court from exercising jurisdiction over the crime of aggression when it was ‘objectively evident’ that the use of force was ‘undertaken in connection with an effort to prevent the commission of any of the crimes contained in Articles 6, 7 or 8 of the Statute. However, this proposal was rejected by the majority of the Assembly of State Parties of the ICC.
Thus, in my view, the definition of the crime does not accommodate or negate the possibility of a genuine humanitarian intervention being considered as a crime of aggression, if fulfills the criteria laid down by article 8bis(1)
Many Thanks in advance,
DH
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To DH, many thanks for you comment. You provide very insightful arguments as well. Here are my thoughts:
Indeed, the agreement on the jurisdiction of the crime of aggression is a victory in its own right, owing to the hard fought compromise due to pushbacks from largely Western States for the crime having universal jurisdiction. However, as you have pointed out, the pushback came from States such as the USA and the UK, members of the P5. I found this incredibly disappointing, owing to the fact that this, alongside the operation of art 15 ter may well reinforce notions of the crime of aggression constituting ‘victor’s justice’.
With regard to the crime’s definition neither accommodating nor negating genuine humanitarian intervention, you, alongside your reference to Heller provide compelling arguments. To that, I would first point out, as you may already know, that whether the crime of aggression was drafted to accommodate genuine humanitarian intervention is up to scholarly interpretation, with a fair share of arguments falling on both sides of the aisle. My analysis proceeds on the affirmative view put forth by Kreβ, the sub-coordinator within the Special Working Group on the Crime of Aggression, who was similarly quoted by Barriga and Grover, principal legal adviser and legal adviser to the chairs of the aggression negotiations.
While the aforementioned draft understanding put forth by the US delegation was indeed rejected by the majority, this cannot be taken to definitively mean that the majority denied accommodation of genuine humanitarian intervention under the crime of aggression. Kreβ and others explain that this rejection was due to ‘the widespread concern that it would be inappropriate to deal with key issues of current international security law in the haste of the final hours of diplomatic negotiations’. Additionally, Kreβ and others pointed out that the rejection of the USA’s draft understanding ‘must not be interpreted as widespread rejection of their content’.
The final say on the matter should come from the ICC itself, though I envisage that this may not come forth any time soon. If and when they do, I respectfully submit that they expressly negate the possibility of genuine humanitarian intervention for the reasons stated in my article, which similarly coincides with some of Heller’s points.
Once again, thank you very much for your valuable insights.
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Dear Malcolm,
Thank you very much for your response and your engagement.
I fully agree with you that the fact that the push-back during the negotiations came from powerful Western states is unfortunate and indeed disappointing. On the other hand, one may ask what was the alternative during the negotiations, bearing in mind the reluctance of those powerful states to broaden the scope of the crime’s jurisdiction. So, it can be argued, that with respect to the crime of aggression. ‘a half a loaf is better than nor bread at all’.
With respect to the accommodation of unilateral humanitarian intervention, I could not agree with you more – that the final say on that matter, should come from the Court itself. Hence, it is my humble view that the definition of the crime, which of course subject to much scholarly debate and opposing view, is to be given content through the Court’s jurisprudence, should a future (hopefully no) case concerning the crime of aggression comes before it.
Kind regards,
Dor Hai (DH)
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Important issue. But, One may disagree with all due respect:
First, the disadvantage presented, can be implied also, on every other crime. The crime of aggression, is not different from other crimes in this regard. If a state is not party to the Rome statute, then we have the same issue. Only UN referral can solve the problem indeed. But as mentioned in the post, the veto right, is problematic.
Second, the crime of aggression as defined in Rome statute, is more refined. Article 8.2 (g) defines for example:
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.
End of quotation:
So, it is more nuanced of course, from the definition in the UN charter.
Also, it does contribute to at least, legal rhetoric. Means, that, when one party, alleges, violation of international norms, against another party, it has enhanced legal basis when mentioning the Rome statute. For, it has more strength or magnitude or significance in legal terms.
Finally, beyond genuine humanitarian intervention, one must consider the “jus cogens” intervention. This is not the same. States have obligation to intervene ( not necessarily by force although )when it comes to jus cogens. So, even if one state, is using force, in order to prevent the crime of genocide for example, the legal perception, must be that such intervention, is warranted or more justified, and can’t be considered or observed on the same legal basis of crime of aggression then. One can’t really mix them both.
Thanks
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One may read here for example:
“Symposium: A Duty to Prevent Genocide–Due Diligence Obligations among the P5 (Part Two)”
And get from there to the first part. Here:
http://opiniojuris.org/2018/12/10/symposium-a-duty-to-prevent-genocide-due-diligence-obligations-among-the-p5-part-two/
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Dear El-Roam,
I wish to point out that the crime of aggression is indeed different, in terms of its jurisdictional scope. from other crimes articulated in article 5 to the Rome Statute. I will try to support my argument with a short a example.
War Crime/Crimes Against Humanity/ Genocide
Assume we have 2 State- A and B.
A is not a party to the Rome Statute, while B is a party to the Rome Statute.
With respect to the the aforementioned crimes, the ICC will have jurisdiction on individuals belonging to State A, although not a party to the Rome Statute – if the crimes occurred on the territory of a State party (Article 12(2)(a) to the Statute). However, that is not the case if a Non-State Party commits a crime of aggression on the territory of a state party- as article 15bis (5) stipulates : ‘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 national or on its territory’
Thus, is it my humble view, that the crime of aggression is distinct from other crimes in the Statute.
Kind regards,
DH
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DH,
Thanks for that comment. But, it seems that you have wrongly interpenetrated the article (15bis(5)). For, what it dictates, is that one state not party, can’t fall under the jurisdiction of the court(seemingly) when: ” ……committed by that stat’s national or on its territory”. Yet, it doesn’t say, by who “on it’s territory”. It doesn’t specifically, exclude, one state party. All it says, concerns nationals, and occurrence on its territory, but not stating or excluding, aggression by state party.
However, a UN referral is yet possible in such case of course.
Also, even when dealing with other crimes, the court faced such problem. In the investigation on Myanmar and Bangladesh, although only the latter is state party, that wasn’t obvious that the court had jurisdiction. For, deportation by force, occurred on the territory of Bangladesh, not Myanmar seemingly.
Thanks
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This comment is in relation to El Roam’s comment. Thank you for your input, it is greatly appreciated. Here are my thoughts:
Indeed, the definition under article 8 bis (2)(g), taken from UNGA Resolution 3314 (1974), does apply to the crime of aggression, as well as to the law governing the use of force per the UNC. However, that is not the issue here. The issue with the definitional scope of the crime of aggression is not that it adopts the definition under article 8(2)(g), but that it allows for ‘genuine humanitarian intervention’. As mentioned in the article, humanitarian intervention has no legal standing in international law governing the use of force, under both treaty interpretation of the UNC and in customary international law. By allowing for ‘genuine humanitarian intervention’, this adds undue legitimacy and legality to the doctrine and undermines the law governing the use of force.
With regard to your mentioning of jus cogens intervention, I would like to respectfully argue that there is no jus cogens lex lata norm for unilateral forceful intervention, whether formally classified as humanitarian or otherwise, which is one of the defining elements of the law governing use of force and the crime of aggression. I found Chris O’Meara’s article titled ‘Should international law recognize a right of humanitarian intervention to support and reflect a pluralistic understanding of sovereignty?’ useful on this matter. I hope this helps.
Many thanks,
Malcolm
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Malcolm,
Thanks for that comment.
You have claimed, that article 8(2)(g) mentioned by me, is not an or the issue. But, it is. For, the whole article of yours, states over and over, how ineffective is the crime of aggression, as dictated or formed by the Rome statute. As reply, I have mentioned that article or clause, in order, to prove, that the Rome statute, has adopted more refined version of the crime of aggression. And it is important. Because, it is court. Criminal court. Active court. Developing constantly jurisprudence, and perfecting it. So, it is constantly perfected and developing, and contrary to the UN charter. And indeed, as illustration, we can bring and quote, the UNAG resolution, defining in its annex the crime of aggression, and stating:
The acts enumertated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter
End of quotation:
So, it is better for a court, to do it. Perfect it. Refine it. Amend it, over any other body obviously.
Concerning standing:
I don’t know why you use that word “standing”. Standing has to do with cause of action, for obtaining remedy, brought to the right and relevant court. Here, we don’t deal with standing, but rather, legal justification. So, you claim, that one party, using force, for gus cogens like prevention of genocide, has no legal justification you mean one may assume.
But it has. Read the article I have left there in my first comment. Suppose:
A head of a state, is using force, to prevent genocide in neighboring country. So it has been proven in court. Would he have legal justification for it ? Yes, if a Security Council resolution ( under Chapter XII) has been denied, or it could be too late, he has legal justification. I quote Article 1 to:
“Convention on the Prevention and Punishment of the Crime of Genocide.”
Here:
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
End of quotation:
So, one state party, must prevent it. If couldn’t otherwise, then by force. So, even if he wouldn’t be acquitted, yet, he has more than reasonable legal justification. The fact that there is no precedent of such, doesn’t mean, that it has to do with standing, or, not justified of course.
Thanks
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