Dr Giulia Pecorella, Senior Lecturer, Middlesex University of London, author of The United States of America and the Crime of Aggression (Routledge, 2021).

Introduction

Italy will soon become the 42nd state ratifying the Kampala amendment to the International Criminal Court (ICC, or the Court) Statute, defining the crime of aggression. Italy has proudly been at the forefront of the promotion of the ICC since its very foundation (the diplomatic conference that led to adoption of the Statute, for instance, was held in Rome and Italy was the fourth State ratifying this latter with the adoption of Law 12 July 1999 n. 232). In 2012 the Italian Parliament has then approved Law 20 December 2012 n. 237, aimed at giving an effective implementation to the Rome Statute from both a procedural and a substantive stance. In 2018, the Italian Senator Alberto Airola submitted a draft law aiming at ratifying the Kampala amendments, including the one relating to article 8bis of the Rome Statute providing a definition of the crime of aggression. This draft law was approved by the Italian Senate back in January 2020 and, on 4 November 2021, by the Camera dei Deputati. This blog post is structured as follows. First, a section will summarise the main historical passages that led to the adoption of a definition of the crime of aggression under the ICC Statute, with a particular attention to the Italian position when relevant. Second, a section will provide an overview of the process that led to the adoption of the said Italian draft law and highlight the main concerns raised during the parliamentary debate which preceded its adoption, including the so-called leadership clause and naval blockade as one of the acts of aggression listed in paragraph 2 of article 8bis ICC Statute. Lastly, a short section will summarise the main conclusions of this post.

  1. The Crime of Aggression and the Rome Statute

At the 1998 Diplomatic Conference in Rome, the crime of aggression was inserted among those crimes the Court had ratione materiae jurisdiction, but it was at the same time decided that, pursuant to article 5, paragraph 2, ICC Statute, the Court could exercise its jurisdiction over this crime only once States Parties to the ICC Statute could agree on a definition to be adopted on the occasion of a Review Conference organised no sooner than seven years from the entry into force of the Statute. The Italian delegation in Rome favoured the inclusion of the crime of aggression among those under the Court’s jurisdiction.[1] They also favoured a clear definition of the crime, whereby the general definition was accompanied by an enumeration of specific acts constituting aggression.[2]

The amendment containing article 8bis ICC Statute was adopted by consensus in 2010 on the occasion of the first Review Conference of the Statute, organised in Kampala, Uganda. Yet, it was then decided that the activation of the Court’s jurisdiction over the crime was to be subjected to further conditions. First, pursuant to article 15bis, paragraph 2, ICC Statute the Court could exercise its jurisdiction only one year after the ratification of the amendment by at least 30 States. Second, pursuant to article 15bis, paragraph 3, ICC Statute the actual activation of the Court’s jurisdiction should have been subjected to a future decision of the Assembly of the States Parties (ASP) to the Statute to be taken no sooner than in 2017. In 2016, Palestine was the thirtieth State Party ratifying the amendment, and in December 2017 the ASPfinally decided to activate the jurisdiction of the Court from 17 July 2018. 41 states have so far ratified the amendment. In 2018, on the occasion of the seventeenth session of the ASP, the Italian Ambassador to the Netherlands welcomed the activation of the Court’s jurisdiction by defining it ‘a fundamental outcome meant to reaffirm our “never again” to wars of aggression and to protect the victims of armed conflicts’.

2. The Italian draft law ratifying the crime of aggression

On 4 November 2021 the Italian Camera dei Deputati has adopted the draft law (C. 2332) that had originally been submitted by Senator Alberto Airola (S. 667) in July 2018 and had then seen other Senators adding their signatures in November of the same year. This draft law replicated the same words of the one who had been submitted by Airola in November 2014. The Italian Senate approved draft law 667 on 8 January 2020. Before the Camera dei Deputati, a group of MPs belonging to the Lega Nord Party submitted a series of understandings which have eventually been rejected by the Assembly. They centred around the notion of naval blockade. According to article 8bis, paragraph 2(c), ‘[t]he blockade of the ports or coasts of a State by the armed forces of another State’ would constitute an act of aggression which would be relevant for the purposes of the crime. The understandings submitted by the Lega Nord MPs aimed at binding the Government to renegotiate the amendment so that to exclude the letter (c) tout court,[3] or to exclude from its application cases where the armed forces of a state are deployed to block the costs or ports of another state to protect the former state’s national borders and its territorial sovereignty,[4]  or ‘to protect the borders of another state from illegal migrant fluxes and to fight human trafficking’.[5] In this respect, it suffices here to say that the only naval blockade which would be relevant in this case would be the one perpetrated by the armed forces of a state against the ports and costs of another state, which would exclude the situations which have recently seen, for instance, former Minister of Interior Matteo Salvini on trial. Also, pursuant to article 8bis, paragraph 1, ICC Statute, an act of aggression, of which the naval blockade is just an example, is a manifest violation of the UN Charter. It is important to recall that under article 2, paragraph 4, UN Charter, ‘[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. The only exceptions provided in this regard are those cases where the UN Security Council authorises the use of force pursuant to article 42 UN Charter or when an armed attack occurs and, pursuant to article 51 UN Charter, a state act in self-defence. While the notion of armed attack can be interpreted as including attacks coming from non-state actors, and many have claimed that the Charter should be read to allow cases of pre-emptive self-defence, no other exceptions are provided by the UN Charter. Uses of force beyond this framework, should they be an invasion or a naval blockade, would be considered as relevant for the purposes of article 8bis ICC Statute, provided, of course, that all other conditions are met.

It seems therefore important to stress that Laura Boldrini, Rapporteur of the Committee on International Affairs, when opposing the adoption of two amendments to the draft law submitted by Lega Nord, claimed that the Kampala amendment only criminalises ‘la leadership politica’. Pursuant to article 8bis, paragraph 1, ICC Statute, however, “crime of aggression” means 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’. This provision then ‘encompasses at the very least heads of States and governments, as well as ministers of defense and other military leaders such as high-level generals’.[6] Even more importantly, as Astrid Reisenger Coracini and Pal Wrange have underlined, ‘[t]he perpetrator need not hold a political or military position, but must be able to exercise control over or to direct “the political or military actions” of a state.’[7]

In view of the adoption of any law implementing the obligations arising from the ratification of the Kampala amendment, misunderstandings as the ones described above should definitely be avoided in the future. 

Conclusions

The Italian Parliament has recently approved a draft law which will make Italy become the 42nd state ratifying the Kampala amendment. It is expected to become law in a few days. As it was the case for the other crimes under the Rome Statute, as well as for many other relevant statutory obligations, however, in the-hopefully near- future the Italian Parliament would need to adopt another law introducing the crime of aggression in the Italian criminal code. In this respect, it might be appropriate for the new law to avoid definitional confusions which might result in an internal act not reflecting the Kampala definition. This, taken to its extremes, could cause serious issues concerning the statutory obligations upon all States Parties, including Italy. 

[1] Mauro Politi, Statement before the Committee of the Whole on 18 June 1998 in United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Rome, 15 June – 17 July 1998 (Summary Records of the plenary meetings and of the meetings of the Committee of the Whole). 

[2] Ibid.

[3] 9/2332/2, Submitted by Delmastro Delle Vedove, Lollobrigida.

[4] 9/2332/1. Donzelli, Lollobrigida, Delmastro Delle Vedove.

[5] 9/2332/3. Bignami, Lollobrigida, Delmastro Delle Vedove.

[6] Andreas Zimmermann and Freiburg-Braun, ‘Article 8bis’ in Kai Ambos (ed), Rome Statute of the International Criminal Court. Article-by-Article Commentary (4th ed, Bech, Hart, Nomos 2021) 686, 697. 

[7] Astrid Reisenger Coracini and Pal Wran, ‘The Specificity of the Crime of Aggression’ in Claus Kress and Stefan Barriga (eds), The Crime of Aggression: A Commentary (Vol 1, CUP 2017)307, 311. For a source in Italian see Elena Maculan, ‘Il crimine di aggressione’ in Enrico Amati and al.(eds), Introduzione al diritto penale internazionale (4th ed, Giappichelli 2020) 4437, 48-449.