Defining the crime of aggression: An important agenda item for the Assembly of States Parties to the Rome Statute of the International Criminal Court

• Jurisdiction: South Africa
• Date: 15 August 2019
• Pages: 256-286
• Published date: 15 August 2019
• Author: Daniel D Ntanda Nsereko

Def‌ining the crime of aggression: An

important agenda item for the Assembly of

States Parties to the Rome Statute of the

International Criminal Court

DANIEL D NTANDA NSEREKO*

University of Botswana

I. INTRODUCTION

On 1 July 2002 the International Criminal Court came into existence,

sixty days after the Rome Statute establishing it was ratif‌ied by at least 60

states.

1

This was approximately four years after a Conference of

Plenipotentiaries that met at Rome in 1998 adopted the Statute. The

court has jurisdiction over the most serious crimes of international

concern: genocide, crimes against humanity, war crimes and the crime of

aggression.

2

While the Statute def‌ines genocide, crimes against humanity

and war crimes it does not def‌ine aggression. Indeed, aggression would

have been omitted from the list altogether, were it not for the insistence

of delegations from the non-aligned movement as well as a few European

states, notably Germany. Given the highly political nature of the crime,

the pressure for time and the tense atmosphere that prevailed at the Rome

Conference it was well nigh impossible for the Conference to arrive at a

satisfactory consensus on this controversial matter. The solution was for

the Conference to assign the task of def‌ining the crime to the Assembly of

States Parties. According to a5(2) of the Statute:

‘The Court shall exercise jurisdiction over the crime of aggression once a

provision is adopted in accordance with articles 121 and 123 def‌ining the

crime and setting out the conditions under which the Court shall exercise

jurisdiction with respect to this crime. Such a provision shall be consistent

with the relevant provisions of the Charter of the United Nations’.

Reference to aa121 and 123 of the Statute means that, for the crime of

aggression to be brought within the jurisdiction of the court, the Statute

has to be amended. According to a121, the earliest time that the Statute

*LLB (University of East Africa) MCJ (Howard) LLM (New York) JSD (New York)

Certif‌icate in International Law (The Hague Academy of International Law) Advocate, High

Court of Uganda. Professor of Law, University of Botswana, Gaborone, Botswana.

1

Rome Statute of the International Criminal Court, UN Doc A/CONF183/9 (1998) 37

ILM 999 (1998).

2

Article 5 of the Rome Statute.

256

2003 Acta Juridica 256

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can be amended is seven years from the date on which it entered into

force. The Assembly of States Parties at a special review conference

convened for that purpose would consider and adopt the amendment. To

be adopted the amendment needs support of at least two-thirds of the

states parties. Generally speaking, for an amendment to enter into force

for all states parties it must be ratif‌ied by at least seven-eighths of the states

parties. When the requisite number of ratif‌ications is attained the

amendment enters into force one year after the requisite number of

ratif‌ications is attained. It is then binding on all states parties –including

those that did not ratify it. However, with respect to amendments that

def‌ine aggression or affect the def‌initions of genocide, crimes against

humanity and war crimes the Statute provides for a different approach.

These amendments enter into force only for those states that ratify or accept

them. And for each of such states they enter into force one year after

ratif‌ication. For those states parties that do not ratify or accept the

amendments, a121(5) of the Statute explicitly states that ‘the Court shall

not exercise its jurisdiction regarding a crime covered by an amendment

when committed by that State Party’s nationals or on its territory’. This is

the only instance in the Statute when a state party is permitted to opt out

of the jurisdiction of the Court.

Meantime, the Rome Diplomatic Conference resolved to establish a

Preparatory Commission for the International Criminal Court to prepare

for the coming into operation of the Court.

3

With regard to the crime of

aggression the Conference decided as follows:

‘The Commission shall prepare proposals for a provision on aggression,

including the def‌inition and Elements of Crimes of aggression and the

conditions under which the International Criminal Court shall exercise its

jurisdiction with regard to this crime. The Commission shall submit such

proposals to the Assembly of States Parties at a Review Conference, with a

view to arriving at an acceptable provision on the crime of aggression for

inclusion in this Statute. The provisions relating to the crime of aggression

shall enter into force for the States Parties in accordance with the relevant

provisions of this Statute.’

4

The Commission, which was open to all members of the United Nations,

set up, among other working groups, a Working Group on the Crime of

Aggression that grappled with the issue and reported to it at its plenary

meetings. During its ten sessions from 1998 to 2002 it considered various

3

See Resolution F of Annex I: ‘Resolutions adopted by the United Nations Diplomatic

Conference of Plenipotentiaries on the Establishment of an International Criminal Court’to

the Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the

Establishment of an International Criminal Court 17 July 1998 UN Doc A/CONF.183/10

(1998), available at http://www.un.org/law/icc/prepcomm/prepfra.htm,accessed on 14 May 2003.

4

Ibid para 7.

257DEFINING THE CRIME OF AGGRESSION

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