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Reflections on the Judicialization of the Crime of Aggression

Written by  W. Michael Reisman

I propose to consider some of the challenges that the addition of jurisdiction over the crime of aggression will present to the International Criminal Court (ICC). Article 5 of the Rome Statute gave the Court jurisdiction over “the crime of aggression . . . once a provision is adopted . . . defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.” In the absence of adoption by consensus, adoption required a two-thirds majority. But the amendment would enter into force for all States Parties after ratification or acceptance by seven-eighths of them.

At the seven-year Review Conference in Kampala in 2010, the Assembly of States Parties amended the Statute by adding a new article, Article 8 bis,  on the crime of aggression. The new provision incorporates the seven acts in the 1974 U.N. General Assembly’s “Definition of Aggression.”

Kampala deferred the activation of the Court’s jurisdiction over the crime of aggression. In the meanwhile, only four tiny states have endorsed it,  and others do not appear to be lining up. Moreover, Kampala added carve-outs to the Statute that insulate non-party and non-ratifying states from its application. Nonetheless, in Kampala, the ICC has moved a step closer to exercising jurisdiction over what the General Assembly in 1974 called “the most serious and dangerous form of the illegal use of force.” So it is not entirely academic to begin to consider the implications of the prospective judicialization of the international community’s response to the crime of aggression for, first, the international political system; second, the international legal system; and finally, the ICC itself. But that, as Dostoevsky often said, requires us to go back.

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International law has had a complicated, even love-hate relationship, with the use of force. Efforts to limit the unrestricted right of a state to resort to military force gained traction in the twentieth century; they began with the Porter Convention in 1907  and culminated in the United Nations Charter in 1945. The Charter enjoined “[a]ll Members . . . 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.” Lawful military force was to be authorized by the Security Council under its plenary Chapter VII powers. In case a state suffered an armed attack, it could resort to individual or collective self-defense pending action by the Security Council. The Council was the organ empowered to determine whether aggression had occurred and what to do about it. 

Whatever the intention of Charter Article 2(4) may have been, the international political system remained essentially co-archical; the Security Council, because of its voting procedures, was often unable to act and individual uses of force, without prior authorization by the Security Council, continued to occur. While all of them were, in terms of the black letter of the Charter, illegal, not all of them were considered by political and legal observers as unlawful in their context, though unanimity in appraisals of the lawfulness of unilateral actions (indeed, in the appraisal of anything in international law) has been rare. To mention only a few examples, wars of decolonization have not been deemed unlawful and the General Assembly’s Declaration on Principles of International Law  went so far as to entitle peoples seeking self-determination to receive support from other states. Wars of national liberation have been deemed lawful. Overt and covert assistance in internal wars has rarely been sanctioned and often praised. Humanitarian interventions, protection of nationals abroad, blockades, military exercises as a means of conveying threats and so on, have all benefitted from a tolerance which the black letter of Article 2(4) would hardly support. Welcome to - your online plain text editor. Enter or paste your text here. To download and save it, click on the button below.

Read full article (PDF file 248 KB)