123 / 464
109
THE KAMPALA AGREEMENT ON CRIME OF AGGRESSION …
the relationship between the state officials and private actors might be very remote
and hardly investigated today. There is no need any more for physical contact, when
communication can be easily arranged through the internet and funds could be
transferred through a series of offshore accounts via virtual operations. Furthermore
the supply of malicious software developed by a state agency might leave traces of a
different kind, but still traces, as a supply of riffles.
Admittedly, in the case of cyber-attack the prosecution would probably face
serious challenges with the identification of the perpetrator who was actually sitting
by the computer in concern.
31
However, the investigation of serious international
crimes is never an effortless and cheap task,
32
and even in the course of a “non-cyber”
related investigation, the ICC Prosecutor has already tasted the hardship of collecting
sufficient evidence in order to prove the appropriate relationship between the executors
of crimes and those who were allegedly behind them.
33
The complementary regime
of the Rome Statute makes the ICC dependent on a state’s cooperation and on
the national police services’ willingness and effectiveness. Successful investigation
can be hardly expected if states deliberately refuse to investigate the possible crime
or lack appropriate technological equipment. But all these difficulties apply to
the investigation of cyber-attacks and the investigation of “traditional” attacks by
non-state actors comparably, with an emphasis on growing needs for sophisticated
technological sources on a states’ side.
3.2 The character, gravity and scale of an act of aggression
From paragraph 1 of Article 8 bis it is further obvious that the definition of
crime
of aggression
is based on the occurrence of the
act of aggression
as a necessary element
of the commitment of the corresponding crime. However, from the last sentence of
the first paragraph it is also clear that not every
act of aggression
qualifies as a
crime of
aggression
, even if all other conditions of the definition are satisfied.
Only those acts of aggression which by their
character, gravity and scale, constitute
a manifest violation of the Charter of the United Nations,
are able to establish individual
criminal responsibility for the crime of aggression. According to Annex III to the
Kampala Resolution
34
it is an unconditional requirement to fulfil at least jointly two
of the three (character, gravity or scale) requirements cumulatively. Yet, that still is
not enough, since the violation of the UN Charter must as well be
manifest
. Under
31
LESSIG, L., The Law of the Horse, what Cyber law might teach,
Harvard Law Review
, vol. 113, 1999,
501-546, p. 514.
32
International Criminal Court, Report of the Committee on Budget and Finance on the work of its
Twenty-Third session, 18 November 2014, ICC-ASP/13/15.
33
International Criminal Court, Trial Chamber V(B), Decision on the withdrawal of charges against Mr
Kenyatta of 13 March 2015,
The Prosecutor v. Uhuru Muigai Kenyatta
, No.: ICC-0l/09-02l11
34
Resolution RC/Res.6 of the Review Conference of the Rome Statute, adopted at
the 13th plenary
meeting, on 11 June 2010.