69 / 464
55
THE POLITICAL REALITIES AND LEGAL POSSIBILITIES CONCERNING …
4. The Kampala Compromise
When it came time for the international community to define the crime of
aggression and potentially add it to the repertoire of the Prosecutor, great contention
remained as many of the old concerns had not yet been assuaged.
33
At the center
of this dilemma were the Permanent Members of the Security Council: the United
States, Russia, China, the United Kingdom and France.
34
In fact, these five states
are among the most contentious players in regard to the Court, not just the crime
of aggression.
35
Only the UK and France became States Parties.
36
At Kampala, both
sides, those wanting the Council to play a strong role, thereby giving the potential
to insulate or protect certain individuals, and those wanting the Court to be as
independent as possible, especially from the politically-charged Security Council,
were forced to make sacrifices and an uneasy middle ground was found.
37
Largely at
the behest of certain Permanent Members and to the chagrin of many other states, it
was agreed that the Council would play a pivotal role in the Prosecutor’s investigation
and prosecution of the crime of aggression.
38
In fact, its role would have the potential
to be much more involved than in the other three crimes. This is because of the
potential for the leaders, and not just “low level” soldiers or other individuals, to be
investigated and prosecuted. In the end, the Kampala Resolution, which gives the
Council a strong role in the Prosecutor’s ability to investigate and prosecute, was
adopted.
While there are many jurisdictional elements in the crime of aggression at the
Court, this paper will stay narrowly focused on two primary provisions with respect
to the Prosecutor’s exercise of jurisdiction: Article 15
bis
: state referral and
proprio
motu
, and Article 15
ter
: Security Council referral.
39
There are three main options
for the Prosecutor to move forward under Article 15
bis
, and each will be examined
in turn. Additionally, there have already been examples of the Council referring
situations involving the other crimes, which could be used similarly to Article 15
ter
, and these will be explored as well in order to shed light on how a referral might
operate with regard to the crime of aggression.
33
AKANDE, cited above.
34
CLARK, cited above, at 699.
35
BROOMHALL, Bruce,
International Justice & the International Criminal Court: Between Sovereignty
and the Rule of Law
, Oxford University Press, 2004, 160.
36
MOSS, cited above, at 4.
37
CLARK, cited above, at 699; BROOMHALL, cited above, at 160.
38
Id
.
39
Kampala Resolution, art. 15
bis
and art. 15
ter
.