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CYIL 7 ȍ2016Ȏ
”which grant the Security Council the exclusive ability to determine the existence
of acts of aggression and establish an obligation of the Member States to uphold the
Security Council’s rights”. Of further concern is where the Council adopts a resolution
clearly identifying an act of aggression. Here, and on the basis of Article 25, “it is
claimed that a resolution determining the existence of aggression would be binding
on the Member States of the United Nations and therefore all States Parties to the
Rome Statute.” Consequently, it is arguable that ICC judgments regarding the crime
of aggression that reach an alternative conclusion to the Council’s resolutions would
“create inconsistent obligations and therefore be unenforceable pursuant to Article 103
of the Charter”.
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5. Conclusion
By the activation after 1 January 2017 of the jurisdiction with respect to crimes
of aggression there will be a new obstacle. That of the compatibility with the UN
Charter in the sense of Article 103 (see above). The Security Council gives preference
to domestic courts for trying the crimes under international law; the court of
occupying powers in Iraq is proof of this. In the prosecution of State officials
whose activities are, by implication, acts of States themselves, these States want to
retain their authority over this kind of domestic affair. The International Criminal
Court is complementary to national criminal jurisdictions, which means that States
have the jurisdiction and the primary obligation to investigate, punish, and prevent
these crimes. For this reason, the ICC will only step in when national judicial systems
fail and it can be demonstrated that the State is either unwilling or unable to bring
perpetrators to justice. The principle of complementarity is implemented by the Court
through Article 17. It is a risk that “in the case of a crime of aggression (the) toothless
Court and an immobile Council will accomplish neither justice nor peace”.
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The
time may not yet be ripe for giving the International Criminal Court jurisdiction over
the crime of aggression. Nowadays the crime of aggression is rather an outlier in the
Rome Statute. Due to the difficult procedures for prosecuting the crime of aggression
and the coming into force of the amendments, some commentators doubt whether
any person will ever be prosecuted for the crime of aggression as defined in the Rome
Statute.
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38
See CARRIE MCDOUGALL, ‘When Law and Reality Clash – The Imperative of Compromise in
the Context of the Accumulated Evil of the Whole: Conditions for the Exercise of the International
Criminal Court’s Jurisdiction over the Crime of Aggression’,
International Criminal Law Review,
Vol. 7
(2007), Issue 3-4, p. 277, at p. 286.
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See CAROLLANN BRAUM, The Political Realities and Legal Possibilities Concerning the Relationship
between the United Nation Security Council and the Crime of Aggression in the International Criminal
Court,
Czech Yearbook of Public & Private International Law,
Vol. 6 (2015), p. 47, at p. 60.
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See e.g MARCOMILANOVIC, Aggression and Legality: Custom in Kampala (Special Issue Aggression:
After Kampala),
Journal of International Criminal Justice
(Oxford Journal), Vol. 10 (2012), p. 166.