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JOSEF MRÁZEK CYIL 5 ȍ2014Ȏ
the Statue defining the crime and setting out the conditions under which the Court
shall exercise jurisdiction with respect to this crime. The negotiations of the crime of
aggression have a nine decade history, which has been extensively discussed in legal
literature. The Preparatory commission for the ICC was held from 1999 until 2002,
the Special Working Group (SWGCA) was working on the definition of the crime of
aggression from 2003 until 2009, and final agreement was reached by consensus at
following meetings in 2009-2010.
The adoption of the ICC Statute proved that it was, first of all, impossible to
agree on a definition of the crime of aggression. States were also divided with regard
to the role of the UNSC in the proceedings for the crime before the Court. Art. 5
(1d) of the Statute stipulated that the jurisdiction should be limited to the “the most
serious crimes of concern to the international community as a whole”.74 Art. 5 (2)
provided that the ICC should exercise jurisdiction over the crime of aggression “once
a provision is adopted”. At the Kampala Review Conference the “crime of aggression”
was described in Art. 8 bis (1) as: ,,the planning, preparation, initiation or execution,
by a person in a position effectively to exercise control over or to direct the political
or military action of a State, of an act of aggression which, by its character, gravity
and scale, constitutes a manifest violation of the Charter of the United Nations.” The
“act of aggression” was then defined in Art. 8 bis (2) as: “the use of armed force by a
State against the sovereignty, territorial integrity or political independence of another
State, or in any other manner inconsistent with the Charter of the United Nations”.75
The delegates in Kampala were able to elaborate amendments to the ICC Statute.
The compromise was reached between two opposed positions with regard to the
inclusion of the crime of aggression to the ICC Statute. The definition of the crime is
rather narrow if compared with notion of aggression in the jus ad bellum of the 1974
Definition and customary international law. Art. 8 bis (2) refers to the 1974 Definition
of Aggression. Probably we have here today, in some way, two competing definitions
of aggression. In M.E. O’Connell’s view, the reference to Resolution 3314 in the
aggression amendments should help to preserve for jus ad bellum the understanding
that aggression is “any serious violation of the UN Charter irrespective of the ICC
Statute’s definition of the crime”.76
Adoption of the definition of the crime of aggression in Kampala draws the
serious attention of the world legal community to the prohibition of aggression in
international law. Art. 8 bis (1) stipulates that an “act of aggression” as a “crime of
aggression” presupposes by “its character, gravity and scale” “a manifest violation” of
74 To the work on the definition of the Crime of aggression, see e.g. Kress, C., Holtzendorf, The Kampala
Compromise in the Crime of Aggression, Journal of International Criminal Justice, 2010, N8, p. 1182;
Trahan, J., Rome Statute’s Amendment on the Crime of aggression: Negotiations at the Kampala
Review Conference, International Criminal Law Review, 2011, No. 11, pp. 49-104.
75 Handbook Ratification and implementation of the Kampala amendments to the Rome Statute of the
ICC Crime of aggression, war crimes, New Jersey, available at:
documents/1/handbook.pdf.
76 O’Connell, M. E. C., supra note 49, p. 200.