CYIL 2014

THE DEFINITION OF AGGRESSION AND THE USE OF FORCE

the Charter of the United Nation. Some authors doubted whether all acts contained

in the 1974 Definition will reach the threshold of gravity required for the crime of

aggression under the ICC Statute.

The first Review Conference on the Rome Statute of the ICC was organized

from 31May to 11 June 2010 at Kampala in Uganda. Present were 84 states parties

to the Rome Statute; 32 non-states parties and also about 500 members of civil

society attended the conference. The result of the Kampala definition is that not

all acts of aggression are subject to ICC jurisdiction. The definition deals with an

“act of aggression” (responsibility of state) and the “crime of aggression” (individual

penal responsibility). According to Art. 15 of the Rome Statute the UNSC may,

within a six month period, refer a “situation” or “an act of aggression” to the UNSC.

Art. 15 bis stipulates that, if a party has referred the case to the ICC or if the ICC

Prosecutor has initiated the procedure and the UNSC has not made determination

within six months after the date notification, the Prosecutor may proceed with the

investigation in respect of a crime of aggression, provided that the Pre-Trial Division

had authorized the commencement of the investigation in respect of a crime of

aggression in accordance with the procedure contained in Art.16. Non-states parties

to the Rome Statute are exempt from ICC jurisdiction.

The ICC jurisdiction implies: a) ratification or acceptance of the aggression

amendment by thirty state parties; b) a one year period after passing by two-thirds

of states parties or consensus after 1 January 2017. Jurisdiction of the ICC may not

apply retroactively. This means that it is not possible to present any crime under

the Statute prior to its entry into force, and even later for states which ratified the

Statute later. With regard to the crime of aggression no prosecution is possible before

2 January 2017. Ratification of the Rome Statute by a state is the basic precondition

for the existence of jurisdiction together with an “opt out” declaration. Filing out an

opt declaration also depends on the will of the state party. The ICC jurisdiction is

not, by far, universal, due to the reason of the limited number of ratifications. Some

authors maintain that the Kampala definition of the crime of aggression is too vague,

violates the principle

nullum crimen sine lege

and imposes retroactive or

ex post

facts

law.

This position is in contradiction with the Nuremberg principles and customary

international law prohibiting aggression. The arguments pointing to retroactivity and

ex post

facts law or victor’s justice laws are not new. These arguments were basically

already refuted in Nuremberg and Tokyo. We already have here not only historical

precedent but also existing international customary law. In Nuremberg the U.S.

resolutely insisted on prosecution of the Nazis for “aggressive war”. Unfortunately

after the World War II the crime of aggressive war disappeared from the list of “war

crimes” in a broader sense, and no perpetrator was punished for this crime.

See Kress, C., Time for Decision: Some Thoughts on the Immediate Future of the Crime of Aggression:

A Reply to A. Paulus. EJIL 2009, p. 140.

Glennon, M., The Blank-Prose Crime of Aggression,

Yale Journal of International Law

, 2010, No. 1,

pp. 71-72.