CYIL 2014

JOSEF MRÁZEK

CYIL 5 ȍ2014Ȏ

The Kampala definition in fact established a very high threshold for the crime

of aggression which may have also serious impact on the future interpretation of the

1974 Definition of Aggression. Art. 30 of the ICC Statute also stipulates that a crime

of aggression must be committed with “intent and knowledge”. A person has intent

when he means to “engage in the conduct”. The “knowledge” means “awareness” that

a circumstance exists or a consequence will occur in the ordinary course of events”.

It would depend on the ICC decision if there was “intent” and “knowledge” on the

side of perpetrator or not. Absence of

mens rea

or, better said, the ICC findings may

deny both or only one of those elements. Could the fact of not proving intent then

lead even to denial of the existence of the crime of aggression or to an exemption of

perpetrators from international penal responsibility?

The role of the UNSC in the ICC procedure was a very delicate question in

the negotiations. The 1994 draft ICC Statute in Art. 23 (2) suggested the ICC

proceedings for the crime of aggression be dependent upon a prior determination of

an act of aggression by the UNSC. This idea was finally refused by the overwhelming

majority of states that participated in the Kampala negotiations. Criticism had been

raised already within the ILC members with the aim of enabling wide adherence of

states to the Statute. Criticism of the UNSC determination of an act of aggression

had already been raised among those ILC members who were afraid that this position

of the UNSC would not encourage the widest possible adherence of states to the

Statute.

The ILC proposal was adopted by the Permanent Members of the UNSC,

who in this way renounced a monopoly role for the UNSC beyond Art. 16. The issue

of the UNSC role was left for decision in Kampala.

The narrow definition of the crime is in line with the general approach of the

drafters of the ICC Statute to confine ICC jurisdiction to conduct that clearly

warrants a collective judicial intervention. There hopefully remains considerable

room for judicial refinement of the definition. It is important to explore the extent

to which customary international law can be of assistance in further elucidating

the content of the definition. At the Kampala review conference, states parties, by

consensus, adopted a resolution amending the Rome Statute, including

inter alia

their new Art. 8 bis, with a definition of the crime of aggression, and Art. 15 bis and

15 ter, dealing with the conditions for the exercise of ICC jurisdiction. The Kampala

Amendments to the Rome Statute shall enable the ICC to exercise its jurisdiction

over the crime of aggression. The minimum 30 ratifications were required to activate

the ICC jurisdiction. In Kampala it was decided that parties must take a “one time”

decision to activate the ICC jurisdiction, but not earlier than in 2017. The Kampala

amendments on the crime of aggression limit the crime of aggression and criminal

responsibility for its commitment to state leaders. Investigations are based on the

referral of the UNSC or state consent.

Report of the ILC on the work of its forty-sixth session, 2 May to 22 July, 1994, UN Doc. A/49/10.

Kress, C.,

supra

note 77, p. 1194.