CYIL 2014

THE DEFINITION OF AGGRESSION AND THE USE OF FORCE

The “package” which was adopted in Kampala comprises res. RC/Res. 6, six

amendments to the Rome Statute (Appendix I), an amendment to the Elements of

Crimes (Annex II), and six interpretative understandings (Annex III). The definition

of the crime of aggression does not cover all acts of aggression but only those that

“manifestly” violate the UN Charter by their “character of gravity and scale”. All these

circumstances must be thus considered by the ICC. The Understanding of resolution

RC/Res. 6 by which the amendments were adopted stipulates that amendments enter

into force respectively for each state party one year after the deposit of the instrument

of ratification in accordance with Art. 121 (5). Amendments will be reviewed seven

years after the beginning of the ICC exercise of jurisdiction, i.e. not earlier that 2024.

States parties are required to take an additional one-time decision on activating the

ICC jurisdiction. They should do so after 1 January 2017 by consensus or by at least

a two-thirds majority of states parties.

We have now, after Kampala, two competing definitions of “aggression” plus

the customary definition. There is a question of whether the Kampala definition of

the “crime of aggression” departs from the customary law notion of “aggression” and

the “crime of aggression”. A broad or narrow interpretation of the term “aggression”

may often depend on political pressure. The U.S. or Russia will certainly be more

sensitive on “identification” of “aggression” undertaken against them than small

countries with limited power. It is not excluded that a narrow definition of the “crime

of aggression” may even have a negative impact on the

jus ad bellum

definition of

“act of aggression” and the notion of “aggression” itself. Limitation of the Kampala

definition of the act of aggression and of the crime of aggression for the purpose of

the ICC Statute only will not prevent different interpretations of “aggression”. The

Kampala definition of the crime of aggression relates to the criminal responsibility of

political and military leaders, who are “in a position effectively to exercise control over

to direct the political or military action of a State”. Only very serious illegal uses of

force by these persons give rise to individual criminal responsibility. The notion “act

of aggression” in Art. 8 bis reflects the elements of the 1974 Definition of Aggression,

and it is in principle built on Art. 2 (4) of the UN Charter. The relationship between

the

jus ad bellum

concept of aggression and the crime of aggression committed by

responsible individuals is very tight. The difference between both notions lies in

“different thresholds” of “gravity and scale”, depending on subjective evaluation in

the individual case and its interpretation. The crime of aggression is in fact committed

by a state through its responsible representatives. The ILC, however, departured from

its previous conception of “state crimes” (see Art. 19 of the original Draft articles on

state responsibility).

For correct interpretations of the provisions of the Kampala amendments it is

important to read a number of “Understandings”

which are contained in Annex

III, adopted by consensus. Understanding 1 confirms that the ICC may exercise its

jurisdiction over the crimes of aggression on the basis of UNSC referrals, only in case

Handbook,

supra

note 75.