CYIL 2014

THE DEFINITION OF AGGRESSION AND THE USE OF FORCE

The provisions dealing with the ICC relationship with the UNSC accord to the ICC

an important degree of juridical independence from the UNSC. The ICC may start

an investigation and prosecution without determination of an act of aggression by

the UNSC or by its “authorization” (para 6-8). The UNSC determination of the act

of aggression is not a necessary condition or prerequisite to start the investigation

(par. 6-7). A six month period is given to the UNSC for such a deliberation.

The purpose of this study is not to analyze in detail all provisions under which the

ICC may exercise its jurisdiction over the crime of aggression. The inclusion of the

crime of aggression in the ICC Statute was controversial throughout the negotiation

process.

Under the George W. Bush administration the U.S. refused to participate

in the SWGCA negotiations. The U.S. took part for the first time in a 2009 meeting

under the President Obama administration. The U.S. delegation came to Kampala not

wanting any agreement on definition of aggression. The Americans did not achieve

that but, according to J. Trahan, ,,they did obtain something of tremendous perceived

value to the U.S. negotiating team, an iron-clad exemption for the nationals of non-

states parties from prosecution for aggression.

In his opening statement of 4 June,

H. Koh, as the legal adviser of U.S. Department of State, expressed dissatisfaction

with the definition of the crime of aggression in draft Art. 8 bis. He was afraid of

criminalizing lawful uses of force and of departing from customary international

law.

U.S. military actions will not be subjected in any case to the jurisdiction of the

ICC which shall be exercised after 1 January 2017.

Art. 86 of the Statute requires all states parties to cooperate fully with the ICC in

its investigation and prosecution of the crime of aggression and other crimes within

its jurisdiction as well. This obligation relates to all states parties regardless of whether

they have already ratified the amendments or not. It was never easy to explain the

difference between “act of aggression” and “armed attack”. It seems to be clear that

the “gravity” threshold is now a basic criterion to classify the use of force as an armed

attack and at the same time to qualify an armed attack as an “aggression”. We will

see in the future which impact and which deterrent effect on the prevention of the

crime of aggression the Kampala definition will really have. Some important states

remain to be excluded from ICC jurisdiction. In any case the Kampala definition is

a serious and difficult attempt to punish “the most serious international crime”. To

overcome all obstacles and aversions to the definition required an enormous effort,

and the result, from this standpoint, was a great success.

For a critique of this position, see e.g. Kress, C., Holtzendorff,

supra

note 74, No. 10, p. 1210.

Trahan, J.,

supra

note 74, p. 93.