At the Kampala Conference in 2010, the first ever review of the Rome Statute that created the International Criminal Court (ICC, Court), State Parties attempted to define what constitutes a Crime of Aggression. Draft Article 8(1) bis defines Crimes of Aggression 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” violating the United Nations (UN) Charter. As this definition states, before concluding a Crime of Aggression the ICC would have to conclude whether a state Act of Aggression has taken place. Article 8(2) bis defines an Act of Aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independent of another State . . .”
In April 2015, Yale professor Harold Koh and Todd Buchwald from the Department of State published an article in the The American Journal of International Law entitled “The Crime of Aggression: The United State Perspective.” Both Koh and Buchwald were part of the United States (US) Delegation in 2010 at the Kampala Conference, which sought to solidify a definition for the Crime of Aggression under the ICC’s jurisdiction. (Note: The authors’ state in their article that their views do not reflect those of the US Government). For all intents and purposes, the Koh and Buchwald article represents the most up-to-date US stance to the ICC’s proposed jurisdiction over Crimes of Aggression.
Prosecuting Crimes of Aggression at the ICC
Pursuant to the draft articles adopted in Kampala in 2010, Koh and Buchwald’s article outlined five ongoing US concerns about Crimes of Aggression within the Court’s jurisdiction. I will focus my comments on one recurring theme in the article—the authors’ insistence that the UN Security Council, rather than the Court, must first determine whether a state Act of Aggression occurred before the Court can assert legal jurisdiction over a Crime of Aggression. The Security Council’s current relationship to the Court is limited to its ability to refer situations for investigation under Article 13(b) of the Rome Statute.
To most observers critical of the US approach to the ICC, the fundamental reason the US holds such a position is to preserve its ability to veto any resolution finding it has committed an Act of Aggression. The authors, nonetheless, maintain that the necessity of UN Security Council involvement is “anchored in the UN Charter, its negotiating history, and the special importance attached to the role of the Security Council in making determinations about whether a state has committed aggression.” However, the authors present a false dichotomy between political and legal determinations and which body can justifiably determine each. The ICC is not precluded from making political determinations. Therefore, it should be able to determine both state Acts of Aggression and individual Crimes of Aggression while keeping the Security Council to its current “triggering” role under Article 13(b) rather than as a filter to the Court’s exercise of jurisdiction.
Safeguarding ICC Independence from the UN Security Council
The concern about the Court overstepping its jurisdiction in making a political assessment regarding Acts of Aggression is not new. Delegates at the ICC Preparatory Committee that met in March and April of 1996 expressed the same concern. Then and now, the US has envisioned a two-step process in which the Security Council first determines whether Acts of Aggression have taken place then makes its referral to the ICC to determine a Crime of Aggression. While Article 39 of the UN Charter obliges the Security Council to determine whether an Act of Aggression has taken place, the Security Council does not have the exclusive jurisdiction to do so, a point conceded at the 2002 ASIL Proceedings by Stephen Mathias, the Assistant Legal Adviser for UN Affairs at the US State Department at the time.
Nowhere in the Rome Statute is it mentioned that the UN Security Council is the only body that can determine whether a “manifest violation of the Charter of the United Nations” has occurred, as required by the proposed Article 8(1) bis. Additionally, Article 15(9) bis explicitly states that “[a] determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own finding under the Statute.” Article 15 bis outlines a separate Act of Aggression determination by the Security Council, which may inform the Prosecutor’s determination. However, one is not contingent on the other. The ongoing concern requiring UN Security Council involvement in Act of Aggression determinations seeks to thwart the Court of its independence in determining what situations to investigate.
Koh and Buchwald’s article also takes the position that Crimes of Aggression are distinct from the other three crimes under the Court’s jurisdiction since it requires a political determination of whether Acts of Aggression have taken place. Whether the Court can consider political factors in its various determinations throughout the litigation process remains an open question. In fact, it was one of the key arguments presented by Comoros in its Article 53(3) request for the Prosecutor to reconsider her decision to not investigate incidents that took place on the Gaza Flotilla in 2010. The Pre-Trial Chamber agreed with Comoros that the Prosecutor should re-investigate, but did not specifically address the Court’s ability to discuss political factors (the Prosecutor has appealed the Pre-Trial Chamber’s decision).
Nonetheless, Crimes of Aggression may not necessarily be so distinct from the other crimes within the Court’s jurisdiction. Any of the other crimes can be committed by state actors. Also, the Court already has jurisdiction over military leaders under Article 28 Command Responsibility and negates findings of Head of State immunity under Article 27 for crimes within the Court’s jurisdiction. Furthermore, the Court is already equipped under the Rome Statute to make open-ended determinations that may be more political than legal in nature. Both Article 53 (investigation) and Article 58 (arrest warrant) obligate the Court to consider gravity and the interests of justice, neither of which are informed by bright line tests.
Bifurcating jurisdiction over Crimes of Aggression between the UN Security Council and the Court undermines the Court’s potentially expansive mandate of stopping crimes of the most serious international concern. At the Nuremberg trials, a Crime of Aggression (called then a War of Aggression) was described as the “supreme international crime.” Why would the US want to limit the ICC’s jurisdiction in determining which states have committed such crimes other than to protect its own reputation before the international community? The Obama administration’s approach to the ICC remains more congenial and engaging than the preceding government. However, if the US and the rest of the world’s most politically powerful nations are, in fact, intent on stopping Acts of Aggression and other crimes within the Court’s jurisdiction, it must allow the Court to fulfill its rightful mandate to exercise jurisdiction independent of UN Security Council interference.
Given that the US has refused to become party to the Rome Statute, the international community in 2017 (when Crimes of Aggression will next be discussed by the Assembly of State Parties) must not succumb to political pressures and impede the Court’s ability to rightfully prosecute unlawful Acts of Aggression. A robust, meaningful Court with expansive and purposeful jurisdiction is a necessity in today’s interconnected geopolitical world. Such a Court would be better equipped to fulfill its independent judicial mandate.