by Mel O’Brien

The Review Conference of the Rome Statute has just wrapped up in Kampala. While some of what emerged from the Review Conference (RC) were just statements of support for the ICC, one significant result of the RC has been the agreement of a definition of aggression- a definition many thought would never actually happen. However, it is far from an ideal defintion. A few brief observations… Article 8 bis (2)(c) includes in the definition of an act of aggression, ‘The blockade of the ports or coasts of a State by the armed forces of another State’, which immediately brings to mind Israel and the current blockade of Gaza. However, any high ranking Israeli officials certainly do not have to worry about being brought to justice before the ICC anytime soon. Articles 15 bis (3) and 15 ter (3) state: ‘The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute’. Thus, while the definition has been agreed upon, the amendment itself has not been made, still may not be made, and even if it is made, won’t be for another seven years.

The Prosecutor’s propio motu powers have been curtailed. Article 15 bis (6) and (7) obligate the Prosecutor to seek a determination from the Security Council of the existence of an act of aggression, without which an investigation cannot be conducted. If such a determination has not been made by the Security Council within six months, the Prosecutor may proceed with an investigation, but only with the authorisation of the Pre-Trial Chamber (Article 15 bis (8)). So much for prosecutorial independence, one of the most important aspects of the ICC, the idea of which was to avoid the influence of states on investigations and prosecutions.

It is clear that states are terrified of politically motivated prosecutions- or indeed prosecutions at all. It is certainly very exciting that a definition of aggression has been agreed upon, although whether or not it ever comes into force as an amendment remains to be seen. States are run by the leaders who will be the actors brought before the Court should their state ever be involved in an act of aggression. Leaders who will not be able to claim immunity for these actions (Article 27 irrelevance of official capacity). Such leaders won’t be too keen on agreeing to a provision which could be applied uniquely to them, as a small group of perpetrators (those persons ‘in a position effectively to exercise control over or to direct the political or military action of a State’; Article 8 bis (1)). The use of the word ‘effectively’ connects to the terminology of command and superior responsibility (Article 28), which requires effective command and control, or effective authority and control, for criminal liability. This phrasing allows de facto leaders as well as de jure superiors and commanders to be held responsible for the crimes under the Rome Statute.

In a clear ‘out’, State Parties are given the express option to lodge a
declaration of non-acceptance of the Court’s jurisdiction with regard to
the crime of aggression (Article 15 bis (4)), an option which does not exist for the other crimes under the Rome Statute. Aggression is clearly differentiated from the other crimes, and the definition is politically influenced.

There will surely be a flurry of scholarly articles published in the wake of the new definition. It will be interesting to see whether scholars and practitioners are pessimistic or optimistic for the future of aggression as a crime before the ICC. Personally, I am extremely pessimistic…