On the Crime of Aggression, international Tribunal and amending the Rome Statute — article

On July 20th, 2023, during the Ukrainian Week of International Criminal Justice, the Center for Civil Liberties hosted a discussion on the crime of aggression with David Cattin and Frederika Schweighoferova. The main topics regarded establishing an international tribunal and introducing necessary changes to the Rome Statute.

Crime of Aggression: Definition

The heart of the matter lies in violating the ban on using force under Chapter 7 of the UN Charter, commonly known as the crime of aggression. This particular crime can only be committed by leaders with real control and decision-making power within a country’s government. Invasion, occupation, annexation, or regime change in the territories of other countries are all examples stemming from the crimes of aggression. Under certain conditions, the International Criminal Court (ICC) has jurisdiction over this offense.

Ukraine’s Role and the Rome Statute Status

The ICC is responsible for prosecuting offenses like war crimes, crimes against humanity, genocide, and crimes of aggression. Despite Ukraine being a central focus of current ICC investigations, the country hasn’t ratified the Rome Statute. The panelists recommend that Ukraine should become a member of the ICC to ensure those responsible for crimes are brought to justice and to protect its national sovereignty.

Why Prosecuting the Crime of Aggression Is Crucial?

The crime of aggression covers all other crimes in international armed conflicts. It serves as the foundation for accountability, especially when decisions to wage wars of aggression lead to devastating conflicts like in Ukraine. Countless lives have been affected, emphasizing the urgent need for those who are responsible to face the consequences.

Historical Developments: Defining the Crime of Aggression

Over the years, the definition of the crime of aggression has evolved. The Nuremberg trials after World War II set the stage for individual criminal responsibility for acts of aggression. The Rome Statute, adopted in 1998, left the crime undefined but planned to define it later. This led to the Kampala Conference in 2010, where a solid definition and jurisdictional conditions were finalized.

Challenges in Prosecuting Aggression

Unsurprisingly, prosecuting aggression comes with its share of challenges. The biggest obstacle is the UN Security Council’s role in triggering the ICC’s jurisdiction over the crime of aggression. Political interests have led to Russia using its veto power, blocking the Security Council from referring the situation in Ukraine to the ICC. Additionally, Article 15 bis of the Rome Statute creates a problem by excluding ICC jurisdiction over non-party states, causing an imbalance in international law application.

Proposed Amendments to the Rome Statute

To address the jurisdictional imbalance, an essential proposal seeks to align the crime of aggression’s jurisdiction with other crimes. This involves removing Article 15 bis paragraph 5, which currently prevents ICC jurisdiction over non-party states concerning the crime of aggression. If implemented, this amendment would empower the ICC to prosecute officials from non-party states like Russia if they commit acts of aggression under the authority of a state party accepting ICC jurisdiction.

The amendments to Article 15 bis must not only encompass the deletion of para. 5, but also of 11 words in para. 4 that are blocking the automatic jurisdiction of the ICC when the criminal leaders are using the army of a State Non-Party to execute the crime of aggression.

The Path to Justice: Establishing an International Tribunal for Crimes of Aggression

In the pursuit of answers and accountability for acts of aggression, creating an International Tribunal for Crimes of Aggression seems promising. Although the ICC can prosecute war crimes, crimes against humanity, genocide, and aggression, getting its jurisdiction over the crime of aggression has proven complex.

Addressing Aggression’s Challenge

Aggression is a grave violation of international law, and seeking justice is crucial for global peace and security. However, activating the ICC’s jurisdiction has been challenging due to legal constraints and political considerations.

Proposals for Addressing Crimes of Aggression

There are two main proposals. The first is for the Assembly of States Parties (ASP) to immediately enforce the Amendments to Article 15 bis 5, enabling ICC jurisdiction over the crime of aggression for non-party states. The second involves creating a special tribunal exclusively dedicated to addressing crimes of aggression. There are debates about the tribunal model, whether it should be a hybrid with national and international law or an international entity from the UN General Assembly, taking victims’ cultural contexts into account.

Challenges and Considerations

Both proposals are not short of drawbacks. They face challenges such as ensuring accountability for crimes dating back to 2014, getting broad support from member states, amending the Rome Statute and other legal frameworks, and coordinating with domestic trials in affected countries.

The Best Way Forward

To navigate the path to justice, it is crucial to weigh both the advantages and disadvantages of each proposal thoughtfully. A comprehensive approach could involve amendments to the Rome Statute, creating a special tribunal, and complementarity with domestic trials. This is a complex journey that requires collective efforts from the international community to achieve a safer world. Establishing an International Tribunal for Crimes of Aggression could be a significant step toward a future free from aggression and violence.