Finding a Solution for the International Criminal Court - the Crime of Aggression in International Law

Abstract: Whether executed as full-scale war or acts short of war, acts of aggression have consistently shaped the history of humankind. Acts of aggression would not occur if it were not for the involvement of individuals. The historical development of aggression in international law has seen a shift from a regime solely focusing on the unlawfulness of the action by States, to include the unlawfulness of the involvement of individuals. The topic of this thesis is this development and the involvement of individuals in such acts, with the possibility of holding them individually criminally responsible for the crime of aggression. Article 5 of the Rome Statute of the International Criminal Court (Rome Statute) includes the crime of aggression along with the crime of genocide, crimes against humanity and war crimes. Whereas the latter three crimes all have been gifted definitions for the purpose of the Rome Statute, the crime of aggression lacks such a definition. The Rome Statute entered into force on 1 July 2002 and the International Criminal Court (ICC) now practises its de facto jurisdiction over three of the four crimes included in its Statute. However, de facto jurisdiction over the crime of aggression is still lacking. This thesis examines the main difficulties in trying to find a feasible provision on the crime of aggression for inclusion in the Rome Statute. It does so by keeping the 2009 Review Conference in mind. Two main difficulties are presented&semic the problems of finding a definition of the crime and setting out the conditions under which the ICC shall exercise jurisdiction over the crime. The work on finding a definition has focused on whether a generic or a specific approach should be applied, the latter containing either an illustrative or an exhaustive list of acts. The trend in the recent debate has been an emerging consensus developing in favour of a generic approach. Overall, the present work on a definition is developing rather encouragingly. As to the conditions for the exercise of jurisdiction, work is progressing in a far less encouraging manner. States appear to have their minds made up about whether a prior determination by another organ, like the Security Council, is necessary for the ICC to be able to exercise jurisdiction over the crime of aggression. At the core of this issue is the relationship between the ICC and the Security Council. It has been argued that the 'primary responsibility for the maintenance of international peace and security' prescribed to the Security Council by the Charter of the United Nations, indicates that it should have a role in the ICC's exercise of jurisdiction over the crime. In addition, concerns about potential infringements on the sovereignty of States have resulted in States appearing reluctant to find a provision. As a conclusion, it is argued that States need to understand the necessity of political compromise, seeing as a perfect legal interpretation probably does not exist. The Special Working Group on the Crime of Aggression needs to continue the eloquent work being done on a definition in addition to devoting more time to the question of the conditions for the exercise of jurisdiction. Finally, the conclusion is reached that it is rather unlikely that the 2009 Review Conference will be able to adopt a provision on the crime of aggression for inclusion in the Rome Statute.