Article 5 of the ICC Statute lists aggression – the foremost offense tried at Nuremberg, there given the more descriptive name “crimes against the peace” – as 1 of 4 crimes “within the jurisdiction of the Court.” But then it adds a caveat: no charge of aggression may be adjudicated until “a provision ... defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.” Thus aggression is not a crime within the current prosecutorial quiver, a fact that sets it apart from the others listed in Article 5, genocide, crimes against humanity, and war crimes.
A Special Working Group is endeavoring to activate this jurisdiction following the 2010 Statute review conference. As explained in this ASIL Insight by Dr. Anja Seibert-Fohr (above left), head of the Minerva Research Group at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany, the Working Group is nearing agreement on a definition of aggression, based on U.N. General Assembly Resolution 2625 (1970):
The current draft amendment takes a conservative approach, defining the crime of aggression as a ‘leadership crime’ which only applies to manifest violations of the UN Charter. Among the listed acts of aggression are: (1) the military invasion or attack of another State’s territory; (2) bombardment of such territory; (3) military blockage of foreign ports and coasts; and (4) attacks on land, sea and forces of another State.Yet key aspects of this problem are still unresolved, among them:
► Whether jurisdiction over charges of aggression ought to depend on referral by the U.N. Security Council, as preferred by the only 2 ICC states parties that are also permanent Council members, or whether the Council’s role should be limited to blocking of undesired referrals;
► Whether to allow states parties an effective opt-out from the provision relating to aggression, thus permitting 2-tiered application of the ICC treaty; and
► The procedural mechanism for proper adoption of the new provision, a question that gives rise to another respecting the percentage of states parties that must agree.
Seibert-Fohr’s incisive essay concludes as do many respecting the role of international law in our contemporary world:
Whether the Conference will eventually adopt an amendment is still open and largely depends on political momentum.