As detailed in a prior post, although some elements remain contentious, delegates are approaching a consensus definition of the crime of aggression. The most entrenched battle lines are now those governing the preconditions for the ICC’s jurisdiction over the crime of aggression.
At the 1998 Rome Conference, delegates were unable to agree upon any pre-conditions for the exercise of jurisdiction over the crime of aggression except to note that such pre-conditions should be “consistent with the relevant provisions of the Charter of the United Nations.” (Article 5(1)). The primary debate revolves around what role — if any — the U.N. Security Council (left) should have in prosecutions of the crime of aggression given the Council’s central role in the United Nations’ system of peace and security and the special nature of the crime of aggression. These provisions are to be contained in Article 15bis, which will be inserted into the Rome Statute after the Articles discussing the Court’s trigger mechanisms (state referrals (Art. 14), Security Council referrals (Art. 13(b)), and initiation by the Prosecutor acting proprio motu (Art. 15)), and prior to the Article governing the Security Council’s deferral powers (Art. 16).
The language — contained in an annex to a draft enabling resolution to be presented at the upcoming Review Conference — that has been the subject of debate reads as follows:
Article 15 bisAs this draft text reveals, a number of options remain on the table:
Exercise of jurisdiction over the crime of aggression
1. The Court may exercise jurisdiction over the crime of aggression in
accordance with article 13, subject to the provisions of this article.
2. Where the Prosecutor concludes that there is a reasonable basis to
proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents.
3. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression.
4. (Alternative 1) In the absence of such a determination, the Prosecutor may not proceed with the investigation in respect of a crime of aggression,
Option 1 – end the paragraph here.
Option 2 – add: unless the Security Council has, in a resolution adopted under Chapter VII of the Charter of the United Nations, requested the Prosecutor to proceed with the investigation in respect of a crime of aggression.
4. (Alternative 2) Where no such determination is made within  months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression,
Option 1 – end the paragraph here.
Option 2 – add: provided that the Pre-Trial Chamber has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15;
Option 3 – add: provided that the General Assembly has determined that an act of
aggression has been committed by the State referred to in article 8 bis;
Option 4 – add: provided that the International Court of Justice has determined that an act of aggression has been committed by the State referred to in article 8 bis.
5. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s determination of an act of aggression under this Statute.
► Under the first option, which gives ex ante veto power to the Security Council, the Council would have to determine that an act of aggression had occurred before an investigation or prosecution into the crime of aggression could commence. If the Security Council does not so determine, no prosecution could commence into crimes of aggression, although the Prosecution could investigate other ICC crimes committed within the same situation. (Draft Article 15bis (3) & (4, Alternative 1, Option 1)). Not surprisingly, those permanent members of the Security Council that have taken a position on these provisions favor this option.
► Under a second Option, the Security Council could request the Prosecutor to proceed with an investigation into crimes of aggression, even where it did not itself make a determination as to the existence of an act of aggression. (Incidentally, the Security Council has rarely declared a use of force to be an "act of aggression." Normally, unlawful uses of force are deemed "breaches of the peace" in the alternative lexicon of Article 39. Even the invasion of Kuwait by Iraq was designated as such in S.C. Res. 660 (1990)).
► Under the third set of options, Security Council inaction is not necessarily fatal to an investigation into crimes of aggression. According to the most permissive option, in the event of Security Council inaction, the Prosecutor could proceed with an investigation into crimes of aggression (draft Article 15bis (4, Alternative 2, Option 1)). As a more restrictive version of this option, the Prosecution could proceed so long as some other entity (either the Pre-Trial Chamber (Option 2), the General Assembly (Option 3), or the ICJ (Option 4)) had determined that an act of aggression had occurred. Precise details on how the General Assembly or ICJ would make such a determination remain to be worked out. For example, delegates have discussed allowing the ICJ to make such a determination through its advisory, as opposed to contentious, jurisdiction at the request of the General Assembly or another body with standing.
► Most importantly from the perspective of the independence of the Court, under all of these options, the Court is not bound by any determination on aggression by an organ outside of the Court (Article 15bis(5)).
This is not the case with respect to one additional proposal floating around the negotiations. This proposal would empower the Security Council to stop altogether a prosecution into a crime of aggression, presumably on the ground that no act of aggression had been committed because the putative aggressor state had legitimately acted in self-defense. This proposal would grant the Security Council powers that are stronger than the deferral powers already provided for in Article 16, which allows the Council to suspend, on a renewable basis, any investigation for a period of a year pursuant to a Chapter VII resolution. This proposal received limited support, primarily because delegates did not relish the idea of the Court being legally bound by such a political determination.
The drafting history of these provisions is available here.