The Future of the ‘Supreme Crime’

Nikola Hajdin

It is very well known that the ICC has under its jurisdiction four so-called core crimes. One of them has never had the chance to be subject of an indictment as the definition for the crime of Aggression was adopted only in 2010 in Kampala. Countries agreed on a few amended articles of the Rome Statue in order for the ‘supreme crime’ to be tried before the court.

According to Article 15(2) of the Rome Statute ‘the Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.’ Paragraph 3 continues, stating that ‘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.’ On 5 December 2014, Georgia deposited its country’s instrument of ratification for the Kampala Amendments and thus became 20th state to do so. There is however already more than the 30 needed signatures, as 11 states, namely Cabo Verde, Côte d’Ivoire, Grenada, Guatemala, the Maldives, the Phillipines, St. Lucia, Tunisia, Vanuatu, Moldova and the Seychelles, have ratified the Rome Statute after 2010 with all the amendments thereof.

Having in mind the tremendous effort in promoting the crime of aggression, most likely we are going to witness the first trials in this respect already in 2017. Nonetheless, the actions that preceded Kampala are worth mentioning, as the hesitance about prosecuting aggression is nothing new in the international lawyers’ community. In next few lines some light will be shed on the question of why there was huge reluctance in international law regarding the crime of aggression.

The ‘vacuum period’

The first international trial for what amounts to today’s crime of aggression was held before the Nuremberg International Military Tribunal following WWII, under the name of ‘crimes against peace’. At the wake of the trial, the American Chief Prosecutor Robert Jackson gave a famous promise that offenders who commit acts of aggression shall be prosecuted and international criminal law would be applied against them. In that time everyone believed that the ‘supreme crime’ would be the quintessential aspect of the emerging branch of international law, viz. international criminal law. However, although it was accepted in customary international law that the crime of aggression forms part of that system, the agreement on a universally accepted definition could not be reached until 2010. There are at least two reasons for the impeded negotiations on this point.

The first one relates to the effects of the UN Charter, which spelled out conditions and rules for the use of armed force. At the time of the adoption of the Charter, the international community was relying on its provisions in order to prevent the future acts of aggression. For Antonio Cassese, this was one of the major factors that shaped the discourse in the process of criminalizing aggression. Yet, the other opinion is that the existence of norms enshrined in the UN Charter only remotely influenced the 60 year long quest for a definition of aggression.

On the other hand, when we study the historical development of the crime of aggression, in order to understand the discourse in the course of the second half of 20th century, inevitably, we need to take into account the notion of the Cold War and its affect on this process. The Cold War was a state of political and military tension between two powers. On the one side the United States with NATO and others created the so-called Western Bloc. On the other side, the Soviet Union (USSR) and its allies created the Eastern Block as an opponent to the prior. During this period, the wartime alliance against Germany from the WWII was broken, leaving the communistic USSR and the capitalistic US with profound differences over democracy. The Cold War prompted members of the two blocs to refrain from codifying the crime of aggression, as they feared that it could hamper their political goals. They wished to retain as much leeway as possible in the interpretation of the rules on self-defense under international law.

One should bear in mind this last reason as future proceedings may depend on the political will of States to agree to the jurisdiction of the ICC.

 

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