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Crimes of Aggression

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Tatum Edge

on 27 September 2016

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Transcript of Crimes of Aggression

Crimes of Aggression
By: Tatum Edge
History of Aggression
The ICC adopted amendments to the Rome Statute on June 11, 2010 in Kampala to define the parameters and the mechanisms of the crimes of aggression
Crimes of Aggression and the ICC
Notion of aggression extends as far back as the early days of Greece; although there was no formal definition until 1974


Early conventions established to combat aggression:
The Hague Convention 1899 and 1907; Pacific settlement of international disputes
Treaty of Versailles of 1919; condemned aggressive war
Covenant of the League of Nations; prohibited war of aggression in 1920
The Kellogg-Briand Paris Pact of 1928; on renunciation of war as an instrument of national policy


Defining the two types of aggression
1. Crimes of aggression: committed by an individual with high ranking military or political profile

2. Act of aggression: committed by the state

Rome Statute Article 15 bis.
Article 15 bis5
Exercise of jurisdiction over the crime of aggression
(State referral, proprio motu)
1. The Court may exercise jurisdiction over the crime of aggression in accordance with
article 13, paragraphs (a) and (c), subject to the provisions of this article.
2. 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.
3. 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.
4. The Court may, in accordance with article 12, exercise jurisdiction over a crime of
aggression, arising from an act of aggression committed by a State Party, unless
that State Party has previously declared that it does not accept such jurisdiction by
lodging a declaration with the Registrar. The withdrawal of such a declaration may be
effected at any time and shall be considered by the State Party within three years.
5. In respect of a State that is not a party to this Statute, the Court shall not exercise its
jurisdiction over the crime of aggression when committed by that State’s nationals or
on its territory.
6. 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.
7. Where the Security Council has made such a determination, the Prosecutor may
proceed with the investigation in respect of a crime of aggression.
8. Where no such determination is made within six months after the date of notification,
the Prosecutor may proceed with the investigation in respect of a crime of aggression,
provided that the Pre-Trial Division has authorized the commencement of the
investigation in respect of a crime of aggression in accordance with the procedure
contained in article 15, and the Security Council has not decided otherwise in
accordance with article16.
9. A determination of an act of aggression by an organ outside the Court shall be
without prejudice to the Court’s own findings under this Statute.
10. This article is without prejudice to the provisions relating to the exercise of jurisdiction
with respect to other crimes referred to in article 5.
Rome Statute Article 15 bis ter
Article 15 ter6
Exercise of jurisdiction over the crime of aggression
(Security Council referral)
1. The Court may exercise jurisdiction over the crime of aggression in accordance with
article 13, paragraph (b), subject to the provisions of this article.
2. 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.
3. 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.
4. A determination of an act of aggression by an organ outside the Court shall be
without prejudice to the Court’s own findings under this Statute.
5. This article is without prejudice to the provisions relating to the exercise of jurisdiction
with respect to other crimes referred to in article 5.
Court Jurisdiction over the Crimes of Aggression
The Court will not be able to exercise its jurisdiction over the crime of aggression until:
· at least 30 States Parties have ratified or accepted the amendments; and
· a decision is taken by two–thirds of States Parties to activate the jurisdiction at any time after 1 January 2017.
Article 8 bis3
Crime of aggression
1. For the purpose of this Statute, “crime of aggression” means the planning, preparation,
initiation or execution, by a person in a position effectively to exercise control over or
to direct the political or military action of a State, of an act of aggression which, by
its character, gravity and scale, constitutes a manifest violation of the Charter of the
United Nations.
2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a
State against the sovereignty, territorial integrity or political independence of another
State, or in any other manner inconsistent with the Charter of the United Nations.
Any of the following acts, regardless of a declaration of war, shall, in accordance
with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974,
qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another
State, or any military occupation, however temporary, resulting from such
invasion or attack, or any annexation by the use of force of the territory of
another State or part thereof;
(b) Bombardment by the armed forces of a State against the territory of another
State or the use of any weapons by a State against the territory of another
State;
(c) The blockade of the ports or coasts of a State by the armed forces of another
State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or
marine and air fleets of another State;
(e) The use of armed forces of one State which are within the territory of another
State with the agreement of the receiving State, in contravention of the
conditions provided for in the agreement or any extension of their presence
in such territory beyond the termination of the agreement;
(f) The action of a State in allowing its territory, which it has placed at the
disposal of another State, to be used by that other State for perpetrating an
act of aggression against a third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another State of such
gravity as to amount to the acts listed above, or its substantial involvement
therein.
Article 8 bis Crimes of Aggression
"According to the Chief Prosecutor at the Nuremberg Trials, the most important outcome was confirming and prosecuting the crimes of aggression" -Michael P. Scharf
1960- The General Assembly of the UN reaffirmed that aggression “is the gravest of all crimes against peace and security throughout the world” but “aggression” had yet to be defined

Defining Aggression
In 1974 The General Assembly of the UN arrived at a formal definition of aggression
“Aggression is the use of armed forces by a state against another state, including its territorial waters or airspace, or in any way affecting the territorial integrity, sovereignty, or political independence of such state”
According to the definition derived by the UN in 1974:
“Individual or collective self-defense could only be exercised in case of armed attack by another state, and the exercise must be reasonably proportionate to the armed attack against it”


These amendments will be voted on no earlier than January 1, 2017 to determine whether countries will enact their jurisdiction; therefore actions taken against crimes of aggression will be delayed until then
This momentous decision, reached by consensus, means that the international community will have a tribunal competent to prosecute aggressive uses of military force for the first time since the post-Second World War tribunals in Nuremberg and Tokyo.
Significance of the Kampala and the Crimes of Aggression Amendments
Prior to the ratification, The tribunals established by the Security Council never provided jurisdiction over the crimes of aggression; therefore they were unable to prosecute these crimes
Discussions Questions?
Why do you think that is has taken so long to ratify an amendment for the Crimes of Aggression?

In modern times, what crimes of aggression do you think could be tried according to the amendment in the Rome Statute?

This was unable to be enacted because it was not under the court's jurisdiction at the time to try crimes of aggression
Full transcript