International Criminal Court working group nearing agreement on crime of aggression
The countries overseeing the structure and management of the International Criminal Court (ICC) are making “very good progress” towards agreement on a definition of the crime of aggression, the head of a key working group told a press conference at United Nations Headquarters today.
Christian Wenaweser, Liechtenstein’s Permanent Representative to the UN and the Chairman of the Special Working Group on the Crime of Aggression of the Assembly of States Parties to the Rome Statute of the ICC, said the definition – a long-running source of contention in international law – “is shaping up, to my mind, very clearly.”
If a definition is agreed upon, the individual leaders of a State face potential prosecution for acts of aggression ranging from an invasion to a bombing campaign or armed blockade.
But Mr. Wenaweser warned that several sticking points remain, both over the definition and what role the Security Council should play in determining whether acts of aggression by States have taken place, and the working group may not be able to agree before it is scheduled to wind up by the end of next year.
The Rome Statute in 1998 that led to the creation of the ICC included the crime of aggression as one of the four categories of crimes over which it has jurisdiction (the others are genocide, crimes against humanity and war crimes). But it said the Court cannot exercise its rights in the area until it has agreed on a definition, which it stated must also be consistent with the UN Charter.
The working group, which has been meeting this week in New York, has been debating the question of a definition since 2002. Mr. Wenaweser said a General Assembly resolution from 1974 “which to some extent does define aggression” was proving central to the current discussions.
That resolution listed many actions as fitting the definition, including armed invasions and attacks, bombardments, blockades and violations of territory.
Mr. Wenaweser said it was not clear yet whether all of those acts would ultimately make the ICC definition, but he added it was likely to contain a threshold clause stating that any act of aggression must constitute a “manifest violation” of the UN Charter.
Countries remain divided over whether there should be a higher threshold depending on the intended purpose behind the act of aggression, and also over whether the Security Council, the ICC or some other body should take the lead in determining whether acts of aggression have occurred.
Mr. Wenaweser stressed that although the crime of aggression would apply only to the action of one State against another, it would entail individual criminal responsibility for one or more of the leaders of that State.
The ICC can try cases involving individuals charged with crimes committed since July 2002, although any charges over the crime of aggression could only relate to events that take place after a definition is reached. The Security Council, the ICC Prosecutor or a State Party to the court can initiate any proceedings, and the ICC only acts when countries themselves are unwilling or unable to investigate or prosecute.
Only countries that have ratified or acceded to the Rome Statute are classed as States Parties to the ICC and able to serve on the assembly and working groups overseeing the Court. There are currently 104 States Parties.