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The Complex Crime of Aggression under the Rome Statute

  • DAVID SCHEFFER

Abstract

Four discrete issues demonstrate how complex the crime of aggression under the Rome Statute of the International Criminal Court will be following the amendments approved in Kampala in June 2010. First, the absence of an explicit magnitude, or gravity, requirement for determining an act of aggression ignores the reality of how matters are referred to the ICC as well as how one first determines the existence of aggression. The gravity test of a crime of aggression is insufficient and misleading in arriving at a methodology for a logical determination of both acts and crimes of aggression. An agreed understanding in Kampala to resolve the dilemma is fraught with contradictions. Second, the amendments fail to address how the ICC should respond to a Security Council determination that an act of aggression has not occurred. Third, the lingering debate over how the Rome Statute should have been amended to activate the crime of aggression will burden the Assembly of States Parties, which should focus on arriving at a united interpretation of the procedures used to approve the Kampala amendments. Fourth, given the many permutations of how states will fall within or outside the jurisdiction of the International Criminal Court regarding the crime of aggression, the resulting patchy landscape of coverage should surprise no one.

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1 ICC Assembly of States Parties Resolution RC/Res.6, adopted at the 13th plenary meeting on 11 June 2010, by consensus (advance version 28 June 2010); see also D. Scheffer, ‘Aggression Is Now a Crime’, International Herald Tribune, 1 July 2010, 8.

2 Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, Pre-Trial Chamber II, ICC-01/09 (31 March 2010).

3 D. Scheffer, ‘States Parties Approve New Crimes for International Criminal Court’, (2010) 14 (16) ASIL Insight, available at www.asil.org/insights100622.cfm. Portions of the discussion under section 3 are drawn from this essay.

4 However, it is possible that one or more of such ratifying or accepting states parties will file a declaration of non-acceptance of the crime of aggression over itself or its nationals, as permitted by Art. 121(5) and new Art. 15 bis(4) of the Rome Statute.

5 Art. 15 bis(4).

* Mayer Brown/Robert A. Helman Professor of Law, Northwestern University School of Law, Chicago [].

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Leiden Journal of International Law
  • ISSN: 0922-1565
  • EISSN: 1478-9698
  • URL: /core/journals/leiden-journal-of-international-law
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