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A Consensus Agreement on the Crime of Aggression: Impressions from Kampala

  • NIELS BLOKKER and CLAUS KRESS

Abstract

The authors participated in the ICC Review Conference held in Kampala in June 2010, which adopted by consensus a package agreement on the crime of aggression. This contribution presents some impressions from these negotiations. It was rather unexpected that consensus agreement could be reached, and the authors offer some explanations why this was possible. They also analyse the key elements of the agreement. After the international criminalization of aggression has been debated for decades, a decisive step has now been taken towards bringing this crime within the effective jurisdiction of the International Criminal Court.

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1 For the text, see Resolution RC/Res.6 as adopted at the 13th plenary meeting, on 11 June 2010, by consensus, available at www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf.

2 For an example, see A. Zimmermann, ‘Article 5’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (2008), marginal note 39: ‘Given the difficulties encountered both before and during the Rome Conference, as well as during the work of both the preparatory Commission as well as the Special Working Group on the Crime of Aggression of the Assembly of States Parties so far in reaching a generally acceptable definition of the crime of aggression and in delimiting the appropriate role of the Security Council, and further taking into account the high threshold for an amendment of the Statute, it seems to be quite unlikely that the Parties to the Statute will be able during the upcoming Review Conference to include the crime within the list of crimes for which the ICC has subject-matter jurisdiction.’ Note that the last part of this sentence is inaccurate in the light of Art. 5(1)(d) of the ICC Statute.

3 The crucial preparatory work which was done within the Special Working Group on the Crime of Aggression is most usefully documented in S. Barriga, W. Danspeckgruber, and C. Wenaweser (eds.), The Princeton Process on the Crime of Aggression: Materials of the Special Working Group on the Crime of Aggression (2003–2009) (2009), passim.

4 For the final version of the substantive definition, see Art. 8 bis in conjunction with Art. 25(3 bis); RC/Res. 6, supra note 1, Annex I sub 2 and 5; for the final version of the Elements of the crime, see RC/Res.6, supra note 1, Annex II.

5 For the text, see RC/Res. 6, supra note 3, Annex III, paras. 6 and 7.

6 For the text, see Art. 15 ter; RC/Res. 6, supra note 3, Annex I sub 4.

7 For the text, see Art. 15 bis (7); RC/Res. 6, supra note 3, Annex I sub 3.

8 For the text, see Art. 15 bis (5); RC/Res. 6, supra note 3, Annex I sub 3.

9 For the text, see Art. 15 bis (4); RC/Res. 6, supra note 3, Annex I sub 3.

10 For the text, see Art. 15 bis (8); RC/Res. 6, supra note 3, Annex I sub 3.

11 For references to the rich scholarly discussion, see N. Blokker, ‘The Crime of Aggression and the United Nations Security Council’, (2007) 20 LJIL 867; C. Kress, ‘The Crime of Aggression before the First Review of the ICC Statute’, (2007) 20 LJIL 860, n. 54.

12 For the text, see Art. 15 bis (8) in fine; RC/Res. 6, supra note 3, Annex I sub 3.

* Niels Blokker is a deputy legal adviser, Ministry of Foreign Affairs, Netherlands, and Professor of International Institutional Law (Schermers Chair), Leiden University; member of the Dutch delegation to the 2010 ICC Review Conference []. Claus Kress is Professor of International Law and of Criminal Law, University of Cologne; member of the German delegation to the 2010 ICC Review Conference []. The views expressed by the authors are personal and do not necessarily represent the views of the Dutch or German governments respectively.

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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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