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ICC: Jurisdiction over Crime of Aggression Activated

(Dec. 26, 2017) The Assembly of States Parties to the Rome Statute of the International Criminal Court (ICC) met at United Nations headquarters from December 4 to 14, 2017. (Press Release, Assembly Activates Court’s Jurisdiction over Crime of Aggression, ICC website (Dec. 15, 2017).) The Assembly “is the Court’s management oversight and legislative body and is composed of representatives of the States which have ratified or acceded to the Rome Statute.” (Assembly of States Parties, ICC website (last visited Dec. 20, 2017); Rome Statute of the International Criminal Court (in force from July 1, 2002), ICC website.)

Among the actions taken at the recent Assembly was the adoption of several resolutions by consensus. These included activating the jurisdiction of the ICC over the crime of aggression, thereby adding this crime to the other offenses over which ICC jurisdiction is active, which are genocide, war crimes, and crimes against humanity. The additional jurisdiction will become effective on July 17, 2018. (Assembly of States Parties, supra; Assembly Activates Court’s Jurisdiction over Crime of Aggression, supra.) The Assembly also amended article 8 of the Rome Statute, on war crimes, adding to the definition of war crimes the use of microbial, biological, or toxin weapons, weapons that cause injuries through fragments that cannot be detected by x-rays, and laser weapons.  (Assembly Activates Court’s Jurisdiction over Crime of Aggression, supra.)

In addition, the Assembly elected six judges for terms of nine years; a new President of the Assembly, Judge O-Gon Kwon of the Republic of Korea, for the years 2018-20; and Vice-Presidents from Senegal and Slovakia. (Assembly Activates Court’s Jurisdiction over Crime of Aggression, supra.)

Background

The activation of the ICC’s jurisdiction over “aggression” follows many years of debate on how the crime would be prosecuted in practice. Although the mandate to bring aggressors to trial was part of the original jurisdiction of the ICC, its implementation was postponed pending agreement on the meaning of “aggression” and the role of nations with vetoes in the United Nations Security Council.

At a meeting held in Kampala, Uganda, in 2010, diplomats reached consensus that the ICC Prosecutor would take on cases of aggression only with the approval of the Security Council. In the absence of an acknowledgment by the Security Council that aggression has occurred, the Prosecutor must request a case from that body. Should the Security Council not reply for six months, the Prosecutor may seek approval from the ICC judges to proceed with an investigation. In addition, States may opt out of allowing ICC jurisdiction over crimes of aggression, sending a declaration to that effect to the Registrar of the Court. At the 2010 meeting, it was decided that the jurisdiction would come into effect in 2017 if adopted by 30 Member States and promulgated by the Assembly of States Parties. The 30th adoption, by Palestine, took place on June 26, 2016. (Stéphanie Maupas, After 15 Years, ICC States Still Debating Crime of Aggression, JUSTICEINFO.NET (Feb. 15, 2017).)