Crime of Aggression: Who are we Kidding?

Written by Ronald Rogo,

Although the waging of aggressive war was once described as “the supreme international crime, , differing only from other war crimes in that it contains within itself the accumulated evil of the whole”[1], the treatment of the crime of aggression by the international community barely reflects this primacy. for years there has been little disguise of the lack of enthusiasm by the international community towards this offence.

First, while the other international crimes immediately came into effect with the Rome Statute[2], the crime of aggression is currently not enforceable[3]. Initially the reason was that there was no definition of the offence[4] or explicit averment on the jurisdiction of the ICC[5]. While the Kampala Review Conference[6] was finally able to nail down a definition for the crime of aggression, it took away with the other hand. The world still has to wait until 2017 for a second review conference in order for the State Parties to finally determine whether or not they really want to keep this offence. Essentially this means that the world will have to wait until then to decide whether or not prosecuting the “supreme international crime” is worth the effort! Viewed from the prism of domestic law making this is certainly NOT the way to make law[7]. Meanwhile, state leaders can continue bombing each other to extinction without fear of any repercussions for such actions (so long, of course, as they keep away from the other international crimes).

But even after the ICC starts exercising jurisdiction over the ICC the situation does not get rosier. The amendments in the Kampala review conference provided that state parties can elect whether or not to be bound by the provisions relating to the crime of aggression[8]. This is akin to telling a kleptomaniac to choose whether or not he wants to follow laws forbidding theft! As Kevin Heller stated of course it is to be expected that the aggressor states will all elect not to be bound by these provisions on the crime of aggression[9]. The states that actually choose to be bound by them will be the ones least likely to engage in acts of aggression. So, in effect, we would end up with a statute that could be analyzed to extinction in the academic halls (and, might I add, blogs on ICL) but with little practical effect.

Perhaps the main reason why there have been so many barriers in the implementation of the crime is because, unlike the other offences, it targets state leaders. State leaders, no matter what they say, want  the liberty to bombard other states in order to pursue their “national interests”. So then the question remains: if our leaders do not want to be tied down by the rigours of the law why should the citizenry?  Lastly, since crimes against humanity and war crimes are common during wars it is unlikely that we would stamp these out unless we deal firmly with part of the underlying cause: acts of aggression. Our determination “to put an end to impunity…and contribute for the prevention of these crimes”[10] will remain a mere wish list.

[1] The International Military Tribunal

[2] These are the crimes of genocide, war crimes and crimes against humanity

[3] Whereas the Rome Statute provided for the crime of aggression, the jurisdiction of the ICC over the crime and its definition had been left out.

[4] This uncertainty was surprising especially as the United Nations Resolution No. 3314 of 1974 had earlier defined aggression to include “armed invasions or attacks, bombardments, blockades, armed violations of territory, permitting other states to use one’s own territory to perpetrate acts of aggression and the employment of armed irregulars or mercenaries to carry out acts of aggression”. While this was not a strict legal definition, it reflected consensus on the general definition and elements of the offence.

[5] See Article 5.2 of the Rome Statute

[6] Review Conference of the Rome Statute held in Kampala, Uganda in 2010

[7]  I state this cautiously while acknowledging that international law making is different from enacting domestic laws. However, the fundamental principles are the same, more so deciding whether or not you want a particular law and its purpose.

[8] Article 15 bis provides as follows: 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.

[10] Preamble of the Rome Statute