Reaching Mutual Consensus: ICC, ICJ and the Crime of Aggression

Written by Jan Guardian

International Criminal CourtNone should underestimate the significance of the outcome of the first Review Conference on the Rome Statute of the International Criminal Court (hereinafter ICC),[1] namely, the adoption of a resolution[2] amending the Rome Statute that includes a definition of the crime of aggression[3] and the conditions under which the Court, in the future, could exercise jurisdiction with respect to the crime.[4] Whereas the definition of the crime of aggression is rather clear and was laid down a while ago by the Special Working Group on the Crime of Aggression,[5] and the preconditions for the exercise of the jurisdiction over the crime by the ICC raise minor concerns, if any at all, there are still some ambiguities in respect to the hypothetical possibility of the ICC and the International Court of Justice (hereinafter ICJ) reaching different conclusions in their decisions regarding the unlawful use of force and, thus, establishing either the presence or the absence of an act of aggression.

Given that the ICC is fully seized with the crime of aggression in any particular situation and that by the time the ICC proceeds to a verdict on a prosecution for the crime of aggression the Security Council has likely already made any conflicting decision possible,[6] the ICC judges are authorized to make their own determinations on aggression, since such, made by an organ outside the ICC “shall be without prejudice to the Court’s own findings” under the Rome Statute.[7] Hence, if the case is subject to simultaneous consideration by the ICC and the ICJ, there is ample risk that this will amount to inconsistent decisions.

The classic example of a similar decisional inconsistency between the judicial bodies of the international legal order is that of the ICJ and the International Criminal Tribunal for the former Yugoslavia in Nicaragua[8] and Tadić[9]cases, largely referred to in the legal literature as one of the inconsistencies leading to the fragmentation of international law.[10] The consequence of such an occurrence in the cases brought before the ICJ and the ICC appears to be particularly problematic given the highly-charged political atmosphere in which the ICC has been operating during the years, its fragile credibility and a lack of a proper institutional hierarchy within the international legal system.[11] Yet, the point is not to take a stand in favor of either of the two bodies, but rather to create a functional and logical system that would eliminate any discrepancies at an early stage of the proceedings in the case of aggression, which is deemed to be especially important in the light of the tensions between the states concerned.

A reasonable suggestion would, thus, be for the ICC to request the General Assembly to seek an advisory opinion from the ICJ pursuant to Article 96(a) of the United Nations Charter (hereinafter UN Charter)[12] and Article 65(1) of the ICJ Statute,[13] or to be so authorized by the General Assembly to request such an opinion proprio motu at any time pursuant to Article 96(b) of the UN Charter[14] as to enable the ICC to use the findings of the ICJ and for such a request to be a precondition for the exercise of the jurisdiction by the ICC.

It is worth mentioning, that this option was included in the Discussion Paper proposed by the Coordinator of the Preparatory Commission for the ICC[15] but was somehow dismissed later on. One of the main arguments against this option was that “because the determination of the existence of an act of aggression is a matter that affects the responsibility of a particular State that it is inappropriate as a subject of a request for an advisory opinion.”[16] However, this is quite arguable in the light of the fact that (1) the issue of an advisory opinion does not trigger state responsibility per se, and that (2) the interstate dispute at stake and subsequent determination of state responsibility will only be subject of consideration of the same judicial body that issued the advisory opinion, namely the ICJ, which is well-known for its consistency. Therefore, the request of the advisory opinion of the ICJ by the ICC in cases concerning the crime of aggression seems to be a logical choice, but the question whether, if at all, this scheme will be put into operation remains.


[1]       UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: [accessed 12 October 2012].

[2]       Rev. Conf. of the Rome Statute, 13th plenary meeting, June 11, 2010, I.C.C. Doc. RC/Res. 6 (advance version) (June 16, 2010)[hereinafter RC/Res. 6].

[3]       Ibid., Annex I, art. 8 bis (1).

[4]       Ibid., Annex I, art. 15 bis, 15 ter.

[5]       David Scheffer, States Parties Approve New Crimes for International Criminal Court. ASIL Insights, Vol. 14, Issue 16, June 22, 2010, p. 5.

[6]       Mark Stein, The Security Council, the International Criminal Court, and the Crime of Aggression: How Exclusive is the Security Council’s Power to Determine Aggression?. IND. INT’L & COMP. L. REV., Vol. 16, Issue 1 (2005), p. 33.

[7]       RC/Res. 6, supra note 2, Annex I, art. 15 bis (9), art. 15 ter (4).

[8]       Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, International Court of Justice (ICJ), 27 June 1986.

[9]       Prosecutor v. Dusko Tadic (Appeal Judgment), IT-94-1-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 15 July 1999.

[10]     Enzo Cannizzaro, Interconnecting International Jurisdictions: A Contribution from the Genocide Decision of the ICJ. European Journal of Legal Studies, Issue 1 (2007), p. 4.

[11]     International Law Commission, Report of the International Law Commission, 58th session (1 May – 9 June and 3 July – 11 August 2006), 2006, A/CN.4/L.682, para. 51.

[12]     United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI [hereinafter UN Charter], art. 96(a).

[13]     United Nations, Statute of the International Court of Justice, 18 April 1946, art. 65(1).

[14]     UN Charter, supra note 12, art. 96(b).

[15]     Preparatory Commission for the International Criminal Court, Definition of the crime of aggression and conditions for the exercise of jurisdiction: Discussion paper proposed by the Coordinator, 9th session (8-19 April, 1-12 July 2002), 2002, PCNICC/2002/WGCA/RT.1, para. 4.

[16]     Crime of Aggression: Statement by the United States, September 26, 2001.

An Assessment of Kampala: Final Comments

 Written by: Professor William Schabas [1]

The Kampala Review Conference of the Rome Statute provides a much-needed shot of legal adrenaline to the International Criminal Court. Several of the achievements at Kampala were relatively minor and inconsequential. Fortunately, they are dwarfed by the stunning accomplishment of the amendments of aggression, adopted in extremis early Saturday morning. Until about 1030 PM Friday night, I could not find anybody prepared to wager a significant sum of money on the likelihood of a positive outcome.

While much credit is due to the impressive diplomatic skills, and determination, of Christian Wenaweser, Prince Zeid and Stefan Barriga, who were the architects of the negotiations, personalities alone do not account for the result. At the Rome Conference, and for some years afterwards, I used to say that the Court was protected by a guardian angel. But this was just a metaphor for the fact that the Court, and international criminal justice, is – to paraphrase Victor Hugo – ‘an idea whose time has come’. And nothing can stop it. For some years, with the Court’s activity in the doldrums, I had lost sight of the guardian angel. But he/she was certainly in evidence last Friday and Saturday.

This time, though, the idea is a narrow one, and it is built around the crime of aggression. One striking difference with the Rome Conference was the relative absence of the NGOs at Kampala. They were there in a formal sense, especially at the beginning of the Conference, when the proceedings looked more like an academic seminar or a political meeting than a treaty negotiation. But many of them were quite indifferent to the incorporation of aggression into the Statute. I am struck by the resemblance of their attitude to the American position, which treats aggression as a bit tangential from the core mission of the Court, which is to promote human rights through the prosecution of the other core crimes, namely genocide, crimes against humanity and war crimes. Even the High Commissioner for Human Rights, who actually attended part of the Kampala Conference, has yet to issue a statement signaling the achievement of incorporating the crime of aggression in the Rome Statute.

Nothing could be more mistaken, however. The wise judges at Nuremberg described aggressive war as the supreme crime, encompassing the evil of all the others. What Kampala does is refocus our attention onto the importance of the prohibition of war – on the jus ad bellum. This is an important and helpful correction, and it is to be hoped that the message of Kampala will slowly percolate through the human rights discourse.

Those who are keen on the aggression issue are very troubled by the seven-year delayed entry into force. It would be a mistake to exaggerate the significance of this. Entry into force of amendments to treaties always takes time. The amending procedure is quite arcane, and even without the seven-year rule this would take a long time in any case. Although the amendment requires thirty ratifications and a positive decision by the States parties, this should not pose a serious problem, and both conditions should be fulfilled by 1 January 2017 or shortly thereafter.

Then, the result will be much better than had the Conference to what many thought was the appropriate amending process. Because the amendment will apply to all States parties, and not just those who have ratified it, provided of course they have not made an opt-out declaration. There may be some of these, but there is no cause for pessimism here. There will be a high political price to pay for any government that considers making an opt-out declaration. It is a price that many will prefer not to pay.

Nor should we lose sight of the incentive that the amendments create for States that have not joined the Court. According to article 15bis, a non-party State is immune from the Court’s jurisdiction over the crime of aggression. The Court cannot punish crimes committed by its nationals or on its territory. Some States will welcome this because it will insulate their nationals, but many will realize that they are being deprived of the deterrent power of the Rome Statute, in that aggression committed on their territory and against them totally escapes the jurisdiction. Hopefully, some of them will appreciate the interest in joining the Court because of this added layer of protection.

I am reminded of the importance that the first President of the Court, Philippe Kirsch, attached to the work on the crime of aggression. My recollection is that he felt it was important not only to show to States that the reference to aggression in article 5(1) had some substance behind it. He also explained that incorporating aggression in the Statute would help convince some States to join the institution. He was right at the time, and his vision has now borne fruit.

Those who are unhappy with the Court’s new mandate will try to pick holes in the legality of the amendments. It is true that they reflect some creative approaches, but everything passes what Roger Clark calls the ‘straight face test of advocacy’. Legal academics who support the Court, and the amendments, can assist judges in the future with reassurances that the amendments actually work. The Statute as adopted in Rome had its share of ambiguities. The Kampala Conference was able to find a workable way forward.

Beyond the adoption of the aggression amendments, there is really not much else to say about the Kampala Conference. It is of course positive to have repaired an oversight in the war crimes provisions. However, the amendment to article 8 is symbolic, and it is doubtful that it will ever lead to prosecutions. There have, to date, never been any international prosecutions for the use of such weapons. It is occasionally pointed out that Saddam Hussein used poison gas at Halabja, but it is absurd to suggest that the failure to recognize the use of such weapons as an international crime means that there is an impunity gap for such atrocities. They can be prosecuted as crimes against humanity and even genocide. Years from now, people will point the prohibited weapons issue at Kampala with irony, noting that the States Parties were able to address the prohibition of relatively archaic weapons that are rarely if ever used in modern combat, but that they could not deal with the important issues: anti-personnel mines, cluster munitions, depleted uranium weapons and, of course, nuclear weapons.

The Conference agreed to leave article 124 alone. The importance of this provision was always exaggerated, especially by the human rights NGOs. Amnesty International called it a ‘licence to kill’, but never attempted to provide evidence that could back up such a hyperbolic claim. Arguably, article 124 helped smooth the ratification of two States parties. If it can do this trick again over the next five years, then it will be worth leaving it in the Statute. And if it cannot prompt further ratifications, then how can it be claimed that any harm was done?

What the Conference failed to do was talk about the Court and its performance. There may have been good policy reasons for doing so. Perhaps Kampala was not the right place for a stocktaking on the activities, results and operations of the Court. But this subject cannot be avoided forever.

[1] Written on June 17, 2010, and posted after the close of the Kampala Conference. The original post can be found at: Professor Schabas regular blog can be found at: 

 William Schabas  is Professor of international law at MiddlesexUniversity in London. He also holds appointments at LeidenUniversity, where he is professor of international criminal law and human rights, the National University of Ireland Galway, where he is emeritus professor of human rights and chairman of the Irish Centre for Human Rights, and the Law Institute of the ChineseAcademy of Social Sciences, where he has the title of honorary professor. He is a member of the RoyalIrishAcademy, an Officer of the Order of Canada, and recipient of several honorary degrees.