CYIL Vol. 5, 2014

JOSEF MRÁZEK CYIL 5 ȍ2014Ȏ The Kampala definition in fact established a very high threshold for the crime of aggression which may have also serious impact on the future interpretation of the 1974 Definition of Aggression. Art. 30 of the ICC Statute also stipulates that a crime of aggression must be committed with “intent and knowledge”. A person has intent when he means to “engage in the conduct”. The “knowledge” means “awareness” that a circumstance exists or a consequence will occur in the ordinary course of events”. It would depend on the ICC decision if there was “intent” and “knowledge” on the side of perpetrator or not. Absence of mens rea or, better said, the ICC findings may deny both or only one of those elements. Could the fact of not proving intent then lead even to denial of the existence of the crime of aggression or to an exemption of perpetrators from international penal responsibility? The role of the UNSC in the ICC procedure was a very delicate question in the negotiations. The 1994 draft ICC Statute in Art. 23 (2) suggested the ICC proceedings for the crime of aggression be dependent upon a prior determination of an act of aggression by the UNSC. This idea was finally refused by the overwhelming majority of states that participated in the Kampala negotiations. Criticism had been raised already within the ILC members with the aim of enabling wide adherence of states to the Statute. Criticism of the UNSC determination of an act of aggression had already been raised among those ILC members who were afraid that this position of the UNSC would not encourage the widest possible adherence of states to the Statute. 79 The ILC proposal was adopted by the Permanent Members of the UNSC, who in this way renounced a monopoly role for the UNSC beyond Art. 16. The issue of the UNSC role was left for decision in Kampala. 80 The narrow definition of the crime is in line with the general approach of the drafters of the ICC Statute to confine ICC jurisdiction to conduct that clearly warrants a collective judicial intervention. There hopefully remains considerable room for judicial refinement of the definition. It is important to explore the extent to which customary international law can be of assistance in further elucidating the content of the definition. At the Kampala review conference, states parties, by consensus, adopted a resolution amending the Rome Statute, including inter alia their new Art. 8 bis, with a definition of the crime of aggression, and Art. 15 bis and 15 ter, dealing with the conditions for the exercise of ICC jurisdiction. The Kampala Amendments to the Rome Statute shall enable the ICC to exercise its jurisdiction over the crime of aggression. The minimum 30 ratifications were required to activate the ICC jurisdiction. In Kampala it was decided that parties must take a “one time” decision to activate the ICC jurisdiction, but not earlier than in 2017. The Kampala amendments on the crime of aggression limit the crime of aggression and criminal responsibility for its commitment to state leaders. Investigations are based on the referral of the UNSC or state consent.

79 Report of the ILC on the work of its forty-sixth session, 2 May to 22 July, 1994, UN Doc. A/49/10. 80 Kress, C., supra note 77, p. 1194.

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