CYIL Vol. 5, 2014

THE DEFINITION OF AGGRESSION AND THE USE OF FORCE The “package” which was adopted in Kampala comprises res. RC/Res. 6, six amendments to the Rome Statute (Appendix I), an amendment to the Elements of Crimes (Annex II), and six interpretative understandings (Annex III). The definition of the crime of aggression does not cover all acts of aggression but only those that “manifestly” violate the UN Charter by their “character of gravity and scale”. All these circumstances must be thus considered by the ICC. The Understanding of resolution RC/Res. 6 by which the amendments were adopted stipulates that amendments enter into force respectively for each state party one year after the deposit of the instrument of ratification in accordance with Art. 121 (5). Amendments will be reviewed seven years after the beginning of the ICC exercise of jurisdiction, i.e. not earlier that 2024. States parties are required to take an additional one-time decision on activating the ICC jurisdiction. They should do so after 1 January 2017 by consensus or by at least a two-thirds majority of states parties. We have now, after Kampala, two competing definitions of “aggression” plus the customary definition. There is a question of whether the Kampala definition of the “crime of aggression” departs from the customary law notion of “aggression” and the “crime of aggression”. A broad or narrow interpretation of the term “aggression” may often depend on political pressure. The U.S. or Russia will certainly be more sensitive on “identification” of “aggression” undertaken against them than small countries with limited power. It is not excluded that a narrow definition of the “crime of aggression” may even have a negative impact on the jus ad bellum definition of “act of aggression” and the notion of “aggression” itself. Limitation of the Kampala definition of the act of aggression and of the crime of aggression for the purpose of the ICC Statute only will not prevent different interpretations of “aggression”. The Kampala definition of the crime of aggression relates to the criminal responsibility of political and military leaders, who are “in a position effectively to exercise control over to direct the political or military action of a State”. Only very serious illegal uses of force by these persons give rise to individual criminal responsibility. The notion “act of aggression” in Art. 8 bis reflects the elements of the 1974 Definition of Aggression, and it is in principle built on Art. 2 (4) of the UN Charter. The relationship between the jus ad bellum concept of aggression and the crime of aggression committed by responsible individuals is very tight. The difference between both notions lies in “different thresholds” of “gravity and scale”, depending on subjective evaluation in the individual case and its interpretation. The crime of aggression is in fact committed by a state through its responsible representatives. The ILC, however, departured from its previous conception of “state crimes” (see Art. 19 of the original Draft articles on state responsibility). For correct interpretations of the provisions of the Kampala amendments it is important to read a number of “Understandings” 81 which are contained in Annex III, adopted by consensus. Understanding 1 confirms that the ICC may exercise its jurisdiction over the crimes of aggression on the basis of UNSC referrals, only in case 81 Handbook, supra note 75.

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