CYIL 2015

AGGRESSION ȃ THE SUPREME INTERNATIONAL CRIME OR NOT A CRIME AT ALL? confirmed that those below this level cannot be held accountable for aggression and it is generally to be expected that the crime would mainly be invoked with respect to high level officials. Thirdly, the political nature of the crime of aggression stems from the special role ascribed to theUNSecurityCouncil in the determination of whether an act of aggression has occurred. This role is codified in the UN Charter which vests the Security Council with the “permanent responsibility for the maintenance of international peace and security” (Article 24). Assuming this primary responsibility, the Council shall “determine the existence of any threat to the peace, breach of the peace or act of aggression ” (Article 39, emphasis added) and decide upon adequate political, diplomatic, economic or, in the extreme case, military measures to re-establish peace and security. The special role of the Security Council is partly recognized in the Rome Statute. Under Article 15 bis, the prosecutor intending to open an investigation in respect of a crime of aggression has to “first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned” (par. 6). When this is not the case, the prosecutor may proceed with the investigation on the authorisation of the Pre-Trial Division, provided the UN Security Council does not request the deferral under Article 16. Article 15 ter adds that “a determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute” (par. 4). The ICC is therefore not stricto sensu bound by the determination of the Council made under Article 39 of the UN Charter, though it is likely that it would not deviate from it without very serious reasons. 95 In prosecutions at the national level the role of the UN Security Council would have to be decided upon on an ad hoc basis. 96 The only prosecutions of this type which have so far taken place, those relating to WWII, did not have to deal with this question, since the occurrence of an act of aggression (by Germany and Japan) was established by the Nuremberg and Tokyo Tribunals. The political nature is obviously not reserved to the crime of aggression. The other international crimes might reveal, and often do reveal, the elements described above as well. This is well exemplified in some of the cases prosecuted by the ICC, for instance the case of the Sudanese president Omar al-Bashir, accused of genocide, crimes against humanity and war crimes. Yet, what might appear with respect to the other crimes occasionally is a rule for the crime of aggression. Moreover, the three elements politicizing the crime are present simultaneously, making any prosecution for aggression inherently political. That also explains why granting the ICC the jurisdiction over aggression has been much more controversial than granting it that 95 See MOSS, L.: The UN Security Council and the International Criminal Court. Towards a More Principled Relationship, Friedrich Ebert Stiftung International Policy Analysis, March 2012. 96 Prosecution for the crime of aggression at the national level would however mostly be prevented either by political reasons or by immunity.

23