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Report on the Facilitation on the Activation of the Jurisdiction of the International Criminal Court over the Crime of Aggression (Int’l Crim. Ct.) & Resolution ICC-ASP/16/RES.5 on the Activation of the Jurisdiction of the Court over the Crime of Aggression

Published online by Cambridge University Press:  13 July 2018

Carrie McDougall
Carrie McDougall*
Affiliation:
Dr. Carrie McDougall is a Senior Lecturer at Melbourne Law School, University of Melbourne. She was previously a legal specialist at the Australian Department of Foreign Affairs and Trade. While serving as Legal Adviser at Australia's Mission to the United Nations in New York, she was involved in negotiations on the activation of the ICC's jurisdiction over the crime of aggression.
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Extract

On December 14, 2017, the International Criminal Court's (ICC) Assembly of States Parties (ASP or Assembly) adopted a resolution activating the ICC's jurisdiction over the crime of aggression as of July 17, 2018. As a result, the leaders of states now face the possibility of being held individually criminally responsible for unlawful acts of inter-state armed force. The resolution has thus rightly been hailed as historic—notwithstanding the significant limitation on the Court's jurisdiction accepted as the price of activation.

Type
International Legal Documents
Information
International Legal Materials , Volume 57 , Issue 3 , June 2018 , pp. 513 - 544
Copyright
Copyright © 2018 by The American Society of International Law 

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References

ENDNOTES

1 Assembly of States Parties Res. ICC-ASP/16/Res.5 (Dec. 14, 2017).

2 Rome Statute of the International Criminal Court, July 17, 1998, 2187 UNTS 90.

3 For additional background on the crime of aggression see in particular: Carrie McDougall, The Crime of Aggression Under the Rome Statute of the International Criminal Court (2013); The Crime of Aggression: A Commentary (Claus Kress & Stefan Barriga eds., 2017).

4 The Facilitation established by the ASP was open to states parties only—a result of the fact that the majority of states parties considered that the views of non-states parties should not be taken into account in light of the exclusion of non-states parties from Article 15bis. A number of non-states parties, however, actively promoted their views outside of the Facilitation.

5 Assembly of States Parties Res. ICC-ASP/16/24 (2017).

6 Assuming in all cases that the aggressor state has not “opted out” under Article 15bis(4).

7 The second sentence of Article 121(5) states that “[i]n respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals or on its territory.”

8 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331 [hereinafter VCLT]. Proponents of the broad view noted that Article 39 of the VCLT provides that the specific amendment rules of a treaty prevail over the VCLT's general rules.

9 These can be accessed as a collected set of documents in The Travaux Préparatoires of the Crime of Aggression (Stefan Barriga & Claus Kress eds., 2012).

10 Article 15bis(4) reads: “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. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years.”

11 VLCT, supra note 8, art. 31(1).