Liechtenstein Becomes
First State to Ratify Crime of Aggression
(Coalition for the
International Criminal Court), May 8, 2012
(Ambassador Christian
Wenaweser (left), permanent representative of Liechtenstein to the United
Nations,
with Benjamin Ferencz
(right), former Nuremberg prosecutor.)
Today, 8 May 2012, Liechtenstein became the
first state party to the Rome Statute—the founding treaty of the
International Criminal Court (ICC)—to ratify the crime of aggression. This
crime is one of two new crimes added to the Statute following the 2010 Kampala Review
Conference. It seeks to
criminalize the use of armed force by one state against another and in
violation of the United Nations (UN) Charter.
The second new crime, which prohibits the use of certain weapons in a non-international armed conflict, (War Crimes) was also ratified by Lichtenstein today. San Marino was the first to ratify this crime on 26 September 2011.
The second new crime, which prohibits the use of certain weapons in a non-international armed conflict, (War Crimes) was also ratified by Lichtenstein today. San Marino was the first to ratify this crime on 26 September 2011.
The crime of aggression
At the Review
Conference, which took place from 31 May to 11 June 2010 in Kampala, Uganda,
ICC states parties adopted provisions governing the terms of the Court's
ability to investigate and prosecute individuals for the crime of aggression
(article 8bis). States agreed upon a jurisdictional regime for the crime of
aggression, which provides separate procedures depending on whether the
situation was referred by the UN Security Council, or whether it came before
the ICC through a state referral or upon the ICC prosecutor's initiative. The
Review Conference determined that the activation of jurisdiction is
still subject to a positive decision by the Assembly of States
Parties—the Court’s governing body—which cannot be taken before 1
January 2017 and one year after the ratification or acceptance of the
amendments by 30 states parties, whichever is later.
The unique position of
the crime of aggression within the Rome Statute: In
a compromise reached during the negotiation of the Rome Statute in 1998, Article
5 of the Rome Statute lists the crime of aggression as one of the core crimes
under the Court’s jurisdiction. However, in contrast to the other three crimes
(genocide, crimes against humanity and war crimes), the Court remained unable
to exercise jurisdiction over the crime of aggression as the Statute did not
define the crime or set out jurisdictional conditions.
Adoption of the crime
of aggression in Kampala: after two weeks of intense debate and years of preparatory work,
on 11 June 2010, the Review Conference of Rome Statute (held in Kampala, Uganda
between 31 May and 11 June 2010) adopted by consensus amendments to
the Rome Statute which include a definition of the crime of aggression and a
regime establishing how the Court will exercise its jurisdiction over this
crime.
The conditions for
entry into force decided upon in Kampala provide that the Court will not be
able to exercise its jurisdiction over the crime until after 1 January 2017
when a decision is to made by States Parties to activate the jurisdiction.
Definition of the
crime of aggression: Article 8 bis adopted in Kampala defines the
individual crime of aggression as the planning, preparation, initiation or
execution by a person in a leadership position of an act of aggression.
Importantly, it contains the threshold requirement that the act of aggression
must constitute a manifest violation of the Charter of the United Nations.
An act of aggression is defined as the use
of armed force by one State against another State without the justification of
self-defense or authorization by the Security Council. The definition of the
act of aggression, as well as the actions qualifying as acts of aggression
contained in the amendments (for example invasion by armed forces, bombardment
and blockade), are influenced by the UN General Assembly Resolution 3314 (XXIX)
of 14 December 1974.
The threshold and
formulation of this definition, draws heavily upon the pre-existing language
and general provisions in the Rome Statute and the UN Charter, and reflects a
compromise made by many States and in the lead up to the Review Conference.
The conditions for
exercise of jurisdiction: The text of articles 15 bis and
15 ter set out the conditions for the Court’s exercise of
jurisdiction over the crime of aggression. In contrast to the other crimes in
the Statute, these articles establish a unique jurisdictional regime outlining when
the ICC Prosecutor can initiate an investigation into a crime of aggression.
Where a ‘situation’ is
referred to the Prosecutor by the UN Security Council, article 15 ter of
the Statute provides that the Court’s jurisdiction is triggered in the same manner
as with the other crimes in the Statute, meaning the Prosecutor may proceed
with an investigation into the crime of aggression.
In contrast to
Security Council referrals, under article 15 bis, the
Prosecutor may only proceed with an own motion (proprio motu)
investigation or an investigation based on a State referral of a situation into
the crime of aggression:
after first ascertaining whether the
Security Council has made a determination of the existence of an act of
aggression (under article 39 of the UN Charter) and waiting for a period of 6
months;
where that situation concerns an act of
aggression committed between States Parties; and
after the Pre-Trial Division of the Court
has authorized the commencement of the investigation.
Article 15 bis also
provides that States Parties may opt-out of the Court’s jurisdiction
under the article by lodging a declaration of non-acceptance of jurisdiction
with the Court’s Registrar. Such a declaration can be made at any time
(including before the amendments enter into force) and shall be reviewed by the
State Party within three years.
Non-State Parties have been explicitly excluded from the
Court’s jurisdiction into a crime of aggression under this article when
committed by that State’s nationals or on its territory.
Both articles 15 bis and
15 ter note that any determination by an organ outside of the
Court (such as the Security Council) will be without prejudice to the Court’s own
finding of an act of aggression.
Adoption and entry
into force: The amendments were adopted by consensus in
accordance with article 5(2) of the Statute and will enter into force under
article 121(5). However, the provisions of both article 15 bis and
article 15 ter provide that the Court will not be able to
exercise its jurisdiction over the crime of aggression until:
at least 30 States Parties have ratified or
accepted the amendments; and
a decision is taken by two–thirds of States
Parties to activate the jurisdiction at any time after 1 January 2017.
Article 8 of the Rome Statute
The amendment to article 8 of the Rome Statute (or "Belgian proposal") extends the use of certain weapons as war crimes in non-international conflicts, namely the use of poison, poisoned weapons, asphyxiating, poisonous or other gases and all analogous liquids, materials or devices as well as the use of bullets that expand or flatten in the body. Read more.
Belgium submitted to
the 8th session of the ASP three proposals for amendments to Article 8 of the
Rome Statute regarding the criminalization of certain weapons as war crimes. Of
the three proposals it was decided that only the first of the proposals put
forward by Belgium would be submitted to the Review Conference.
This first proposal extends the criminalization of the use of poison, poisoned weapons, asphyxiating, poisonous or other gases and all analogous liquids, materials or devices as well as the use of bullets that expand or flatten in the body to armed conflicts not of an international character. The use of the weapons listed in this draft amendment is already incriminated by article 8, paragraph 2, b), xvii) to xix) of the Statute in case of an international armed conflict.
The following will be submitted to the Review Conference:
Amendment 1
1. Add to article 8, paragraph 2, e), the following: “ xvii) Employing poison or poisoned weapons;
xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions.”
This first proposal extends the criminalization of the use of poison, poisoned weapons, asphyxiating, poisonous or other gases and all analogous liquids, materials or devices as well as the use of bullets that expand or flatten in the body to armed conflicts not of an international character. The use of the weapons listed in this draft amendment is already incriminated by article 8, paragraph 2, b), xvii) to xix) of the Statute in case of an international armed conflict.
The following will be submitted to the Review Conference:
Amendment 1
1. Add to article 8, paragraph 2, e), the following: “ xvii) Employing poison or poisoned weapons;
xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions.”
