TY - JOUR
AU - Trahan,, Jennifer
AB - Abstract This article revisits the role of the United Nations (UN) Security Council in making referrals of the crime of aggression to the International Criminal Court (ICC). It examines the increase in significance of the role of the Security Council caused by the apparent jurisdictional limitations in the resolution activating the ICC’s jurisdiction over the crime when cases are initiated through State Party referral or proprio motu. Since these jurisdictional limitations seemingly decrease the possibility for ICC crime of aggression cases to be initiated without Security Council referral, they also render the Prosecutor less able to play a role in prevention or providing early warning regarding the crime. This increases the need for the Security Council to fulfil this prevention or early warning function, which is entirely appropriate given the Security Council’s primary responsibility under the UN Charter for the maintenance of international peace and security. The General Assembly may, although to a lesser extent, be able to play a similar role. 1. Introduction On 14 December 2017, the International Criminal Court’s (ICC) Assembly of States Parties (ASP) activated the ICC’s jurisdiction over the crime of aggression effective 17 July 2018.1 This was an extremely important accomplishment, representing the continuation of a long, historic trajectory of trying to limit recourse to aggressive use of force and thereby supporting the core norm in Article 2(4) of the United Nations (UN) Charter,2 and completing the ICC’s founding Rome Statute.3 It was not, however, the activating decision many States Parties had wanted, as the jurisdictional regime many thought had been agreed on in Kampala at the 2010 Review Conference appeared significantly restricted in the December 2017 Activating Resolution. (Other States Parties regarded the Activating Resolution as reflecting what had been agreed upon in Kampala, as in the years between the 2010 Review Conference and 2017 activation a dispute had developed concerning how jurisdiction should be read).4 Regardless of who had the correct view, and whether the jurisdictional regime reflected in the Activating Resolution represented what had been agreed, a fairly limited jurisdictional regime appears to have been established under the Activating Resolution (unless and until a challenge is successfully pursued).5 Pending such a challenge, and given the apparent limitations on jurisdiction when an investigation and/or prosecution can be initiated by State Party referral or the Prosecutor acting on his or her own (proprio motu), it appears appropriate to revisit what may be possible through the other way in which ICC crime of aggression cases may reach the Court, namely through UN Security Council referrals. 2. How the Activating Resolution Increases Reliance on Security Council Referrals During the negotiations on the crime of aggression (conducted first during Preparatory Commission meetings after the Rome Conference, then before the Special Working Group on the Crime of Aggression, and, finally, at the 2010 Kampala Review Conference), there had always existed a tension between those who wanted extensive (even exclusive) referrals by the Security Council as the way for ICC crime of aggression cases to be initiated (a position frequently articulated by some permanent members of the Security Council), and many other ICC States Parties who wanted to ensure another route.6 Indeed, the Kampala crime of aggression amendment (now part of the ICC Statute) reflects both routes. Article 15ter contains the jurisdictional regime for cases initiated by Security Council referral, and Article 15bis contains the jurisdictional regime for cases initiated by States Party referral or proprio motu. The balance between the two provisions was what seemingly altered after Kampala with a very restrictive reading of Article 15bis apparently enacted in the Activating Resolution,7 certainly more restrictive than the ICC’s jurisdictional regime concerning genocide, crimes against humanity, and war crimes.8 The greater possibility there is for cases to be initiated under Article 15bis, if the crime of aggression occurs or appears to occur, the lesser the need to rely on the Security Council to make referrals under Article 15ter. Conversely, when the ability for cases to be initiated under Article 15bis is restricted (as it appears to be under the Activating Resolution), it increases the need for Security Council referrals if future cases involving the crime of aggression are to be prosecuted. During the negotiations many States Parties appeared motivated to ensure that crime of aggression cases could be initiated without Security Council referral. The often unspoken subtext was the concern that Security Council voting can be made on a political basis, subject to the veto power of the permanent members. This then results in inconsistency in the making of ICC referrals, with only two having been made to date (Darfur, Sudan, and Libya),9 and other equally meritorious referrals neglected (Syria10 and Myanmar11). Relying on a political body to make referrals, which then partly controls the docket of a judicial institution, was seen by most as far from ideal. Thus, for many states, the whole activation process left a far from perfect situation as to the ICC’s jurisdiction over the crime of aggression. However, the alternative was probably no activation of any ICC jurisdiction over the crime for the foreseeable future, as the negotiations during the 2017 ASP appeared largely stalemated; eventually, a weak jurisdictional regime began to emerge as the preferable alternative to no outcome.12 3. The Security Council’s Role in Making Referrals Under Article 15ter, the Security Council may make referrals covering the crime of aggression, and the Court has been able to receive them (i.e. had its jurisdiction activated) since 17 July 2018. The unanswered question, of course, is whether the Security Council will make such referrals. This, of course, depends, first, on what situations of aggression will arise in the future, and, second, on the political context of the situation. For instance, when on 25 November 2018, Russia seized three Ukrainian ships off the coast of Crimea,13 this may or may not have met the ICC’s gravity threshold.14 But whether or not it did quickly became irrelevant for ICC purposes, because a situation involving a non-State Party did not fall within ICC jurisdiction under Article 15bis15 and, politically, the situation could not be referred under Article 15ter.16 Viewing this more positively, absent a situation where nationals of a permanent member (or one of its close allies) appear potentially implicated in the crime (or a permanent member has made a commitment not to refer), a situation could be referred. This actually represents a significant potential to deter the crime of aggression, even given the political realities of how Security Council voting operates. While Article 15bis is only relevant to States Parties (and, even then, does not encompass all States Parties),17 a referral under Article 15ter could involve a State Party, a non-State Party, or a situation involving both18— meaning, it could potentially have nearly global reach. The possibility of such referrals is certainly a positive development insofar as it could provide fairly extensive deterrence.19 While the rule of law should operate apolitically, to this author a Darfur referral is valuable even if other equally meritorious referrals are not made. (A referral accompanied by Security Council follow-up to ensure the ICC can proceed would prove even more valuable.)20 Note that the politicization of the referral process does not of course stem from the Rome Statute, but from Security Council voting procedures under the UN Charter.21 That is, Article 13(b) of the ICC Statute does not create Security Council referral power, nor does Article 16 create Security Council deferral power; the powers of the Council are created by the UN Charter, which the Rome Statute cannot expand or limit.22 In the future, should the crime of aggression appear to be committed, the Security Council should utilize its referral power; only then will there be a credible possibility of future deterrence under Article 15ter. The potential for deterrence could, by contrast, be squandered if a permanent member were, for example, to let it be known that it would reflexively block all crime of aggression referrals due to antipathy towards the ICC or towards prosecuting the crime of aggression. (Because Security Council referrals will not operate in a neutral fashion, it is still preferable for cases to be initiated under Article 15bis, although this likely requires many more States Parties to ratify the crime of aggression amendment before it can become a more effective route with significant potential for deterrence.)23 A. Must the Security Council Determine ‘Aggression’ Has Occurred and Would that Bind the ICC? A few questions may arise as to how Security Council referrals will operate. First, questions might arise on whether the Security Council would need to determine that a situation involved aggression by one or more states in order to make a referral, and whether such a determination would bind the ICC. (The crime of aggression always involves two components — an act of a state and an individual act by a state leader.) The answer to both questions is in the negative. There is nothing contained in Article 15ter that the Security Council must make any affirmative finding regarding aggression in order to make a referral.24 Moreover, Article 15ter(4) provides 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’.25 Thus, while the Security Council could state in the referral resolution its determination whether a state (or multiple states) committed aggression, such determinations would not bind the ICC,26 which would make an independent determination. This is necessary to preserve the Court’s judicial independence. If the Council’s determination were binding, it would not permit the ICC to adjudicate all the elements of the crime by proof beyond a reasonable doubt and would thus fail to preserve the presumption of innocence. This issue was expressly debated in Princeton (where meetings of the Special Working Group were held), with at least the UK’s representative arguing that the Security Council’s determination would bind the ICC, and many States Parties taking the opposite view,27 which then became memorialized in Article 15ter(4), with a parallel provision in Article 15bis(9). That is, also where a case is initiated through State Party referral or proprio motu, no outside determination regarding aggression — for example, by the International Court of Justice (during a contentious case or advisory opinion), the Security Council, or the General Assembly — would prove determinative in a case before the ICC.28 B. May the Security Council Refer only the Crime of Aggression to the ICC? A question could also arise whether the Security Council will be able in a given situation to refer only the crime of aggression, or, only the other three core crimes (genocide, crimes against humanity, and war crimes), or whether a referral necessarily covers all four crimes. Here, the technical answer is that, if seen from the perspective of Chapter VII of the UN Charter, the Security Council may refer what it wants. If the matter is considered under the Rome Statute, however, it must be borne in mind that Article 13(b) provides for the referral of a ‘situation’. A ‘situation’ suggests the whole situation in a state, and not a ‘situation’ minus certain crimes. Thus, just as the Security Council did not refer particular crimes in the situations of Libya or Darfur,29 it should not refer particular crimes to the Court in future. Of course, this is a question of first impression, and the Security Council could refer specific crimes; the ICC would then need to determine how to address such a referral given that Article 13(b) of the ICC Statute states that it only receives referrals of a ‘situation’.30 C. May the Security Council Refer a Situation Involving Aggression Committed Prior to 17 July 2018? A question might arise as to whether the Security Council could refer a situation involving aggression committed prior to 17 July 2018. While, again, technically, Security Council power derives from the Charter and the ICC States Parties cannot impose temporal restriction on the Council, Article 15ter stipulates that the ICC’s ability to exercise jurisdiction over the crime of aggression commenced only after certain requirements were fulfilled — that is, ‘one year after the ratification or acceptance of the amendments by thirty States Parties’ and ‘subject to a decision … taken after 1 January 2017’ by the ICC’s Assembly of States Parties,31 whichever was later.32 (The later date was the date of the decision by the ASP, on 14 December 2017, to activate the Court’s ability to exercise jurisdiction effective 17 July 2018.)33 While Article 12(3) of the ICC Statute has been utilized to allow a state to enter a declaration taking jurisdiction on the other core crimes retrospectively to July 2002, this reach back to the early years of the Court does not appear to be possible for the crime of aggression.34 D. May the Prosecutor Decline to Proceed to the Investigation Phase after Security Council Referral? In the event of a Security Council referral, Article 15ter states that ‘[t]he Court may exercise jurisdiction over the crime of aggression …’.35 It does not state that the Court ‘must’ exercise jurisdiction over the crime. While referral would presumably require the Prosecutor to open a Preliminary Examination, it does not necessarily mean the situation would move to the Investigation phase. In deciding whether to initiate an Investigation, the Rome Statute requires the Prosecutor to consider: (a) whether the information available ‘provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed’; (b) whether the case ‘is or would be admissible under Article 17’; and (c) both ‘gravity’ and the ‘interests of the victims’; but the Prosecutor (d) may still decline to proceed ‘if the investigation would not serve the interests of justice’.36 Moreover, Article 53(2) imposes a requirement for the Prosecutor, if he or she concludes ‘there is not a sufficient basis for a prosecution’ to so inform ‘the Security Council in a case [referred by the Security Council] of his or her conclusion and the reasons for the conclusion’. E. The Effectiveness of Carve-Outs in a Referral Resolution Excluding Certain Individuals from the Referral or Excluding UN Funding The texts of the two ICC referral resolutions made to date contain clauses exempting certain nationals, including certain ‘current or former officials’ from non-ICC States Parties from jurisdiction,37 and providing that none of the expenses incurred in connection with the referrals shall be borne by the UN.38 It is unclear whether either clause is effective. As to the exclusion of certain nationals, as discussed above, Article 13(b) of the ICC Statute provides for Security Council referral of a ‘situation’ to the ICC.39 While, again, the Security Council may have the power to make such carve-outs under Chapter VII — if it can explain why such carve-outs are necessary for the maintenance or establishment of international peace and security — the Prosecutor and judges take their directives from the Rome Statute, including the text of Article 13(b) and Article 27 (no immunity based on official capacity). Thus, there is at least a very serious question as to whether such jurisdictional carve-outs would be legally effective before the ICC. The least that must be said is that, as a matter of sound policy, future referral resolutions should not contain such carve-outs. As to the funding carve-out, an issue exists whether the Security Council has competence to dictate whether funding may accompany a referral, when the UN Charter provides that the General Assembly makes UN budget decisions.40 In terms of practical impact, the absence of funding to accompany past ICC referrals has been a matter of serious concern to the ICC given the budget constraints it has been facing, with an ever-expanding number of investigations and cases, and demands for even more investigations and prosecutions. Should the Security Council make referrals regarding the crime of aggression, some follow-up may also be required to ensure cases are able to proceed; the experiences with the Libya and Darfur referrals shows how problematic the absence of follow-up can prove.41 The absence of follow-up additionally makes Security Council’s referrals appear hypocritical — why refer if unwilling to provide support? F. The Security Council’s Role as to Cases Initiated under Article 15bis The Security Council may be involved with the crime of aggression in another way — that is, if a case is initiated pursuant to Article 15bis. There is a six-month period the Prosecutor has to wait, having concluded (based on States Party referral or proprio motu initiation) that there is a reasonable basis to proceed, in order to see if the Security Council will make a determination to refer.42 Three possible situations arise. If the Council decides to refer, the ICC may proceed. If the Council decides it will not refer (makes an affirmative determination not to refer), this effectively acts like an Article 16 deferral, whereby the Council may block an investigation/prosecution for a twelve-month (renewable) period in the interests of international peace and security.43 However, if the Council does neither within six months, the Prosecutor may proceed but only after authorization of the ICC’s Pre-Trial Division.44 If the Council does refer, it should be noted that its referral could potentially encompass a broader situation than the Prosecutor was examining; for example, if multiple states are involved, crimes committed by the nationals of, or on the territory of, non-States Parties could be encompassed by a Security Council referral, whereas they could not be encompassed under Article 15bis.45 4. The Security Council’s Potential Additional Role in Prevention and Early Warning Another consequence of the seemingly limited jurisdictional regime under Article 15bis is a lessening of the ability of the Prosecutor to provide any kind of early warning or preventative function than she otherwise might have been able to provide, and indeed can provide vis-à-vis the other core crimes. For example, to date, the Prosecutor has sometimes indicated he or she was monitoring a situation in an ICC State Party in an attempt to deter the commission of Rome Statute crimes.46 For example, in a statement made in the DRC, Prosecutor Fatou Bensouda emphasized the importance of the prevention of crimes and made clear that her office was monitoring the situation, stating that ‘as Prosecutor, it is my duty to unequivocally recall that any person who commits, orders, incites, encourages or contributes in any other way to the commission of crimes under ICC jurisdiction is liable to prosecution’.47 For the crime of aggression, because Article 15bis jurisdiction appears so limited (at least for the time being),48 the Prosecutor will be less able to play this role, because less jurisdiction exists (or appears to exist). For example, if the Prosecutor receives information that the military forces of a non-State Party are amassing and poised to invade the territory of an ICC State Party, she cannot credibly ring ‘alarm bells’ that she is monitoring the situation (in an attempt to deter the invasion), as the ICC has no jurisdiction over aggression committed by nationals of a non-State Party under Article 15bis.49 The Security Council could fulfil such an early warning/prevention role. If the Council were to receive such information, it could credibly indicate it was monitoring the situation. For example, the Council might hold a debate on the matter, issue a statement to the media or a Presidential Statement, have the ambassadors of Security Council member states visit the country, or issue a resolution. A statement or resolution could note that the situation could become a ‘threat to the peace’, ‘breach of the peace’, or ‘act of aggression’, reminding the country concerned of the Security Council’s referral powers, thereby trying to deter the use of force.50 As the organ charged under the UN Charter with ‘primary responsibility for the maintenance of international peace and security’,51 this would appear an entirely appropriate role for the Council to play. Indeed, if the Council did nothing in such circumstances, one might well wonder whether it was fulfilling its mandate under the Charter. Especially in such situations, the General Assembly could also issue a resolution indicating it was monitoring the situation, as the General Assembly also has competence in matters of international peace and security.52 Indeed, Article 11(3) of the Charter expressly states that the General Assembly may ‘call the attention of the Security Council’ to a situation ‘likely to endanger international peace and security’.53 The General Assembly could also recommend to the Security Council that the Council refer the situation to the ICC.54 One caveat, however, is that Article 12(1) states that the ‘General Assembly shall not make any recommendation’ ‘[w]hile the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter’.55 5. Conclusion The law sometimes advances slowly and imperfectly. Activation of the crime of aggression was a tremendous and historic step forward; yet, it simultaneously ushered in a seemingly limited jurisdictional regime. This state of affairs can be questioned either before the ICC involving a challenge to certain text in the ASP’s Activating Resolution56 or seven years after activation, in 2025, during a review (which could take the form of a review conference) where a new jurisdictional regime could theoretically be negotiated.57 Jurisdiction under Article 15bis also meanwhile increases with each State Party’s ratification of the crime of aggression amendment.58 At present, with the jurisdictional limitations that appear to exist, it will be difficult for a crime of aggression case to be initiated under Article 15bis; thus, whether crime of aggression cases can be pursued before the ICC for the foreseeable future may depend largely on whether the Security Council is willing to make referrals. While future Security Council referrals, if made, will no doubt operate at least somewhat politically, the Security Council appears to have a new powerful tool at its disposal, should it choose to use it. For the Council to make such referrals appears entirely appropriate given the Council’s role under the Charter to maintain international peace and security. At least this author hopes the Council will refer situations involving aggression to the ICC, thereby maximizing the potential for deterrence. Deterrence can also operate if the Council plays an early warning/prevention function, by indicating it is monitoring a situation that could involve aggression, in an attempt to deter the launch of aggressive force. This would also be a potentially significant new tool at the Council’s disposal, and it is up to states holding a seat on the Council to activate this new role that squarely falls within the Council’s area of responsibility. A limited role in this respect can also be fulfilled by the General Assembly. In the end, the goal behind the crime of aggression amendment is not for the ICC to adjudicate crime of aggression cases, but to maximize deterrence, so there are no cases to adjudicate. Footnotes 1 ICC-ASP/16/Res.5, 14 December 2017, available online at https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/ASP16/ICC-ASP-16-Res5-ENG.pdf (visited 22 May 2019) (‘Activating Resolution’). See C. Kreß, ‘On the Activation of ICC Jurisdiction over the Crime of Aggression’, 16 Journal of International Criminal Justice (JICJ) (2018) 1. 2 See Art. 2(4) UN Charter. 3 Rome Statute of the International Criminal Court, 18 July 1998, UN Doc. A/CONF.183/9* (ICCSt., or Rome Statute). For discussion of the historic nature of the accomplishment, see e.g. D. Donat Cattin, International Criminal Justice Day 2017, ‘Striving for Universality of the Rome Statute: The Criminalization of Aggressive War-Making and Ensuring Greater Protection for the Victims of the Most Serious Crimes’, 17 July 2017, UN Headquarters. 4 A more extensive exploration of the dispute as to jurisdiction, and whether the Activating Resolution’s limitation on jurisdiction is valid, is in J. Trahan, ‘From Kampala to New York — The Final Negotiations to Activate the Jurisdiction of the International Criminal Court Over the Crime of Aggression’, 18 International Criminal Law Review (2018) 197. 5 See infra note 48 (how such a challenge might arise). 6 During early negotiations, a role for an outside actor such as the General Assembly or International Court of Justice was debated, but eventually it was decided that (in addition to the Security Council) the ICC could make the determination for itself whether, for ICC purposes, a state had committed an ‘act of aggression’ — that is, for purposes of an ICC case against an individual for the crime of aggression. 7 See Activating Resolution, para. 2. The details of the different readings of jurisdiction under Art. 15bis are explored in Trahan, supra note 4. 8 For example, under the Kampala crime of aggression amendment, non-States Parties are excluded from the jurisdictional regime absent Security Council referral. See Art. 15bis(5) ICCSt. That is not the case for genocide, crimes against humanity, and war crimes, as to which if the national of a non-State Party commits the crime in the territory of a state party there is ICC jurisdiction. See Art. 12(2)(a) ICCSt. The Rome Statute suggested a different jurisdictional regime could be created as to the crime of aggression. See Art. 5(2) ICCSt. (agreed at the Review Conference to be deleted). (An interesting theory that warrants further consideration, however, is that Art. 5(2) ICCSt. only empowered negotiation of different ‘conditions under which the Court shall exercise jurisdiction’ over the crime of aggression, but did not empower States Parties to negotiate a different jurisdictional regime — raising a possible question as to the validity of excluding non-States Parties under Art. 15bis). 11 March 2019, Trahan e-mail exchange with Roger S. Clark. 9 SC Res. 1593 (2005); SC Res. 1970 (2011). 10 S/2014/348 (vetoed by the Russian Federation and China). 11 No resolution proposing a referral to the ICC of the situation in Myanmar has been tabled due to the anticipated exercise of the veto by China. 12 Part of the stalemate was driven by the desire for activation by consensus, which then meant any State Party essentially held veto over the negotiations. During the 2017 ASP negotiations, those insisting on a restricted jurisdictional regime under Art. 15bis, and accordingly more reliance on Art. 15ter referrals, were (unsurprisingly) led by the two permanent member of the Security Council which are also ICC States Parties, the UK, and France. 13 ‘Russia-Ukraine Tensions Rise after Kerch Strait Ship Capture’, BBC, 26 November, 2018, available online at https://www.bbc.com/news/world-europe-46340283 (visited 22 May 2019). 14 The Russian use of force was a manifest violation of the Charter by its character, but not necessarily also a manifest violation by its gravity and scale within the meaning of the Rome Statute. See Art. 8bis ICCSt. (covering a ‘manifest’ UN Charter violation by its ‘character, gravity and scale’). 15 Art. 15bis(5) ICCSt. 16 Russia, as a permanent member of the Council, holds veto power over referrals. See also M. Politi, ‘The ICC and the Crime of Aggression’, 10 JICJ (2012) 267, at 274 (acknowledging ‘the privileged position of the permanent members of the Council and their power to veto any decision aimed at triggering the Court’s jurisdiction over alleged acts of aggression committed by their nationals or on their territory’). The seizure of the ships did not occur in isolation, but the same result attaches regarding the broader context. 17 See Trahan, supra note 4 (dispute as to how to read Art. 15bis). 18 See D. Akande and A. Tzanakopoulos, ‘Treaty Law and ICC Jurisdiction over the Crime of Aggression’, 29 European Journal of International Law (2018) 939, at 953 (‘In the case of referrals of situations by the UN Security Council, the Court will have jurisdiction over persons within the situation referred to the Court. They may be nationals of ICC states parties that have ratified the Kampala Amendments; nationals of ICC states parties that have not ratified those amendments or, indeed, nationals of non-parties’.). 19 It will of course be difficult (maybe impossible) to know if deterrence is operating because it means the crime is not occurring, which is extremely difficult to demonstrate. There is emerging scholarship suggesting deterrence has worked to some extent regarding international criminal tribunals. See e.g. J.R. McAllister, ‘On International Crimes and Punishment: Lessons on Deterring Atrocities from the Yugoslav Tribunal’, International Security (forthcoming 2019). 20 See e.g. Institute for Security Studies, ‘Cooperation with the ICC: What the Security Council and ASP Must Do’, December 2018, for recommendations as to follow-up on referrals. 21 See Art. 27(3) UN Charter. 22 The Rome Statute provides the Prosecutor, ICC judges, etc. with directions on what to do in the event of a referral. Similarly, the crime of aggression amendment did not empower the Security Council to make referrals. Art. 15bis, combined with Art. 13(b), allows the Court to address them. 23 It is also possible deterrence can be created by ICC States Parties (as well as non-States Parties) implementing the crime of aggression into their domestic criminal codes. Depending on the jurisdictional regime utilized by the state, there could be potentially broad jurisdictional reach. Some states and non-States Parties also have earlier domestic laws criminalizing aggression. See Handbook, ‘Ratification and Implementation of the Kampala Amendments to the Rome Statute of the ICC: Crime of Aggression, War Crimes’, November 2012, 14. 24 See N. Strapatsas ‘The Practice of the Security Council Regarding the Concept of Aggression’, in C. Kreß and S. Barriga (eds), The Crime of Aggression: A Commentary (Cambridge University Press, 2018) 178, at 181 (‘Article 15ter of the Rome Statute may give the impression that the Security Council must make a determination of the existence of an act of aggression when making a referral to the prosecutor of a situation where a crime of aggression appears to have been committed. However, the substance of this article reveals that the Security Council is not actually required to do so. During the negotiations on the provisions on the crime of aggression, this approach was commonly referred to as the Security Council giving the “green light” in its referral to the prosecutor.’); Politi, supra note 16, at 274 (‘…not only is the Council not bound to determine that a state has committed aggression, but there is also no requirement that the Council must mention aggression as one of the crimes that could have been perpetrated in the territory or by a national of such a state.’). 25 Art. 15ter(4) ICCSt. 26 See e.g. Handbook, supra note 23, at 11 (‘Paragraph 9 confirms that a determination of an act of aggression by an external organ, such as the Security Council, is not binding on the Court, thereby protecting the existing due process standards contained in the [Rome] Statute’.). 27 Author recollection of debates during the Special Working Group on the Crime of Aggression, Princeton, NJ. 28 This result is also necessitated because while the ICC will apply the definition of the crime of aggression in Art. 8bis ICCSt., an outside body might not even be using the Rome Statute definition of the crime. There are also ICC gravity requirements that another body would not be applying. See Art. 53(1)(c) ICCSt. 29 The Security Council did attempt to carve out certain nationals from the ambit of its referrals. See discussion in infra notes 37–39 and accompanying text. 30 The referral of only specific crimes would also interfere with the independence of the Prosecutor and ICC judges, who do not receive their directions from the Security Council but from the Rome Statute. 31 Art. 15ter(2) and (3) ICCSt. The same pre-conditions apply under Art. 15bis. See Art. 15bis(2) and (3) ICCSt. 32 Understanding 1 states: ‘It is understood that the Court may exercise jurisdiction on the basis of a Security Council referral in accordance with Art. 13, paragraph (b), of the Statute only with respect to crimes of aggression committed after a decision in accordance with article 15 ter, paragraph 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later’. Resolution RC/Res.6* (11 June 2010), Annex III, Understanding 1 (emphasis added). The later event was the decision to activate jurisdiction, on 14 December 2017, but in the Activating Resolution, the date when the Court could exercise jurisdiction was pushed to 17 July 2018. (While it may not matter, there appears a slight difference between the date by which the crime is committed (14 December 2017), the date by which the Understanding suggests jurisdiction may be exercised (14 December 2017), and the date by which the Activating Resolution says the Court may exercise jurisdiction (17 July 2018).) 33 See Activating Resolution. 34 See Art. 12(3) ICCSt. There still might be some use for Art. 12(3) related to the crime of aggression. For example, assume in 2024, a non-State Party (or a State Party that has not ratified the amendment) wants to use an Art. 12(3) declaration to take jurisdiction backwards to cover a crime of aggression committed in 2020. For further discussion of Art. 12(3), see C. Kreß, S. Barriga, L. Grover and L. von Holtzendorff, ‘Negotiating the Understandings on the Crime of Aggression’, in S. Barriga and C. Kreß (eds), The Travaux Préparatoires of the Crime of Aggression (Cambridge University Press, 2012) 81–98. 35 Art. 15ter(1) ICCSt. (emphasis added). 36 Art. 53(1)(a)–(c) ICCSt. 37 SC Res. 1593 (2005), § 6; SC Res. 1970 (2011), § 6. 38 SC Res. 1593 (2005), § 7; SC Res. 1970 (2011), § 8. 39 See Art. 13(b) ICCSt. 40 Art. 17(1) UN Charter. 41 All the ICC’s Darfur warrants remain outstanding, and, as to Libya, the case against Saif al-Islam Gaddafi was supposed to be tried at the ICC, yet he was never transferred. There are now two additional outstanding warrant for crimes committed in Libya. 42 Art. 15bis(6)–(8) ICCSt. 43 See Art. 16 ICCSt. 44 Art. 15bis(8) ICCSt. 45 Even a State Party that has exercised an ‘opt out’ declaration under Art. 15bis(4), could have its nationals or crimes committed on its territory referred. The same is true for a State Party not covered under Art. 15bis, depending on how it is read. See supra note 4. 46 See also Office of the Prosecutor, Statement of the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo in Relation to Ivory Coast, 6 April 2011, available online at https://www.icc-cpi.int/Pages/item.aspx?name=otpstatement060411 (visited 22 May 2019); Office of the Prosecutor, Statement by ICC Prosecutor Luis Moreno-Ocampo on the Situation in Côte d’Ivoire, 21 December 2010, available online at https://www.icc-cpi.int/Pages/item.aspx?name=pr617 (visited 22 May 2019). Côte d’Ivoire was at the time not a State Party but had entered an Art. 12(3) declaration; it subsequently became a State Party. 47 Office of the Prosecutor, Statement by the ICC Prosecutor, Fatou Bensouda, at the Conclusion of Her Visit to the DRC: ‘The Fight Against Impunity and the Critical Prevention of Crimes under the Rome Statute are Essential for Social Stability’, 4 May 2018, available online at https://www.icc-cpi.int/Pages/item.aspx?name=180405-otp-stat (visited 22 May 2019). 48 A challenge to the apparent limitation of jurisdiction in the Activating Resolution could be brought if the crime of aggression is committed by the nationals of an ICC State Party that has not ratified the crime of aggression amendment (but has not opted out) against an ICC State Party that has ratified the amendment. Under Operative Paragraph (OP) 2 of the Activating Resolution, that situation would not result in jurisdiction, but under many States Parties’ readings of the Kampala crime of aggression amendment, that situation would have resulted in jurisdiction. See also Activating Resolution, OP3 (reaffirming the ‘judicial independence of the judges of the Court’). 49 Art. 15bis(5) ICCSt. The Prosecutor could still ring alarm bells, but it would be more to call media attention to the situation or alert the Security Council. 50 That the crime is a ‘leadership crime’ means deterrence could in particular potentially operate as to persons who are ‘in a position effectively to exercise control over or to direct the political or military action of a State’. See Art. 8bis(1) ICCSt. 51 Art. 24(1) UN Charter. 52 Arts 10–11 UN Charter. 53 See Art. 11(3) UN Charter. 54 Setting aside the question whether the General Assembly could have referral powers, at present, the ICC is not empowered to address a General Assembly referral. There is before the ASP’s Working Group on Amendments a proposal of South Africa for the General Assembly to have deferral powers. See Report of the Working Group on Amendments, ICC-ASP/13/31, 7 December 2014. 55 Art. 12(1) UN Charter. How this is read is beyond the scope of this article, but it is worth noting there are times the General Assembly has taken up issues that were also before the Council, particularly when the Council was deadlocked, in which case it can be argued the Security Council was not ‘exercising’ its ‘functions assigned’ under the Charter. Indeed, the ‘Uniting for Peace’ resolution provides a whole procedure for the General Assembly to address issues in the face of Security Council deadlock caused by veto use. See General Assembly A/RES/377 A, 5 UN GAOR, Supp. (No. 20) 10–12, UN Doc. A/1775 (1950). 56 See supra note 48. 57 The Kampala crime of aggression amendment provides for review seven years after the beginning of the exercise of jurisdiction. See Resolution RC/Res.6* (11 June 2010), para. 4 (‘decides to review the amendments on the crime of aggression seven years after the beginning of the Court’s exercise of jurisdiction’). There may be other issues that should be reviewed, including whether cyberwarfare is encompassed within the crime, and whether use of force by a non-state actor should be encompassed. To date, the crime of aggression only covers the ‘use of armed force by a State’. Art. 8bis(1) ICCSt. It may not, however, prove realistic to reopen the issue of jurisdiction unless there is some significant shift in views beyond those expressed at the 2017 ASP. 58 At the time of writing, 38 ICC States Parties have ratified the crime of aggression amendment. © The Author(s) (2019). Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Revisiting the Role of the Security Council Concerning the International Criminal Court’s Crime of Aggression
JO - Journal of International Criminal Justice
DO - 10.1093/jicj/mqz022
DA - 2019-07-01
UR - https://www.deepdyve.com/lp/oxford-university-press/revisiting-the-role-of-the-security-council-concerning-the-dY8i7Rt4d0
SP - 471
VL - 17
IS - 3
DP - DeepDyve
ER -