The crime of aggression (CoA) was given a working definition, under the jurisdiction of the

International Criminal Court (ICC), in the Kampala amendments and activation resolution
2017, almost seventy years after it first surfaced in Nuremberg and Tokyo trials. This is
celebrated by many as a big achievement in curbing and deterring the crime, however, it is
not that simple.

The paper argues that the CoA, as evolved and advanced by the ICC, is a futile attempt to
prevent and deter the use of force. In this regard the paper analyses how the loopholes in
definition, limited jurisdictional scope and ICCs mechanisms in relation to security council
(SC) and ICC’s capability in light of its track record makes it harder for the court to put
violators to justice and prevent future occurrences.

CoA and historical development

Despite being considered a part of customary law, the CoA has not been prosecuted since
the Nuremberg and Tokyo international military tribunals. A definition was adopted in the
2010 kampala conference, 65 years after the Nuremberg tribunal was given jurisdiction over
it without providing a definition(-).Resolution 3314 1 was the first attempt to define the
crimes of aggression under the rome statute 2. Its activation came to fruition as a result of
intense negotiations between the state parties 3.The two approaches that divided the state
parties during the negotiations was the narrow approach and fexlible approach(r17). The
narrow approach asserted that both the territorial state and the state of nationality must
have opted into the aggression amendments for ICC to exercise jurisdiction over it. The
Broader approach highlighted that Article 15 bis(4) 4( opt out which can be done before
ratification) was a result of a compromise between states purporting in favour of consent
and those that wanted the ICCs more ordinary jurisdictional regime, and therefore an
additional opt in requirement was not needed(r1). The narrow view was given was accepted
despite the later having support of more states, in order to secure an activation. However
the narrow approach drew criticism due to its shortcomings.

Analysis of Definition of aggression

The definition of the CoA as enshrined in article 8bis 5 of the Rome statute resembles the
wording on the outlawing of the use of force article 2(4) 6 of the United nations charter
(UNC). It talks about the act of aggression as an act against the sovereignty and territorial

1
General Assembly Resolution 3314 (XXIX), Defining the Crimes of Aggression (1974)

2
UN General Assembly, Rome Statute of the International Criminal Court 2187 UNTS 90
3
Carrie McDougall, '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' (2018) 57 International Legal Materials
<https://www.cambridge.org/core/journals/international-legal-
4
Ibid, Article 5(4)
5
Ibid N.1, Article 8bis(1)

6
Charter of the United Nations 1945 1UNTS II
integrity of a state. Article 8bis(2)7 stipulates a non-exhaustive list of acts that fall under the
umbrella of CoA earnestly set forth by the UNGA Resolution 3314(1947). 8

State parties were concerned that the definition of aggression may encapsulate, within its
scope, peripheral breaches and uncertain infringements. This led to the addition of 3
elements that were to be considered while considering agression. These were gravity, scale
and character of the offence under article 9bis(1). Kampala amendments assert that the
circumstance of each case of aggression should be considered in the light of all the elements
of the crimes9.

Humanitarian intervention

ICC puts forward interpretations on whether humanitarian interventions are to be

considered a crime. Barriga and Grover(--) argue that gravity and scale will render any
genuine Human intervention illegal but the character element might give states a free pass
by preventing the act from constituting a manifest violation of the UNC. While the pro-
humanitarian group advocates in favour of this flexible approach, a positivist approach
regarding the laws relating to use of force suggests that humanitarian intervention is
outlawed by the UNC10

The critics of the narrow interpretation of article 8 11 argue rendering the intervention illegal
would have a chilling effect on the use of force for legitimate purposes by deterring leaders
due to the possibility of a prosecution by the ICC12. Conversely , those against humanitarian
intervention pointed to the message, adoption of humanitarian intervention in the
definition of CoA, would send a message about the lawfulness of human Intervention. The
discourse continues till today and presents a challenge to the court’s judges regarding
interpreting humanitarian intervention in the light of definition of CoA.

7
Ibid N.2, Article 8bis(2)

8
General Aseembly Resolution 3314 (XXIX), Defining the Crimes of Agression (1974)

9
Tom Ruys, 'Criminalizing Aggression: How The Future Of The Law On The Use Of Force Rests In The Hands Of
The ICC' (2018) 29 European Journal of International Law.

10
Tom Ruys, 'Criminalizing Aggression: How The Future Of The Law On The Use Of Force Rests In The Hands Of
The ICC' (2018) 29 European Journal of International Law
<https://academic.oup.com/ejil/article/29/3/887/5165628> accessed 27 December 2020.

11
Ibid N.2, Article 8bis
12
Tom Ruys, 'Criminalizing Aggression: How The Future Of The Law On The Use Of Force Rests In The Hands Of
The ICC' (2018) 29 European Journal of International Law
<https://academic.oup.com/ejil/article/29/3/887/5165628?login=true> accessed 14 January 2021.
Non state Actors
The crime as defined in Article 8 13does not deal with the non-state actors (NSAs).

Attacks such as 9-11 in America show that the NSAs are capable of using armed force on an
international level(r17). And since the rationale behind criminalizing aggression is to police
the use of force(r18), is the outright exclusion of NSAs not contradictory to its goals? For
example, if the current definition is applied with a retrospective lens, the members of Al
Qaida will escape responsibility(r3)14.

Furthermore, in defining aggression the drafters failed to appreciate the fact that in purely
internal conflicts NSAs can destabilise a nation, therefore threating the peace and security
of the world at large This threat is in no way reduced by the mere fact that its cause is an
entity not recognised by the international law(r19). For instance, in 1974 Resolution 3314 15
the UN cited the existence of nuclear weapons as one of the reasons for criminalising
aggression. 30 years afterward the assembly highlighted the threat of NSAs obtaining these
weapons as one of the biggest challenges. In this regard, the definition overlooks the fact
that the NSAs like ISIS feature frequently in aggressive acts today. The focus on individuals
with direct political or military control over a state, as a consequence, leaves out a large
proportion of individuals committing CoA. Consequently, deterrence for CoA seems far-
fetched.

ICC as an institution was developed to assist the states in ending impunity act in
complementarity to the state institutions 16. This approach respected the fact that a judicial
institution is most powerful when social deterrence and procecutional deterrence reinforce
each other. As the domestic communities can be highly relevant in social deterrence leaving
out NSAs one cannot hope to achieve this as a significant number of offenders won’t have to
fear about getting prosecuted by ICC(r10).

Jurisdiction of the ICC in term of CoA

The fact the ICC can only exercise jurisdiction over the states that have opted in, by ratifying
the amendment, has further complicated the deterrence process. Only 39 out of 123 states
party to the Rome statute have ratified the amendment(r23) 17. This is excluding the states
13
Ibid N.2, Article 8bis
14
Steve Beytenbrod, 'Defining Aggression: An Opportunity To Curtail The Criminal Activities Of Non-State
Actors' (2011) 36 Brooklyn Journal of International Law <https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2160097#> accessed 15 January 2021.

15

16
De Vos CM, “The ICC and Complementarity: Evolutions, Interpretations and
Implementation,” Complementarity, Catalysts, Compliance: The International Criminal Court in Uganda, Kenya,
and the Democratic Republic of Congo (Cambridge University Press 2020)

17
Cohen A (2012). Prosecuting Terrorists at the International Criminal Court: Reevaluating an Unused Legal
Tool to Combat Terrorism. Michigan State International Law Review 20:2.
not party to Rome statute. The large majority of courtiers falling outside the scope of the
ICC hinders the potential of the court to gesticulate its solemnity to deterring the CoA and
punishing those in breach of the UN charter.

Moreover, the fact that countries are able to optout(art15) has casted a shadow of doubt
over the deterrent effect that ICC will be able to have. While those in favour of the opt out
provisions cite the authority of the security council to refer the state for CoA as being
enough, it is unreasonable to believe so. This is argued, based on the abuse of the veto
power by the SC members frequently observed in prior resolutions. Keeping in mind that
the crime of aggression is a politically charged issue, no one can guarantee that the veto
powers will not be abused in case of Article 15.

It is also worth noting that while the ICC can claim to have jurisdiction over prosecuting a
non-national of its state parties, if the crime is committed in the territory of the state party
to it, in relation to other crimes, it cannot do so in case of crime of aggression. It does not
even have to authority to do so if the offence arose between the states that have ratified
the Rome statue, unless the have also ratified the Kampala amendments. This regime lacks
the universal jurisdiction and minimises the deterrent effect that ICCs can have.

Another concern as forwarded by De Hoon18 stems from the fact that the current stance to
the court requires a manifest volation of the UNC in order to classify an act as agression.
However, situations in which this is carried out also include the use of force by the UN for
humanitarian intervention

There is also divergence of view on who the vitcims of the COA are. whether it is the
soveinty of the state, for the offence of its leaders, or the innocent civilians of state that
faces danger. Dannenbaum furthers the view that it the civilians who are true victims and
the court need to revise its approach if it is to combat the CoA 19.

Outdated
Furthermore, the advancement in technology when it comes to cyberspace have brought
sociological changes to warfare while challenging the traditional definition of territory and
acts of aggression20. For example, allegations of Russia carrying out the cyber-attacks to
meddle with the US electoral process21 , if proven, can be seen to undermine sovereignty of
another state and therefore as an act of aggression. It is inevitable that the will courts face

18
De Hoon, ‘The Crime of Aggression’s Show Trial Catch-22’, in this issue, 919.
19
Dannenbaum, ‘The Criminalization of Aggression and Soldiers’ Rights’, in this issue, 859.

20
Beth A Simmons, 'Can The International Criminal Court Deter Atrocity?' (Scholarship.law.upenn.edu, 2016)
<https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?
referer=&httpsredir=1&article=2687&context=faculty_scholarship> accessed 5 January 2021.

21
Eric Lipton, David E. Sanger & Scott Shane, The Perfect Weapon: How Russian Cyberpower Invaded the
U.S.,  N.Y. Times (Dec. 13, 2016)https://www.nytimes.com/2016/12/13/us/politics/russia-hack-election-
dnc.html;
difficult jurisdictional questions arising out of ever evolving concepts of territoriality and
warfare. To tackle this the court will need to needs to shift from the archich rigidity of
territoriality. It is not beyond reason to say, given the its outdated conception of
territoriality and mode of prosecutions, the deterrence of the international court in this field
of warfare will dwindle overtime.

International criminal law and ICC

It is evident from the microcosmic examination of ICC , even in relation to other
international crimes that the deterrent effect of the ICC miniscule. The fact that ICC lack a
police force or a territory of its own makes it hard for the institution to enforce its
directions. A prime example of this is the case of Sudanese president Al-bahsir. Here Despite
the referral by the security council the arrest warrant issued by the court still awaits
enforcement22. This give rise to the question as to how will the court be able to punish the
CoA, if it has not been able to punish the other crimes, which are comparatively of less
political nature. The track record of the court is also the reason doubting the courts ability
to deter the crime. Only five of the 28 cases of the court have been completed. Five have
collapsed due to lack of evidence and the rest awaits advancement because of insufficiency
of the evidence. The current alienation the ICC faces is because of the flawed prosecution
strategy. Initiation of a large propotion if its investigations in Africa has brought determent
to the court reputation oif beiong and impartial institution.
the international law as whole has proven to be ineffective. It is argued that the
international criminal law can only deter the criminals if their are rational, accept the
jurisdiction of the law and feels that they cannot escape its grasp. However this is not the
case. The criminals do not feel the cost of atrocities is more then the benefit they get from
wreaking havoc upon humans. This is manifest from the case of Al Bashir mentioned above.
For significant level of deterrence to be achieved it, the balance has to shit toward later.
Conclusion
In light of all the reasons mentioned above it can be said that the prospect of ICC dettering
the crime of aggression are slim. This is because of the culminative effect of the loop holes
in definition of aggression, limited jurisdiction of court over the crime and the lack of
support from the international community. The court needs to be empowered and the
scope of CoA need to be increased to encapsulate new forms of infringements an NSAs for
an effective and sustainable deterrence .

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