After almost seventy years since the crime of aggression (CoA) first surfaced, in Nuremberg

and Tokyo trials, the Kampala amendments and activation resolution 2017 saw the crime
find itself a working definition under the jurisdiction of the International Criminal Court
(ICC). The agreement on a working definition is celebrated by many as a big achievement
curbing and deterring the crime. However, is this really as simple as it seems?

The paper take a view that the CoA as evolved and advanced by the ICC is not only a futile
attempt to prevent and deter the use of force. In this regard the paper analysis how the
loop holes in definition, limited jurisdictional scope and ICCs mechanisms in relation to
security council (SC) and ICCs capability in light of its track record makes it harder for the
court to put violator to justice and prevent future occurrences.

CoA and historical development

Despite the fact that the CoA was considered a part of customary law, it has not been
prosecuted since the Nuremberg and Tokyo international military tribunals. No definition of
the crime was adopted until the 2010 kampla conference 65 years after the Nuremberg
tribunal was given jurisdiction over it without providing a defination(-).Resolution 3314 1 was
the first attempt aimed at defining the crimes of aggression under the rome statute 2. Its
activation came to fruition as a result of intense negotiations between the state parties(r1) 3.
The two approaches that divide the state parties, during negotiations(r17). a narrow
approach that 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 took the view that Article 15bis(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 a green light despite the later
having support of more states, in order to secure an activation. However, this approach in
defining the crime drew criticism due to it short comings.

Analysis of Definition of aggression

The definition of the CoA as enshrined in article 8bis5 of the Rome statute resembles the
wording on the outlawing of the use of force article 2(4) of the United nations
charter( UNC). It talks about the act of aggression as an act against the sovereignty and
territorial integrity of a state. The article 8bis(2)6 stipulates a non-exhaustive list of acts that
fall under the umbrella of CoA earnestly set forth by the UNGA Resolution 3314(1947).
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
Ibid N.1, Article 8bis(2)
The apprehensiveness of the state parties that the definition of aggression may encapsulate,
within its scope, peripheral breaches and uncertain infringements of the UNC led the weight
of the crime in terms of gravity, scale and its character before it could be regarded as a
crime. The three elements are stated in article 8bis (1) . Understanding 6 annexed to the
Kampala amendments assert that the circumstance of each case of aggression should be
considered in the light of all the elements of the crimes(r2) 7.

Humanitarian intervention

As of yet there is interpretation put forward by the ICC on whether the Humanitarian
interventions are to be considered as a crime. Barriga and Grover(--) argue While the criteria
set forth will render any genuine Human intervention illegal with the lenses of gravity and
scale, the character element might give the state a free pass by preventing the act to
constitute a manifest violation of the UNC. While the pro humanitarian group advocates in
favour of this flexible approach it should be remebeberes that a positivist approach
regarding the laws relating to use of force might lead one to a conclusion the humanitarian
intervention is outlawed by the UNC8(r9).

the critics of the narrow interpretation of article 8 argue rendering the intervention illegal
would have a chilling effect on the use of force for legitimate purpose. This is because the
possibility of a prosecution by thre ICC, might deter leaders from doing so 9(r12) .
Conversley , those against humanitarian intervention point to the message that the
adoption, of humanitarian intervening in the definition of CoA, would send out to the world
about the lawfulness of human Intervention. This presents the challenge to the courts
judges in how they are to interpret the humanitarian intervention in the light of definition if
CoA.

Many are of the view that keeping in mind that restriction of ICC on prosecuting NSA for
aggression and simultaneously outlawing humanitarian intervention would cause determent
to the prospect of deterring such crimes.

7
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.

8
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.

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
<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 does not deal with the non-state actors (NSAs).

It is clear from the situations like the 9-11 attacks on America that the NSAs are very much
capable of using armed force on an international level(r17). And since the rationale behind
the criminalizing aggression is to police the use of force(r18), is the outright exclusion of
non-state actors not contradictory to its goals? For example, the current definition applied
with a retrospective lens, the members of Al Qaida will escape responsibility(r3) 10.

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
the Un cited the existence of nuclear weapons as one of the reasons for criminalising
aggression. 30 years afterward the assembly highlighted the treat of NSAs obtaing these
weapons as one of the biggest challenges. Given this situation ignoring the NSA, is
inconsistent with the aims of the rome statue. 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 comiitng CoA. Under such circumstances deterrent for CoA
seems an idea that is far-fetched.

it is worthwhile to notice that ICC as an institution was developed to assist the states in
ending impunity act in complementarity to the state institutions(r7) 11. This approach
respected the fact that a judicial institution is most powerful when social deterrence and
procecutional deterrence reinforce each other. As the domestice communities can be highly
relevant in social deterrence leaving out NSAs one cannot hope to achieve this as a
significant number of offenders wont have to fear about getting prosecuted by ICC(r10)12.
Jurisdiction of the ICC in term of CoA

The fact the ICC can only see exercise jurisdiction over the sates that has opted in(r16), by
ratifying the amendment, have also risen some eyebrows on the prospective deterrent
effective of it. Only 39 out of 123 sates party to the rome statute has ratified the
amendment and by doing so falls under the jurisdiction of ICC in relation to CoA(r23). This is
excluding the states not party to Rome statute. The large majority of courtiers falling

10
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.

11
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)

12
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.
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(art 15) has casted a shadow of doubt
over the deterrence 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.

Outdate
Furthermore, the advancement in technology when it comes to cyberspace have brought
sociological changes to warfare while challenging the traditional defination of territory and
acts of aggression13(r11). For example, allegations of Russia carrying out the cyber-attacks to
meddle with the US electoral process , 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
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 is limited. The point further in this
regard puts the blame on the international law as whole rather than ICC. It is argued that
the international criminal law can only deter the criminals if ther are rational, acctept 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 athoricites is more then the benefit they get from

13
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.
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.

Furthermore, the ICC need to maintain its reputation of a bipartisan institution if it want to
bw seen as a legitimate institution and get the support of the states. Only then will it be able
to effectively counter the atrrocies and deter them in future. Right now, the excessive
investigations and prosecution in African continent has resulted it being seems as bully. The
people addicting this point to the fact that no leader from the developed world was
prosecuted despite the commission of grievous crimes,