The existence of Rome Statute and its implementation of Crime of Aggression

As Brigid Inder once said, “With thousands of nuclear weapons in play, it is too late for wars!
The resolution of international political conflict by force is no longer a rational option - if it
ever was. The crime of aggression has never been more criminal.” 1 With the Rome Statute
coming into existence from July 1, 2002, the main object lies in achieving the major
competence and adequacy to authorise the investigations of international crimes which are
vested with the States national jurisdictions. The Statute which has 123 States as its
signatories (as of November, 2019) accepts that States have the jurisdiction and the
fundamental duty to identify, inspect, prosecute and determine the utmost serious
international crimes, both under pertinent international law and the Rome Statute. The
Preamble, Article 1 and Article 17 of the Statute envisage the doctrine of complementarity
which talks about the fundamental duty of the States to examine and sue those individuals
who are culpable for international crimes, but it is also important to note that the Court will
only intercede when the nation states do not hold a legitimate desire or the scope to
adjudicate on the criminal matter. In order to achieve the goal of this Statute, the States
parties are required to reform their domestic laws and it is also equally important for the
“monist” nations to ratify an international convention for it to get considered as part of their
interstate laws. In contrary, there are some specific provisions which cannot be carried out by
the nation States itself and in no circumstances be of straightforward appliance. Part 9 of the
Rome Statute which talks about cooperation from the States parties to cooperate fully with
the International Criminal Court(Article 86:Creates an obligation of result for States) and the
States parties should have feasible measures on cooperation(Article 88:Creates an obligation
of conduct for States).2

The Crime of Aggression was first realised as a crime of the international stature which
resulted into the criminal liability of the human entity under the international law in the
Charter of the International Military Tribunal at Nuremberg (IMT).3 Article 6(a) provided the
jurisdiction to IMT over crimes against peace, “namely, planning, preparation, initiation or
waging of a war of aggression, or war in violation of international treaties, agreements or
assurances, or preparation in a common plan or conspiracy for the accomplishment of any of
1
Brigid Inder, OBE, is the Executive Director of the Women’s Initiatives for Gender Justice (WIGJ) (February
28, 2020, 14:35 PM), http://www. http://www.coalitionfortheicc.org/explore/icc-crimes/crime-aggression.
2
Implementing Legislation on the Rome Statute (February 29, 2020, 18:25 PM), http://www.
https://www.pgaction.org/ilhr/rome-statute/implementing-legislation.html.
3
Gerhard Werle, Principles of International Criminal Law, T.M.C. Asser Press (February 29, 2020, 20:14 PM),
http://www.internationalcrimesdatabase.org/Crimes/CrimeOfAggression.
the foregoing.”4 The tribunal in its judgement of the trial of German major war criminals 5
pronounced that “the crime of aggression is the supreme international crime differing only
from other war crimes in that it contains within itself the accumulated evil of the whole.”
However, this definition was affirmed generally by the UN General Assembly (UNGA)
representatives in the following outcome of the World War II.6 But in the course of the
subsequent years, it was found that there was no accord of the presence of a crime of
aggression under the international law between the members of UNGA as the discussions in
the UN War Commission took place. 7 In order to adopt a concrete decision of the “crime of
aggression”, the UN General Assembly’s approved of the Resolution 3314 (XXIX) in 1974.
Article 1 of the Annex provided that the “the use of armed force by a State against the
sovereignty, territorial integrity or political independence of another State, or in any other
manner inconsistent with the Charter of the United Nations, as set out in this Definition.” The
prime objective of this definition was not to ascertain criminal liability but to direct the
Security Council to have necessary measures in order to tackle a situation in which an act of
aggression has been exercised. Article 5(2) of the Annex considers war which breaks out of
aggression is a breach of the international peace, thus emphasising that aggression leads to
international obligation. Through this Article, a disparity was accounted between exercising
aggression which is short of war and exercising aggression which has led to war but both the
elements exhilarating the common guideline of State responsibility with the major damage
being done by the aggression of war which is accounting the individual criminal
responsibility.8

The United Nations headquarter witnessed a historical moment on December 15, 2017, when
the States parties who are signatories to the Rome Statute gave their consensus to activate the
jurisdiction of the International Criminal Court to adjudicate over the crime of aggression.
4
Article 6(a), Charter of the International Military Tribunal at Nuremberg (IMT)
5
Trials against perpetrators of the crime of aggression can be found in the jurisprudence of the Nuremberg and
Tokyo Tribunals. Rudolf Hess was the only Nuremberg defendant who was convicted exclusively on account of
crimes against the peace, while 11 other defendants, including Hermann Göring, were sentenced for crimes
against peace and traditional war crimes. The International Military Tribunal for the Far East convicted 23
defendants, amongst them Hideki Tōjō, for the waging of aggressive war, (March 1, 2020, 18:55 PM),
http://www.internationalcrimesdatabase.org/Crimes/CrimeOfAggression.

6
In 1946 the General Assembly of the UN adopted resolution 95 (I) in which it affirmed the “principles of
international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal”.
Antonio Cassese, International Criminal Law, Oxford University Press (March 1, 2020, 22:40 PM),
http://www.internationalcrimesdatabase.org/Crimes/CrimeOfAggression.
7
Brownlie, International law and the Use of Force by States, Oxford University Press (March 1, 2020, 23:15
PM), http://www.internationalcrimesdatabase.org/Crimes/CrimeOfAggression.
8
Crime of Aggression, (March 2, 2020, 10:10 AM),
http://www.internationalcrimesdatabase.org/Crimes/CrimeOfAggression.
Since the post second World War trials which took place in Nuremburg and Tokyo, it was the
first time that the International Criminal Court can convict leaders of nation States for
individual criminal liability for conducting war of aggression.

Article 5(1) of the Rome Statute of the International Criminal Court (ICC) stated that the
Court will have jurisdiction over these type of crimes but Article 5(2) 9 provided that for
exercising the jurisdiction, a provision has to be approved which defines the crime and
imposing the conditions under which the ICC can exercise its jurisdiction. After seven years
of incorporation of the Rome Statute, the 2010 Review Conference was held in Kampala
from May 31 to June 11, 2010 to make amendments in consideration of Article 123 which the
States parties did by accepting the consensus to approve the resolution RC/Res. 6 endorsing
the modifications to the Statute by including the definition of the crime(Article 8) and the
conditions for the exercise of jurisdiction over crime of aggression(Article 15). Such
foundation shall be consistent with the foundations which is relevant of the Charter of the
United Nations. With relevance to Article 121.5 of the Rome Statute, the amendments came
into force through Resolution RC/Res. 6 which meant that every ratifying State should
deposit its instrument of ratification or approval individually after one year from its
ratification. To effectively exercising jurisdiction over the crime of aggression, the
International Criminal Court has to abide by certain stipulated conditions which have come
through the amendments and its acceptance or ratification has been made by thirty States
parties at least from a year the amendments came in force and an additional decision has to be
taken by the States parties to effect the Court’s jurisdiction on or after January 1, 2017 by a
two thirds majority.10 A rift among the States parties arose whether the jurisdiction be active
to all the representatives States of ICC once the ratifications of the amendments has been
done by thirty States parties at least or only to those States that have consented to the Court’s
jurisdiction over the crime of aggression. The Resolution RC/Res. 6 that was finally accepted
and came into force on July 17, 2018 which also happens to be the date of the 20 th
anniversary of the Rome Statute for ICC representatives States which have ratified the Statute
and adopted the amendments. It also has to be noted that ICC will not exercise jurisdiction
over ICC member States who all have not ratified these amendments in the case of State

9
Art. 5 (2): “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in
accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court
shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant
provisions of the Charter of the United Nations.”-Rome Statute of the International Criminal Court.
10
Crime of Aggression, (March 2, 2020, 11:20 AM),
http://www.internationalcrimesdatabase.org/Crimes/CrimeOfAggression
referral or proprio motu (case initiated by the ICC prosecutor) examination. Although the
judges of ICC maintained the discretion in ruling on jurisdictional matters and referrals from
the UN Security Council as they have no limitations in terms of the jurisdiction is
concerned.11

As per the report, 39 States have ratified the amendments on the Crime of Aggression to the
Rome Statute of the International Criminal Court till September 25, 2019. 12 Liechtenstein was
the first country to ratify the amendments on the Crime of Aggression to the Rome Statute of
the International Criminal Court on May 8, 2012. Luxembourg became the first current non-
permanent member of the Security Council to ratify the amendments and also were the first
to apply the amendments into their internal legal forum by revising its Criminal Code and its
Code of Criminal Procedure in the month of February, 2012. Also nation States such as
Andorra, Cyprus, Slovenia and Uruguay made the ratification to the amendments respectively
after a High-Level Week of the United Nations General Assembly which was held in
September, 2013.13

Intervention of Russian military in Ukraine

The Russian military force exercised an armed conflict by crossing the border into the
Ukrainian territory without the permission of the Ukrainian Government and attacked the
Donbass region of Ukraine. In the following outcome of the Euromaidan movement and the
Ukrainian revolution of 2014 which led to protests against the newly created government of
Ukraine under the leadership of acting President Oleksandr Turchynov which took place in
the regions of Donetsk and Luhansk oblasts. These demonstrations happened due to the wider
group of concurrent pro-Russian protests predominantly in the Southern and European zone
of the country. The conflict arose between the separatist forces and the Ukrainian
government. There was a formation of two different self-declared States by the separatists
known as the Donetsk and Luhansk People’s Republics respectively where in the Donetsk
People’s Republic, the top leaders were of Russian origin from May, 2014 to August, 2014.
As Russian officials denied the fact of the presence of Russian regular armed force but on
numerous occasion confronted that there was the presence of special military force, along
with other euphemisms that they were no other choice other than deploying military troops to
11
The Crime of Aggression, (March 2, 2020, 13:45 PM),
http://www.coalitionfortheicc.org/explore/icc-crimes/crime-aggression.
12
United Nations Treaty Collection, (March 2, 2020, 15:25 PM), http://treaties.un.org/Pages/ViewDetails.aspx?
src=TREATY&mtdsg_no=XVIII-10-bchapter=18&lang=en.
13
Crime of Aggression, (March 2, 2020, 17:34 PM), http://en.m.wikipedia.org/wiki/Crime_of_aggression.
safeguard the Russian speaking mass of people. In August, 2014, the DPR and LPR radical
groups captured back much of the territory they had lost during the Ukrainian’s government
preceding military offensive. On September 5, 2014, the parties of Ukraine, Russia, the DPR
and the LPR agreed to form a ceasefire, known as the Minsk Protocol. But this ceasefire
failed to stop the war and continued violence as the war assailant took control of the fodder of
land on the insurgent side leading to no stabilisation of the crisis. In January 2015, the first
ceasefire came to an end as the fighting between the armed forces broke out in conflict zones
which included the Donetsk International Airport and at Debaltseve. In the aftermath of the
violation of the ceasefire of Minsk Protocol, new ceasefire was signed called the Minsk II on
February, 2015. As soon as the agreement was signed, the separatist forces launched an
attack at Debaltseve and the Ukrainian forces were forced to pull out its troops from that area.
With the fall of Debaltseve, there was no major territorial changes. This was being a state of
stalemate, then was labelled as “frozen conflict” but the area remained as a war zone, with
dozens of soldiers and civilians killed each month. The OSCE observatory mission at the end
of 2017 accounted that almost 30,000 individuals in military like dress crossing from Russia
to Donbass was allowed to monitor at two border checkpoints. There have been at least 20
ceasefire, each agreed to remain in force for indefinite time but none of them put an end to
the war. In 2016, the most successful attempt was made to halt the fighting when a ceasefire
was accounted for six weeks without any violation. The latest ceasefire which made
significant decrease of violence in the following days was operational from March 8, 2019.
Finally, the Ukraine, Russia, the DPR, the LPR, and the OSCE consented to the direction of
ending the conflict on October 1, 2019. 14

United States of America

As United States participated in the Review Conference on June 15, 2010, as an Observer, the
Government of USA accounted for what they deemed as achievement from the Conference.
As Harold Hongju Koh said, “The United States considered the definition of aggression
flawed, but a number of important safeguards were adopted. Understandings were adopted to
make the definition more precise, to ensure that the crime will be applied only to the most
egregious circumstances. And while we think the final resolution took insufficient account of
the Security Council’s assigned role to define aggression, the states parties rejected solutions

14
Ukraine Crisis: Summary and Explanation, (March 2, 2020, 21:10 PM), https://www.thebalance.com/ukraine-
crisis-summary-and-explanation-3970462.
that provided for jurisdiction without a Security Council or consent-based screen. We hope
that crime will be improved in the future and will continue to engage toward that end.”15

United Kingdom

The House of Lords ruled in the case of R v. Jones 16 in 2006 that the crime of aggression was
not a part of the English law as it was applicable within the jurisdiction of the United
Kingdom.

15
Harold Hongju Koh, Legal Advisor U.S. Department of State, (March 2, 2020, 22:10 PM),
http://en.m.wikipedia.org/wiki/Crime_of_aggression.

16
[2006] UKHL 16, [2007] 1 AC 136.