To opt-out or to opt-in, that is the crime of aggression 

Confirms that … in the case of a state referral or proprio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.

Draft Resolution proposed by the Vice-Presidents of the Assembly Activation of the jurisdiction of the Court over the crime of aggression, ICC-ASP/16/L.10, 14 December 2017

On 14 December 2017, the Assembly of States Parties (ASP) activated by consensus the crime of aggression amendments adopted during the Kampala Review Conference in 2010. It had been agreed that the amendments would not be activated until at least 30 States Parties ratified the amendments and until the ASP decided to activate them.

The crime of aggression was already listed in the Rome Statute as the fourth crime when the States Parties signed on to it, but the International Criminal Court (ICC) would only exercise jurisdiction over this crime once a provision would be “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.” So, while the crime of aggression has been on the books, as it were, it was not defined, and the States Parties effectively provided themselves (their political leaders and military elite – the usual suspects in waging war) an escape clause. The adopted Draft Resolution is a manifestation of this escape clause.

The issue dividing members of the ASP over this escape clause was whether the ICC would have jurisdiction over crimes of aggression committed by nationals of States Parties that did not ratify the aggression amendments. The “opt-out” camp (led by Lichtenstein and Switzerland) argued that the ICC should have jurisdiction in this situation, absent a formal declaration by the non-ratifying State Party that it has opted-out of the aggression amendments. The “opt-in” camp (led by France and the United Kingdom) argued that the ICC should not have jurisdiction unless the concerned State Party opts-in to the amendments.

There have been some excellent posts (e.g., here, here, here, here, and here) on what exactly was agreed, and how broadly or how narrowly the Draft Resolution should be interpreted in light of certain provisions of the Rome Statute. All tend to rate this as a historic decision by the ASP that perhaps did not go far enough. This is understandable, if the predicate to this debate is that the crime of aggression is essential to the overall purpose of the ICC.

Academics may think so, as perhaps would some of the vulnerable States Parties (those small in size and military might or neighboring aggressive states). However, considering what it has taken to just get this less-than-half measure of a Draft Resolution, an equally compelling argument can be made that this crime – other than branding an accused responsible for the crime of aggression – will add no more to combating impunity as do war crimes. There is the added value of looking beyond the ICC after securing a conviction to other venues in going after the state (as opposed to just the individual). But seriously, and I know to some it is even heretical to think in these terms, will there be fewer acts of aggression that lead to atrocities and will the ICC be more potent if it has the right to charge the crime of aggression?

My intention is not to go into a debate on the utility and necessity of the crime of aggression. No doubt, those who signed on to the ICC envisaged that it must be added to the crimes under the ICC’s jurisdiction. But just how committed or convinced were most of the States Parties that the crime of aggression had come of age? Considering that only 35 States Parties have ratified the aggression amendments (less than one-third of the States Parties to the Rome Statute) and the strong resistance from the opt-in camp (which ultimately resulted in the compromised language of the Draft Resolution), any enthusiasm that may have existed for adding the crime of aggression in the Rome Statute seems to be waning. And while I understand the imperative some feel in having this crime adopted, query whether it makes any difference in the short or long run. I think not.

So, what can we really glean from all of this? 

For starters, the legislative body of the ICC, the ASP, adopted a process that – for the sake of moving forward on issues viewed by some as burning – provides compromising mechanisms for opting-in or opting-out of key pieces of the legislation adopted. This may be essential to treaty-making, but is it appropriate for a criminal law and procedure regime? It may be a useful mechanism for the purposes of advancing forward and incrementally expanding the contours of international criminal justice – even if imperfect – but doesn’t cherry-picking which crimes a State Party is willing to accept diminish the character of the ICC as a judicial institution? The counter-argument is that something is better than nothing; that it is a process, a journey, an evolutionary awakening that takes time. And there is always a historical example to prove the point.

Merits aside, it seems that only a handful of States Parties are committed to being subject to the ICC’s jurisdiction over the crime of aggression, and presumably, only when acting against like-minded States Parties. And when viewing who they are, it is reasonably safe to say that these states are the least likely to commit crimes of aggression in waging war against one another. But what can be said of the rest – not to mention those who have not signed on to or ratified the Rome Statute, such as the three big permanent members of the UN Security Council (the United States, China, and Russia)?

One way to put it is that they reserve the right to commit crimes by way of aggression in waging war unlawfully under the UN Charter. I realize that I am putting it crudely. But, if one starts with the premise that there is such a crime as the crime of aggression, and if it was incorporated into the Rome Statute (albeit subject to delay mechanisms in implementation), then by not opting-in, there is no other way of interpreting this failure to commit – unless the Kampala definition is deemed unsuitable (which does not seem to be the case). It is not as if this was a rushed process. The States Parties have had seven years to brew on this – and brew they must have. Those leading the opt-in camp must envisage (and thus wish to avoid) the possibility of having its political leaders and military elite (and others) being charged with crimes of aggression – perhaps because of their geo-political involvement in peacekeeping missions or involvement in regime-change operations disguised as responsibility to protect (R2P) missions or searching for suspected weapons of mass destruction (WMDs).

Another way of putting it, and this is by way of analogy, is that the opt-out group have effectively singed a non-aggression pact. I know this is a simplistic – and some would say absurd – way of looking at this momentous document that activates the jurisdiction of the ICC over the crime of aggression, but how better to characterize it? The states in the opt-out group do not intend to wage war against each other (imagine the probabilities of Switzerland attacking Liechtenstein). By ratifying the aggression amendments, these states are reaffirming their commitment against committing acts of aggression by waging unlawful war. The activated Draft Resolution thus serves, in no small measure, as a pact among the ratifying states. Non-aggression pacts generally do provide for simulative measures in the event of a breach by any one State Party to the pact. Since part of this pact binds the States Parties that ratified it to the ICC’s jurisdiction over the crime of aggression, charges could flow from alleged violations. The same cannot be said for the States Parties that did not join this pact.

Just some casual musings in my attempt to make sense of it all.


Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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