RECENT DEVELOPMENT IN INTERNATIONAL CRIMINAL LAW:

Decoding the Verisimilitude of Crime of Aggression

It was not long before individuals as victims of crimes of aggression or perpetrators of crimes
of aggression were recognised, nor was there a detailed interpretation of the human right to
life under international criminal law and international laws. The crime of aggression is one of
the most interesting substantive crimes within International Criminal Law. The reason behind
it was the distinct lack of agreement on its definition and even the extent to which the ICC
had jurisdiction over the crime of aggression during the 1998 Rome Conference. It was not
until 2010 that it was recognised as the fourth crime to be tried at the ICC and added to Rome
Statute 2002.

This paper will focus on recent developments, specifically two significant developments in
international criminal law that occurred recently in 2018. It will also delve into the current
Ukraine-Russia crisis in connection with the development regarding the crime of aggression.

History of the Crime of Aggression

As history, the crime of aggression has been placed within international criminal law before
recognising genocide as a substantive crime under International Criminal Law. An alternative
to the crime of aggression was found in the Nuremberg Charter and Tokyo Charter; however,
they were described as “Crime against peace.” Art. 6 of the Nuremberg Charter outlined the
definition of a crime against peace as “planning, reparation, initiation or waging of a war of
aggression, or a war in violation of international treaties, agreements or assurances; or
participation in a Common Plan or conspiracy for the accomplishment of any of the
foregoing."1 These definitions of the crime of aggression were also defined in UN General
Assembly Resolution 3314, adopted in 1974.2 However, the crime of aggression was not
included in the statute of the ad hoc tribunals, the International Criminal Tribunal of
Yugoslavia or the International Criminal Tribunal of Rwanda, during the 1990s. Hence, it can
be found that there was no development in the crime of aggression during the second part of
the historical development of international criminal law. During the adoption of the Rome
Statute, there was an intense disagreement between the state parties over the crime of
aggression and its jurisdiction. Initially, it was defined in Art. 5 of the Rome Statute, which
states, “The court shall exercise jurisdiction over the crime of aggression once a provision is
adopted by articles 121 and 123 defining the crime and setting out the conditions under which
the Court shall exercise jurisdiction with respect to this crime. 3 Such a provision shall be
consistent with the relevant provision of the Charter of the United Nations.” Thus, it was very
much controversial until the 2010 Review Conference.

Adoption of Crime of Aggression by the International Criminal Court

When the Rome Statute was enacted in 1998, aggression was one of the four crimes
mentioned in the treaty; nevertheless, the fulfilment of the definition and terms of jurisdiction
was postponed to negotiate further. After that, the definition of the crime of aggression was
adopted by the member states of ICC in the 2010 review meeting in Kampala, along with the
extent of jurisdiction of the court, which was finally updated in 2017 b the Assembly of
States Parties. After ten days of intensive diplomatic negotiation, the resolution on the crime
of aggression was adopted on 15 December 2017.4

The activation of the jurisdiction of the ICC over the crime of aggression has brought a
revolutionary move to persecute the leaders who wage aggressive wars and make them
criminally liable at an individual level.

Definition of Crime of Aggression

After 2010, the crime of aggression was added and defined under Art 8 bis of the Roman
Statute of the International Criminal Court and described in the following way:

It means a person doing any of the following four activities:

1
Charter of the Nuremberg Tribunal, 1945-6, art. 6.
2
UN General Assembly, Definition of Aggression, A/RES/3314, (14 December 1974).
3
Rome Statute of the International Criminal Court, 1998, art 5.
4
Coalition of the International Criminal Court. (2017, December 15).
  Preparation
 Execution
 Initiation
 Planning

Further, it is written that the person should be in such a position to direct or control a State’s
military or political action to commit an act of aggression. That crime should be the one that
constitutes the Charter of the United Nations manifest violation and shall be judged by the
crime’s scale, gravity, or character. One thing that should be noted here is that this definition
is given only for the particular statute under which it is defined, i.e. Rome Statute of the
International Criminal Court.

The next question that comes to mind after going through the above definition is what does
‘act of aggression mean then. 

It is defined as an act done by State wherein it uses:

 Armed forces against the territorial, sovereign integrity or

 Another state’s political independence or
 In any other way that is violative of the United Nations Charter. 5

There is also the dual nature of ICC’s mandate, firstly the ending of impunity or escapism
from punishment for crimes done at an international level for upholding the international
criminal law and sending the message across the world to the leaders that those who commit
crimes under their jurisdiction will not get away with it—secondly, preventing the situation
by timely intervening where there is an indictment of future crimes within its jurisdiction or
where crimes like that are already being committed.

Exercise of the jurisdiction over the crime of aggression

The provision of the jurisdiction’s exercise is given under Article 15 bis 6 and Article 15 ter7
of the Rome Statute of the International Criminal Court, which is discussed as follows:

Article 15 bis

5
Rome Statute of the International Criminal Court, 1998, art 8 bis.
6
Id., art. 15 bis.
7
Id., art. 15 ter.
Under this specific article, the crime of aggression’s exercise of jurisdiction with respect to
state referrals and proprio motu (investigation initiated by the prosecutor) are discussed,
which is as follows:

 The court can only have jurisdiction over crimes of aggression committed one year
after thirty States parties have ratified or accepted the amendments.

If the prosecutor determines that there is a legitimate basis to pursue an inquiry into a
crime of aggression, he or she must first determine if the Security Council has determined
that the State in question has committed an act of aggression. The prosecutor shall inform
the United Nations Secretary-General of the position before the court, along with
providing any documents and information that are relevant.

 After a determination by the Security Council, the prosecutor can investigate the
matter. The prosecutor may proceed without the determination if it is not made within
six months after the notification’s date. The only condition, in this case, is that the
Pre-Trial Division must have authorised the investigation to be commenced.
 An external organ’s judgment of an act of aggression shall not be prejudicial to the
court’s findings under the Statute.8

Article 15 ter

Under this specific article, the exercise of jurisdiction of the ICC is discussed about a UN
Security Council referral. According to it, if the UN Security Council refers to a situation, the
prosecutor has the authority to investigate any of the four core crimes, including the crime of
aggression, committed in any territory by any state’s citizen.9

The Second Development: General Comment 36 added by UN Human Rights

Committee

With its recent General Comment No. 36 on the right to life provided under Art 6 of the
International Covenant on Civil and Political Rights 10, the Committee has expanded the
jurisprudence on the right to life by advocating on economic social and economic rights as a
new enforcement tool and justify human rights at both national and international level. The
8
Supra note 6, art. 15 bis.
9
Supra note 7, art 15 ter.
10
International covenant on civil and Political Rights, 1966, art. 6.
United Nations Human Rights Committee acknowledges that any deprivation of life due to an
act of aggression violates Article 6 of the International Covenant on Civil and Political
Rights, which identifies a previously ignored class of victims.11

Article 6, paragraph 1 of the International Covenant on Civil and Political Rights enshrines
the right to life as the inherent right to life vested upon every human being; the laws shall
protect that and that no human being’s life shall be unjustly deprived. The right to life is
enshrined under Article 3 of the Universal Declaration of Human Rights (UDHR) 12 as
“everyone has the right to life, liberty, and the security of person.” Hence, an act of
aggression will also violate Art. 6 ICCPR and Art. 3 of UDHR.

Recent issues and development concerning the crime of Aggression

As the International Criminal Court (ICC) enters its third decade, the Court is at an inflexion
point. So, too, is the criminalisation of aggression. However, while the catalyst for these
pivotal moments is the same, the trajectories differ. Following the jubilation at Rome and the
radio of the Statute’s entry into force, it did not take long for the ICC’s difficulties to mount.
In the Court’s first two decades, convictions have been few and controversial, key arrest
warrants have gone unfulfilled and widely ignored, high-profile cases have collapsed,
investigations appear to have been undermined, cooperation has been withheld, neo-colonial
bias has been alleged, states have withdrawn or threatened to, and the world’s most powerful
state has brazenly attacked the institution (with the Court initially cowering in response).
When the third chief prosecutor, Karim Khan, began his term in June 2021, the Court was in
a seemingly intractable malaise. Among the predicaments were two completed preliminary
examinations held in indefinite suspension, not because Khan’s predecessor Fatou Bensouda
had deemed investigations unwarranted, but because proceeding would strain an
overextended institution.13

One of those situations involved alleged war crimes and crimes against humanity in Ukraine,
where there was an armed conflict in Donetsk and Luhansk and a belligerent Russian
occupation of Crimea. The suspension did not last long.

11
Janini Dill, General Comment 36: A Missed Opportunity? Just Security, Feb 2019.
12
Universal Declaration of Human Rights, 1948, art. 3.
13
Tom Dannenbaum, The ICC at 20 and the Crime of Aggression, Völkerrechtsblog, 14.07.2022.
On 24 February 2022, Russia escalated its aggression into a full-scale invasion. Almost
immediately, the new Prosecutor announced his intention to request Pre-Trial Chamber
authorisation to open an investigation, noting that a State Party referral would obviate that
procedure. Soon, States Parties began to make ad hoc contributions at unprecedented levels.
Even the United States, having only recently walked back sanctions on Bensouda and her
colleague Phakiso Mochochoko, was prompted to adopt an openly supportive posture. This is
anything but a moment for triumphalism, and there is much to critique. Nonetheless, a
renewed sense of institutional purpose is palpable, with Khan prominent in investigating war
crimes, crimes against humanity, and possibly genocide in Ukraine.

And yet, there is a gap. The crime of aggression—the crime without which none of the others
would be occurring — is beyond the ICC’s reach. This is not due to a drafting oversight.
Powerful states, including those now calling for Russian leaders’ accountability, insisted on a
crime-specific jurisdictional straitjacket precisely so that the Court could not sit in judgment
of an aggressive war perpetrated by a permanent member of the Security Council. The point
was to create the incapacity that now precludes ICC scrutiny of Russia’s resort to war.

Aggression has long been a fraught issue at the ICC. Battles over the place of aggression
continued, first in negotiations regarding an amendment incorporating the crime (agreed in
Kampala in 2010) and then in negotiations over whether to activate it (agreed in New York in
2017; effective in 2018). Despite that jurisdictional deficiency, the Kampala and New York
agreements included vital achievements. Nonetheless, just as the invasion of Iraq in 2003
immediately exposed the implications of the placeholder reference to aggression in the
original Statute, Russia’s aggression against Ukraine has spotlighted the moral bankruptcy of
the post-2018 jurisdictional framework.

Here, too, there is an inflexion point. Ukraine and other states have initiated domestic
investigations of aggression. Separately, creative efforts to establish one or another form of
the special international tribunal for prosecuting the crime are underway. Ukraine’s
preference appears to be for an international tribunal evocative of Nuremberg. Amending the
ICC Statute to General Assembly referrals (Haque) would offer that weight while ensuring a
framework for future cases. It would be the optimal path.14

14
Id at 5.
If such efforts fail, domestic avenues will be pursued. Ukrainian courts have already issued
aggression convictions in two cases before the 2022 escalation, albeit with limited
transnational resonance due to one involving an absentia trial and the other omitting the
leadership element of the crime. As further investigations advance, third states should support
Ukraine’s domestic pursuit of well-founded aggression cases with investigative assistance,
the transfer of evidence, the recognition of lawful arrest warrants, and explicit endorsement.
Doing so would emphasise the grounding of Ukraine’s response in international law and
rebuff attempts to characterise it as victor’s justice (on that concern, see here). Indeed, the
response of third states can play a crucial role. The overwhelming majority of states have
recognised that Ukraine has the law on its side. The upshot is that Ukraine may not only fight
and kill in self-defence but also bring that law to bear on those responsible.

Support for Ukraine’s exercise of domestic jurisdiction over the crime of aggression may also
spotlight the empowering (and not only constraining) effect of criminalising aggression on
the codifying state. That could stimulate codification efforts. Plainly, Criminalising
aggression would not prevent the codifying state from resorting to aggressive war (art. 353).
However, the codified risk of criminal accountability can shift the dynamics of government
decision-making at the margins, empowering anti-war voices and potentially provoking
higher-level resistance or resignation. Recognition of aggression’s legal relevance in those
areas is growing, but precedent establishing how domestic institutions should evaluate the jus
ad Bellum is sparse. Ultimately, if a well-structured international tribunal proves nonviable,
discarding the domestic alternative would be a mistake. International support for Ukraine in
that respect would have immediate and long-term benefits.

These developments may provide a way to a better world as far as criminal law at an
international level is concerned. However, the organisations and the ICC must take utmost
diligence in imposing liability on someone or deterring someone because obligations are not
fulfilled. As much as doing the right thing is essential, focusing on not doing any wrong thing
is equally important. Along with concentrating on upkeeping the laws, the focus should be on
two points no innocent gets convicted, and no convicted individual is convicted, inconsistent
with legal backing.