Crimes of Aggression

Arkadeep Pal.
 Definition.
There are two definitions one must understand to understand the concept of
Crime of Aggression, -
1. Article 8 bis (1) of the Rome Statute defines a crime of aggression as where
a person who is in a position of power to exercise effective control or direct
the political or military action of a State and such person plans, prepares,
initiates or executes an act of aggression which because of its character,
gravity, and scale constitutes a violation of the United Nations Charter.
2. Article 8 bis (2) of the Rome Statue defines act of aggression as the use of
armed force by a State against the sovereignty, political independence, or
territorial integrity of another State, or in any other manner inconsistent
with the United Nations Charter.
Historical Background.
• Historically, the concept of crime of aggression and crime against peace have been co-joined, or
read simultaneously. However, there is an important distinction. An act of aggression can only
be a individual responsibility; whereas Crimes against Peace can be levied upon an entity, state,
or group.
• The first time the concept of “act of aggression” was formally envisioned was in the Charter of
the IMT-Nuremberg, under Article 6(a) which gave the Tribunal jurisdiction 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 the foregoing.”
• The same clause was duplicated in the IMT For the Far East (Tokyo Trials) under Article 5(a)
• The concept of crime against peace led to the evolution of the concept of crime of aggression.
• In the IMT-Nuremberg, it was stated that - “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.”
Essentials.
• It is a crime of leadership – the perpetrator has to be a leader who
can control the military, i.e. a military or political leader.
• Secondly, the said leader(s) should be involved in the planning,
coordination, and execution of the act.
• Third, only those acts which are defined as an act of aggression under
the General Assembly Resolution of 3314 shall be prosecutable under
Article 8 bis (1) of the Rome Statute.
• It is important to understand that unless all 3 of the parameters have
been met, an act cannot be an act of aggression, nor be prosecuted
as a crime of aggression.
General Assembly Resolution of 3314
The following acts will be considered as an act of aggression, under GA Resolution 3314
(a) The invasion or attack by the armed forces of a State of the territory of another State, or any
military occupation, however temporary, resulting from such invasion or attack, or any annexation
by the use of force of the territory of another State or part thereof;
(b) Bombardment by the armed forces of a State against the territory of another State or the use
of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets
of another State;
(e) The use of armed forces of one State which are within the territory of another State with the
agreement of the receiving State, in contravention of the conditions provided for in the agreement
or any extension of their presence in such territory beyond the termination of the agreement;
(f) The action of a State in allowing its territory, which it has placed at the disposal of another
State, to be used by that other State for perpetrating an act of aggression against a third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries,
which carry out acts of armed force against another State of such gravity as to amount to the acts
listed above, or its substantial involvement therein.
Kampala Amendments.
• It is important to understand that before the 2010 amendment, or the Kampala
Amendments of June 2010, Crimes of Aggression was not defined under the Rome
Statute.
• The Amendment defined Crimes of Aggression as was provided under General
Assembly Resolution – 3314, and incorporated Crimes of Aggression and Act of
Aggression under Article 8 bis.
• While the amendments come into force one year after being ratified, the amended text
says that only crimes of aggression committed one year or more after the thirtieth
ratification are within the jurisdiction of the Court. Furthermore, a decision had to be
taken by the Assembly of States Parties with a two-thirds majority vote after 1 January
2017 to actually activate jurisdiction. On 26 June 2016, the State of Palestine became
the 30th state party to ratify the amendment, thus ensuring that the first condition
would be fulfilled. On 14 December 2017, the Assembly of States Parties adopted a
resolution fulfilling the second condition, activating the Court's jurisdiction over the
crime of aggression as of 17 July 2018.
Application of Article 8 bis and Exercise of
Jurisdiction of the ICC
The ICC can exercise Article 8 bis in two prescribed manner as per the
Rome Statute, -

1. Article 15 bis – State Referral (Proprio Motu); or

2. Article 15 ter – Security Council Referral
Individuals found guilty of crimes of
aggression.
• Till date, only 31 individuals have been convicted on the charge of
crime of aggression, and all of them have taken place in either the
Nuremberg Trial, or the Tokyo Trial.
• Famous people to have been convicted under a charge of crime of
aggression are, -
1. Rudolf Hess – Deputy Fuhrer of the Nazi Party
2. Hermann Goring – President of the Reichstag and Reichsmarschall
of the German Armed Forces.
3. Hideki Tojo – Prime Minister of the Kingdom of Japan
4. Shunroku Hata – Field Marshal of the Imperial Japanese Army
Criticism of the Definition.
• Only factors in the old definition of war, and does not take into
account the role of non-state actors such as rebel militias, or terrorist
outfits.
• Only factors in traditional method of warfare, and does not account
for modern warfare techniques such as biological warfare or
Cyberwarfare.
Conclusion.
• Due to the extremely recent ratification of the concept of crime of
aggression, there is little to no jurisprudence or precedence around it
except that which was developed during the IMT Tribunals.
• Section 8 bis (2) is the first instance in history of the world wherein
individual responsibility was imposed on political or military leaders for
the planning, preparation, execution of a certain kind of act.
• However many scholars have also opined that due to the vague definition
of the terms – planning, preparation, execution, etc., it would be
increasingly difficult to bring any tangible action against any military or
world leader, making the concept inherently weak under International
Law.
Questions?