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Revisiting the Role of the
Security Council Concerning
the International Criminal
Court’s Crime of Aggression
Jennifer Trahan

Abstract
This article revisits the role of the United Nations (UN) Security Council in making
referrals of the crime of aggression to the International Criminal Court (ICC). It
examines the increase in significance of the role of the Security Council caused by
the apparent jurisdictional limitations in the resolution activating the ICC’s jurisdic-
tion over the crime when cases are initiated through State Party referral or proprio
motu. Since these jurisdictional limitations seemingly decrease the possibility for
ICC crime of aggression cases to be initiated without Security Council referral,
they also render the Prosecutor less able to play a role in prevention or providing
early warning regarding the crime. This increases the need for the Security Council
to fulfil this prevention or early warning function, which is entirely appropriate
given the Security Council’s primary responsibility under the UN Charter for the
maintenance of international peace and security. The General Assembly may, al-
though to a lesser extent, be able to play a similar role.

1. Introduction
On 14 December 2017, the International Criminal Court’s (ICC) Assembly of
States Parties (ASP) activated the ICC’s jurisdiction over the crime of aggression
effective 17 July 2018.1 This was an extremely important accomplishment,

 Clinical Professor, NYU, Center for Global Affairs. The author is most appreciative of comments
received from Claus Kre, Andras Vamos-Goldman, Roger S. Clark and Jutta
Bertram-Nothnagel, as well as research assistance from Taylor Ackerman and Alejandro
Garcia. [[email protected]]
1 ICC-ASP/16/Res.5, 14 December 2017, available online at https://asp.icc-cpi.int/iccdocs/asp_docs/
Resolutions/ASP16/ICC-ASP-16-Res5-ENG.pdf (visited 22 May 2019) (‘Activating Resolution’).
See C. Kre, ‘On the Activation of ICC Jurisdiction over the Crime of Aggression’, 16 Journal of
International Criminal Justice (JICJ) (2018) 1.
............................................................................
Journal of International Criminal Justice 0 (2019), 1^13 doi:10.1093/jicj/mqz022
ß The Author(s) (2019). Published by Oxford University Press. All rights reserved.
For permissions, please email: [email protected]
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representing the continuation of a long, historic trajectory of trying to limit re-
course to aggressive use of force and thereby supporting the core norm in
Article 2(4) of the United Nations (UN) Charter,2 and completing the ICC’s
founding Rome Statute.3 It was not, however, the activating decision many
States Parties had wanted, as the jurisdictional regime many thought had
been agreed on in Kampala at the 2010 Review Conference appeared signifi-
cantly restricted in the December 2017 Activating Resolution. (Other States
Parties regarded the Activating Resolution as reflecting what had been agreed
upon in Kampala, as in the years between the 2010 Review Conference and
2017 activation a dispute had developed concerning how jurisdiction should
be read).4 Regardless of who had the correct view, and whether the jurisdic-
tional regime reflected in the Activating Resolution represented what had
been agreed, a fairly limited jurisdictional regime appears to have been estab-
lished under the Activating Resolution (unless and until a challenge is success-
fully pursued).5 Pending such a challenge, and given the apparent limitations
on jurisdiction when an investigation and/or prosecution can be initiated by
State Party referral or the Prosecutor acting on his or her own (proprio motu),
it appears appropriate to revisit what may be possible through the other way
in which ICC crime of aggression cases may reach the Court, namely through
UN Security Council referrals.

2. How the Activating Resolution Increases Reliance on

Security Council Referrals
During the negotiations on the crime of aggression (conducted first during
Preparatory Commission meetings after the Rome Conference, then before the
Special Working Group on the Crime of Aggression, and, finally, at the 2010
Kampala Review Conference), there had always existed a tension between
those who wanted extensive (even exclusive) referrals by the Security Council
as the way for ICC crime of aggression cases to be initiated (a position fre-
quently articulated by some permanent members of the Security Council),
and many other ICC States Parties who wanted to ensure another route.6

2 See Art. 2(4) UN Charter.

3 Rome Statute of the International Criminal Court, 18 July 1998, UN Doc. A/CONF.183/9 (ICCSt.,
or Rome Statute). For discussion of the historic nature of the accomplishment, see e.g. D.
Donat Cattin, International Criminal Justice Day 2017, ‘Striving for Universality of the Rome
Statute: The Criminalization of Aggressive War-Making and Ensuring Greater Protection for
the Victims of the Most Serious Crimes’, 17 July 2017, UN Headquarters.
4 A more extensive exploration of the dispute as to jurisdiction, and whether the Activating
Resolution’s limitation on jurisdiction is valid, is in J. Trahan, ‘From Kampala to New York ç
The Final Negotiations to Activate the Jurisdiction of the International Criminal Court Over
the Crime of Aggression’, 18 International Criminal Law Review (2018) 197.
5 See infra note 48 (how such a challenge might arise).
6 During early negotiations, a role for an outside actor such as the General Assembly or
International Court of Justice was debated, but eventually it was decided that (in addition to
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Indeed, the Kampala crime of aggression amendment (now part of the ICC
Statute) reflects both routes. Article 15ter contains the jurisdictional regime
for cases initiated by Security Council referral, and Article 15bis contains the
jurisdictional regime for cases initiated by States Party referral or proprio motu.
The balance between the two provisions was what seemingly altered after
Kampala with a very restrictive reading of Article 15bis apparently enacted in
the Activating Resolution,7 certainly more restrictive than the ICC’s jurisdic-
tional regime concerning genocide, crimes against humanity, and war crimes.8
The greater possibility there is for cases to be initiated under Article 15bis, if
the crime of aggression occurs or appears to occur, the lesser the need to rely
on the Security Council to make referrals under Article 15ter. Conversely,
when the ability for cases to be initiated under Article 15bis is restricted (as it
appears to be under the Activating Resolution), it increases the need for
Security Council referrals if future cases involving the crime of aggression are
to be prosecuted.
During the negotiations many States Parties appeared motivated to ensure
that crime of aggression cases could be initiated without Security Council re-
ferral. The often unspoken subtext was the concern that Security Council
voting can be made on a political basis, subject to the veto power of the per-
manent members. This then results in inconsistency in the making of ICC re-
ferrals, with only two having been made to date (Darfur, Sudan, and Libya),9
and other equally meritorious referrals neglected (Syria10 and Myanmar11).
Relying on a political body to make referrals, which then partly controls the
docket of a judicial institution, was seen by most as far from ideal.
Thus, for many states, the whole activation process left a far from perfect
situation as to the ICC’s jurisdiction over the crime of aggression. However,
the alternative was probably no activation of any ICC jurisdiction over the

the Security Council) the ICC could make the determination for itself whether, for ICC pur-
poses, a state had committed an ‘act of aggression’ ç that is, for purposes of an ICC case
against an individual for the crime of aggression.
7 See Activating Resolution, para. 2. The details of the different readings of jurisdiction under Art.
15bis are explored in Trahan, supra note 4.
8 For example, under the Kampala crime of aggression amendment, non-States Parties are
excluded from the jurisdictional regime absent Security Council referral. See Art. 15bis(5)
ICCSt. That is not the case for genocide, crimes against humanity, and war crimes, as to
which if the national of a non-State Party commits the crime in the territory of a state party
there is ICC jurisdiction. See Art. 12(2)(a) ICCSt. The Rome Statute suggested a different jurisdic-
tional regime could be created as to the crime of aggression. See Art. 5(2) ICCSt. (agreed at the
Review Conference to be deleted). (An interesting theory that warrants further consideration,
however, is that Art. 5(2) ICCSt. only empowered negotiation of different ‘conditions under
which the Court shall exercise jurisdiction’ over the crime of aggression, but did not empower
States Parties to negotiate a different jurisdictional regime ç raising a possible question as to
the validity of excluding non-States Parties under Art. 15bis). 11 March 2019, Trahan e-mail ex-
change with Roger S. Clark.
9 SC Res. 1593 (2005); SC Res. 1970 (2011).
10 S/2014/348 (vetoed by the Russian Federation and China).
11 No resolution proposing a referral to the ICC of the situation in Myanmar has been tabled due to
the anticipated exercise of the veto by China.
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crime for the foreseeable future, as the negotiations during the 2017 ASP ap-
peared largely stalemated; eventually, a weak jurisdictional regime began to
emerge as the preferable alternative to no outcome.12

3. The Security Council’s Role in Making Referrals

Under Article 15ter, the Security Council may make referrals covering the
crime of aggression, and the Court has been able to receive them (i.e. had its
jurisdiction activated) since 17 July 2018. The unanswered question, of course,
is whether the Security Council will make such referrals. This, of course, de-
pends, first, on what situations of aggression will arise in the future, and,
second, on the political context of the situation. For instance, when on 25
November 2018, Russia seized three Ukrainian ships off the coast of Crimea,13
this may or may not have met the ICC’s gravity threshold.14 But whether or
not it did quickly became irrelevant for ICC purposes, because a situation invol-
ving a non-State Party did not fall within ICC jurisdiction under Article
15bis15 and, politically, the situation could not be referred under Article 15ter.16
Viewing this more positively, absent a situation where nationals of a perman-
ent member (or one of its close allies) appear potentially implicated in the
crime (or a permanent member has made a commitment not to refer), a situ-
ation could be referred. This actually represents a significant potential to deter
the crime of aggression, even given the political realities of how Security
Council voting operates. While Article 15bis is only relevant to States Parties
(and, even then, does not encompass all States Parties),17 a referral under
Article 15ter could involve a State Party, a non-State Party, or a situation invol-
ving both18ç meaning, it could potentially have nearly global reach.

12 Part of the stalemate was driven by the desire for activation by consensus, which then meant
any State Party essentially held veto over the negotiations. During the 2017 ASP negotiations,
those insisting on a restricted jurisdictional regime under Art. 15bis, and accordingly more reli-
ance on Art. 15ter referrals, were (unsurprisingly) led by the two permanent member of the
Security Council which are also ICC States Parties, the UK, and France.
13 ‘Russia-Ukraine Tensions Rise after Kerch Strait Ship Capture’, BBC, 26 November, 2018, avail-
able online at https://www.bbc.com/news/world-europe-46340283 (visited 22 May 2019).
14 The Russian use of force was a manifest violation of the Charter by its character, but not neces-
sarily also a manifest violation by its gravity and scale within the meaning of the Rome
Statute. See Art. 8bis ICCSt. (covering a ‘manifest’ UN Charter violation by its ‘character, gravity
and scale’).
15 Art. 15bis(5) ICCSt.
16 Russia, as a permanent member of the Council, holds veto power over referrals. See also M.
Politi, ‘The ICC and the Crime of Aggression’, 10 JICJ (2012) 267, at 274 (acknowledging ‘the pri-
vileged position of the permanent members of the Council and their power to veto any decision
aimed at triggering the Court’s jurisdiction over alleged acts of aggression committed by their
nationals or on their territory’). The seizure of the ships did not occur in isolation, but the
same result attaches regarding the broader context.
17 See Trahan, supra note 4 (dispute as to how to read Art. 15bis).
18 See D. Akande and A. Tzanakopoulos, ‘Treaty Law and ICC Jurisdiction over the Crime of
Aggression’, 29 European Journal of International Law (2018) 939, at 953 (‘In the case of referrals
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The possibility of such referrals is certainly a positive development
insofar as it could provide fairly extensive deterrence.19 While the rule of
law should operate apolitically, to this author a Darfur referral is valuable
even if other equally meritorious referrals are not made. (A referral accom-
panied by Security Council follow-up to ensure the ICC can proceed would
prove even more valuable.) 20 Note that the politicization of the referral pro-
cess does not of course stem from the Rome Statute, but from Security
Council voting procedures under the UN Charter.21 That is, Article 13(b) of
the ICC Statute does not create Security Council referral power, nor does
Article 16 create Security Council deferral power; the powers of the Council
are created by the UN Charter, which the Rome Statute cannot expand or
limit.22
In the future, should the crime of aggression appear to be committed, the
Security Council should utilize its referral power; only then will there be a
credible possibility of future deterrence under Article 15ter. The potential for
deterrence could, by contrast, be squandered if a permanent member were, for
example, to let it be known that it would reflexively block all crime of aggres-
sion referrals due to antipathy towards the ICC or towards prosecuting the
crime of aggression. (Because Security Council referrals will not operate in a
neutral fashion, it is still preferable for cases to be initiated under Article
15bis, although this likely requires many more States Parties to ratify the
crime of aggression amendment before it can become a more effective route
with significant potential for deterrence.)23

of situations by the UN Security Council, the Court will have jurisdiction over persons within
the situation referred to the Court. They may be nationals of ICC states parties that have ratified
the Kampala Amendments; nationals of ICC states parties that have not ratified those amend-
ments or, indeed, nationals of non-parties’.).
19 It will of course be difficult (maybe impossible) to know if deterrence is operating because it
means the crime is not occurring, which is extremely difficult to demonstrate. There is emer-
ging scholarship suggesting deterrence has worked to some extent regarding international
criminal tribunals. See e.g. J.R. McAllister, ‘On International Crimes and Punishment:
Lessons on Deterring Atrocities from the Yugoslav Tribunal’, International Security (forthcom-
ing 2019).
20 See e.g. Institute for Security Studies,‘Cooperation with the ICC: What the Security Council and
ASP Must Do’, December 2018, for recommendations as to follow-up on referrals.
21 See Art. 27(3) UN Charter.
22 The Rome Statute provides the Prosecutor, ICC judges, etc. with directions on what to do in the
event of a referral. Similarly, the crime of aggression amendment did not empower the
Security Council to make referrals. Art. 15bis, combined with Art. 13(b), allows the Court to ad-
dress them.
23 It is also possible deterrence can be created by ICC States Parties (as well as non-States Parties)
implementing the crime of aggression into their domestic criminal codes. Depending on the
jurisdictional regime utilized by the state, there could be potentially broad jurisdictional
reach. Some states and non-States Parties also have earlier domestic laws criminalizing aggres-
sion. See Handbook, ‘Ratification and Implementation of the Kampala Amendments to the
Rome Statute of the ICC: Crime of Aggression, War Crimes’, November 2012, 14.
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A. Must the Security Council Determine ‘Aggression’ Has Occurred and
Would that Bind the ICC?
A few questions may arise as to how Security Council referrals will operate.
First, questions might arise on whether the Security Council would need to de-
termine that a situation involved aggression by one or more states in order to
make a referral, and whether such a determination would bind the ICC. (The
crime of aggression always involves two components ç an act of a state and
an individual act by a state leader.) The answer to both questions is in the
negative.
There is nothing contained in Article 15ter that the Security Council must
make any affirmative finding regarding aggression in order to make a refer-
ral.24 Moreover, Article 15ter(4) provides that ‘[a] determination of an act of ag-
gression by an organ outside the Court shall be without prejudice to the
Court’s own findings under this Statute’.25 Thus, while the Security Council
could state in the referral resolution its determination whether a state (or mul-
tiple states) committed aggression, such determinations would not bind the
ICC,26 which would make an independent determination. This is necessary to
preserve the Court’s judicial independence. If the Council’s determination were
binding, it would not permit the ICC to adjudicate all the elements of the
crime by proof beyond a reasonable doubt and would thus fail to preserve the
presumption of innocence. This issue was expressly debated in Princeton
(where meetings of the Special Working Group were held), with at least the
UK’s representative arguing that the Security Council’s determination would
bind the ICC, and many States Parties taking the opposite view,27 which then
became memorialized in Article 15ter(4), with a parallel provision in Article
15bis(9). That is, also where a case is initiated through State Party referral or
proprio motu, no outside determination regarding aggression ç for example,
by the International Court of Justice (during a contentious case or advisory

24 See N. Strapatsas ‘The Practice of the Security Council Regarding the Concept of Aggression’, in
C. Kre and S. Barriga (eds), The Crime of Aggression: A Commentary (Cambridge University
Press, 2018) 178, at 181 (‘A rticle 15ter of the Rome Statute may give the impression that the
Security Council must make a determination of the existence of an act of aggression when
making a referral to the prosecutor of a situation where a crime of aggression appears to have
been committed. However, the substance of this article reveals that the Security Council is
not actually required to do so. During the negotiations on the provisions on the crime of ag-
gression, this approach was commonly referred to as the Security Council giving the ‘‘green
light’’ in its referral to the prosecutor.’); Politi, supra note 16, at 274 (‘:::not only is the Council
not bound to determine that a state has committed aggression, but there is also no requirement
that the Council must mention aggression as one of the crimes that could have been perpe-
trated in the territory or by a national of such a state.’).
25 Art. 15ter(4) ICCSt.
26 See e.g. Handbook, supra note 23, at 11 (‘Paragraph 9 confirms that a determination of an act of
aggression by an external organ, such as the Security Council, is not binding on the Court,
thereby protecting the existing due process standards contained in the [Rome] Statute’.).
27 Author recollection of debates during the Special Working Group on the Crime of Aggression,
Princeton, NJ.
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opinion), the Security Council, or the General Assembly ç would prove deter-
minative in a case before the ICC.28

B. May the Security Council Refer only the Crime of Aggression to the ICC?
A question could also arise whether the Security Council will be able in a given
situation to refer only the crime of aggression, or, only the other three core
crimes (genocide, crimes against humanity, and war crimes), or whether a re-
ferral necessarily covers all four crimes.
Here, the technical answer is that, if seen from the perspective of Chapter VII
of the UN Charter, the Security Council may refer what it wants. If the matter
is considered under the Rome Statute, however, it must be borne in mind that
Article 13(b) provides for the referral of a ‘situation’. A ‘situation’ suggests the
whole situation in a state, and not a ‘situation’ minus certain crimes. Thus, just
as the Security Council did not refer particular crimes in the situations of
Libya or Darfur,29 it should not refer particular crimes to the Court in future.
Of course, this is a question of first impression, and the Security Council could
refer specific crimes; the ICC would then need to determine how to address
such a referral given that Article 13(b) of the ICC Statute states that it only re-
ceives referrals of a ‘situation’.30

C. May the Security Council Refer a Situation Involving Aggression

Committed Prior to 17 July 2018?
A question might arise as to whether the Security Council could refer a situ-
ation involving aggression committed prior to 17 July 2018. While, again, tech-
nically, Security Council power derives from the Charter and the ICC States
Parties cannot impose temporal restriction on the Council, Article 15ter stipu-
lates that the ICC’s ability to exercise jurisdiction over the crime of aggression
commenced only after certain requirements were fulfilled ç that is, ‘one year
after the ratification or acceptance of the amendments by thirty States
Parties’ and ‘subject to a decision ::: taken after 1 January 2017’ by the ICC’s
Assembly of States Parties,31 whichever was later.32 (The later date was the

28 This result is also necessitated because while the ICC will apply the definition of the crime of
aggression in Art. 8bis ICCSt., an outside body might not even be using the Rome Statute defin-
ition of the crime. There are also ICC gravity requirements that another body would not be
applying. See Art. 53(1)(c) ICCSt.
29 The Security Council did attempt to carve out certain nationals from the ambit of its referrals.
See discussion in infra notes 37^39 and accompanying text.
30 The referral of only specific crimes would also interfere with the independence of the
Prosecutor and ICC judges, who do not receive their directions from the Security Council but
from the Rome Statute.
31 Art. 15ter(2) and (3) ICCSt. The same pre-conditions apply under Art. 15bis. See Art. 15bis(2) and
(3) ICCSt.
32 Understanding 1 states: ‘It is understood that the Court may exercise jurisdiction on the basis of
a Security Council referral in accordance with Art. 13, paragraph (b), of the Statute only with
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date of the decision by the ASP, on 14 December 2017, to activate the Court’s
ability to exercise jurisdiction effective 17 July 2018.)33 While Article 12(3) of
the ICC Statute has been utilized to allow a state to enter a declaration taking
jurisdiction on the other core crimes retrospectively to July 2002, this reach
back to the early years of the Court does not appear to be possible for the
crime of aggression.34

D. May the Prosecutor Decline to Proceed to the Investigation Phase after

Security Council Referral?
In the event of a Security Council referral, Article 15ter states that ‘[t]he Court
may exercise jurisdiction over the crime of aggression :::’.35 It does not state
that the Court ‘must’ exercise jurisdiction over the crime. While referral would
presumably require the Prosecutor to open a Preliminary Examination, it
does not necessarily mean the situation would move to the Investigation
phase. In deciding whether to initiate an Investigation, the Rome Statute re-
quires the Prosecutor to consider: (a) whether the information available ‘pro-
vides a reasonable basis to believe that a crime within the jurisdiction of
the Court has been or is being committed’; (b) whether the case ‘is or would
be admissible under Article 17’; and (c) both ‘gravity’ and the ‘interests of the
victims’; but the Prosecutor (d) may still decline to proceed ‘if the investigation
would not serve the interests of justice’.36 Moreover, Article 53(2) imposes a re-
quirement for the Prosecutor, if he or she concludes ‘there is not a sufficient
basis for a prosecution’ to so inform ‘the Security Council in a case [referred
by the Security Council] of his or her conclusion and the reasons for the
conclusion’.

respect to crimes of aggression committed after a decision in accordance with article 15 ter, para-
graph 3, is taken, and one year after the ratification or acceptance of the amendments by
thirty States Parties, whichever is later’. Resolution RC/Res.6 (11 June 2010), Annex III,
Understanding 1 (emphasis added). The later event was the decision to activate jurisdiction, on
14 December 2017, but in the Activating Resolution, the date when the Court could exercise jur-
isdiction was pushed to 17 July 2018. (While it may not matter, there appears a slight difference
between the date by which the crime is committed (14 December 2017), the date by which the
Understanding suggests jurisdiction may be exercised (14 December 2017), and the date by
which the Activating Resolution says the Court may exercise jurisdiction (17 July 2018).)
33 See Activating Resolution.
34 See Art. 12(3) ICCSt. There still might be some use for Art. 12(3) related to the crime of aggres-
sion. For example, assume in 2024, a non-State Party (or a State Party that has not ratified
the amendment) wants to use an Art. 12(3) declaration to take jurisdiction backwards to cover
a crime of aggression committed in 2020. For further discussion of Art. 12(3), see C. Kre, S.
Barriga, L. Grover and L. von Holtzendorff, ‘Negotiating the Understandings on the Crime of
Aggression’, in S. Barriga and C. Kre (eds), The Travaux Pre¤paratoires of the Crime of Aggression
(Cambridge University Press, 2012) 81^98.
35 Art. 15ter(1) ICCSt. (emphasis added).
36 Art. 53(1)(a)^(c) ICCSt.
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E. The Effectiveness of Carve-Outs in a Referral Resolution Excluding Certain
Individuals from the Referral or Excluding UN Funding
The texts of the two ICC referral resolutions made to date contain clauses ex-
empting certain nationals, including certain ‘current or former officials’ from
non-ICC States Parties from jurisdiction,37 and providing that none of the ex-
penses incurred in connection with the referrals shall be borne by the UN.38
It is unclear whether either clause is effective. As to the exclusion of certain
nationals, as discussed above, Article 13(b) of the ICC Statute provides for
Security Council referral of a ‘situation’ to the ICC.39 While, again, the
Security Council may have the power to make such carve-outs under Chapter
VII ç if it can explain why such carve-outs are necessary for the maintenance
or establishment of international peace and security ç the Prosecutor and
judges take their directives from the Rome Statute, including the text of
Article 13(b) and Article 27 (no immunity based on official capacity). Thus,
there is at least a very serious question as to whether such jurisdictional
carve-outs would be legally effective before the ICC. The least that must be
said is that, as a matter of sound policy, future referral resolutions should not
contain such carve-outs.
As to the funding carve-out, an issue exists whether the Security Council
has competence to dictate whether funding may accompany a referral, when
the UN Charter provides that the General Assembly makes UN budget deci-
sions.40 In terms of practical impact, the absence of funding to accompany
past ICC referrals has been a matter of serious concern to the ICC given the
budget constraints it has been facing, with an ever-expanding number of in-
vestigations and cases, and demands for even more investigations and
prosecutions.
Should the Security Council make referrals regarding the crime of aggres-
sion, some follow-up may also be required to ensure cases are able to proceed;
the experiences with the Libya and Darfur referrals shows how problematic
the absence of follow-up can prove.41 The absence of follow-up additionally
makes Security Council’s referrals appear hypocritical ç why refer if unwilling
to provide support?

F. The Security Council’s Role as to Cases Initiated under Article 15bis

The Security Council may be involved with the crime of aggression in another
way ç that is, if a case is initiated pursuant to Article 15bis. There is a

37 SC Res. 1593 (2005), x 6; SC Res. 1970 (2011), x 6.

38 SC Res. 1593 (2005), x 7; SC Res. 1970 (2011), x 8.
39 See Art. 13(b) ICCSt.
40 Art. 17(1) UN Charter.
41 All the ICC’s Darfur warrants remain outstanding, and, as to Libya, the case against Saif
al-Islam Gaddafi was supposed to be tried at the ICC, yet he was never transferred. There are
now two additional outstanding warrant for crimes committed in Libya.
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six-month period the Prosecutor has to wait, having concluded (based on
States Party referral or proprio motu initiation) that there is a reasonable basis
to proceed, in order to see if the Security Council will make a determination
to refer.42 Three possible situations arise. If the Council decides to refer, the
ICC may proceed. If the Council decides it will not refer (makes an affirmative
determination not to refer), this effectively acts like an Article 16 deferral,
whereby the Council may block an investigation/prosecution for a twelve-
month (renewable) period in the interests of international peace and security.43
However, if the Council does neither within six months, the Prosecutor may
proceed but only after authorization of the ICC’s Pre-Trial Division.44 If the
Council does refer, it should be noted that its referral could potentially encom-
pass a broader situation than the Prosecutor was examining; for example, if
multiple states are involved, crimes committed by the nationals of, or on the
territory of, non-States Parties could be encompassed by a Security Council re-
ferral, whereas they could not be encompassed under Article 15bis.45

4. The Security Council’s Potential Additional Role in

Prevention and Early Warning
Another consequence of the seemingly limited jurisdictional regime under
Article 15bis is a lessening of the ability of the Prosecutor to provide any kind
of early warning or preventative function than she otherwise might have
been able to provide, and indeed can provide vis-a'-vis the other core crimes.
For example, to date, the Prosecutor has sometimes indicated he or she was
monitoring a situation in an ICC State Party in an attempt to deter the com-
mission of Rome Statute crimes.46 For example, in a statement made in the
DRC, Prosecutor Fatou Bensouda emphasized the importance of the prevention
of crimes and made clear that her office was monitoring the situation, stating
that ‘as Prosecutor, it is my duty to unequivocally recall that any person who
commits, orders, incites, encourages or contributes in any other way to the
commission of crimes under ICC jurisdiction is liable to prosecution’.47

42 Art. 15bis(6)^(8) ICCSt.

43 See Art. 16 ICCSt.
44 Art. 15bis(8) ICCSt.
45 Even a State Party that has exercised an ‘opt out’ declaration under Art. 15bis(4), could have its
nationals or crimes committed on its territory referred. The same is true for a State Party not
covered under Art. 15bis, depending on how it is read. See supra note 4.
46 See also Office of the Prosecutor, Statement of the Prosecutor of the International Criminal
Court, Luis Moreno-Ocampo in Relation to Ivory Coast, 6 April 2011, available online at
https://www.icc-cpi.int/Pages/item.aspx?name¼otpstatement060411 (visited 22 May 2019);
Office of the Prosecutor, Statement by ICC Prosecutor Luis Moreno-Ocampo on the Situation
in Co“te d’Ivoire, 21 December 2010, available online at https://www.icc-cpi.int/Pages/item.
aspx?name¼pr617 (visited 22 May 2019). Co“te d’Ivoire was at the time not a State Party but
had entered an Art. 12(3) declaration; it subsequently became a State Party.
47 Office of the Prosecutor, Statement by the ICC Prosecutor, Fatou Bensouda, at the Conclusion of
Her Visit to the DRC: ‘The Fight Against Impunity and the Critical Prevention of Crimes under
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For the crime of aggression, because Article 15bis jurisdiction appears so lim-
ited (at least for the time being),48 the Prosecutor will be less able to play this
role, because less jurisdiction exists (or appears to exist). For example, if the
Prosecutor receives information that the military forces of a non-State Party
are amassing and poised to invade the territory of an ICC State Party, she
cannot credibly ring ‘alarm bells’ that she is monitoring the situation (in an at-
tempt to deter the invasion), as the ICC has no jurisdiction over aggression
committed by nationals of a non-State Party under Article 15bis.49
The Security Council could fulfil such an early warning/prevention role. If
the Council were to receive such information, it could credibly indicate it was
monitoring the situation. For example, the Council might hold a debate on the
matter, issue a statement to the media or a Presidential Statement, have the
ambassadors of Security Council member states visit the country, or issue a
resolution. A statement or resolution could note that the situation could
become a ‘threat to the peace’, ‘breach of the peace’, or ‘act of aggression’, re-
minding the country concerned of the Security Council’s referral powers,
thereby trying to deter the use of force.50 As the organ charged under the UN
Charter with ‘primary responsibility for the maintenance of international
peace and security’,51 this would appear an entirely appropriate role for the
Council to play. Indeed, if the Council did nothing in such circumstances, one
might well wonder whether it was fulfilling its mandate under the Charter.
Especially in such situations, the General Assembly could also issue a reso-
lution indicating it was monitoring the situation, as the General Assembly
also has competence in matters of international peace and security.52 Indeed,
Article 11(3) of the Charter expressly states that the General Assembly may
‘call the attention of the Security Council’ to a situation ‘likely to endanger
international peace and security’.53 The General Assembly could also recom-
mend to the Security Council that the Council refer the situation to the ICC.54

the Rome Statute are Essential for Social Stability’, 4 May 2018, available online at https://www.
icc-cpi.int/Pages/item.aspx?name¼180405-otp-stat (visited 22 May 2019).
48 A challenge to the apparent limitation of jurisdiction in the Activating Resolution could be
brought if the crime of aggression is committed by the nationals of an ICC State Party that
has not ratified the crime of aggression amendment (but has not opted out) against an ICC
State Party that has ratified the amendment. Under Operative Paragraph (OP) 2 of the
Activating Resolution, that situation would not result in jurisdiction, but under many States
Parties’ readings of the Kampala crime of aggression amendment, that situation would have re-
sulted in jurisdiction. See also Activating Resolution, OP3 (reaffirming the ‘judicial independ-
ence of the judges of the Court’).
49 Art. 15bis(5) ICCSt. The Prosecutor could still ring alarm bells, but it would be more to call
media attention to the situation or alert the Security Council.
50 That the crime is a ‘leadership crime’ means deterrence could in particular potentially operate
as to persons who are ‘in a position effectively to exercise control over or to direct the political
or military action of a State’. See Art. 8bis(1) ICCSt.
51 Art. 24(1) UN Charter.
52 Arts 10^11 UN Charter.
53 See Art. 11(3) UN Charter.
54 Setting aside the question whether the General Assembly could have referral powers, at pre-
sent, the ICC is not empowered to address a General Assembly referral. There is before the
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One caveat, however, is that Article 12(1) states that the ‘General Assembly
shall not make any recommendation’ ‘[w]hile the Security Council is exercis-
ing in respect of any dispute or situation the functions assigned to it in the pre-
sent Charter’.55

5. Conclusion
The law sometimes advances slowly and imperfectly. Activation of the crime of
aggression was a tremendous and historic step forward; yet, it simultaneously
ushered in a seemingly limited jurisdictional regime. This state of affairs can
be questioned either before the ICC involving a challenge to certain text in the
ASP’s Activating Resolution56 or seven years after activation, in 2025, during
a review (which could take the form of a review conference) where a new juris-
dictional regime could theoretically be negotiated.57 Jurisdiction under Article
15bis also meanwhile increases with each State Party’s ratification of the
crime of aggression amendment.58
At present, with the jurisdictional limitations that appear to exist, it will be
difficult for a crime of aggression case to be initiated under Article 15bis; thus,
whether crime of aggression cases can be pursued before the ICC for the fore-
seeable future may depend largely on whether the Security Council is willing
to make referrals. While future Security Council referrals, if made, will no
doubt operate at least somewhat politically, the Security Council appears to
have a new powerful tool at its disposal, should it choose to use it.
For the Council to make such referrals appears entirely appropriate given the
Council’s role under the Charter to maintain international peace and security.
At least this author hopes the Council will refer situations involving aggression

ASP’s Working Group on Amendments a proposal of South Africa for the General Assembly to
have deferral powers. See Report of the Working Group on Amendments, ICC-ASP/13/31, 7
December 2014.
55 Art. 12(1) UN Charter. How this is read is beyond the scope of this article, but it is worth noting
there are times the General Assembly has taken up issues that were also before the Council,
particularly when the Council was deadlocked, in which case it can be argued the Security
Council was not ‘exercising’ its ‘functions assigned’ under the Charter. Indeed, the ‘Uniting for
Peace’ resolution provides a whole procedure for the General Assembly to address issues in the
face of Security Council deadlock caused by veto use. See General Assembly A/RES/377 A, 5
UN GAOR, Supp. (No. 20) 10^12, UN Doc. A/1775 (1950).
56 See supra note 48.
57 The Kampala crime of aggression amendment provides for review seven years after the begin-
ning of the exercise of jurisdiction. See Resolution RC/Res.6 (11 June 2010), para. 4 (‘decides to
review the amendments on the crime of aggression seven years after the beginning of the
Court’s exercise of jurisdiction’). There may be other issues that should be reviewed, including
whether cyberwarfare is encompassed within the crime, and whether use of force by a
non-state actor should be encompassed. To date, the crime of aggression only covers the ‘use
of armed force by a State’. Art. 8bis(1) ICCSt. It may not, however, prove realistic to reopen the
issue of jurisdiction unless there is some significant shift in views beyond those expressed at
the 2017 ASP.
58 At the time of writing, 38 ICC States Parties have ratified the crime of aggression amendment.
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to the ICC, thereby maximizing the potential for deterrence. Deterrence can
also operate if the Council plays an early warning/prevention function, by indi-
cating it is monitoring a situation that could involve aggression, in an attempt
to deter the launch of aggressive force. This would also be a potentially signifi-
cant new tool at the Council’s disposal, and it is up to states holding a seat on
the Council to activate this new role that squarely falls within the Council’s
area of responsibility. A limited role in this respect can also be fulfilled by the
General Assembly. In the end, the goal behind the crime of aggression amend-
ment is not for the ICC to adjudicate crime of aggression cases, but to maximize
deterrence, so there are no cases to adjudicate.