Revisiting The Role of The Security Council Concerning The International Criminal Court's Crime of Aggression
Revisiting The Role of The Security Council Concerning The International Criminal Court's Crime of Aggression
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]
2 JICJ 0 (2019), 1^13
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.
4 JICJ 0 (2019), 1^13
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
Security Council and the Crime of Aggression 5
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.
6 JICJ 0 (2019), 1^13
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.
Security Council and the Crime of Aggression 7
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
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
8 JICJ 0 (2019), 1^13
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.
Security Council and the Crime of Aggression 9
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
12 JICJ 0 (2019), 1^13
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.
Security Council and the Crime of Aggression 13