The Activation of the Crime of Aggression before the International Criminal Court: Some Overlooked Implications Arising for States Parties and Non-States Parties to the Rome Statute

Abstract

On 17 July 2018, in celebration of the 20th anniversary of the Rome Statute of the International Criminal Court (ICC, the Court), the jurisdiction of the Court was finally activated for the crime of aggression, following a decision made by the Assembly of States Parties (ASP) in December 2017. This resulted from a long and painstaking process which not only furthered the divide between states parties and non-parties but also generated controversy within the ASP itself. In an attempt to reach a minimum common denominator, the ASP decided to exclude from the ICC’s jurisdiction situations involving states parties that have not ratified the amendments in respect of that crime (‘the Kampala Amendments’). Moreover, since the adoption of the Amendments in 2010, it has been agreed that the ICC will not exercise its jurisdiction over the crime of aggression if committed by nationals or on the territory of non-states parties, except when there is a Security Council referral. This combination of jurisdictional hurdles has led many to believe that the crime of aggression will have a limited role to play before the ICC. Nonetheless, a closer look at the Activation Decision, the Kampala Amendments and certain key provisions of the ICC Statute reveals that the activation of the crime of aggression might have a series of overlooked implications for non-parties and parties alike, including those that have not ratified the amendments. In particular, this article will argue that, aside from Security Council referrals, there may still be instances where the Court can apply the crime of aggression to situations involving those states.