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Criminalizing Aggression_ How the Future of the Law on the Use of Force Rests in the Hands of the ICC
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The European Journal of International Law Vol. 29 no. 3
EJIL (2018), Vol. 29 No. 3, 887–917 doi:10.1093/ejil/chy053
© The Author(s), 2018. Published by Oxford University Press on behalf of EJIL Ltd.
All rights reserved. For Permissions, please email: journals.permissions@oup.com
Criminalizing Aggression:
How the Future of the Law on
the Use of Force Rests in the
Hands of the ICC
TomRuys
*
Abstract
The activation of Articles 8bis, 15bis and 15ter of the Rome Statute in July 2018 has once
again fuelled debates over the prosecution of the crime of aggression. While various aws
and imperfections of the Kampala Amendments have attracted scholarly attention in recent
years, the present article focuses on one particular source for concern – that is, the implica-
tions that the activation of the International Criminal Court’s (ICC) jurisdiction may have
for the legal regime governing the use of force between states. It is assumed at the outset
that, even if investigations into alleged crimes of aggression may not occur on a frequent
basis, sooner or later the ICC will inevitably be called upon to apply Article 8bis of the Rome
Statute. Indeed, even if the majority of situations dealt with by the Court pertain to non-
international armed conicts, there have also been a number of situations involving an inter-
national/interstate element. In essence, each such situation potentially raises jus contra
bellum concerns and may accordingly lead to allegations that the crime of aggression has
been committed. Even if the lion’s share of these allegations is unlikely to make it past the
preliminary examination or investigation phases, the way in which the ICC prosecutor and
the Pre-Trial Chambers play their role as gatekeepers with regard to the crime of aggression
is bound to have strong repercussions for the interpretation and compliance pull of the law
on the use of force. This article rst addresses the possible impact of the ICC’s jurisdiction
over the crime of aggression on the recourse to, and acceptance of, unilateral humanitarian
intervention, before addressing other ways in which it may inuence the international legal
framework governing the use of force.
* Professor of International Law, Ghent Rolin-Jaequemyns International Law Institute, Ghent University,
Belgium. Email: tom.ruys@ugent.be. The author wishes to thank Kevin Jon Heller and Dapo Akande for
their comments on a previous draft of this article. Much gratitude also to Claus Kreβ for providing helpful
material.
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888 EJIL 29 (2018), 887–917
1 Introduction
Some 70 years after the rst and, so far only, criminal prosecutions pertaining
to the crime took place,
1
the activation of the jurisdiction (long dormant) of the
International Criminal Court (ICC) over the crime of aggression has nally become
a reality. With over 30 ratications of the Kampala Amendments on the Crime of
Aggression (Kampala Amendments),
2
and in accordance with the resolution adopted
by the Assembly of States Parties in December 2017,
3
the activation nally took place
on 17 July2018.
In recent years, the impending activation of Articles 8bis, 15bis and 15ter of the
Rome Statute has once again fuelled debates over the prosecution of the crime of
aggression.
4
While various aws and imperfections of the Kampala Amendments
have attracted scholarly attention, the present paper focuses on one particular source
for concern, viz. the implications which the activation of the Court’s jurisdiction may
have for the legal regime governing the use of force between States. It is assumed at the
outset that, even if investigations into alleged crimes of aggression may not occur on a
frequent basis, and even if it may take several years for the rst such situation to occur,
sooner or later the ICC will inevitably be called upon to apply its jurisdiction over the
crime of aggression under Article 8bis of the Rome Statute. Indeed, even if the major-
ity of situations dealt with by the Court pertain to non-international armed conicts,
there have also been a number of preliminary examinations and investigations into
situations with an international/interstate element.
5
In essence, each such situation
potentially raises jus contra bellum concerns and may accordingly lead to allegations
– founded or unfounded – that the crime of aggression has been committed. For the
1
See G.Werle and F.Jeβberger, Principles of International Criminal Law (3rd edn, 2014), at 1445; Clark,
‘The Crime of Aggression’, in C.Stahn (ed.), The Law and Practice of the International Criminal Court (2015)
778, at 795.
2
See Kampala Amendments on the Crime of Aggression (Kampala Amendments), Resolution RC/Res.6,
11 June 2010, reprinted in S.Barriga and C.Kreβ (eds), The Travaux Préparatoires of the Crime of Aggression
(2012), at 101–107.
3
Resolution ICC-ASP/Res.5 on the Activation of the Jurisdiction of the Court over the Crime of Aggression
(New York ASP Resolution), 14 December 2017 (adopted by consensus at the ICC Assembly of States
Parties).
4
Rome Statute of the International Criminal Court (Rome Statute) 1998, 2187 UNTS 90. See, e.g.,
Koh and Buchwald, ‘The Crime of Aggression: The United States Perspective’, 109 American Journal of
International Law (AJIL) (2015) 257; Pellet, ‘Response to Koh and Buchwald’s Article: Don Quixote and
Sancho Panza Tilt at Windmills’, 109 AJIL (2015) 557.
5
See, e.g., Decision on the Prosecutor’s Request for Authorization of an Investigation, Situation in
Georgia (ICC-01/15), Pre-Trial Chamber I, 27 January 2016. Reference can also be made to the pre-
liminary examination concerning Iraq/United Kingdom (UK) and the preliminary examination relat-
ing to the Israeli raid on the so-called ‘Gaza otilla’ (now closed). See International Criminal Court
(ICC), ‘Preliminary Examinations’, available at www.icc-cpi.int/Pages/Preliminary-Examinations.aspx.
Consider also the 2006‘Response to Communications Received Concerning Iraq’, available at www.icc-
cpi.int//Pages/item.aspx?name=otp-response-iraq-06-02-09, where the Ofce of the Prosecutor (OTP)
noted that, while ‘many of the communications received related to concerns about the legality of the
armed conict’, the Court did not (yet) have competence to exercise jurisdiction in respect of the crime of
aggression (at 4/10).
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Criminalizing Aggression 889
reasons discussed below, it is likely that the lion’s share of these allegations will not
make it past the preliminary examination or investigation phases. In spite thereof, the
way in which the ICC prosecutor and the Pre-Trial Chambers play their role as gate-
keepers with regard to the crime of aggression is bound to have strong repercussions
for the interpretation and compliance pull of the law on the use offorce.
This article rst addresses the possible impact of the ICC’s jurisdiction over the
crime of aggression on the recourse to, and acceptance of, unilateral humanitar-
ian intervention (section 2), before addressing other ways in which it may inuence
the international legal framework governing the use of force (section 3). Section 4
concludes.
2 Aggression and Humanitarian Intervention: Winter
IsComing
A The ‘Chilling Effect’
It is clear that the expansion of the ICC’s jurisdiction to crimes of aggression, as dened
in Article 8bis of the Rome Statute,
6
is inspired by the determination ‘to put an end to
impunity for the perpetrators of these crimes and thus to contribute to the prevention
of such crimes’.
7
In other words, it is inspired in part by the idea that the prospect of ICC
prosecution will serve as a deterrent vis-à-vis (some) potential aggressors and make them
think twice before embarking upon military adventures abroad. At the same time, several
scholars have warned that there is a downside to all of this, in that the risk of prosecu-
tion by the ICC could actually deter political and military leaders from launching military
interventions serving a legitimate goal and promoting community interests. In particu-
lar, a number of scholars have argued that it may produce a ‘chilling effect’ vis-à-vis (uni-
lateral but) ‘genuinely humanitarian’ interventions and could lead states to stand aside
and allow horror to unfold.
8
Thus, in the run-up to the Kampala Review Conference, sev-
eral scholars insisted that states parties to the Rome Statute ought to agree on an excep-
tion for those engaged in bone de unilateral humanitarian interventions.
9
During the conference, the USA effectively put forward a draft ‘understanding’ that
held that ‘an act cannot be considered to be a manifest violation of the [UN] Charter
6
Rome Statute, supra note 4, Art. 8bis(1) denes the ‘crime of aggression’ as ‘the planning, preparation,
initiation or execution, by a person in a position effectively to exercise control over or to direct the politi-
cal or military action of a State, of an act of aggression which, by its character, gravity and scale, con-
stitutes a manifest violation of the Charter of the United Nations’. Art. 8bis(2) subsequently denes ‘act
of aggression’ in wording largely similar to the prohibition on the use of force under Art. 2(4) of the UN
Charter, whiling copying in extenso the list of acts included in Art. 3 of the UN General Assembly’s deni-
tion of aggression.
7
Rome Statute, supra note 4, fth preambular paragraph.
8
See, e.g., Reisman, ‘Reections on the Judicialization of the Crime of Aggression’, 39 Yale Journal of
International Law (2014) 66, at 73; Koh and Buchwald, supra note 4, at 271–272; Esbrook, ‘Exempting
Humanitarian Intervention from the ICC’s Denition of the Crime of Aggression: Ten Procedural Options
for 2017’, 53 Virginia Journal of International Law (2015) 791, at 802.
9
See, e.g., Leclerc-Gagne and Byers, ‘A Question of Intent: The Crime of Aggression and Unilateral
Humanitarian Intervention’, 41 Case Western Reserve Journal of International Law (CWRJIL) (2009) 391.
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890 EJIL 29 (2018), 887–917
unless it would be objectively evident to any State conducting itself in the matter in
accordance with normal practice and in good faith, and thus an act undertaken in
connection with an effort to prevent the commission of any of the crimes contained
in Articles 6, 7 or 8 of the Statute would not constitute an act of aggression’.
10
The
proposal failed to garner sufcient support. In the wake of the conference, several
scholars have continued to call for additional guarantees that leaders will not be pros-
ecuted for launching (genuine) humanitarian interventions, occasionally insisting
– in vain – that further negotiations ought to be held on the matter prior to the activa-
tion of the Court’s jurisdiction.
11
One suggestion that has surfaced in scholarly debate,
and which remains relevant, is the possibility for states to declare a partial ‘opt-out’
from the ICC’s jurisdiction under Article 15bis(4) of the Rome Statute with regard to
humanitarian interventions.
12
As a preliminary remark, it is probably safe to say that the risk of being found
responsible for a breach of the prohibition on the use of force by an international
court or tribunal has not played a determining role in state decisions pertaining to
military operations abroad. Thus, it is doubtful that in the run-up to Operation Allied
Force in 1999 member states of the North Atlantic Treaty Organization (NATO) were
heavily preoccupied with the prospect that Serbia might hire the late Ian Brownlie
and institute proceedings in The Hague. This is related to the fact that there have been
few proceedings in which states were found responsible for breaches of the jus contra
bellum and to the consensual nature of interstate judicial dispute settlement.
13
In all,
the ‘legal exposure’ at the state level is probably less of a factor inducing compliance
than other elements, such as the concern with world public opinion and the desire to
be perceived as a rule-abiding member of the international community, the likelihood
of sanctions or the risk of a downturn in diplomatic relations with other states.
Of course, state responsibility is one thing, individual criminal responsibility is quite
another. In particular, fears of being individually held liable for the crime of aggres-
sion may weigh more heavily in the hearts and minds of leading government gures
than the mere prospect of state responsibility.
14
There has so far been limited research
into the deterrent impact of the ICC.
15
As for the crime of aggression, it is all the more
10
Quoted in C.McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court
(2013), at 120.
11
See, in particular, Esbrook, supra note 8; see also Scheffer, ‘Amending the Crime of Aggression under
the Rome Statute’, in C.Kreβ and S.Barriga (eds), The Crime of Aggression: ACommentary, vol. 2 (2017)
1480, at 1486–1487 (suggesting an amendment of the crime of aggression, in particular, to expand the
concept to non-state attacks and cyberattacks as well as with a view to inserting an exception related to
the ‘responsibility to protect’).
12
Esbrook, supra note 8; see also the references at 793, n.7.
13
Even though the Ethiopia-Eritrea litigation shows that the nancial liability may be signicant. See
Eritrea Ethiopia Claims Commission, Final Award Ethiopia’s Damages Claims, 17 August 2009, reprinted
in (2009) 26 UNRIAA 631.
14
In this sense, see Y.Dinstein, War, Aggression and Self-defence (6th edn, 2017), at 132.
15
See, e.g., Grono and de Courcy Wheeler, ‘The Deterrent Effect of the ICC on the Commission of
International Crimes by Government Leaders’, in Stahn, supra note 1, at 1236: ‘[I]t is currently too early
to trace any longer-term deterrent effect. Nevertheless, anecdotal evidence ... indicates cause to be hope-
ful.’ Further, see M.Kersten, Justice in Conict: The Effects of the International Criminal Court’s Interventions
on Ending Wars and Building Peace (2016).
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Criminalizing Aggression 891
difcult to foretell what its deterrent impact will be. It would certainly be interesting to
conduct a survey with legal advisers at the national level to inquire about the (poten-
tial) deterrent effect of Article 8bis of the Rome Statute. In the meantime, it appears
at least plausible that, following the activation of the Court’s jurisdiction, the ICC will
occasionally be dealing with allegations of aggression. At the same time, notwith-
standing the theoretical possibility of a United Nations (UN) Security Council refer-
ral,
16
the deterrent impact of the ICC
17
remains a priori limited to nationals of states
that have ratied the Kampala Amendments.
18
It is no secret that some countries with
a historical record of military intervention abroad are unlikely to accept the ICC’s
jurisdiction over the crime of aggression or have no intention of ratifying the Rome
Statute in the rstplace.
Still, although it remains to be seen to what extent states will make use of the opt-out
mechanism under Article 15bis(4) of the Rome Statute, the list of countries that have
ratied the amendments includes several countries that have participated in controversial
military interventions in the past – for example, Belgium and Spain in NATO’s Operation
Allied Force in 1999 or Spain, Poland and the Netherlands in the US-led 2003 Iraq inter-
vention. For the leaders of these countries, the prospect of being brandished aggressors,
and facing sentencing by the ICC, may well be a source of concern, inuencing their
proclivity for intervention. In the case of collective military operations (by a regional
organization or a coalition of the willing), there may also be a spill-over effect; even if lead-
ers of states that have not consented to the ICC’s jurisdiction face no risk of prosecution
at the ICC level, the investigation of a leader of a state that has consented implies that the
ICC will make ndings on the legality of the operation as a whole. This could also indi-
rectly impact on the position of the former states (including non-states parties to the Rome
Statute) on whose international responsibility the ICC will de facto be pronouncing.
B Guarantees Excluding Prosecution/Sentencing in Cases of
‘Genuine’ Humanitarian Interventions
1 The ‘Character’ Element in Article 8bis of the Rome Statute
Is the fear of a ‘chilling effect’ vis-à-vis genuine humanitarian interventions well
founded or not? The more plausible answer is that, even if the US understanding
16
Note that this possibility is of course excluded not only with regard to the permanent members them-
selves but also with regard to any (close) allies of the ve permanent members.
17
Note that whether the prospect of domestic prosecutions may have a deterrent effect is a different matter
altogether.
18
See Rome Statute, supra note 4, Arts 15bis(4), 15bis(5), 121(5). Note that, in the aftermath of the Kampala
conference, there was considerable debate as to whether the ICC would be able to prosecute nationals
of countries that had ratied the Rome Statute, but not the Kampala Amendments, and which had not
opted out of jurisdiction over the crime of aggression pursuant to Art. 15bis(4). The activation resolu-
tion adopted in December 2017 (New York ASP Resolution, supra note 3)appears to settle the debate by
‘[conrming] … that in the case of a State referral or proprio motu investigation the Court shall not exercise
its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a
State Party that has not ratied or accepted these amendments’. See further Akande and Tzanakopoulos,
‘Treaty Law and ICC Jurisdiction over the Crime of Aggression’, in this issue, 939; Blokker and Barriga,
‘Conditions for the Exercise of Jurisdiction Based on State Referrals and Proprio Motu Investigations’, in
C.Kreβ and S.Barriga (eds), The Crime of Aggression: ACommentary, vol. 1 (2017) 652.
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