Adoption of Provisions Relating to the Crime of Aggression in the ICC Statute and Its Implications

The Review Conference was held in Kampala, Uganda from May 31 to June 11 to adopt the provisions defining the crime of aggression and setting out the conditions under which the ICC shall exercise its jurisdiction over this crime. This carries significance in the light that customary international law which has been developed with respect to the crime of aggression has been taken into the form of treaty texts. The establishment of certain exceptional procedures in exercising the jurisdiction over such crime by the ICC, however, seems to have been derived from political compromises rather than legal considerations of the matter. The mechanism that was adopted during the Review Conference for punishing the crime of aggression consists of shortcomings in that it is very complex and at times quite indefinite or ambiguous. Also, the amendment on this crime authorizes the actual exercise of ICC's jurisdiction to become nullified in some exceptional cases and thus may be criticized to be less useful in the operation of the punishment mechanism. This may be an inevitable consequence of introducing the seemingly controversial punishment mechanism for the crime of aggression into the ICC system. Therefore one must be more patient to observe whether the related provisions for punishing the crime of aggression would contribute to the activities of the ICC. However, opening a doorway for the referral of the UN's Security Council to punish the leaders who committed the crime of aggression may act as a deterrence of future armed conflicts. So the UN security Council would play a more prominent role in deterring the act of aggression by a State in the future. This amendment has a direct relevance to the situation of Korea. First of all, if North Korea's action constitutes an act of aggression, it is meaningful in the sense that it established a new international legal system for preventing impunity by punishing the leaders of the North Korean regime through the ICC. North Korea is not a State-party to the ICC Statute and therefore States-Parties are not able to refer the situation that includes the act of aggression to the ICC and the Prosecutor cannot initiate investigations proprio motu with respect to the crime of aggression. But irrespective of whether North Korea has accepted the Court's jurisdiction in this regard, the UN Security Council may refer to the ICC such situations and can easily make the leaders of North Korea to take responsibility to the crime of aggression in the ICC. This shows that the amendment clearly improves the war deterrence in the Korean peninsula. This article, after explaining the discussed process for arranging the provisions regarding the crime of aggression before the Review Conference, analyzed the essential contents of the adopted provisions relating to the crime. Then, it researched the legal issues in detail and presented the major legal implications of those provisions