The Definition and Jurisdiction of the Crime of Aggression and the International Criminal Court

The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court that was held in Rome to establish the International Criminal Court in 1998 finally adopted the Rome Statute with the participation of 160 countries. The Rome Statute of the ICC entered into force on 1 July 2002 and has been ratified by 100 States. What was considered not so long ago merely a dream of a few people has become a reality after the strenuous efforts of the UN over 50 years. However, one central issue still remains unresolved in the Rome Status. It is the crime of aggression. Countries that participated in the Rome Conference agreed to that compromise just in order to secure the conclusion of the Statute after they had reached a deadlock over the crime of aggression. Adoption of the Rome statute without containing an applicable provision on the crime of aggression, once expressed as the “Supreme International Crime,” was a main defect in the Statute. Without the punishment of the crime of aggression, the ICC would not really have the ultimate, long-awaited international criminal jurisdiction. The definition and jurisdiction of the crime of aggression has always been an extremely difficult issue to settle. The history of the search for an appropriate and effective definition and jurisdiction of the crime of aggression will be reviewed in this paper; it is not a purely legal issue, but it is intertwined with political elements. The research objective of this thesis is to clarify the terms of the ongoing debate over the crime of aggression, and to facilitate a better understanding about the crime of aggression, in an ad hoc working group open to all member states of the U.N. It is important to confirm the current controversial issues of the crime of aggression and present a desirable definition and jurisdiction of it. A credible, carefully discussed, precise definition and jurisdictions of the crime of aggression, one that reflects customary international law and respects the U.N. Charter’s integrity and the Security Council’s responsibility for the maintenance of international peace and security, would enhance the prospects to define the crime of aggression in the Rome Statute and the possibility of other U.N. member states’ ratifying it, including the U.S. Also, it would strengthen the prospects for the eventual successful prosecution of crimes of aggression. First, this paper will review and analyze the general characteristics of the crime of aggression and the historical background of the crime of aggression (from the Nuremberg Military Tribunal to the Rome Statute) in part II. Part III covers the definition of the crime of aggression in light of proposals in the Preparatory Commission (from 1st to 10th) and discussions in the ad hoc working group (from 1st to 4th) and elements of this crime. Part IV discusses the relationship between the ICC and the Security Council from the various points of view concerning the competence of ICC and Security Council, under the U.N. Charter. Finally, through these procedures, this paper will confirm and inquire the current moot issues and suggests desirable a definition and conditions of the crime of aggression in part V. Based on the research outlined above, this paper concludes that concerning the definition of the crime of aggression, first the definition of this crime should follow the “generic approach.” Second, the crime of aggression and the act of aggression should be separately stipulated in the definition. That is, the crime of aggression should contain the provisions included in the Nuremberg Charter and also reflect the general recognition on it developed up the point of current circumstances. The act of aggression should follow the provisions of precedents such as resolution 3314(XXIX) of 1974 and the ILC Draft Code of Crimes against the Peace and Security of Mankind 1996. Third, the definition of the crime of aggression should comply with the principle of legality. Thus essential material and mental elements of crime should be included in it. Concerning the jurisdiction of the Crime of aggression, this paper concludes that first the Security Council’s primary responsibility for determining the existence of the state aggression should be confirmed. Second, the Security Council’s exclusive right to make such determinations should be denied and there should be a provision which make legally possible for the General Assembly of the UN or the ICJ to make such determinations in case of absence of the determination from the Security Council. Third, to decide whether to give such secondary right to the General Assembly of the UN or the ICJ should be settled by a political compromise through a structured and clear debate and the room for such debate should be opened not only to the state party to the Rome Statute, but also to all UN members