Negotiating Provisions Defining the Crime of Aggression, its Elements and the Conditions for ICC Exercise of Jurisdiction Over It

In February 2009, the International Criminal Court's Special Working Group on the Crime of Aggression concluded its efforts to draft the ‘provision’ called for in Article 5(2) of the Rome Statute ‘defining the crime [of aggression] and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime’. It produced two draft Articles: Article 8bis, the ‘definition’, and Article 15bis, the ‘conditions’. There was substantial agreement on the definition (and on ‘Elements’ of the crime produced in June 2009); there was much disagreement concerning the conditions. The author examines the most significant drafting issues. For the definition, these include: applying General Assembly Resolution 3314 to individual responsibility; articulating the ‘leadership’ nature of this crime; the threshold requirement that the violation of the United Nations Charter be ‘manifest’; and consistency with provisions in the Statute, especially those in the ‘general part’. In respect of conditions, the difficult issue surrounds the role of the Security Council and the many variations on that theme in draft Article 15bis. The contribution concludes with a fundamental procedural question: can the amendment be applied erga omnes or does it apply only to those states specifically accepting it?