Justiciability, Complementarity and Immunity: Reflections on the crime of aggression

Some 70 years after the first and, so far the only, criminal prosecutions pertaining to the ‘supreme international crime’ took place, the activation of the – long dormant – jurisdiction of the International Criminal Court (ICC) over the crime of aggression appears imminent. At the time of writing, 32 States Parties had ratified the Kampala Amendments on the Crime of Aggression, thus exceeding the 30 ratifications required under Articles 15bis and 15ter of the ICC Rome Statute (RS). The moment of truth will arrive somewhere after 1 January  2017, when the Assembly of States Parties will need to adopt a decision affirming the Court’s jurisdiction. As the activation of Articles 8bis, 15bis and 15ter RS is drawing nearer, the debate over the prosecution of the crime of aggression has again taken off with renewed vigour. Against this background, the present essay revisits the suggestion that the crime of aggression is inherently non-justiciable, on the one hand, as well as the critique that the activation of the ICC’s jurisdiction over the crime of aggression will have a detrimental effect by inspiring (highly politicized) prosecutions of alleged ‘aggressors’ before the national courts of third States, which are moreover incompatible with the par in parem axiom.