The Activation of the Crime of Aggression before the International Criminal Court: Some Overlooked Implications Arising for States Parties and Non-States Parties to the Rome Statute

2019 ◽  
Vol 24 (3) ◽  
pp. 567-591
Author(s):  
Talita de Souza Dias
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Common Denominator ◽  
Limited Role ◽  
20Th Anniversary

Abstract On 17 July 2018, in celebration of the 20th anniversary of the Rome Statute of the International Criminal Court (ICC, the Court), the jurisdiction of the Court was finally activated for the crime of aggression, following a decision made by the Assembly of States Parties (ASP) in December 2017. This resulted from a long and painstaking process which not only furthered the divide between states parties and non-parties but also generated controversy within the ASP itself. In an attempt to reach a minimum common denominator, the ASP decided to exclude from the ICC’s jurisdiction situations involving states parties that have not ratified the amendments in respect of that crime (‘the Kampala Amendments’). Moreover, since the adoption of the Amendments in 2010, it has been agreed that the ICC will not exercise its jurisdiction over the crime of aggression if committed by nationals or on the territory of non-states parties, except when there is a Security Council referral. This combination of jurisdictional hurdles has led many to believe that the crime of aggression will have a limited role to play before the ICC. Nonetheless, a closer look at the Activation Decision, the Kampala Amendments and certain key provisions of the ICC Statute reveals that the activation of the crime of aggression might have a series of overlooked implications for non-parties and parties alike, including those that have not ratified the amendments. In particular, this article will argue that, aside from Security Council referrals, there may still be instances where the Court can apply the crime of aggression to situations involving those states.

The International Criminal Court and Universal Jurisdiction

2006 ◽  
Vol 6 (3) ◽  
pp. 349-385 ◽  
Author(s):  
Ademola Abass
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Universal Jurisdiction ◽  
Criminal Jurisdiction

AbstractThis article examines whether the International Criminal Court (ICC) can exercise universal jurisdiction. In particular, the author responds to the argument that the ICC can exercise universal jurisdiction on the basis of delegated criminal jurisdiction and the aut dedere aut judicare principle, and challenges the view that the trial of nationals of non-parties by the ICC neither creates obligations for such states nor contravenes the Monetary Gold principle. The author argues that although some Rome Statute crimes have universal character, this does not automatically entitle the ICC to exercise jurisdiction over non-party nationals outside such limited universal jurisdiction as may be conferred on the Court through the Security Council referral.

Defining “Crimes Against Humanity” at the Rome Conference

1999 ◽  
Vol 93 (1) ◽  
pp. 43-57 ◽  
Author(s):  
Darryl Robinson
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Armed Conflict ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Multilateral Negotiations ◽  
Significant Difference ◽  
The Many

On July 17, 1998, the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome Conference) adopted the Rome Statute of the International Criminal Court (ICC). One of the many significant provisions of the ICC statute is Article 7, which defines “crimes against humanity” for the purpose of the ICC. A significant difference between the definition in the ICC statute and the major precedents on crimes against humanity is that the former definition was not imposed by victors (as were those in the Nuremberg and Tokyo Charters) or by the Security Council (as were those in the Statutes of the Yugoslavia and Rwanda Tribunals). In contrast, Article 7 was developed through multilateral negotiations involving 160 states. For this reason, one could reasonably expect Article 7 to be more detailed than previous definitions, given the interest of participating states in knowing the precise contours of the corresponding obligations they would be undertaking. For the same reason, one might expect the definition to be more restrictive than previous definitions. Fortunately, although the definition in the ICC statute is more detailed than previous definitions, it generally seems to reflect most of the positive developments identified in recent authorities. For example, the definition does not require any nexus to armed conflict, does not require proof of a discriminatory motive, and recognizes the crime of apartheid and enforced disappearance as inhumane acts.

Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.14 Referral of a situation by a State Party/Renvoi d’une situation par un état partie

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
State Party ◽  
Applicable Law

This chapter comments on Article 14 of the Rome Statute of the International Criminal Court. Article 14 is really the completion of article 13(a). Article 13 lists three sources of ‘triggering’ or authorization for exercise of jurisdiction: the Security Council, a State Party, and the propriomotu initiative of the Prosecutor. Article 14 contrasts with the brief text governing Security Council referral found in article 13(b). Arguably, the two processes are similar, and the different formulations of the concept of referral in articles 13(b) and 14 are puzzling. It would have been preferable to use equivalent language and terminology, given the substantive similarities. The differences can be explained by the complex drafting process, and the fact that the two concepts originate in different provisions within the early versions of the Statute.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.86 General obligation to cooperate/Obligation générale de coopérer

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Cooperation ◽  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Bilateral Agreements ◽  
Coopération Internationale ◽  
General Obligation ◽  
Judicial Assistance

This chapter comments on Article 86 of the Rome Statute of the International Criminal Court. Article 86 states the general obligation to ‘cooperate fully’ with the Court. This obligation to cooperate applies only to States Parties. If obligations to cooperate with the Court exist for non-party States, their source must be found elsewhere, for example in bilateral agreements or in Security Council resolutions. Indeed, Security Council resolutions have both confirmed that non-party States do not have any obligations under the Rome Statute and at the same time they have imposed obligations of cooperation on certain non-party States.

The African Union, the Security Council, and the International Criminal Court

2017 ◽  
Author(s):  
Charles Chernor Jalloh
Keyword(s):  
Criminal Justice ◽  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Justice ◽  
African Union ◽  
Post Cold War ◽  
History Of

This chapter analyses the controversies surrounding the work of the African Union, the Security Council, and the International Criminal Court. It examines whether the legal justifications offered for the Security Council’s involvement in matters of international criminal justice, as administered by the ICC, match the emerging practice. The chapter reviews the drafting history of the Rome Statute to identify the initial benchmark against which to assess the Chapter VII referral and deferral resolutions and their impacts, if any, on the world’s only permanent international penal tribunal. The chapter situates the ICC within a new post-Cold War global paradigm that is not only concerned with ensuring the collective peace, which is the classical responsibility of the UN, but also ensures that international criminal justice is meted out to at least some of the leaders who foment the world’s worst atrocities.

‘Contested Collisions’: Conditions for a Successful Collision Management – The Example of Article 16 of the Rome Statute

2015 ◽  
Vol 29 (2) ◽  
pp. 551-575
Author(s):  
KERSTIN BLOME ◽  
NORA MARKARD
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Norms ◽  
International Regimes ◽  
Un Security Council ◽  
Collision Rule

AbstractThis article examines the problem of colliding international regimes by reference to the International Criminal Court (ICC) and the UN Security Council. Given the different logics or rationalities of these institutions – the Security Council is first and foremost a (power) political organ, while the ICC is in charge of legal assessments – the collision potential is high. A collision rule was therefore introduced into the Rome Statute in the form of Article 16; however, all instances of its application so far have been highly controversial. While norm application is always controversial to some extent, we argue – in reference to Thomas Franck's work on the legitimacy of international norms – that regime responsiveness, secondary rules or a neutral application control of Article 16 could contribute to successful collision management.

Prosecutor v. Omar Al-Bashir, Judgment in the Jordan Referral Re Al-Bashir Appeal (Int'L Crim. Ct.)

2019 ◽  
Vol 58 (6) ◽  
pp. 1177-1233
Author(s):  
Thomas Weatherall
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
United Nations Security Council ◽  
International Courts ◽  
The Third ◽  
Heads Of State

On May 6, 2019, the Appeals Chamber (AC) of the International Criminal Court (ICC) delivered its judgment in Jordan's appeal of the December 11, 2017 decision of the Pre-Trial Chamber (PTC) in Prosecutor v. Al-Bashir. The first and second grounds of appeal concerned whether Jordan had complied with its duty to cooperate with the request of the Court to arrest and surrender Al-Bashir. The third ground of appeal concerned whether the PTC abused its discretion in referring Jordan's noncompliance to the Assembly of States Parties to the Rome Statute (ASP) and the United Nations Security Council (UNSC). Prior to the judgment, ICC PTCs had created divergent jurisprudence regarding the immunity of incumbent heads of state before international courts.

The Complex Crime of Aggression under the Rome Statute

2010 ◽  
Vol 23 (4) ◽  
pp. 897-904 ◽  
Author(s):  
DAVID SCHEFFER
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Patchy Landscape ◽  
The Many ◽  
Gravity Test

AbstractFour discrete issues demonstrate how complex the crime of aggression under the Rome Statute of the International Criminal Court will be following the amendments approved in Kampala in June 2010. First, the absence of an explicit magnitude, or gravity, requirement for determining an act of aggression ignores the reality of how matters are referred to the ICC as well as how one first determines the existence of aggression. The gravity test of a crime of aggression is insufficient and misleading in arriving at a methodology for a logical determination of both acts and crimes of aggression. An agreed understanding in Kampala to resolve the dilemma is fraught with contradictions. Second, the amendments fail to address how the ICC should respond to a Security Council determination that an act of aggression has not occurred. Third, the lingering debate over how the Rome Statute should have been amended to activate the crime of aggression will burden the Assembly of States Parties, which should focus on arriving at a united interpretation of the procedures used to approve the Kampala amendments. Fourth, given the many permutations of how states will fall within or outside the jurisdiction of the International Criminal Court regarding the crime of aggression, the resulting patchy landscape of coverage should surprise no one.

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