Author: Claus Kreß
Keywords: crime of aggression; International Criminal Court; Rome Statute; UN Security Council; United Nations; use of force
In the early hours of 15 December 2017, the Assembly of States Parties to the Rome Statute made the decision to activate the International Criminal Court’s jurisdiction over the crime of aggression as of 17 July 2018. The activation resolution was adopted after extremely intense negotiations about one aspect of the jurisdictional regime, which had remained controversial since the adoption of the Kampala amendments on the crime of aggression. The legal controversy that had surrounded one detail of its consent-based jurisdictional regime created the Kampala amendments. Legal opinions divide with respect to how the state consent-based exercise of the Court’s jurisdiction precisely operates between States Parties to the ICC Statute. In essence, two conflicting legal views had emerged. According to the first position, in such a case, the Court is precluded from exercising its jurisdiction over an alleged crime of aggression if committed either on the territory or by a national of a State Party to the ICC Statute, if this state has not ratified the Kampala amendments. According to the opposite position, a State Party, by ratifying the Kampala amendments, provides the Court with the jurisdictional links referred to in Article 12(2) of the ICC Statute. This means that the Court may, inter alia, exercise its jurisdiction over a crime of aggression allegedly committed on the territory of such a State Party by the national of another State Party to the ICC Statute, even if this second state has not ratified the Kampala amendments. Resolution adopted in New York appears to favour the latter approach, however it included a clause reaffirming a judicial independence and therefore leaves room for interpretation by the judges of the court in the future. The New York breakthrough completes the Rome and Kampala conferences and it marks the culmination of a fascinating century long journey. Imperfect as it is, the consensus reached at the UN headquarters sends a timely appeal to the conscience of mankind about the fundamental importance of the prohibition of the use of force for an international legal order, aimed towards the preservation of world peace. Since its inception, Russia has been an important actor in the long-running international debate about the international legal regulation of aggression. That is why the author of the article considers it appropriate to make it available to a wider Russian readership.
About the author: Claus Kreß – Professor of criminal law and public international law, Institute of International Peace and Security Law, University of Cologne, Germany.
Citation: Kress C. (2018) O privedenii v deystvie yurisdiktsii MUS v otnoshenii prestupleniya agressii [On the activation of ICC jurisdiction over the crime of agression]. Mezhdunarodnoe pravosudie, vol.8, no.2, pp.77–89. (In Russian).
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