Conditions for action by the ICC

The Review Conference also decided under what conditions the ICC will in the future be allowed to investigate and prosecute crimes of aggression. It is a complex legal regime contained in two articles to the Rome Statute (15 bis and 15 ter), which reflects a compromise and differs in several respects from the regime in place for the three other core crimes (genocide, crimes against humanity, war crimes).

The International Criminal Court in The Hague
© ICC-CPI

Put as simply as possible, the ICC can in the future take action against aggression once 30 States Parties have ratified the amendments and once States Parties have decided by a 2/3 majority to activate the Court’s jurisdiction, which they may only do after 1 January 2017. Once this has happened, the ICC can investigate and prosecute crimes of aggression provided that:

  • the Security Council refers a situation to the ICC (then no further conditions apply); or
  • a State Party refers a situation or the Prosecutor starts an investigation on his or her own initiative, the States involved in the situation are parties to the Rome Statute, at least one of them has ratified the amendment, and the presumed aggressor State Party has not opted out of the Court’s jurisdiction over the crime of aggression.

In more detail:

The conditions for future ICC action on the crime of aggression differ depending on whether the ICC acts upon a referral from the Security Council (Article 15 ter) or whether the initiative stems from a State Party or the Prosecutor (Article 15 bis). But there is one condition in common:

Activation of the Court’s jurisdiction in 2017

The ICC will only be able to exercise its jurisdiction once the States Parties have taken a separate one-time decision to “activate” the jurisdiction – which cannot take place before 2017. Furthermore, the Court will only be able to become active one year after 30 States Parties have ratified the amendments. Click here for more information on how we want to help achieve this goal, and here for information on how you can help!

ICC action following a referral by the Security Council

(Article 15 ter)

Once the Court’s jurisdiction over the crime of aggression is activated, it will be able to investigate and prosecute crimes of aggression following a Security Council without any further aggression-specific conditions. In other words, whenever the Security Council refers a situation to the ICC, the procedural conditions will be the same for genocide, crimes against humanity, war crimes and crimes of aggression. This means in particular, there is no requirement for the involved States to give any type of consent to the investigation, given that the Court’s jurisdiction under Article 15 ter derives from the Security Council’s powers under Article 25 of the UN Charter.

For more details on the effects of Article 15 ter, please consult our Handbook. For the full text of Article 15 ter, see below.

ICC action following a State referral or initiative by the Prosecutor

(Article 15 bis)

Once the Court’s jurisdiction over the crime of aggression is activated, it will be also able to investigate and prosecute crimes of aggression on the Prosecutor’s own initiative, or upon a referral by a State Party. In this scenario, several conditions apply that limit the Court’s jurisdiction over the crime of aggression compared to the other three core crimes. These additional conditions are designed to ensure that where the Security Council does not refer the situation, the Court only proceeds on the basis of the consent of the States concerned. This is a serious limitation, however one that was indispensable for the Review Conference to find an agreement on this vexing issue.

No jurisdiction over Non-States Parties: In concrete terms, this means that the Court does not have jurisdiction over crimes of aggression involving States that are not parties to the Rome Statute. It does not matter whether such a non-State Party was an aggressor, or the victim of aggression. Accountability and deterrent effect are thus limited to the circle of States Parties only – which can also be seen as an incentive for Non-States Parties to join the Statute in its 2010 version.

No jurisdiction over States Parties that have opted-out of aggression: Furthermore, to ensure a regime that is fully consent-based, parties to the Rome Statute have the possibility of opting out of the Court’s jurisdiction over the crime of aggression, despite the fact that by ratifying the 1998 version of the Rome Statute they already accepted the Court’s jurisdiction over the yet-to-be-defined crime of aggression (Article 12(1) Rome Statute). States Parties can do so by lodging a declaration with the Registrar, and they are encouraged to consider withdrawing such a declaration within three years.

An additional factor to bear in mind is that at least one of the States Parties involved – be it the presumed aggressor or victim – must have ratified the amendments on the crime of aggression. This requirement should serve as an incentive for States Parties to ratify – because ratification increases the likelihood that the ICC

would have jurisdiction over crimes of aggression arising from the illegal use of force against such States, and thus be able to help deter such acts.

This complex jurisdictional regime can be summarized graphically as follows (both aggressor and victim States are presumed States Parties to the Rome Statute):

 

Victim State has ratified
the amendments
Victim State has
not ratified
Aggressor State has ratified
and not opted out
Jurisdiction: YES Jurisdiction: YES
Aggressor State has not ratified
and not opted out
Jurisdiction: YES Jurisdiction: NO
Aggressor State has ratified
and opted out
Jurisdiction: NO Jurisdiction: NO
Aggressor State has not ratified
and opted out
Jurisdiction: NO Jurisdiction: NO

 

For more details and background information on this issue, please consult our Handbook.
Below is the full text of Article 15 bis and 15 ter:


 

Article 15 bis
Exercise of jurisdiction over the crime of aggression
(State referral, proprio motu)

1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraphs (a) and (c), subject to the provisions of this article.

2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.

3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.

4. The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years.

5. In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.

6. Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents.

7. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression.

8. Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15, and the Security Council has not decided otherwise in accordance with article 16.

9. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute.

10. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5.

 

Article 15 ter
Exercise of jurisdiction over the crime of aggression
(Security Council referral)

1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraph (b), subject to the provisions of this article.

2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.

3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.

4. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute.

5. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5.