Since 17 July 2018, the International Criminal Court has been given some jurisdiction to hold leaders accountable who are responsible for the most serious forms of the illegal use of force against other States. The Court can thus have a direct role in promoting the United Nations Charter and its quest for peace and security.
The ICC is the world’s first permanent independent tribunal established to end impunity for the worst crimes under international law: genocide, war crimes, crimes against humanity and the crime of aggression. The ICC started its operations in 2003 and has quickly become the centerpiece of international criminal justice. It is currently conducting trials, investigations and preliminary investigations in 17 situations on four continents. An overview of its activities can be found on the website of the International Criminal Court.
The founding conference held in Rome in 1998 failed to reach agreement on the definition of the crime of aggression or conditions for the exercise of its jurisdiction. However, at the 2010 Review Conference in Kampala, Uganda, ICC States Parties filled the gap and adopted amendments to the Rome Statute on the crime of aggression in a historic consensus decision. After 30 ratifications by States Parties, the jurisdiction was activated by a resolution adopted at the Assembly of States Parties in 2017.
As a consequence, the ICC will to some extent (subject to jurisdictional limitations that GIPA members suggest need to be revisited) be able to investigate and prosecute leaders of States that are responsible for the crime of aggression, i.e., the most serious forms of the illegal use of force against other States.
The ICC’s jurisdiction over the crime of aggression is designed to serve as a deterrent against illegal war-making and other serious instances of illegal use of force. The Court’s reach in this regard could in principle be global. At present, however, the ICC only has limited jurisdiction to investigate and prosecute the crime of aggression involving States Parties to the ICC. the may also investigate and prosecute the crime of aggression upon referrals by the UN Security Council – in which case the consent of the State in question is irrelevant. The Security Council’s ability to make such referrals, however, is exercised inconsistently due in large part to the veto power of its permanent members.
Judge Sang-Hyun Song, former President of the ICC, speaking to the Convenor of the Global Institute for the Prevention of Aggression, Donald Ferencz, and Dr. Jackson Maogoto about the crime of aggression: