Conditions for action by the ICC

The Review Conference also decided under what conditions the ICC will be allowed to investigate and prosecute crimes of aggression. It is a complex legal regime contained in two articles to the Rome Statute (Articles 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 resolution adopted at the Assembly of States Parties in 2017 decided to activate the jurisdiction of the ICC over the crime of aggression as of July 17,2018.

The International Criminal Court in The Hague
© ICC-CPI

Put as simply as possible, as of July 17, 2018 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 and have expressed their consent to the Kampala Amendments in some form.

In more detail:

The conditions for 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). 

ICC action following a referral by the Security Council

(Article 15 ter)

Since the activation of the Court’s jurisdiction over the crime of aggression as of July 17,2022, it is able to investigate and prosecute the crime of aggression following a Security Council referral 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 the crime 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)

Since the activation of the Court’s jurisdiction over the crime of aggression, it is also able to investigate and prosecute the crime 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 the crime 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.

Controversy about jurisdiction over States Parties that have not ratified the Kampala Amendments: There are divergent views as to whether the Court can exercise jurisdiction over the crime of aggression involving States that have ratified the Rome Statute but not yet the Kampala Amendments. Under one reading of the 2017 Activating Resolution, all States involved need to have ratified the Kampala Amendments. Under another reading, the States involved must have expressed their consent in some form but there is ambiguity as to whether it is necessary that all States involved must have ratified the Kampala Amendments.

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.