The crime of aggression is defined in art. 8bis in the Rome Statute of the ICC adopted at the 2010 Review Conference in Kampala. In essence, three elements are required:
First, the perpetrator must be a political or military leader, i.e. a “person in a position effectively to exercise control over or to direct the political or military action of a State”.
Second, the Court must prove that the perpetrator was involved in the planning, preparation, initiation or execution of such a State act of aggression.
Third, such a State act must amount to an act of aggression in accordance with the definition contained in General Assembly Resolution 3314, and it must, by its character, gravity and scale, constitute a manifest violation of the UN Charter. This implies that only the most serious forms of illegal use of force between States can be subject to the Court’s jurisdiction. Cases of lawful individual or collective self-defence, as well as action authorized by the Security Council are thus clearly excluded.
For more analysis of the definition, please consult our Handbook. Article 8 bis reads as follows:
Article 8 bis
Crime of aggression
1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;
(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.