From Desmnd Davies - London Bureau
London, Jan. 30, GNA - The long-awaited activation of the Crime of Aggression under the jurisdiction of the International Criminal Court (ICC) has taken place and will come into force on July 17, this year.
This would coincide with the 20th anniversary of the founding of the Rome Statute of the Global War Crimes Court.
The decision was taken during last month’s 16th Assembly of State Parties to the Rome Statute in New York after 10 days of intense diplomatic negotiations.
The Crime of Aggression has been a thorny issue for the ICC since its inception.
Although it was listed as one of the crimes that the ICC had jurisdiction over, the 1998 Rome Conference failed to agree on the terms under which this could be exercised.
There were also arguments over the definition of aggression, even though the UN had come up with one in 1974.
Supporters of the ICC saw the prolonged debate as a move by powerful states with a propensity for aggression against weaker states to delay the process for as long as they possibly could.
It was then agreed that the controversial issues would be reconsidered at the first Review Conference of the Rome Statute, which took place in Kampala in 2010.
In between, a Special Working Group on the Crime of Aggression continued the negotiations, and by 2009 it had found a consensus agreement on the definition of the Crime.
The resolution that was finally adopted last month applied to ICC member states that have ratified or accepted the Amendment to the Rome Statute.
However, the ICC will not have jurisdiction over member states or their nationals that have not ratified or accepted these amendments in the case of a state referral or an investigation initiated by the ICC prosecutor.
The Coalition for the ICC (CICC), in welcoming the move, said it “brings justice one step closer for victims of aggressive war”.
William R. Pace, Convenor of the CICC, said: “The Coalition congratulates all those who have strived for this fourth ICC crime to be activated and looks forward to a strengthened Rome Statute system and global order based on the Rule of Law.”
Evelyn Ankumah, the Executive Director of Africa Legal Aid (AFLA), a non-governmental organisation based in The Hague, told the GNA that: “Aggression is essentially the illegal use of force by one state against another.”
She pointed out that reference in some quarters to the post-World War II trials in Nuremberg and Tokyo “is misleading because the defendants were not prosecuted for aggression.”
An expert in Human Rights Law and International Justice, Ghanaian-born Ms Ankumah, said: “Aggression is a leadership crime, committed by powerful states against weaker nations.
“The ICC will now be able to hold leaders individually accountable for the crime of aggression for the first time in history.
“Regrettably, of the 35 states that have ratified the Amendments only one, Botswana, is African.
“However, the recent consensus to activate the aggression amendments is encouraging. “Activation of the Kampala Amendments is to be welcomed because victims of aggression crimes are usually innocent and defenceless civilians, often women and children,” she added.
The Crime of Aggression, under the Rome Statute, is defined thus: "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."
The Act of Aggression itself is defined as; "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".
These acts can include invasion, military occupation, and annexation by the use of force, and blockade of ports or coasts.
The Crime of Aggression has a unique jurisdictional regime, which cannot be triggered in the same manner as with other crimes of the Rome Statute (genocide, crimes against humanity and war crimes).
The Court exercises jurisdiction over these three crimes either by an ICC member state referring a situation to the Court; the prosecutor initiating an investigation; a UN Security Council referring the situation to the Court.
However, in the case of UN Security Council referrals, non-ICC member states are excluded from the Court’s jurisdiction over the Crime of Aggression, regardless of victim or the status of the aggressor.
Meanwhile, earlier this month the ICC, for the first time, formally marked the opening of its judicial year, which also coincided with the launch of the commemorations of the 20th Anniversary of the Rome Statute.
“In holding such a ceremony for the first time at the International Criminal Court, we underline the judicial nature of our institution, which is guided strictly by its legal framework, and we recall our undertaking to perform our duties honourably, faithfully, impartially and conscientiously,” the ICC President, Judge Silvia Fernández de Gurmendi, said.
“The ceremony provides an opportunity not only to foster understanding about the Court’s work but also to engage with judges of other jurisdictions in order to exchange views and experiences in our respective functions…”
“The future of the Rule of Law lies in dialogue and collaboration – not in isolation,” she added.