The Kampala compromise on the crime of aggression

Journal of International Criminal Justice

Volumn 8, Issue 5, 2010, Pages 1179-1217

  Kreß, Claus ^a   von holtzendorff, Leonie ^a  

^a UNIVERSITY OF COLOGNE   (Germany)

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[No Author keywords available]

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EID: 78649435424     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqq069     Document Type: Article

References (136)

1. A/CONF.183/9, 17 July 1998, and corrected by proces-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 16 January 2001 and 17 January 2001 (entry into force: 1 July 2002).
2. For Donald Ferencz's most recent scholarly contribution to the debate, see 'Bringing the Crime of Aggression Within the Active Jurisdiction of the ICC', 42 Case Western Reserve Journal of International Law (2009) 531-542.
3. International criminal law stricto sensu establishes individual criminal responsibility directly under international law.
4. See C. Kreß, 'International Criminal Law', in R. Wolfrum (ed.), Max Planck-Encyclopedia of Public International Law (forthcoming), paragraph 10; the electronic version is available at http://www.mpepil.com (visited 5 October 2010).
5. For a useful recent summary of the developments before Nuremberg, see J. Nyamuya Maogoto, 'Aggression: Supreme International Offence still in Search of Definition', 6 Southern Cross University Law Review (2002) 278-317, 278-289.
6. Report to the President by Mr. Justice Jackson, 6 June 1945, sub IV.; available at http://avalon.law.yale.edu/imt/jack63.asp (visited 5 October 2010).
7. Art. 6(a) of the London Charter defines those crimes as the 'planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing'; 82 UNTS 280.
8. 'To initiate a war of aggression, therefore, is not only an international crime, it is the supreme crime', in 'Judicial Decisions, International Military Tribunal (Nuremberg), Judgment and Sentences', 41 American Journal of International Law (1947), at 186.
9. For a short summary of the debate as to whether this 'creative' precedent violated the principle of nullum crimen.
10. Available at http://www.mpepil.com (visited 26 October 2010).
11. Opening Speech of the Chief Prosecutor for the United States, reprinted in Trial of German Major War Criminals by the International Military Tribunal Sitting at Nuremberg Germany (Buffalo: William S. Hein & Co., 2001), at 45.
12. UN Doc. A/RES/95 (1946), paragraph 1, 11 December 1946.
13. For an excellent recent reappraisal of the contribution of the Tokyo International Military Tribunal to legal development, see N. Boister and R. Cryer, The Tokyo International Military Tribunal: A Reappraisal (Oxford: Oxford University Press, 2008), at 115.
14. E. Wilmshurst, 'Aggression', in R.Cryer, H. Friman, D. Robinson and E. Wilmshurst, An Introduction to International Criminal Law and Procedure (2nd edn., Cambridge: Cambridge University Press, 2010), at 314.
15. Annex to UN Doc. A/RES/3314 (XXIX), 14 December 1974 (Res. 3314).
16. A/51/10 (1996); the 1996 Draft Code does not, however, spell out the elements of the crime. An attempt to do so had been undertaken (and remains controversial) in Art. 15 of the 1991 Draft Code (A/46/10 (1991)).
17. C. Kreß, 'The Iraqi Special Tribunal and the Crime of Aggression', 2 Journal of International Criminal Justice (JICJ) (2004) 347-352.
18. For a succinct summary of the debates in Rome, see G. Westdickenberg and O. Fixson, 'Das Verbrechen der Aggression im Roemischen Statut des Internationalen Gerichtshof', in J.A. Frowein et al. (eds), Negotiating for Peace. Liber Amicorum Tono Eitel (Berlin: Springer, 2003), at 496-498.
19. Art. 123(1) ICCSt.
20. The British House of Lords added its weighty voice to this view in R. v. Jones et al. (2006) UKHL 16, §§ 12, 19 (Lord Bingham), §§ 44, 59 (Lord Hoffmann); § 96 (Lord Rodger); § 97 (Lord Carswell); § 99 (Lord Mance).
21. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Official Records,Vol. I, Final Documents, Annexe I, at 72.
22. For the best account of this part of the debate, see R.S. Clark, 'Rethinking Aggression as a Crime and Formulating Its Elements: The Final Work-Product of the Preparatory Commission for the International Criminal Court', 15 Leiden Journal of International Law (LJIL) (2002) 859-890.
23. For the views of the last coordinator, see S. Fernandez d Gurmendi, 'The Working Group on Aggression at the Preparatory Commission for the International Criminal Court', 25 Fordham International LawJournal (2001-2002) 589-605.
24. UN Doc. PCNICC/2002/WGCA/RT.1/Rev.2, 11 July 2002.
25. Art. 112 ICCSt.
26. ICC-ASP/I/Res. 1 adopted by consensus at the 3rd Plenary Meeting on 9 September 2002, ICC-ASP/I/3, 328.
27. The term is borrowed from S. Barriga, 'Against the Odds: The Results of the Special Working Group on the Crime of Aggression', in R. Bellelli (ed.), International Criminal Justice. Law and Practice from the Rome Statute to Its Review (Farnham, Burlington: Ashgate Publishing, 2010), 621-643, at 640, which is the best account of the SWGCA's work.
28. ICC-ASP/8/Res.6.
29. Non-States Parties made ample use of this opportunity. The single regrettable exception was the United States, during the G.W. Bush administration. The degree of participation from within the NGO community varied. Sadly, and somewhat surprisingly, Amnesty International and Human Rights Watch interpreted their respective mandates so as to preclude them from a meaningful engagement, which, at times and perhaps inadvertently, created the impression that these two important organizations sided with those few delegations which remained sceptical of the overall process. There were a few NGOs, however, which took a less timid approach and shared their rich expertise with state delegates throughout the process; Jutta Bertram-Nothnagel and NoahWeisbord deserve special credit for their significant intellectual input.
30. The reports are usefully collected in S. Barriga, W. Danspeckgruber, S. Wenaweser (eds), The Princeton Process on the Crime of Aggression (Boulder: Lynne Rienner Publishers, 2009).
31. For two important examples, see the Torino Conference on International Criminal Justice of May 2007.
32. And the Symposium on the crime of aggression of September 2008 hosted by the Case Western Reserve University School of Law (41 Case Western Reserve Journal of International Law (2009) 267-467).
33. The amount of scholarly writing on the crime of aggression has increased significantly in the last 10 years. Space does not allow us to list the publications comprehensively.
34. See: M. Kamto, L'agression en droit international (Paris: A. Pedone, 2010).
35. R.S. Clark, 'Negotiating Provisions Defining the Crime of Aggression, its Elements and the Conditions for ICC Exercise of Jurisdiction Over it', 20 European Journal of International Law (EJIL) (2009) 1103-1115.
36. Idem, 'The Crime of Aggression and the International Criminal Court', in J. Doria, H.-P. Gasser and M.C. Bassiouni (eds), The Legal Regime of the International Criminal Court. Essays in Honour of Professor Igor Blishchenko (Leiden-Boston: Martinus Nijhoff, 2009) 661-699.
37. M.J. Glennon, 'The Blank-Prose Crime of Aggression', 35 The Yale Journal of International Law (2009) 71-114.
38. C. Kreß, 'Time for Decision: Some Thoughts on the Immediate Future of the Crime of Aggression: A Reply to Andreas Paulus', 20 EJIL (2009) 1129-1146.
39. A. Paulus, 'Second Thoughts on the Crime of Aggression', 20 EJIL (2009) 1117-1128.
40. S.D. Murphy, 'Aggression, Legitimacy and the International Criminal Court', 20 EJIL (2009) 1147-1156.
41. R. Schaeffer, 'The Audacity of Compromise. The UN Security Council and the Pre-Conditions to the Exercise of Jurisdiction by the ICC with Regard to the Crime of Aggression', 9 International Criminal Law Review (ICLR) (2009) 411-433.
42. L. May, Aggression and Crimes Against Peace (Cambridge: Cambridge University Press, 2008).
43. A. Reisinger Coracini, "'Amended Most Serious Crimes": A New Category of Core Crimes within the Jurisdiction but out of the Reach of the International Criminal Court?' 21 LJIL (2008) 699-718.
44. N. Weisbord, 'Prosecuting Aggression', 49 Harvard International Law Journal (2008) 161-220.
45. N. Blokker, 'The Crime of Aggression and the United Nations Security Council', 20 LJIL (2007) 867-894.
46. A. Cassese, 'On Some Problematic Aspects of the Crime of Aggression', 20 LJIL (2007) 841-849.
47. C. McDougall, 'When Law and Reality Clash - the Imperative of Compromise in the Context of the Accumulated Evil of the Whole: Conditions for the Exercise of the International Criminal Court's Jurisdiction over the Crime of Aggression', 7 ICLR (2007) 277-333.
48. O. Solera, Defining the Crime of Aggression (London: Cameron May, 2007).
49. T. Stein, 'Aggression als Verbrechen im Statut des Internationalen Strafgerichtshofs - "A Bridge too Far"?' in H. Müller-Dietz et al. (eds), Festschrift für Heike Jung (Baden-Baden: Nomos, 2007), 935-944.
50. M. Stein, 'The Security Council, the International Criminal Court, and the Crime of Aggression: How Exclusive is the Security Council's Power to Determine Aggression?' 16 Indiana International and Comparative Law Review (2005) 1-36.
51. J.N. Boeving, 'Aggression, International Law and the ICC: An Argument for the Withdrawal of Aggression from the Rome Statute', 43 Columbia Journal of Transnational Law (2005) 557-611.
52. A. Paulus, 'Peace through Justice? The Future of the Crime of Aggression in a Time of Crisis', 50 Wayne Law Review (2004) 1-35.
53. M. Politi and G. Nesi (eds), The International Criminal Court and the Crime of Aggression (Aldershot: Ashgate, 2004).
54. R. Fife, 'Criminalizing Individual Acts of Aggression by States', in M. Bergmso (ed.), Human Rights and Criminal Justice for the Downtrodden. Essays in Honour of Asbjorn Eide (Leiden: Nijhoff, 2003) 53-73.
55. D.D. Ntanda Nsereko, 'Defining the Crime of Aggression: An Important Agenda Item for the Assembly of States Parties to the Rome Statute of the International Criminal Court', Acta Juridica (2003) 265-286.
56. M. Schuster, 'The Rome Statute and the Crime of Aggression: A Gordian Knot in Search of a Sword', 14 Criminal Law Forum (2003) 1-57.
57. R.L. Griffiths, 'International Law, the Crime of Aggression, and the Ius ad Bellum', 2 ICLR (2002) 301-374.
58. I.K. Mueller-Schieke, 'Defining the Crime of Aggression under the Statute of the International Criminal Court', 14 LJIL (2002) 409-430.
59. T. Meron, 'Defining Aggression for the International Criminal Court', 1 Suffolk Transnational Law Review (2001) 1-15.
60. And, M. Hummrich, Der völkerrechtliche Tatbestand der Aggression (Baden-Baden: Nomos, 2001).
61. A. Zimmermann, 'Article 5', in O. Triffterer (ed.), Commentary of the Rome Statute of the International Criminal Court (2nd edn., Munich-Oxford-Baden-Baden: C.H. Beck/Hart/Nomos, 2008), at paragraph 1.
62. See the 2007 Report of the SWGCA, § 5 et seq.
63. For the distinction between a 'monist' and a 'differentiated' approach to the individual component of the crime.
64. There has been some debate, however, as to whether this language is broad enough to fully cover the customary acquis.
65. See K. Heller, 'Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression', 18 European Journal of International Law (2007) 477-497.
66. And C. Kreß, 'The Crime of Aggression before the First Review of the ICCSt.', 20 LJIL (2007) 851-865, at 855.
67. See sub 4. of the 2009 Proposals For a critique of this solution, see K. Ambos, 'The Crime of Aggression after Kampala', 53 German Yearbook of International Law (2010) (forthcoming).
68. The mental elements are, however, to some extent dealt with in the Elements of Crimes. See infra 3.D.
69. The point has been made, for example, by C. Stahn, 'International Law at a Crossroads? The Impact of September 11', 62 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2002) 183-255, at 250.
70. See also, A. Cassese, International Criminal Law (2nd edn., Oxford: Oxford University Press, 2008), at 157.
71. For some references to the controversy surrounding this aspect of the current ius contra bellum, see C. Kreß, 'Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts', 15 Journal of Conflict & Security Law (2010) 245-274, at 248 (notes 9-12).
72. To the extent that Art. 2(4) of the UN Charter also prohibits the threat to use armed force, it exceeds the realm of conduct that is subject to international criminalization.
73. See the different options in paragraph 1 of the 2002 Discussion paper.
74. See Art. 8 bis paragraphs 1 and 2 of the 2009 Proposals.
75. R.S. Clark, 'Amendments to the Rome Statute of the International Criminal Court Considered at the First Review Conference on the Court, Kampala, 31 May-11 June 2010', 2 Göttingen Journal of International Law (2010) 689-711, at 696.
76. It is likely that the concerns voiced by D. Scheffer, 'The Complex Crime of Aggression under the Rome Statute', 23 LJIL (2010) 897-904, at 898-901, about the distinction between crime and act of aggression are also based on such a problematic divorce.
77. For a more detailed analysis, see T. Bruha, Die Definition der Aggression (Berlin: Duncker & Humblot, 1980), at 126 et seq.
78. For a masterfully succinct exposition of this grey area.
79. Note that this concept is still referred to in options 1 and 2 for draft Art. 8 bis in the 2002 Discussion Paper.
80. For some reflections on the different candidates, see C. Kreß, 'The German Chief Federal Prosecutor's Decision Not to Investigate the Alleged Crime of Preparing Aggression Against Iraq', 2 JICJ (2004) 245-264, at 256-259.
81. The 2002 Discussion Paper uses the term 'flagrant' instead of the term 'manifest'. There does not seem to be an 'official' explanation for the choice of the term 'manifest'. Paragraph 20 of the report of the 2006 Princeton meeting just states that there was a 'general preference... for the term "manifest" rather than 'flagrant' if a qualifier was to be retained.'.
82. 'Discussion Paper 3', which was submitted to the SWGCA in 2005, referred to this second function of the threshold requirement in somewhat cautious terms. The double function of the threshold was, however, the clear understanding of most of those states which insisted on the inclusion of the threshold. This is clear from the following passage of the report on the June 2008 SWGCA meeting: 'Delegations supporting this threshold clause noted that it would appropriately limit the Court's jurisdiction to the most serious acts of aggression under customary international law, thus excluding cases of insufficient gravity and falling within a grey area'.
83. The text is reproduced in M.C. Bassiouni (ed.), The Legislative History of the International Criminal Court: An Article-by-Article Evolution of the Statute (Ardsley: Transnational Publishers, 2005), at 130.
84. Report of the International Law Commission on the work of its forty-sixth session, 2 May to 22 July 1994, UN Doc. A/49/10,43, at 87 et seq.
85. To make the case for a Security Council monopoly has not adduced new arguments. It is largely based on considerations of legal policy, and Glennon's argument fails to convince us also on that account as well.
86. See draft Art. 15 bis (5) of the 2009 Proposals. This important stipulation has made its way into the Kampala compromise in the form of draft Art. 15 bis (9) and draft Art. 15 ter (4) ICCSt. See infra 4.F.
87. On the story behind the ICCSt.'s jurisdictional regime, see H.-P. Kaul and C. Kreß, 'Jurisdiction and Cooperation in the Rome Statute on the International Criminal Court: Principles and Compromises', 2 Yearbook of International Humanitarian Law (1999) 143-175.
88. The term is borrowed from the abstract of a recent article by one of the leading experts on the matter.
89. See R.S. Clark, 'Ambiguities in Articles 5(2), 121 and 123 of the Rome Statute', 41 Case Western Reserve Journal of International Law (2009) 413-427, at 413.
90. Most of them are already reflected in the report of the 2005 Princeton meeting.
91. Importantly, the controversy about the four models described in the following text did not include the special case of a Security Council referral. Here all members of the Special Working agreed that the ICC should be able to exercise its jurisdiction irrespective of any state consent.
92. Those in favour of this model did not wish to apply the second sentence of Art. 125(2) ICCSt., in the case of a Security Council referral. While this sentence does not explicitly distinguish between the three trigger mechanisms, an argument can be made that this sentence has been formulated with a view to Art. 12(2) ICCSt., which is inapplicable in the case of a Security Council referral under Art. 13(b) ICCSt.
93. For an exposition of this model, whose relevance, of course, exceeds the crime of aggression, see A. Reisinger Coracini, "'Amended Most Serious Crimes": A New Category of Core Crimes within the Jurisdiction but out of the Reach of the International Criminal Court?', 21 LJIL (2008) 699-718, at 707-714.
94. This is based on the view that the territory of the victim state forms part of the territory on which the crime of aggression is committed within the meaning of Art. 12(2)(a) ICCSt. This view was generally shared by the members of the SWGCA.
95. It bears mentioning that also most states favouring the 'Art. 121(5) Model with a Negative Understanding' felt uncomfortable with the discrimination between non-accepting States Parties and non-States Parties and were agreeable to arriving at a joint understanding eliminating this discrimination. See also infra in note 119.
96. For an eloquent case in favour of 'Article 121(5) Model with a Positive Understanding'.
97. The draft has not been reprinted as part of the citation accompanying this note in the above text.
98. For some early conceptual groundwork on the Elements.
99. This initiative is alluded to in the report on the 2009 SWGCA meeting.
100. ICC-ASP/8/Res.6.
101. Note that, other than the 2002 Discussion Paper, the 2009 Proposals do not exclude the application of this provision to the crime of aggression.
102. For a more detailed exposition of the functional equivalence of an objective manifest illegality principle and a subjective mistake of law defence in the case of the crime of aggression.
103. The Conference Room Paper on the Crime of Aggression of 25 May 2010 (RC/WGCA/1), on which basis the negotiations were to be taken up at the Review Conference, documented this progress in a masterfully condensed manner. The paper encapsulated the 2009 Proposals and the draft Elements and suggested a convenient structure for the final result comprising a draft enabling resolution, the draft amendments to the Rome Statute on the crime of aggression, the draft amendments to the Elements of Crimes and draft understandings regarding the interpretation of the amendments.
104. th plenary meeting, on 11 June 2010, advance version, 28 June 2010, 18:00, 1-6, at 5.
105. Available at http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf (visited 5 October 2010), follows this structure.
106. H.R.H. Prince Zeid Ra'ad Zeid Al-Hussein, the Ambassador of Jordan to the United States and the first President of the ASP, chaired the negotiations in the Working Group on the Crime of Aggression. As the President of the ASP, Christian Wenaweser presided over the Review Conference.
107. RC/WGCA/1/REV.1, 6 June 2010.
108. For the wording of these options, see Art. 15 bis paragraph 4, Alternative 2, options 3 and 4 of the 2009 Proposals.
109. Non-paper submitted by Argentina, Brazil and Switzerland as of 6 June 2010. The proposal, which is on file with the authors, has not been circulated in the form of an official working group document.
110. See draft Arts 15 bis and 15 ter in RC/WGCA/1/Rev.2, 7 June 2010.
111. The proposal, which is on file with the authors, has not been circulated in the form of an official working group document.
112. Declaration (Draft of 9 June 2010 16h00). The non-paper, which is on file with the authors, has not been circulated in the form of an official working group document.
113. The full text of the statement by Harold Hongju Koh, available at http://www.state.gov/s/l/releases/remarks/142665.htm (visited 5 October 2010).
114. Untitled paper as presented to the WGCA by William K. Lietzau, Deputy Assistant Secretary of Defense (Detainee Policy); the paper is on file with the authors.
115. The first of these two authors acted in that capacity for the German delegation, and the second author assisted him in this task.
116. Non-Paper on possible further understandings (Annex III of the Conference Room Paper). The non-paper, which is on file with the authors, has not been circulated in the form of an official working group document.
117. This (admittedly rather subtle) point is perhaps not fully appreciated by either R. Heinsch, 'The Crime of Aggression After Kampala: Success or Burden for the Future?' 2 Göttingen Journal of International Law (2010) 713-743, at 728-729.
118. Upon completion of its work, the WGCA transferred the outstanding issues back into the hands of the President of the conference; for the Report of the WGCA, see RC/20 (advance version of 28 June 2010).
119. Available at http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-20-ENG-Annex.II.WGCA.report.pdf (visited 5 October 2010).
120. Non-Paper by the President of the Assembly, 10 June 2010 23h00. The non-paper, which is on file with the authors, has not been circulated in the form of an official conference room document. The earlier Non-Paper by the President of the Assembly,10 June 2010,12h00 (on file with the authors) had already taken up the essence of the 'ABCS Non-Paper', but room for improvement remained from a drafting perspective.
121. Draft Art. 15 bis (1) bis and draft Art. 15 ter (2) of the non-paper of 6 June 2010, 23:00.
122. Operative paragraph 1 of the draft enabling resolution.
123. For a recent exchange of views, see the debate between A. Paulus, 'Second Thoughts on the Crime of Aggression', 20 EJIL (2009) 1117-1128.
124. In addition, draft Art. 8 bis is accompanied by the draft Elements.
125. And draft Understandings 6 and 7.
126. The exercise of the Court's jurisdiction is, however, conditioned by the ratification or acceptance by at least 30 States Parties and by the activation decision to be taken after 1 January 2017; see draft Art.15 ter (2) and (3) ICCSt. There is a question mark about the Court's exercise of jurisdiction in case of a crime of aggression committed after the one year following the ratification or acceptance of third States Parties, but before the activation decision by States Parties (if the latter is made at a later date).While draft Article 15 bis (2) and (3) ICCSt. would seem to leave open the possibility for the Court to exercise its jurisdiction over such a crime, the first Understanding (RC/Res.6, supra note 82, Annex III sub 1.) stipulates otherwise; the practical importance of this question is not likely to be dramatic and we shall not pursue it any further in this article.
127. This strongly points towards the existence of uniform subsequent practice to interpret the second sentence of Art. 121(5) ICCSt. as inapplicable to Security Council referrals.
128. Draft Art. 15 bis (8) ICCSt. On the Pre-Trial Division, see Arts 34(b), 39(1) ICCSt.
129. Statement by Japan (11 June 2010); on file with the authors.
130. This further restriction cannot be circumvented through an ad hoc acceptance pursuant to Art. 12(3) ICCSt. by the alleged victim non-State Party. Draft Art. 15 bis (5) ICCSt. constitutes a lex specialis with respect to Art. 12(3) ICCSt. and prevents non State Parties from deriving asymmetrical benefits from the ICCSt.'s new regime against the crime of aggression.
131. Undecided on this point, see A. Reisinger Coracini, 'The International Criminal Court's Exercise of Jurisdiction over the Crime of Aggression - at Last... in Reach... over Some', 2 Göttingen Journal of International Law (2010) 745-789, at 780-781.
132. The Kampala Compromise on the Crime of Aggression 1213.
133. If the second sentence is 'negatively' understood, it does not deal with the entry into force but poses limits to the exercise of the Court's jurisdiction.
134. Arguably, the victim State Party may also provide the Court with the necessary jurisdictional link through an ad hoc acceptance pursuant to Art. 12(3) ICCSt. We shall not pursue this question any further in this article.
135. Resolution RC/Res.5. Adopted at the 12th plenary meeting, on 10 June 2010, by consensus, Advance version 16 June 2010 13:00; available at http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.5-ENG.pdf (visited 5 October 2010).
136. Note that the same preambular paragraph also expresses the joint understanding that there will be no discrimination between non-accepting States Parties and non-States Parties.