Aggression, Affected States, and a Right to Participate: A Response to Koh and Buchwald

Abstract

At the review conference in Kampala, States Parties adopted three new provisions on the crime of aggression for inclusion in the Rome Statute, as well as consequential amendments to the Elements of Crimes. However, states parties did not consider revisions to the procedural arrangements that may be required to accommodate the crime of aggression. The crime of aggression requires a link to states, being limited to acts of aggression by one state against another state. The individuals that can be charged with the crime of aggression are persons “in a position effectively to exercise control over or to direct the political or military action of a State.” The crime is also connected to the international security framework, in particular the UN Charter. Given that aggression is intrinsically linked to state acts, it is “likely that the ICC [International Criminal Court] would need relevant states to cooperate, present evidence, and argue the case.” Yet the existing framework does not include an adequate right of participation for affected states. This contribution suggests one possible revision to provide a clearer legal basis for states to participate directly in ICC proceedings in respect of the crime of aggression.