The Activation of the International Criminal Court’s Jurisdiction over the Crime of Aggression: International Institutional Law and Dispute Settlement Perspectives

Abstract

Abstract In 2017, the plenary organ of the International Criminal Court (ICC), the Assembly of States Parties (ASP), adopted Resolution ICC-ASP/16/Res.5, deciding to activate the Court’s jurisdiction over the crime of aggression; and confirming an interpretation of the Rome Statute of the ICC (“Rome Statute”). While the characterization of this Resolution as either a subsequent agreement or subsequent practice under Articles 31(3) and 32 of the Vienna Convention on the Law of Treaties 1959 (“VCLT”) may be of relevance to treaty interpretation of the Rome Statute, this article submits that this Resolution is clearly a Rule of the International Organization, made by one of its organs. Resolution ICC-ASP/16/Res.5 may constitute a ‘relevant rule’ of interpretation with regard to the Rome Statute, thereby taking precedence over the general rules of interpretation in Articles 31 and 32 of the VCLT, particularly when the interpreter is an organ of the ICC. If a dispute arises with regard to the interpretation of the Rome Statute on the crime of aggression, two separate regimes at the ICC exist for the settlement of disputes depending on whether the dispute is one concerning the judicial functions of the Court. In the event that the dispute may be other than a ‘judicial function’, the ASP may be a mechanism for dispute settlement, along with other mechanisms of dispute settlement under international law.