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

Abstract

The International Criminal Court (ICC) recently celebrated the 10th year anniversary of the signing of its founding treaty, the Rome Statute. The Court is up and running, yet some aspects of substantive law, which could not be agreed upon in Rome or thereafter, continue to pre-occupy many minds. This article concerns the pre-conditions to the exercise of jurisdiction of the ICC with regard to the crime of aggression. As is well known, the ICC has jurisdiction over the crime of aggression, yet it cannot exercise said jurisdiction until the crime of aggression has been defined and the conditions for the Court to exercise jurisdiction with respect to said crime have been set. It is this latter part that will be discussed thoroughly in the present article. This aspect of the crime of aggression is highly contentious because it encompasses both aspects of power politics involving the use of force and the UN Security Council, and the rule of law embodied in the ICC. It is at the crossroads of jus ad bellum and international criminal law, touching on both and in need of fitting into both legal frameworks. The Security Council has the competence to determine the existence of an act of aggression, the ICC has the competence to determine the existence of a crime of aggression, and there is widespread consensus that a crime of aggression must include an act of aggression. This article was written in order to further stimulate informed discussion among a wide range of stakeholders involved in the negotiations on the crime of aggression. At the same time, it aims to provide a compromise solution and explains why it is essential to find a concrete agreement which would find overall support at the upcoming Review Conference of the ICC.