The Security Council, the International Criminal Court, and the Crime of Aggression: How Exclusive Is the Security Council's Power to Determine Aggression?

Abstract

One of the most contentious issues surrounding the new International Criminal Court (ICC) is what role the Security Council should play in prosecuting the crime of aggression. In the negotiations that led to the adoption of the Rome Statute of the International Criminal Court, the participants could not agree on the Security Council’s role, and they also could not agree on how to define the crime of aggression. Accordingly, these issues were postponed. Article 5(2) of the ICC Statute states that the ICC “shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.” Such an amendment, Article 5(2) directs, “shall be consistent with the relevant provisions of the Charter of the United Nations.” Some contend that under the U.N. Charter, the Security Council must determine the existence of an act of aggression as a precondition to any prosecution for the crime of aggression. They point to Article 39 of the U.N. Charter, which states: “The Security Council shall determine the existence of