Weaponized migration as a tool of clandestine aggression in contemporary international law

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Although the crime of aggression is expressly defined by the Rome Statute of the International Criminal Court through seven criminalized types of activities, it seems that a special form of aggression has begun to appear as a new instrument of influence in international relations. Namely, several states have been exercising a particular tool of aggression: causing a swift influx of migrants or refugees into neighboring countries, in order for the latter to be politically or economically destabilized. Even if “indirect” aggression, such as spy-flights over foreign territory, is a well-known, though illegal, practice in international relations, aggression by the means of using migrants contains a special new component—unarmed human beings (and with foreign nationality) being forced to cross national borders, unwillingly taking risks of being inhumanely treated or physically endangered by the other side as well. Also named “refugee aggression,” this type of illicit activity of a state or its agents can cause severe political and security effects by a mere threat that it will be carried out.

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  • Cite Count Icon 1
  • 10.1163/18757413-00190007
Ratifying the Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression
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  • Max Planck Yearbook of United Nations Law Online
  • Meagan S Wong

The Review Conference of the Rome Statute of the International Criminal Court in Kampala adopted amendments to the Rome Statute, providing for a definition and conditions for the jurisdiction of the crime of aggression (‘Kampala Amendments’). At present, the jurisdiction over crime of aggression has not come into effect at the International Criminal Court (ICC). For the activation of the Court’s jurisdiction over the crime of aggression, two cumulative conditions must be met: first, a minimum of 30 ratifications of the Kampala Amendments must take place; second, a majority of two thirds of States Parties have to make a decision to activate the Court’s jurisdiction after 1 January 2017. This paper analyses salient legal aspects of the activation of the Court’s jurisdiction over the crime of aggression. First, the question whether the requirements of 30 ratifications will be met will be considered. Second, the relationship of the entry into force mechanism of the amendments and the conditions for the exercise of jurisdiction will be analysed. Third, the procedure of ascertainment of the jurisdictional regime of the ICC over the crime of aggression, with particular reference to State referrals and proprio motu investigations, will be dealt with. Fourth, the need for States Parties intending to ratify the Kampala Amendments to implement the crime of aggression into their domestic legislation will be explored. Finally, the paper will explore the question whether the aggressor State (party) must ratify the Kampala Amendments in order for the jurisdictional regime over the crime of aggression to apply, or whether it suffices that the aggressed State is a ratifying State Party. A qualified solution will be suggested: while the latter reading of the law is the better one, consent of the aggressor State (party) is nevertheless upheld pursuant to the sui generis jurisdictional regime of the ICC over the crime of aggression.

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