ICC Must Prosecute Crime of Aggression Independently or Not at All

The International Criminal Court (ICC) review conference in Kampala decided to extend the talks up until 2017 on whether or not the ICC shall have authority to prosecute the crime of aggression. [:]

Crime of aggression is included in the powers of the Court but so far the it has been unable to prosecute this crime as the member states have been unable to agree how it should be done. Many of the member states and other critics have been hesitant to give the Prosecutor of the Court full powers in this regard. This is because they consider that the decision for a state to go to a war is inherently complex, oftentimes with no straghtforward right and wrong ways to proceed.

Despite this, there are strong voices in support of outlawing war. This has been the intent and purpose of all international trials on war criminals, all the way from Nuremberg. In this spirit, after a lengthy and intense debate in the wider international forum and finally in Kampala, the States Parties supported a decision that, in principle, allows the court to take action on ground of crime of aggression. Despite this welcome decision we should not expect to see prosecution on these grounds any time soon, as the operational power of this new jurisdiction depends on further agreement between the Member States. Neither would it seem that the Court will be granted wide margin of discretion in making the decision to prosecute this crime, if in reality hardly any at all.  It was agreed that new round of talks will be held in 2017 to decide how the Court may take up the prosecution over this crime and its operational scope. Indeed, it is not difficult to appreciate the tremendous challenge in settling this matter.

However, if the Member States are principled in outlawing war, they must be principled in the way they go about it too. It would seem that none of the options agreed in Kampala would protect the independence of the Court. The options are that the referral to prosecute would come either from the UN Security Council or from the states parties of the Court who are the alleged aggressor and victim of aggression and agree the Court to prosecute over aggression. This way the UN Security Council members and their allies would have effectively veto over accountability for crime of aggression or this would be decided on exclusively by the parties involved. “Unfortunately this is not an outcome we can be satisfied with. The Court should decide on these matters independently on its own or not claim jurisdiction for crime of aggression at all. This is not justice but politics”, Ms Hautala said.