Lesson 5 Flashcards
(19 cards)
Act vs. crime of aggression
Act of aggression
1. GA resolution from 1974
2. Rome sttaatute art 8bis draws heavily on this definition
3. Rome statute specified for indioviduals crimes, not state’s crimes
4. 4. Includes it must violate (manifest violate) the UN Charter
Acts of aggression, GA resolution 1974, crime of aggression 2002 rome statute.
-Sean D. Murphy
Kampala Amendments
Amendments to the statute
ICC art. 123, 7 years after stepping into force, amendements should be consideres.
One of the changes is, adding art 8bis (definition of crime of agression)
- Act of aggression
Sean D. Murphy
Crime of aggression
Rome statute art 8bis,
a. Planning, preparing, initiating, executing
b. The crime must be a leadership crime (politival or military action)
Sean Murphy
ICC art 121(5)
Ratified states are under amendments urisdiction 1 year after ratification.
Can a new State Party to the Rome Statute still opt out of the ICC’s jurisdiction over war crimes under Article 8?
No. Article 124, which allowed new States to opt out of war crimes jurisdiction for 7 years, was deleted in 2016.
It was a transitional measure for war crimes (Article 8).
Removed by the Assembly of States Parties to strengthen universal jurisdiction.
Today, no opt-out from war crimes is allowed.
However, opt-out is still allowed for the crime of aggression under Article 8 bis, via Article 15 bis(4).
ICC states not ratified
a. ICC has no jurisdiction except if they commit a crime in a state who is a part of the ICC (Russia Ukraine)
Why can’t the ICC prosecute Russia for the crime of aggression against Ukraine under Article 15 bis of the Rome Statute?
Because Article 15 bis limits the ICC’s jurisdiction over the crime of aggression to acts committed by nationals of, or on the territory of, States that have ratified the aggression amendments.
Russia is not a State Party to the Rome Statute.
Even though Ukraine became a State Party in 2025, it has not ratified the aggression amendments.
Therefore, the ICC lacks jurisdiction over Russia’s alleged aggression under Article 15 bis.
Only a UN Security Council referral could override this limitation.
Lack of Reciprocity
ICC. If jurisdiction doesn’t apply to one state in relation to one another, it doesn’t apply the opposite way.
SC referrals
Latest 2015, Libya
UN Res. 3314
- Armed force by a state against soverginity, territorial integrity or political independence of another state.
ICC and Women
ICC judges must have experience with violation against women or children 36, 8, b.
Kampala Amendements Why it won’t reduce the practice of Aggression
- The language of the Amendment was unacceptably vague and made no provision for humanitarian intervention
- States will not wish to join a legal framework that will be seen as a crime, but the state is acting in good faith for the maintenance of public order.
- Any humanitarian intervention that violates the territorial integrity and political independence of a state is an act of aggression
- The experience of double-standards to the disadvantage of some states, (security council)
ICC art 8bis and new wars
- ICC art. 8bis, does not encounter new wars.
- Weisboard suggests making a new amendments to the 8bis, where it include state like actors and groups.
Kampala ratifications
Denmark, no
Ukraine, yes
Alex Whitning opinion of adopting ICC 8bis
The crime of aggression, the significance of the inclusion, is not that you can prosecute head of states or other with high official state power, but the discussion around it.
Russia’s invasion of Ukraine
ICC jurisdiction is limited, as the time the article was written neither Russia nor Ukraine had ratified the statue. But Ukraine had been accepting the courts jurisdiction under art. 12(3), but this does not include crimes of aggression
Functional immunity
These apply to all state officials for acts undertaken in their official capacity, and endure even after the individual no longer holds their position1 There is some controversy over whether functional immunities apply to the prosecution of international crimes, especially aggression.
Status immunity
These apply to sitting heads of state, heads of government, and foreign ministers, and lapse when they leave office
Why Creating a Special Tribunal for Aggression Against Ukraine is the Best Available Option
State’s can not have jurisdiction over ratione p1.State’s can not have jurisdiction over ratione personae (Putin)
2. States doesn’t have capacity
3. No ICC jurisdiction
4. Inhabil.
