6.5: Different Responsibility Regimes, Core International Crimes and Enforcement Options

State Responsibility

The traditional approach to international law considers violations of IHL to be committed by states and for that reason state parties incur certain responsibilities with regard to measures that must be taken to prevent and repress transgressions. This is also clear from the first article to the Geneva Conventions and Protocols clearly stating that the High Contracting Parties “undertake to respect and to ensure respect” for the Conventions and Protocols “in all circumstances”. It is also important to note that in terms of the Geneva Conventions no state party shall be allowed to absolve itself or any other state party of any liability in respect of grave breaches (see below) under the Conventions (See Geneva Conventions I-IV, Articles 51, 52, 131, 148 respectively). Under Article 91 of Protocol I to the Geneva Conventions a state party to a conflict who has violated the provisions of the Conventions or of the Protocol will be liable to pay compensation and will be held responsible for all acts committed by persons forming part of its armed forces. This rule is in keeping with the general international law principles on state responsibility and entails that the state responsible for the violation (by virtue of the actions of its armed forces) must compensate the state injured by the violation and not the individual victims of the violation. This rule is at variance with human rights law which normally requires that the individual harmed is entitled to an effective remedy.

A first obligation that arises for state parties in the case of a breach is to institute an enquiry into the breach once any other state party to the conflict has requested such an investigation and the parties have agreed on the procedure to be followed. Once the violation has been substantiated by means of the enquiry, the parties to the conflict are obliged to put an end to it and to repress it with the least possible delay (Geneva Conventions I-IV, Articles 52, 53, 132, 149 respectively).

These mechanisms have been supplemented by Protocol I to the Geneva Conventions in two ways. In terms of Article 89 of the Protocol the parties to the Protocol undertake, in the case of serious violations of the Conventions or of the Protocol, to act, jointly or individually and in cooperation with the United Nations, against the violations. For this purpose Article 90 provides for the compulsory establishment of an International Fact-Finding Commission to enquire into any facts alleged to have constituted a grave breach of the Conventions or the Protocol. However, the use of this mechanism by a state party to investigate allegations against another state party is subject to the depositing of declarations by both parties reciprocally accepting the competence of the Commission to enquire into the allegations.

The Grave Breaches Regime

Certain violations of IHL are considered to be so serious that they fall under a special regime in terms of the Geneva Conventions and additional Protocol I and in terms of which states parties incur special responsibilities. These violations are known as grave breaches and involve acts against protected persons or property amounting to “wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” (Geneva Convention I, Article 50. See also Geneva Conventions II-IV, Articles 51, 130, 147 respectively). Article 85 of Protocol I has expanded on this and “grave breaches” will now also include attacks on the civilian population; indiscriminate attacks affecting the civilian population in the knowledge that such attacks will cause excessive loss of life or damage to civilian objects; attacks against works or installations containing dangerous forces knowing that such attacks will cause excessive loss of life or damage to civilian objects; making non-defended localities and demilitarized zones the object of attack; making persons who are no longer participating in hostilities the object of attack; the perfidious use of the distinctive emblem of the red cross, red crescent or red lion and sun or other recognised protective sign, etc.

In these instances state parties are obliged to enact legislation necessary to provide effective penal sanctions for persons responsible for these breaches. Secondly, state parties must search for persons alleged to have committed these breaches and prosecute them before their own courts, regardless of the nationality of the offender. If it so wishes, a state party may also hand an offender over to another party for prosecution provided that the other party has made out a prima facie case against the offender. In addition, states parties must take measures necessary for the suppression of all violations of the conventions and the protocol (Geneva Conventions I-IV, Articles 49, 50, 129, 146 respectively; Protocol I, Articles 85, 86).

These provisions form the basis of the current international criminal law regime providing for individual criminal responsibility for war crimes, as opposed to state responsibility, and for the prosecution, before national or international tribunals, of individual offenders. The grave breaches provisions also base prosecutions in the national courts of the states parties on the concept of universal jurisdiction. This means that any state, regardless of the nationality of the offender or the place where the violation occurred could establish its national jurisdiction over the matter by means of national legislation and institute a prosecution against the offender once arrested on, or transferred to, the territory of the state willing and able to prosecute.

Individual Criminal Responsibility

Since the Nuremberg (Nürnberg) trials immediately after WWII the concept of individual criminal responsibility for what is generally referred to as the violations of the laws and customs applicable in armed conflict situations, has become firmly established. This development has greatly benefitted from the establishment of the two ad hoc tribunals, the International Criminal Tribunal for Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994, and most definitely from the establishment in 1998 of the permanent International Criminal Court (ICC). On occasion, the potential impact of the developments that evolved since WWII in this area has elicited the following comment:

The regular prosecution of war crimes would have an important preventive effect, deterring violations and making it clear even to those who think in categories of national law that IHL is law. It would also have a stigmatizing effect, and would individualize guilt and repression, thus avoiding the vicious circle of collective responsibility and of atrocities and counter-atrocities against innocent people. Criminal prosecution places responsibility and punishment at the level of the individual. It shows that the abominable crimes of the twentieth century were not committed by nations but by individuals. By contract, as long as the responsibility was attributed to States and nations, each violation carried within it the seed of the next war. That is the civilizing and peace-seeking mission of international criminal law favouring the implementation of IHL. (Sassòli et al., 2011, vol I, p. 396)

We have now reached a point where international criminal law can claim to have produced a well-developed set of substantive principles and procedural rules by means of which the effective prosecution of the most serious crimes of concern to the international community can be undertaken with a view to bringing to an end impunity for the perpetrators of such crimes. What follows is a general overview of the crimes considered to be of the most serious concern for the international community and over which each state is supposed to exercise its jurisdiction. For this purpose, and in view of limited space, the focus will be on the provisions of the 1998 Rome Statute of the International Criminal Court, which brought into being the ICC and which determines the Court’s powers, functions and jurisdiction. Article 5(1) of the Rome Statute states that the Court’s jurisdiction will be limited to the crime of genocide; crimes against humanity; war crimes; and the crime of aggression. At the time when the Rome Statute was negotiated some states wanted terrorism and international drug trafficking to be included as well, but this attempt was unsuccessful.

The Core Crimes: War Crimes

As indicated earlier on, what we refer to today as war crimes are closely related to the grave breaches concept in the Geneva Conventions and in Protocol I. In Article 8(2) of the Rome Statute we find different categories of war crimes, each one containing a long list of acts which can be prosecutable as war crimes. Under the first category (Article 8(2)(a)) “war crimes” means grave breaches of the four Geneva Conventions. The second category (Article 8(2)(b) identifies “war crimes” with “other serious violations of the laws and customs applicable in international armed conflict” which are given further substance by means of a list containing twenty acts that will constitute “war crimes” under this category. An important third category relates to acts committed in an armed conflict not of an international character (Article 8(2)(c) and (e)), i.e. the so-called internal armed conflict situation. The acts that will constitute war crimes under this category are those mentioned in Common Article 3 to the Geneva Conventions and which have been dealt with earlier on. However, there is also a second, more extensive list of acts which will amount to war crimes when committed in a non-international armed conflict according to the Rome Statute. This list mentions, amongst others, armed attacks against civilians and against personnel and facilities involved in humanitarian assistance; attacks against educational, religious, scientific and cultural facilities; pillaging of a town or place; and most importantly acts of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and any other form of sexual violence, and the conscripting or enlisting of children under the age of fifteen into the armed forces or armed groups. These latter additions are a reflection of the kind of atrocities modern-day internal armed conflicts have come to represent, namely the sexual abuse of women and girls as a deliberate instrument of war and the use of child soldiers to supplement ragtag armed militias and to spread terror in local communities.

By creating the possibility that grave breaches qualify as war crimes even in non-international armed conflicts, the Rome Statute has introduced an important development. Prior to this grave breaches were only possible in the course of an international armed conflict (see Prosecutor v Tadic, Appeals Chamber Decision on Jurisdiction, IT-94-1-AR 72 (1995)). Perhaps this is a further illustration of how fluid the boundaries between international and non-international armed conflicts for purposes of the enforcement of IHL can become. Here we simply have a later treaty law arrangement causing substantive changes to the existing legal regime covering non-international armed conflicts and bringing about a greater parity of esteem in the relevance of IHL norms for the two types of armed conflict.

Core Crimes: Crimes Against Humanity

Acts like murder, extermination, enslavement, unlawful deprivation of liberty, torture, rape, enforced disappearances of persons, etc. are perfectly suitable to be classified as ordinary common law crimes and in many countries are prosecuted as such under ordinary national criminal law. But these acts may also be defined as crimes against humanity and the question is therefore what factor or circumstance will cause an ordinary common law crime such as these to become a crime against humanity in terms of international criminal law?

The answer to this is the following. In the first instance the act in question (murder, etc.) must be committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Secondly, the attack in question must be of a special kind, namely it must involve the multiple commission of any of the above acts and it must be “pursuant to or in furtherance of a State or organizational policy to commit such attack” (Rome Statute, Article 7). It is because of these two elements that crimes against humanity are considered to be particularly serious and they explain why the concept of crimes against humanity has become part of customary international law since its condemnation by the Charter of the Nuremberg Tribunal (See Article 6 of the Charter).

Furthermore, it must be noted that over time the nexus between crimes against humanity and an armed conflict has disappeared with the result that these crimes can also be committed in a time of peace. It is this absence of an armed conflict as a precondition for the commission of crimes against humanity that distinguishes war crimes from crimes against humanity. But this difference may also have implications for the question whether the crimes in question can be committed against civilians alone. If the existence of an armed conflict is taken out of the equation it makes sense to consider why members of the armed forces should be excluded as possible victims of such crimes, since by pure logic, they could equally become the victims of crimes against humanity irrespective of whether there exists an armed conflict or not.

Core Crimes: Genocide

Two incidents that occurred during WWI had a profound influence on developments concerning crimes against humanity and genocide. The first incident was the Armenian genocide committed by the Turkish government between 1915 and 1918. These atrocities were not called war crimes despite the fact that they took place in the course of an armed conflict, nor were they referred to as acts of genocide. Instead they were referred to as crimes committed against “civilization” or the “dictates and laws of humanity”. The second incident were the offences committed by Germany and its allies in the course of WWI and which came to be described in terms similar to those used in respect of the Armenian genocide. The turning point came with the discovery towards the end of WWII of the atrocities committed against the Jews and other groups by the Nazis and the subsequent solemn declaration issued by the Allied Powers (the United States, the United Kingdom and the Soviet Union) that those responsible will be pursued to the end and prosecuted for their abominable deeds. Even at this point the atrocities were not referred to as genocide but described as crimes against humanity.

The term genocide was conceived in 1944 by a Polish-Jewish lawyer, Raphael Lemkin, in his treatise Axis Rule in Occupied Europe, to denote the destruction of a nation or an ethnic group by means of a coordinated plan of different actions which are aimed at the destruction of the essential foundations of national groups that will eventually bring about the annihilation of the groups themselves. Four years later, in 1948, the General Assembly of the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide (GA resolution 260 A (III) of 9 December 1948), in which the contracting parties confirm that “genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish” (Genocide Convention, Article 1). In Article 2, genocide is defined as:

Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group.

This legal definition of genocide enjoys universal recognition and has been reaffirmed in several international instruments since 1948. It is now also part of the Rome Statute of the ICC, which, in Article 6, adopts the definition of the Genocide Convention verbatim.

The distinctive feature of the crime of genocide lies in the specific intention with which the acts are perpetrated. This means that the perpetrator must have the specific and direct intent to bring about the annihilation of the group to which the victims belong. It is this specific intent which distinguishes genocide from crimes against humanity and war crimes. Intent, as an element of the crime of genocide, is usually inferred from the conduct of the perpetrator, the methodological manner in which the crime was committed and the way in which the victims were targeted or selected.

But our main concern should not be the legal issues related to the crime of genocide. Of far greater concern is the way in which states respond to this most heinous of crimes and the way in which they fail to comply with their cardinal legal duty in terms of the Genocide Convention to prevent and to punish genocide. In 2001, the then Secretary-General of the United Nations, Kofi Annan, has quite correctly identified the underlying problem by stating that the United Nations has:

A moral responsibility to ensure that vulnerable peoples are protected and that genocides never occur again. Yet, on two occasions in the recent past, in Rwanda and former Yugoslavia, the international community and the United Nations failed to live up to this responsibility. We have learned from those experiences that the very first step in preventing genocides is to address the conditions that permit them to occur. (Secretary-General Report Prevention of Armed Conflict UN Doc A/55/985-S/2001/574, 7 June 2001, para. 161)

In no uncertain terms this means that the culture of reaction to gross human rights violations must be replaced by a culture of prevention. Genocide does not occur overnight. In all cases it is preceded by premeditated and careful planning characterised by an extensive propaganda phase often long before the operational phase of the actual annihilation is set in motion. Such situations call for a far more serious consideration of preventive obligations imposed on the international community by international law than has hitherto been the case. It is also settled law that the duty imposed on states to prevent genocide is an erga omnes obligation, meaning it is a duty every state owes to the international community as a whole and as such it constitutes a jus cogens norm which is considered so important for the existence of an orderly international community that no derogation from it is allowed (see Article 53 of the Vienna Convention on the Law of Treaties, 1969). According to the International Law Commission the following are recognised by the international community as jus cogens norms: the prohibition of aggression, genocide, slavery, racial discrimination, crimes against humanity, torture and the right to self-determination (ILC Report, 53^rd session, UN Doc A/56/10, 2001 and commentary to Article 26, para. 5 at 208). It follows then that the prevention of the commission of genocide and crimes against humanity must equally qualify as a jus cogens norm.

It must be pointed out here that the erga omnes obligation to prevent gross human rights violations such as genocide and crimes against humanity should be understood as a ‘best effort’ obligation which requires states to take all reasonable and necessary measures to prevent an event from occurring. It is therefore not an obligation that involves a guarantee that the event will not occur; the obligation is one of means and not of result. Thus, a breach of the obligation to prevent is linked to a manifest failure by the state or states concerned to take all measures necessary and within its or their power to prevent the genocide or crime against humanity from taking place (See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro, 2007 ICJ Reports 1 para. 430; Méndez: 2007, pp. 225, 226). In the case of the measures taken being unsuccessful in preventing the crime from occurring, the international community still carries the obligation to ensure that the violations are prosecuted and punished.

There could be a number of reasons why the international community is reluctant to intervene preventively in imminent cases of genocide or crimes against humanity. Two that stand out should be mentioned here. The one is the deep-seated respect for the principle of state sovereignty which is still the paramount principle on which international relations are based and which prevents states from intervening too easily in the affairs of another state. But state sovereignty can also function as a masquerade for indifference, a lack of political will or a complex of political and strategic reasons preventing a state from taking timely action. The second reason is denial coupled with a failure to reach consensus in the international community on the true nature of the atrocities by, for instance, repeated statements that a certain situation does not constitute a full-blown genocide or crime against humanity or using all kinds of euphemisms to dance around the problem without taking decisive action. In the end semantics become more important than facing up to the atrocities.

A preventive measure that is often debated but rarely implemented because of its highly controversial nature is humanitarian intervention. Its controversy stems mainly from two sources. Firstly, from a widespread concern that it may be abused for ulterior motives and used as a pretext to achieve certain political or strategic objectives which have nothing to do with rescuing civilians in a foreign state from a great peril; and secondly from a fear that the consequences of the intervention, which is undertaken with military means, may do more harm than good, such as causing an increase in the number of casualties, extensive damage to the infrastructure of the state, and more refugees fleeing to neighbouring countries. This often confronts the international community with a serious dilemma: what is the appropriate response when, for instance, large numbers of civilians in a war-torn country face imminent death? Should a no-action attitude be adopted or should there be a unilateral or collective military intervention by a state or states of the international community to try and save the civilians from death or serious maltreatment. A tragic case in point is the failure of the UN and the OAU in 1994 to intervene decisively to prevent the killing of 800,000 civilians in the course of the genocide in Rwanda. Compare also the example of NATO’s Kosovo bombardment below.

In Article 4(h) of the Constitutive Act of the African Union (2000) the Union has reserved for itself the right (as opposed to duty) to intervene in a member state of the Union in respect of grave circumstances such as war crimes, genocide and crimes against humanity. Whether the Union will ever be able to marshal the necessary political will for exercising this right is of cause open to debate. In the recent case of the Libyan conflict the United Nations Security Council decided, by Resolution 1973 (2011) to authorize:

Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council. (para. 4)

This was preceded by statements in this resolution as well as in resolution 1970 (2011) to the effect that the gross and systematic violations of human rights committed during the internal armed conflict in Libya may amount to crimes against humanity. The military response that followed was largely a NATO offensive and undertaken as a form of humanitarian intervention to protect civilians as authorized by resolution 1973. However, in the unfolding of events it also became clear that NATO pursued a second objective, namely the targeting of the Gaddafi regime which led to allegations that NATO abused the Security Council’s authority to facilitate a regime change in Libya instead of protecting civilians. This is but one incident that demonstrates the controversial nature of humanitarian intervention by military means, and it raises the question whether in certain circumstances it may be necessary to remove a regime by force to prevent the continuation of atrocities against a civilian population under threat by their own government. This is further illustrated by the Syrian government’s violent crackdown against a pro-democracy uprising in which thousands have been killed since the start of the riots in 2011. On 4 February 2012, yet another attempt by the Security Council to obtain agreement amongst its members for stronger action against the Syrian regime failed because of a veto by Russia and China, two of the five permanent members in the Council. The resolution in question called for an immediate end to the violent crackdown and for President Assad to step down. This was interpreted by the Russian and Chinese governments as creating an opportunity for military intervention and regime change by forceful means in the style of the Libyan incident, a measure both governments were vehemently opposed to, seemingly on the basis of the rule against interference in the internal affairs of states (Zifcak, 2018). But one should not exclude other, more ulterior motives. Since the Soviet days Syria has been a loyal client state of Russia, including in the arms trade business, and as far as China is concerned, the country’s own human rights and democracy record is far from exemplary!

Another, earlier example was Operation Allied Force involving a large-scale aerial bombardment in 1999 by NATO with the objective of destroying Yugoslav military infrastructure in Kosovo. The justification for this offensive was based, amongst others, on the necessity to end all military action and violent repression by the Milosevic regime and to establish a UN administration over the territory. Any offensive action of this nature would need Security Council authorisation in terms of Chapter VIII of the UN Charter. Since it was clear from the beginning that Russia and China would use their veto right in the Security Council the offensive was undertaken without Security Council authorization which led to an international debate on the legality of the bombardment, a matter that even ended in proceedings before the International Court of Justice when Yugoslavia, arguing against the legality of the use of force by NATO, asked the Court for provisional measures, which failed on a finding by the Court that it did not have jurisdiction in the matter (see Cases Concerning the Legality of the Use of Force (Yugoslavia v 10 NATO States), Provisional Measures, ICJ Reports, 1999).

The controversial nature of humanitarian intervention is also as a result of a potential claim by states that under certain circumstances states might have a ‘right’ to intervene militarily or by other coercive means. If such a right exists the first question then is how it relates to the fundamental prohibition on the use of force in Article 2(4) of the UN Charter and on non-intervention in the internal affairs of states in Article 2(7) of the UN Charter. Over many years these conflicting notions exposed major divisions in the international community with no progress being made on what should be done when widespread, gross and systematic human rights violations occur in a country unwilling or unable to provide the necessary protection. The challenge to find a new consensus on this was put forward in 1999 during the 54^th session of the UN General Assembly when the then Secretary-General of the United Nations, Kofi Annan, called on states to find common ground in upholding the principles and purposes of the UN Charter and on when it is necessary to act in defence of our common humanity.

In September of the following year the Canadian government, in response to this challenge, announced the establishment of an Independent Commission on Intervention and State Sovereignty (ICISS) which published a report in 2001 which has become the subject of much debate ever since. The report’s main contribution lies in its interpretation of state sovereignty as implying a duty of a state to protect its own citizens. Consequently, when a population faces serious harm as a result of internal armed conflict or repression and the national state is unwilling or unable to bring to an end or avert the harm, the principle of non-intervention will have to make way for the international responsibility to protect. As an exceptional and extraordinary measure a military intervention pursuant to the exercise of the duty to protect will only be justified in cases where actual or apprehended large scale loss of life is imminently likely to occur as a result of deliberate state action or state neglect or inability to act. Equally important are the report’s views on the substantial conditions that must be met at the outset to prevent any intervention of this kind to be abused for ulterior purposes or to become a disguised form of aggression. These conditions are: 1. the primary purpose of the intervention must be to halt or avert human suffering, i.e. the right intention; 2. the use of military means must always be a last resort and after non-military means have been exhausted or found to be inappropriate; 3. the planned military action must be proportional to securing the humanitarian objective in question; and 4. the military means must stand a reasonable chance of success (ICISS Report, p. 35 et seq).

In view of its primary responsibility for peace and security (see Article 24 of the UN Charter), the UN Security Council must remain the principal body to decide on the use of force (see also Article 42 of the UN Charter). This is equally true in the case of the use of military means for humanitarian purposes. Here, we should take note of the consensus position in the ICISS Report where it is clearly stated that “it is the Security Council which should be making the hard decisions … about overriding state sovereignty” and it is the Security Council that “should be making the often even harder decisions to mobilize effective resources, including military resources, to rescue populations at risk …” (Article 49). But what are the implications of inaction, i.e. when, for instance, through the veto of one of the permanent members of the Security Council, the Council is paralysed and prevented from acting in these circumstances? That the Council itself stands to suffer the most with regard to its stature and credibility is a clear message in the ICISS Report, for, if because of the veto ad hoc coalitions of states, or even individual states, decide to circumvent the UN system and successfully perform their duty to protect, questions about the usefulness of the Security Council may have enduring consequences (ICISS Report, p. 55).

At the occasion of the 2005 World Summit, states of the world committed themselves to the responsibility to protect principle in the following terms (General Assembly Resolution A/RES/60/1 paras. 138, 139):

Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will to act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

Core Crimes: The Crime of Aggression

When the Rome Statute of the ICC was adopted in 1998, the crime of aggression was listed amongst the crimes over which the Court would exercise jurisdiction (Article 5(1)). However, this was made subject to the adoption of a definition of the crime of aggression – still missing at the time – setting out the conditions under which the Court shall exercise jurisdiction with respect to the crime of aggression (Article 5(2)). The task to find a suitable definition of the crime of aggression was assigned to a special working group who reported on the matter during the Rome Statute’s first review conference which took place in 2010 in Kampala, Uganda. At this occasion a resolution was adopted on a definition of the crime of aggression which will be the subject of an amendment to the Rome Statute in accordance with Article 121 of the Statute. This means that the amendment will have force and effect for states parties that have accepted the amendment one year after they have become parties to the Rome Statute (Rome Statute, Article 121(5)).

The resolution adopted in Kampala defines a crime of aggression as the “planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations” (Resolution RC/Res.6, 11 June 2010, para. 1). The means by which the act of aggression is executed involves the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state in any of the forms specified in the resolution (see para. 2). Currently, thirty seven states have ratified the amendment of the Rome Statute in accordance with this resolution to provide for the crime of aggression. This is brought about by the insertion of the following new provisions in the Rome Statute: Articles 8bis, 15bis, 15ter and 25(3)bis.

If this amendment meets with the approval of a large number of states parties it will indeed be an historic occasion and a triumph for the criminal-justice response to international atrocities of a kind which other measures by the international community have failed to stop or prevent. It will also mark the culmination point of a post WWII development which has recognised at Nuremberg that there is something like a crime against peace based on considerations that now inform the Rome Statute’s crime of aggression.

However, at the same time we should understand the political and legal complexities of this development. The criminal-justice perspective to the crime of aggression cannot escape the realities of international relations and international politics for the simple reason that it has implications for the collective security system of the United Nations Charter. Any act of aggression will amount to a violation of the principles of the UN Charter and as such could trigger the collective counter-response provided for in Chapter VII of the UN Charter. Furthermore, the Charter assigns primary responsibility for international peace and security to the Security Council (Article 24 of the UN Charter), where the five permanent members of the Council (the USA, China, United Kingdom, Russia and France) have the veto power, and in terms of Article 39(1) of the Charter, the Council is the only body that can determine whether an act of aggression exists. This explains the delicate balance between the powers of the Security Council and the powers of the Court introduced into the Rome Statute by the Kampala resolution. This is reflected in the power given to the prosecutor, when considering that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, to first ascertain whether the Security Council has made a determination of an act of aggression committed by a state concerned. Where a determination has been made, the prosecutor is entitled to proceed with the investigation into the crime of aggression (paras. 6, 7).

If the Security Council has not made a determination within six months after the notification to the Secretary-General, the prosecutor is likewise entitled to proceed with the investigation, provided that the pretrial chamber of the Court has authorised the investigation (para. 8). The resolution has made a further attempt at securing the independence of the Court, by stating that a determination of an act of aggression by an organ other than the Court shall not have an effect on the Court’s own findings in this regard (para. 9). But there still remains the overriding power of the Security Council in terms of Article 16 of the Rome Statute which allows for a deferral of an investigation or prosecution for a renewable period of twelve months on request by the Security Council in terms of Chapter VII of the UN Charter. The reference here to Chapter VII of the UN Charter, which deals with acts of aggression and threats to international peace and security, should make it clear that the tension between the idealism of international criminal justice and the realism of international politics is an inseparable part of the Rome Statute.