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Last Updated: 7 February 2019
TERRITORIALITY AND THE CRIME OF AGGRESSION
Netta
Goussac[∗]
I. INTRODUCTION
This paper considers the question of where a crime of aggression occurs,
for the purpose of ascertaining whether such a crime falls
within the
jurisdiction of the International Criminal Court (ICC). The ICC’s
jurisdiction over the crime of aggression is
contingent on amendments to the
Rome Statute setting out the definition of the crime and the conditions under
which the Court will
exercise jurisdiction with respect to the
crime.[1] A Review Conference has
been scheduled for May-June 2010 in Kampala, Uganda to discuss proposals for
amendments to the Rome Statute.[2]
Negotiations are continuing in the Assembly of States Parties (ASP) of the Rome
Statute in relation to a proposed amendment which
would activate the
Court’s jurisdiction over the crime of aggression. However, the
negotiation of a definition of the crime
of aggression has already progressed to
the point where it is possible to consider how such a definition would fit
within the existing
framework of the Rome Statute.
One aspect of this
existing framework is Article 12 of the Rome Statute, which sets out the
preconditions that must be met before
the ICC can exercise jurisdiction over a
particular case. Where a case has been referred to the Court by a state party
or the prosecutor
has initiated an investigation proprio motu, the Court
will have jurisdiction where the conduct in question occurred on the territory
of a state party (the territorial state),
where the alleged offender is a
national of a state party (the nationality state) or where either state has
consented to the jurisdiction
of the Court in relation to that particular
case.[3] This paper will consider the
first of these preconditions, which will be referred to as the territoriality
precondition.
The Rome Statute permits the Court to exercise jurisdiction
without state consent in a variety of circumstances, such as where the
Security
Council has referred a situation to the
Court.[4] However, the issue of state
consent is central to consideration of the crime of aggression. In order to
determine whether an act
of aggression has taken place, the Court will need to
consider whether the use of force by a state was legitimate. State consent
to
such scrutiny will be central to states’ consideration of the proposed
crime of aggression amendments. This paper will
consider which state or states
must consent to the jurisdiction of the Court under Article 12 in order for the
Court to be able to
exercise its jurisdiction in relation to the crime of
aggression.
While the crime of aggression brings to the forefront issues of
state consent to ICC prosecutions, the prospect of this crime being
included in
the Rome Statute also highlights the necessity of an international forum for
prosecuting aggression. Political issues
are inseparable from the legal issues
that will arise as a result of international or internal conflicts. Such
conflicts invariably
involve some level of official state action. Crimes
resulting from official state action are unlikely to be prosecuted by domestic
courts. States are traditionally hesitant to prosecute their own leaders or
former leaders because of the risk of politicised trials.
States also generally
refrain from prosecuting leaders or former leaders of other states, even where
they have the jurisdiction
to do so, as this is often regarded as an
infringement on sovereignty or as an obstacle to the peace
process.[5] International criminal
tribunals are therefore often the only avenue for holding individuals
accountable for such crimes.
Notwithstanding the importance of ending
impunity for the perpetrators of the most serious crimes of international
concern, the indictment
by the ICC of Sudanese President Omar Ahmad Al-Bashir
for war crimes and crimes against humanity on 4 March 2009 illustrates the
difficulties of prosecuting Heads of State, not least of which are the potential
humanitarian consequences within the accused’s
state.[6]
This paper will first set
out the definition of the crime of aggression and the effect of this definition
on the question of territoriality.
The paper will then consider the views of
the Special Working Group on the Crime of Aggression (SWGCA) on this subject.
Finally,
this paper will assess the approach proposed by the Chairman of the
SWGCA for addressing this issue and suggest some alternative
approaches for
dealing with the issue of territoriality.
II. TERRITORIALITY AND THE ‘LEADERSHIP NATURE’ OF THE CRIME OF AGGRESSION
The question of territoriality was first considered by the SWGCA during
its meeting at the seventh session of the ASP in November
2008. The Working
Group was by this time nearing the end of its work and broad agreement had been
reached on the delicately balanced
text of draft Article 8bis, dealing with the
definition of the crime and act of aggression. The current draft of Article
8bis states
that:
In the
Informal Note on the Work Programme for the November 2008 meeting, the Chairman
of the SWGCA, Ambassador Christian Wenaweser
(Lichtenstein), suggested that the
Group focus on new issues, ‘in light of considerable progress made on the
definition of
the “crime” and of the “act” of
aggression’.[8] Before the
meeting, the Chair suggested that states may wish to consider a new issue with
respect to ‘territory on which the
“crime” of aggression is
typically committed’.[9] The
Chair framed the issue in this way:
Given the leadership nature of the crime, the conduct of an individual
perpetrator as suggested in draft Article 8bis, paragraph 1
would typically take
place on the territory of the aggressor State, while the effect of the conduct
would affect the territory of
the victim State. What are the consequences for
the requirement of territoriality in Article 12, paragraph 2(a), if any? Is an
explicit provision required to address this
issue?[10]
The
Chairman’s reference to the ‘leadership nature’ of the crime
of aggression refers to the necessity of a high-level
position as a
pre-requisite for individual responsibility for the crime of aggression. The
leadership requirement is reflected in
the words ‘person in a position
effectively to exercise control over or to direct the political or military
action of a State’
in paragraph 1 of Article 8bis. If accepted, the
proposed definition of the crime of aggression, including the leadership
requirement,
will operate within the existing framework of the Rome Statute.
The Chairman’s question related to how this definition would
interact with
Article 12 of the Rome Statute, which sets out the preconditions for the
exercise of the Court’s jurisdiction:
Paragraph 2 of Article 12
applies to situations referred to the Prosecutor by a state party in accordance
with Article 14 of the Rome
Statute or where the Prosecutor has initiated an
investigation in accordance with Article
15.[11] In such cases, the ICC may
only exercise its jurisdiction if either the state on the territory of which the
conduct in question
occurred (the territorial state) or the state of which the
person accused of the crime is a national (the nationality state) have
consented
to the Court’s
jurisdiction.[12] Where the
Security Council refers a situation to the Court under Article 13(b), it is not
necessary for any involved state to have
consented to the Court’s
jurisdiction.[13]
In the case of
the crime of aggression, two states will usually be involved – the
aggressor state and the victim state. In
most cases, the nationality state will
clearly be the aggressor state. The leadership nature of the crime of
aggression means that
the defendant in aggression cases will be a leader of the
aggressor state. It is reasonable to assume that a leader will be a national
of
their own state. As a result, where the aggressor state is a state party to the
Rome Statute, the precondition in Article 12(2)(b)
will be met and the Court
will be able to exercise its jurisdiction.
Determining which state is the
territorial state is more complex. The precondition in Article 12(2)(a)
provides that the state on
whose territory the conduct in question occurred must
be a state party. In the case of the crime of aggression, this precondition
requires an assessment of whether the conduct in question occurs on the
territory of the aggressor state or on the territory of the
victim state. As
the Chairman of the SWGCA pointed out in November 2008, the leadership nature of
the crime of aggression means
that the perpetrator, as the leader of the
aggressor state, will often be on the territory of the aggressor state. The act
of aggression
(as defined in paragraph 2 of draft Article 8bis) will often occur
on the territory of the victim state. Where the aggressor state
is not a state
party and the nationality precondition in Article 12(2)(b) is therefore not met,
it will be necessary to consider
which state is the territorial state so as to
satisfy the precondition in Article 12(2)(a). Where the aggressor state is not
a state
party, the Court will only be able to exercise jurisdiction if the
victim state is a state party and is considered to be the state
on whose
territory the conduct in question occurred.
III. THE WORK OF THE SPECIAL WORKING GROUP ON THE CRIME OF AGGRESSION
Before the November 2008 meeting of the SWGCA, the Chairman asked states
to consider the consequences of Article 12(2)(a) for the
proposed crime of
aggression and whether it was necessary for an explicit provision to address
this issue. The Report of the SWGCA
of its November 2008 meeting indicates that
‘[b]road support was expressed for the view that concurrent jurisdiction
arises
where the perpetrator acts in one state and the consequences are felt in
another’.[14] States
considered that the reference to ‘conduct’ in Article 12 encompassed
the consequences of the conduct.[15]
In relation to the Chairman’s question about the possibility of inserting
clarifying language, states held that the issue should
be left for judges to
decide. Some states raised concerns about clarifying this issue in relation to
the crime of aggression only,
given the possibility that other crimes within the
Court’s jurisdiction may arise across territorial borders and ‘the
risk that an a contrario reasoning would be applied to other
crimes’.[16]
No consensus
on this issue was evident in the November 2008 discussions. Following this
meeting, and in advance of the meetings of
the SWGCA scheduled for the resumed
seventh session of the ASP in February 2009, the Chairman circulated a
‘Non-paper on other
substantive issues on aggression to be addressed by
the Review Conference’.[17]
In relation to the territoriality issue, the Chairman suggested that, should
delegations wish to clarify this issue, the following
language could be
considered for inclusion in the resolution by which the crime of aggression
amendments are adopted or elsewhere
in the Final Act of the 2010 Review
Conference: ‘[i]t is understood that the notion of ‘conduct’
in Article 12,
paragraph 2(a), of the Statute encompasses both the conduct in
question and its
consequences.’[18]
General
support was expressed for the concept contained in the Chairman’s proposed
language during the February 2009 meeting
of the SWGCA, though some delegations
again expressed the view that clarification was not needed or that the language
proposed may
have unintended consequences for other crimes in the Rome
Statute.[19] Alternative language
was suggested, though this language mirrored the purpose and intent of the
Chairman’s proposed text and
received support from only a few
states.[20]
The SWGCA has since
met once again, at an informal inter-sessional meeting in New York in June 2009.
The SWGCA did not discuss the
territoriality issue at that
meeting.[21]
The effect of the
view expressed at the November 2008 meeting of the SWGCA and of the
Chairman’s proposed clarifying language
is that the Court would be able to
exercise jurisdiction over an alleged crime of aggression if the victim state
was a state party
even if the aggressor state was not. While it is not
expressly stated in their reasoning, the SWGCA appears to consider that both
the
aggressor state and the victim state are territorial states for the purpose of
Article 12(2)(a).
While the ASP will continue to work on the crime of
aggression now that the SWGCA has concluded its work, there is little time left
before a proposed amendment on aggression must be submitted for discussion at
the 2010 Review Conference. In order to give the amendments
on aggression the
best chance of acceptance at the Review Conference, it is likely that the
President of the ASP will require broad,
if not unanimous, consent to the
proposed amendments before they are submitted to the Review Conference.
Consequently, in the time
remaining before the Review Conference, the options
currently under consideration by the ASP will likely become the proposals put
to
states parties, including the Chairman’s proposal in relation to
territoriality. However, an analysis of the SWGCA’s
views and the
Chairman’s proposed language reveals several shortcomings. These
shortcomings are outlined below, and alternative
approaches are
suggested.
IV. ANALYSIS OF THE VIEWS OF THE SWGCA AND THE CHAIRMAN’S PROPOSED CLARIFYING LANGUAGE
This analysis of the views expressed by the SWGCA and the
Chairman’s proposed clarifying language in response to those views
will
focus on three issues: the misapplication of principles of territorial
jurisdiction to the question of territoriality in Article
12; the extension of
the notion of ‘conduct’ to include consequences of such conduct; and
the lack of certainty in the
clarifying language proposed by the
Chairman.
The November 2008 and
February 2009 reports of the SWGCA state that a majority of participants are of
the view that ‘concurrent
jurisdiction arises where the perpetrator acts
in one state and the consequences are felt in another’. This statement
misapplies
principles of territorial jurisdiction to the question of
territoriality raised by Article 12(2)(a).
The term ‘concurrent
jurisdiction’ usually denotes a situation where two or more states seek to
exercise jurisdiction
over a particular matter. The use of this term by the
SWGCA suggests that they view the ICC’s jurisdiction in the case of
the
crime of aggression as based on the ability of either the aggressor state or the
victim state to exercise their domestic territorial
jurisdiction over the crime
of aggression. However, the ability of a state to exercise territorial
jurisdiction over a crime is
not what the precondition in Article 12(2)(a)
requires.
Article 12(2)(a) asks the Court to consider where the
‘conduct in question’ took place. This can be referred to as
territoriality.
In contrast, territorial jurisdiction refers to the allocation
of competence to prescribe or apply local laws on the basis of locus delicti
commissi – the place where the offence allegedly has been
committed.[22] Territoriality
refers more specifically to the locus itself and does not take into
account other factors which may affect the exercise of jurisdiction by a state,
such as conflicts of
laws, the presence of a suspect on the state’s
territory, or sovereignty. A familiar example of this distinction is the case
of a person firing a bullet over a frontier, killing a person standing on the
other side of the border. Article 12(2)(a) considers
where the criminal conduct
occurs, not which state has a right or ability to exercise jurisdiction over the
shooter.
The preconditions set out in Article 12 limit the Court’s
jurisdiction to cases where a nexus exists with a consenting
state.[23] These preconditions are
not predicated on the ability of a state to exercise its domestic jurisdiction
over a particular matter.
The application of principles of territorial
jurisdiction to the interpretation of Article 12 of the Rome Statute is not
helpful,
as these principles do not assist in determining on whose territory the
conduct in question occurs.
B. Conduct and Consequences
The clarifying language proposed by the Chairman states that for the
purpose of Article 12(2)(a) the notion of ‘conduct’
includes both
the conduct in question and the consequences of that conduct. The extension of
the notion of ‘conduct’
to include consequences of such conduct is
unhelpful and inconsistent with the Rome Statute.
The SWGCA expressed the
view that jurisdiction could be based on the consent of either the aggressor
state or the victim state. The
SWGCA did not attribute these views to a
particular understanding of the notion of ‘conduct’. Consequently,
the Chairman’s
proposed language does not give effect to the views of the
SWGCA.
In addition, if accepted, the language proposed by the Chairman will
suggest that, in the case of the crime of aggression, the conduct
in question
occurs on the territory of the aggressor state but that the victim state should
nonetheless also be considered a territorial
state because the consequences of
the conduct occur on its territory. This language undermines the express
provisions of Article
12(2)(a) which requires the consent of the state on whose
territory the conduct in question occurred. Article 12(2)(a) does not
require
the consent of the state on whose territory the consequences of conduct
occurred. The proposed clarifying language is also
inconsistent with Article 30
of the Rome Statute, which distinguishes between conduct, consequence and
circumstance elements.[24]
While the
Chairman’s proposed clarifying language does not reflect exactly the views
of the SWGCA, it will likely achieve the
same ends, that is, that the Court will
be able to exercise jurisdiction over the crime of aggression if either the
aggressor state
or the victim state is a state party. However, the lack of
clarity in the proposed language means that such a statement will also
have
unintended consequences.
The proposed language does not adequately define the
scope of the consequences that are to be included in the notion of
‘conduct’.
The Chairman’s intent may be to include the
consequence of the actual state act of aggression (as defined in paragraph 2 of
draft Article 8bis). However, the language may also have the effect of
encompassing other consequences in the notion of ‘conduct’.
For
example, a crime of aggression may lead to the influx of displaced persons into
the territory of a third state or an adverse
environmental impact on a
neighbouring state. If these consequences are included within the notion of
‘conduct’ in Article
12(2)(a), it will significantly expand the
ICC’s jurisdiction. Under such an interpretation of
‘conduct’, the
ICC would be empowered to exercise its jurisdiction
over matters where neither of the two states directly involved in a crime of
aggression are states parties, as long as a state experiencing the consequences
of the crime is a state party. It is unlikely that
the SWGCA intended such an
outcome.
The proposed language is also not limited to the crime of
aggression. Including the consequences of genocide, crimes against humanity
and
war crimes within the notion of ‘conduct’ will similarly expand the
ICC’s jurisdiction beyond what is intended
by the SWGCA.
If the
Chairman’s current proposal is included in the resolution on the
aggression amendments or in the Final Act of the Review
Conference it will erode
the nexus between the jurisdiction of the Court and the consent of states by
allowing the Court to exercise
its jurisdiction where no state party is directly
involved in an offence.
V. ALTERNATIVE APPROACHES
The Chairman’s proposed clarifying language has not been formally
accepted by states parties. It is likely that consideration
of the proposal and
a formal decision on whether it should be accepted will occur during the eighth
session of the ASP. This paper
suggests three alternative approaches to
addressing the significant shortcomings of the Chairman’s proposal. These
alternatives
are listed according to the author’s preference for each
option.
A. Option One – Clarifying that the Notion of ‘Conduct’ does not Include Consequences of such Conduct
The SWGCA’s discussion of the territoriality issue suggests a
misunderstanding of the notion of ‘conduct’. One
way of addressing
this misunderstanding would be to include clarifying language in the resolution
on the crime of aggression amendments
or the Final Act of the Review Conference
that states that the notion of ‘conduct’ in Article 12(2)(a) does
not include
the consequences of such conduct. This approach has the benefit of
clarity, finality and consistency with the other provisions of
the Rome Statute,
including Article 30. This language clearly defines the meaning and scope of
the notion of ‘conduct’
and will therefore prevent an undefined and
expanded jurisdiction for the ICC.
This approach is unlikely to find
support in the ASP. The SWGCA’s views on territoriality are likely to be
based on a desire
for the Court to be able to effectively exercise jurisdiction
over the crime of aggression. Limiting the Court’s jurisdiction
over
aggression to cases where the aggressor state is a state party, or has declared
its consent to the Court’s jurisdiction,
will severely limit the
Court’s jurisdiction. States which are likely to perpetrate aggression
are unlikely to accept the
ICC’s jurisdiction.
B. Option Two – Leaving the Interpretation of Article 12 to the Court
While most states parties are unlikely to accept the first option, they
may also disagree on whether to accept the Chairman’s
proposed clarifying
language. No consensus was evident at the November 2008 meeting of the SWGCA
and states have not yet had an
opportunity to discuss the Chairman’s
proposed language. If states cannot agree on whether and how the issue of
territoriality
should be clarified, an alternative may be for states parties to
refrain from setting down an interpretation of Article 12 in the
aggression
resolution or Final Act of the Review Conference. Instead, states could
continue the status quo, under which Article 12 will be interpreted by
the Court.[25]
This approach does
not have the clarity and finality of option one. Remaining silent on the issue
of territoriality will not comfort
states who seek to ensure that the Court can
exercise its jurisdiction when either the aggressor state or the victim state
are states
parties. Nor will silence address the concerns of states who would
like to ensure that the ICC’s jurisdiction is based on state
consent.
However, leaving the interpretation of Article 12 to the Court will allow the
Court to exercise its discretion flexibly
and with regard to the relevant
circumstances of each case.
This approach is consistent with the current
framework of the Rome Statute. It is already open to the ICC to consider
Article 12
in the context of the other crimes within the Court’s
jurisdiction, including ancillary offences. Perpetrators of the ancillary
offences listed in Article 25 of the Rome Statute may, like perpetrators of
aggression, act in a different state to where the consequences
of their conduct
is felt. Under the Rome Statute, the Court will need to consider Article 12 in
order to determine whether it has
jurisdiction in such cases and would interpret
the preconditions in accordance with settled principles of treaty
interpretation.
C. Option Three – Suggesting Improvements to the Chairman’s Proposed Clarifying Language
If states parties express a preference to include clarifying language in
the aggression resolution or Final Act of the Review Conference,
to ensure that
the Court will be able to exercise jurisdiction over the crime of aggression
where either the aggressor state or victim
state are states parties, it may be
possible to amend the Chairman’s proposed language in order to minimise
the risk of confusion
or unintended consequences for the jurisdiction of the
Court.
In particular, the Chairman’s proposal should be limited to the
crime of aggression. The SWGCA has been tasked with considering
amendments to
include the crime of aggression in the Rome Statute, and it would not be
appropriate to use these amendments to institute
changes to the other crimes
within the Rome Statute without giving consideration to the consequences of such
changes for the other
crimes. The proposed language can also make clearer
reference to the scope of consequences that would be included in the notion
of
‘conduct’. This would ensure that the clarifying language does not
have an unintended effect on the scope of the
ICC’s jurisdiction. For
example, clarifying language along the following lines could be adopted:
In the context of the crime of aggression, the notion of
“conduct” in paragraph 2(a) of Article 12 includes both the
individual
conduct amounting to a crime of aggression and the State act of
aggression.
This proposal will not apply to the other crimes within the
Court's jurisdiction and clearly sets out the limits of the term
‘consequences’
by linking it to the state act of aggression. This is
consistent with the apparent objectives of the SWGCA as it will ensure that
the
Court will be able to exercise jurisdiction over the crime of aggression on the
basis of the victim state’s consent. This
outcome can also be achieved by
having recourse to the notion of ‘continuing conduct’. This notion
is already utilised
in the context of international environmental law and would
be based on a view that the ‘conduct in question’ commences
from the
location of the alleged perpetrator (on the territory of the aggressor state)
and continues to the location of the state
act of aggression (on the territory
of the victim state). Rather than extending the notion of ‘conduct’
to include the
consequences of such conduct, the concept of ‘continuing
conduct’ states that certain consequences have a lasting effect
and are in
fact continuations of an initial
action.[26]
VI. CONCLUSION
The question raised by the Chairman of the SWGCA at the November 2008
meeting is, on its face, a question of interpretation of Article
12. However,
Article 12 also sets out the requirement of state consent to the Court’s
jurisdiction in all cases other than
those referred by the Security Council.
This provision is central to the Court’s jurisdiction. Moreover, the
resolution of
the issue of territoriality will have an impact on the operation
of other provisions in the Rome Statute. For example, paragraph
5 of Article
121 sets out a process for the entry into force of amendments to Articles 5, 6,
7 and 8 of the Statute. If the crime
of aggression amendments enter into force
according to Article 121(5), the Court will not be able to exercise its
jurisdiction regarding
a crime of aggression when committed by a national of a
state party which has not accepted the amendment, or on the territory of
a state
party which has not accepted the amendment. The identification of the
territorial state will again be crucial to determining
whether the Court has
jurisdiction over a particular case.
There exists a tension between the consensual basis of the Court’s jurisdiction and the desirability of ensuring that the Court is able to exercise its jurisdiction to end impunity for the perpetrators of the most serious crimes of international concern. By interpreting the preconditions in Article 12 restrictively, the Court’s jurisdiction may be severely limited. However, a broad interpretation may unintentionally widen the Court’s jurisdiction beyond what was anticipated by the drafters of the Rome Statute. As a result, the views of the SWGCA and the clarifying language proposed by the Chairman should be carefully considered as states parties work to resolve this tension before the 2010 Review Conference.
[∗] Legal Officer, Office of
International Law, Australian Attorney-General’s Department. The views
expressed in this article
are the author’s own and do not necessarily
represent those of the Australian
Government.
[1] Rome Statute of
the International Criminal Court, opened for signature on 17 July 1998, 2187
UNTS 3 (entered into force on 1 July 2002), art
5(2).
[2] Under Article 121(1) of
the Rome Statute, seven years after the entry into force of the Statute, States
Parties may propose amendments
to the Statute. The ASP may deal with proposed
amendments or may convene a Review Conference if the issue so warrants. The
2010
Review Conference is the first such conference to be
convened.
[3] Art 12(2) and
(3).
[4] Consent to the ICC’s
jurisdiction can be expressed through ratification of the Rome Statute (art
12(1)) or by a declaration
accepting the Court’s jurisdiction in relation
to a particular case (art 12(3)).
[5] Giorgio Gaja, ‘The Long
Journey towards Repressing Aggression’ in Antonio Cassese et al (eds),
The Rome Statute of the International Criminal Court: A Commentary (2002)
427,427. There are, of course, exceptions to these
statements.
[6] Following his
indictment, on 5 March 2009, President Al-Bashir expelled aid groups from Sudan.
President Al-Bashir’s indictment
drew criticism from the President of the
United Nations General Assembly, Miguel d’Escoto Brockmann, who expressed
disappointment
at what he considered a politically motivated decision that would
be a hindrance to the cause of justice in Sudan and globally. See
‘UN
Assembly Chief says Sorry for Bashir Warrant’ ABC News Online, 6
March 2009
<http://www.abc.net.au/news/stories/2009/03/06/2508819.htm>
at
30 September 2009.
[7] Report of
the Special Working Group on the Crime of Aggression, SWGCA, 7th
session of the ASP (2nd resumption), UN Doc ICC-ASP/7/20/Add.1, Annex
II, Appendix I, 30.
[8] Report
of the Special Working Group on the Crime of Aggression, SWGCA,
7th session of the ASP, UN Doc ICC-ASP/7/20, Appendix I,
57.
[9]
Ibid.
[10] Ibid.
[11] See art 13(a) and
(c).
[12] This consent can be
expressed through ratification of the Rome Statute or through a declaration (by
a non-State Party) consenting
to the Court’s jurisdiction in a particular
case.
[13] The indictment of
President Al-Bashir is an example, as Sudan is not a State Party to the Rome
Statute. Article 103 of the United
Nations Charter provides that ‘in the
event of a conflict between the obligations of the Members of the United Nations
under
the present Charter and their obligations under any other international
agreement, their obligations under the present Charter shall
prevail’. As
a result, a Security Council resolution referring a situation to the Court is
binding on all States, including
non-States Parties to the Rome Statute.
[14] Report of the Special
Working Group on the Crime of Aggression, above n 8, 52,
[28].
[15]
Ibid.
[16]
Ibid.
[17] Ibid, Appendix
II.
[18] Ibid, at 36,
[12].
[19] Ibid, at 27,
[39].
[20]
Ibid.
[21] Report of the
Informal Inter-Sessional Meeting on the Crime of Aggression, hosted by the
Liechtenstein Institute on Self-determination,
Woodrow Wilson School, at the
Princeton Club, New York from 8 to 10 June 2009, UN Doc
ICC-ASP/8/INF.2.
[22] Antonio
Cassese, International Criminal Law (2nd ed, 2008)
336.
[23] This provision was
adopted at the 1998 United Nations Conference of Plenipotentiaries on the
Establishment of an International Criminal
Court in Rome as a politically
expedient measure to garner the support of States who were concerned with the
effect of the Rome Statute
on their sovereignty, as well as those States who
wanted to ensure that the Court would be able to effectively exercise its
jurisdiction.
Williams and Schabas called it a ‘make or break
provision’: Sharon A Williams and William A Schabas ‘Preconditions
to the Exercise of Jurisdiction’ in Otto Triffterer (ed), Commentary on
the Rome Statute of the International Criminal Court (2nd ed,
2008) 547.
[24] Article 30 of the
Rome Statute provides that in order to commit an offence, each material element
of the offence (conduct, consequence
and circumstance) must be committed with
intent and knowledge.
[25] The
Court has not had an opportunity to interpret Article 12, as all current cases
relate to situations referred by the State Party
concerned (Democratic Republic
of Congo, Central African Republic and Uganda) or by the UN Security Council
(Sudan).
[26] For example, see
the Trail Smelter Arbitral Tribunal (1941) 35 American Journal of
International Law 684.
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