Punishing Aggression as a Crime Against Humanity: A Noble but Inadequate Measure to Safeguard International Peace and Security (2013)

I. INTRODUCTIONThe Rome Statute of International Criminal Court (ICC),1 as summed up by its Preamble, is based upon a recognition that certain crimes threaten peace, security and well-being of world, and an affirmation that the most serious crimes of concern to international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at national level and by enhancing international cooperation.2 It was in this spirit that, almost a decade after entry into force of Rome Statute, a definition for crime of aggression was finally adopted at Review Conference held in Kampala, Uganda in 2010.3 However, under amendments adopted therein,4 ICC can only have jurisdiction over crimes of aggression committed one year after ratification or acceptance of amendments by thirty States Parties, and exercise of such jurisdiction will be subject to review of these amendments by Assembly of States Parties (States Parties) seven years after beginning of Court's exercise of jurisdiction.5 In essence, this means that ICC will only be able to take notice of cases involving aggression that occur not earlier than 2017, assuming amendments survive review by States Parties.6Despite current unavailability of Article 8bis as a remedy to prosecute aggression, Professor Benjamin Ferencz has declared that [n]ational leaders suspected of planning or committing crime of aggression may simultaneously be charged with Crimes Against Humanity and War Crimes-which carry same maximum sentence as aggression.7 Working from this proposition, this brief article has two main goals: (1) examining punishable as crimes of aggression in context of Kampala Amendments, and (2) determining whether any of of aggression could already fall within purview of Rome Statute's provisions on crimes against humanity.II. AGGRESSION: CIRCA 2017Although Rome Statute's provisions outlawing aggression are not yet in force, it is conceivable that purpose behind these provisions can, in interim, be accomplished in other ways- namely, by prosecuting them under provisions that are currently in force.8 Accordingly, first step of this analysis is to identify particular actions that treaty seeks to outlaw and persons treaty will punish for their commission.Article 8bis defines aggression as the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of Charter of United Nations.9 The States Parties understood this to mean that the three components of character, gravity and scale must be sufficient to justify a 'manifest' determination, and that [n]o one component can be significant enough to satisfy manifest standard by itself.10The second paragraph of Article 8bis defines an act of aggression as the use of armed force by a State against sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with Charter of United Nations.11 It then goes on to enumerate specific acts of aggression:a) The invasion or attack by armed forces of a State of territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by use of force of territory of another State or part thereof;b) Bombardment by armed forces of a State against territory of another State or use of any weapons by a State against territory of another State;c) The blockade of ports or coasts of a State by armed forces of another State;d) An attack by armed forces of a State on land, sea or air forces, or marine and air fleets of another State;e) The use of armed forces of one State which are within territory of another State with agreement of receiving State, in contravention of conditions provided for in agreement or any extension of their presence in such territory beyond termination of agreement;f) The action of a State in allowing its territory, which it has placed at disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out of armed force against another State of such gravity as to amount to listed above, or its substantial involvement therein. …