OBSERVARE

Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

Vol. 8, Nº. 1 (May-October 2017), pp. 61-73

THE ICC AT THE CENTRE OF AN INTERNATIONAL CRIMINAL JUSTICE SYSTEM:

CURRENT CHALLENGES

Patrícia Galvão Teles

pgalvaoteles@gmail.com

Professor of International Law at the Autonomous University of Lisbon (Portugal)

and Researcher at OBSERVARE.

Abstract

The International Criminal Court (ICC) has entered into its second decade of operations and

has established itself at the centre of an international criminal justice system, comprising also

domestic jurisdictions and other international courts and tribunals. However, many challenges

continue to face the ICC and, indeed, such challenges are part of its own features and stem

from the specificities of international law and relations. In this article, we shall discuss, in light

of recent events, four of such challenges: 1) Universality; 2) Complementarity; 3)

Cooperation; and 4) the Crime of Aggression. These challenges illustrate how the ICC and

international criminal justice inhabit both the cultures of justice and politics and how these

two aspects have to be taken into account in order for such challenges to be overcome, so

that the mission of a permanent and central instrument for the fight against impunity, that

historically started in Rome in 1998, becomes an inherent part of today’s world.

Key-Words

International Criminal Court; International Criminal Justice.

How to cite this article

Teles, Patrícia Galvão (year). "The ICC at the centre ofan international criminal justice system:

current challenges". JANUS.NET e-journal of International Relations, Vol. 8, Nº. 1, May-

October 2017. Consulted [online] on the date of last consultation,

http://hdl.handle.net/11144/3033

Article received on January 13, 2017 and accepted for publication on February, 13 2017

Article developed in the context of the research project “International Criminal Justice: a Dialogue between

two Cultures” of OBSERVARE/UAL, coordinated by Mateus Kowalski and Patrícia Galvão Teles.

The views expressed in this article are strictly personal.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 8, Nº. 1 (May-October 2017), pp. 61-73

The ICC at the centre of an international criminal justice system: current challenges

Patrícia Galvão Teles

THE ICC AT THE CENTRE OF AN INTERNATIONAL CRIMINAL JUSTICE SYSTEM:

CURRENT CHALLENGES

Patrícia Galvão Teles

I. Introduction

In 2016, the International Criminal Court (ICC) witnessed an unprecedented level of

judicial activity. This trend is expected to continue in 2017. Preliminary examinations are

being conducted in 10 different situations in all regions of the world (including

Afghanistan, Colombia, Iraq/UK, Palestine and Ukraine), there are 10 ongoing

investigations (including Georgia) and 3 judgments were concluded in 2016.

At the same time, the ICC is experiencing a delicate moment from a political point of

view, with the withdrawal from the Rome Statute of 3 African States (South Africa,

Burundi and the Gambia) and antagonistic signals coming both from Russia and the new

American administration.

Concurrently, due to the lack of universality of the Rome Statute and deadlock in the

Security Council, some situations where serious international crimes are being committed

cannot be brought before the ICC and ad hoc mechanisms continue to have to be created,

in spite of the existence of a permanent criminal court, such as for the cases of South

Sudan and possibly Syria.

As to the issue of complementary, the conclusion of the Malabo Protocol in the African

Union context has raised the novelty of, besides national jurisdictions, a “regional”

complementarity and the question of its compatibility with the Rome Statute.

On the cooperation front, difficulties continue and they affect the capacity of the Court

to accomplish its mission given the high level of dependence from cooperation from

Member States. This has been especially evident concerning the outstanding arrest and

surrender of persons indicted by the Court, in particular of Omar Al-Bashir of Sudan, a

sitting Head of State, highlighting the tension between the traditional law on immunities

and international criminal justice.

Another element of tension that will resurface in 2017 is related to the crime of

aggression, since a decision on the activation of the Court’s jurisdiction with regard to

this crime can now be taken and the crime of aggression has been a contentious element

of the ICC Statute, in particular for the Permanent Members of the Security Council.

These four challenges continue to put on the spot the difficulties of operation of a judicial

mechanism in a political environment. If all judicial work is done against this background,

in no Court like the ICC this dichotomy of justice vs. politics seems more evident.

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Patrícia Galvão Teles

II. Current Challenges

1) Universality

The quest for universal ratification of the Rome Statute of the ICC has been a constant

goal since the adoption of the Rome Statute. In 2016, 124 States were parties to the

Statute, including the State of Palestine. Out of them 34 are African States, 19 are Asia-

Pacific States, 18 are from Eastern Europe, 28 are from Latin American and Caribbean

States, and 25 are from Western European and other States.

In October/November 2016, South Africa, Burundi and the Gambia notified the

Secretary-General of the United Nations (UN), who is the depositary of the Rome Statute,

of their intention to withdraw from the ICC – a decision that, according the to the Statute,

only produces legal effect one year after notification. These countries have acted upon

different reasons, including internal political reasons, but these decisions share an open

criticism to the Court’s functioning.

In recent years, many African States developed a growing negative perception of the

ICC, especially in view of the fact that the first cases brought before this Court were all

concerning African situations, although most of them were sovereign self-referrals from

the States themselves. This negative perception and concerns of selectivity were voiced

in meetings of the African Union, of the UN General Assembly and Security Council and

also at the Assembly of States Parties of the ICC.

Though a mass exodus of the Rome Statute is not to be expected and while it may still

be possible that these withdrawal decisions are reversed, they affect the credibility and

legitimacy of the Court.

Another aspect that affects the credibility and legitimacy of the ICC and imperils its quest

for universality, is the fact that out of the 5 Permanent Members of the UN Security

Council (P5), only 2 are parties to the Rome Statute: France and the United Kingdom.

The United States, Russia and China are not parties and this has made the ability of the

Court to fully perform its functions very much dependent of the attitudes taken especially

by the US and Russia in the context of the Security Council and more in general, which

have varied over time, but risk at the moment to enter a particularly antagonistic phase.

Moreover, after the Bush years, the US may be headed toward a new showdown with the

ICC. The ICC is reportedly launching an investigation into possible war crimes in

Afghanistan that could include acts of torture committed by the US military from 2003-

2014. Even if this does not materialize, given the signs given by the incoming President

For South Africa’s full arguments see “Declaratory statement by the Republic of South Africa on the decision

to withdraw from the Rome Statute of the International Criminal Court” available at

https://treaties.un.org/doc/Publication/CN/2016/CN.786.2016-Eng.pdf.

Cf. N. Waddell and P. Clark, Courting Conflict? Justice, Peace and the ICC in Africa, The Royal African

Society, 2008; A. Arieff et al, International Criminal Court Cases in Africa: Status and policy issues, Diane

Publishing, 2010; E. Keppler, “Managing setbacks for the International Criminal Court in Africa”, Journal of

African Law (2012-56/1) 1-14; A. Guerreiro, A resistência dos Estados Africanos à jurisdição do Tribunal

Penal Internacional, Almedina, 2012; and P. Galvão Teles, “The International Criminal Court and the

evolution of the idea of combating impunity: an assessment 15 years after the Rome Conference”, Janus.Net

(2014-2015-5/2).

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on issues of foreign policy, the UN and human rights, a defensive and hostile position

towards the ICC could be expected.

Russia, on its part, has in November 2016 formally “withdrawn its signature”

from the

Statute of the International Criminal Court – as the US

had done a few years earlier in

2002

-, after the Court published a report classifying the Russian annexation of Crimea

as an occupation. Besides the ongoing investigation into the crimes committed in Georgia

in 2008, Russia may also be concerned about a possible criminal investigation in Syria,

where its forces have been repeatedly accused of carrying out war crimes in recent

months. Russia had signed the Rome Statute in 2000 and cooperated with the court, but

had not ratified the Treaty and thus remained outside the ICC’s jurisdiction. This means

that this move, though highly symbolic, will not change much in practice, but is a sign of

a more hostile future attitude towards the Court.

Besides withdrawals and antagonist positions that threaten the universality aspiration of

the Rome Statute, the fact that the Statute is not universally ratified entails that the

necessity for continuing to create ad hoc mechanisms – as it was done in the past for the

Former Yugoslavia, Rwanda, Sierra Leone, Cambodia or Lebanon – continues to be

present. Although more difficult to implement, due to political and financial difficulties, it

is possible that such ad hoc mechanisms will come into play in, at least, in two pressing

situations: South Sudan and Syria.

Since December 2013, serious violations of international humanitarian law and human

rights have been committed in South Sudan, with crimes including extrajudicial killings,

ethnically targeted violence, rape and other forms of sexual and violence, and attacks on

schools, places of worship, hospitals and United Nations and associated peacekeeping

personnel. Calls for accountability have been made in numerous fora, including the

Security Council, the Human Rights Council and the African Union Peace and Security

Council, as well as by civil society. In August 2015 the parties to the conflict adopted an

Agreement on the Resolution of the Conflict, in which they agreed to establish a Hybrid

Court for South Sudan. The Hybrid Court shall be “an independent hybrid judicial court”

and it “shall be established by the African Union Commission to investigate and prosecute

individuals bearing the responsibility for violations of international law and/or applicable

South Sudanese law” committed after 15 December 2013. In October 2015, the Security

Cf. United Nations University Center for Policy Research, “The UN in the Era of Trump”, available in

https://cpr.unu.edu/the-un-in-the-era-of-trump.html.

In a communication received on 30 November 2016, the Government of the Russian Federation informed

the Secretary-General of the following: “I have the honour to inform you about the intention of the Russian

Federation not to become a party to the Rome Statute of the International Criminal Court, which was

adopted in Rome on 17 July 1998 and signed on behalf of the Russian Federation on 13 September 2000.

I would kindly ask you, Mr. Secretary-General, to consider this instrument as an official notification of the

Russian Federation in accordance with paragraph (a) of Article 18 of the Vienna Convention on the Law of

Treaties of 1969.” See https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-

10&chapter=18&clang=_en.

In a communication received on 6 May 2002, the Government of the United States of America informed the

Secretary-General of the following: "This is to inform you, in connection with the Rome Statute of the

International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a

party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on

December 31, 2000. The United States requests that its intention not to become a party, as expressed in

this letter, be reflected in the depositary’s status lists relating to this treaty.” See

https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-

10&chapter=18&clang=_en.

Legally, the act of “unsigning” a treaty or “withdrawing the signature” does not exist. What Russia and the

US have done is a communication of their intention not to become party to the Rome Statute, so as to avoid

the good faith obligations that arise from signature as foreseen in Article 18 of the Vienna Convention on

the Law of Treaties of 1969.

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Council requested the Secretary-General to make available technical assistance for the

establishment of the Hybrid Court. This is the first time the United Nations has been

tasked with providing technical assistance to a regional organization in the establishment

of a hybrid tribunal. The United Nations has a wealth of expertise in the establishment

and operation of international and United Nations-assisted criminal courts and tribunals

and is liaising with the African Union Commission to share lessons learned from past

experiences.

After a Security Council Resolution to submit the Syrian situation to the ICC was vetoed

by Russia and China in 2014, the United Nations General Assembly on 19th December

2016 voted to establish a special team to "collect, consolidate, preserve and analyze

evidence" as well as to prepare cases on war crimes and human rights abuses committed

during the conflict in Syria. According to General Assembly Resolution A/RES/71/248,

the team will work in coordination with the UN Syria Commission of Inquiry, which was

established by the Geneva-based UN Human Rights Council in 2011 to investigate

possible war crimes. The Commission of Inquiry, which has developed a confidential list

of suspects on all sides who have committed war crimes or crimes against humanity, has

repeatedly called for the UN Security Council to refer the situation in Syria to the

International Criminal Court. The special team will "prepare files in order to facilitate and

expedite fair and independent criminal proceedings in accordance with international law

standards, in national, regional or international courts or tribunals that have or may in

the future have jurisdiction over these crimes." A crackdown by Assad on pro-democracy

protesters in 2011 led to civil war and Islamic State/Daesh militants have used the chaos

to seize territory in Syria and Iraq. Half of Syria's 22 million people have been uprooted

and more than 400,000 killed.

The quest for universality of membership and for making the ICC the effective centre of

the global international criminal justice will certainly continue in the future, despite recent

setbacks. Nevertheless, it has to continue to be borne in mind that the ICC is only a court

of last resort, for the most serious of the most serious international crimes and that it

will never have the capacity, nor it was intended to replace national jurisdiction and

States’ primary responsibility for accountability for atrocity crimes. This is why

complementarity – at the national level or eventually at the regional level – continues to

be a fundamental feature of the international criminal justice, as it will be discussed at

the next section.

2) Complementarity

The ICC is based on the principle of complementarity according to Article 17 of its Statute.

It is a Court of last resort

that shall only intervene when the territorial or nationality

State is “unable or unwilling” to prosecute the serious international crimes that may have

been committed in its territory of by its nationals.

For the complementarity system to work, States have to have adequate national

legislation and capable judicial institutions. This is, of course, a challenge on its own.

Cf. http://legal.un.org/ola/media/info_from_lc/mss/speeches/MSS-ILC-statement-17-May-2016-EN-

FR.pdf.

See https://www.un.org/press/en/2016/ga11880.doc.htm and

http://mobile.reuters.com/article/idUSKBN14A2H7?il=0.

E. Mendes, Peace and Justice at the International Criminal Court: A Court of last resort, Elgar, 2010.

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Central African Republic and Sri Lanka are two countries now developing, with the

assistance of the United Nations and other organizations, their ability to promote judicial

accountability for the crimes committed during their civil wars.

But if complementarity was initially seen as complementarity between the ICC and

national jurisdictions, the possible creation of an African Regional Criminal Court, has

raised the issue of “regional” complementarity.

In June 2014, the African Union (AU) Assembly of Heads of State and Government

meeting in Malabo, Equatorial Guinea, adopted the Protocol on Amendments to the

Protocol on the Statute of the African Court of Justice and Human Rights (the Malabo

Protocol) and called on AU member states to sign and ratify it.

The Malabo Protocol extends the jurisdiction of the African Court of Justice and Human

Rights (ACJHR) to crimes under international law and transnational crimes. The original

plan for the ACJHR was a court with two sections - a general affairs section and a human

rights section. The Malabo Protocol introduces a third section: the international criminal

law section. Thus, if the Malabo Protocol comes into force, the ACJHR will have jurisdiction

to try the following 14 crimes: genocide, crimes against humanity, war crimes, the crime

of unconstitutional change of government, piracy, terrorism, mercenarism, corruption,

money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous

wastes, illicit exploitation of natural resources, and the crime of aggression.

Thus the international criminal law section of the ACJHR could serve as an African regional

criminal court, with the same objectives of the International Criminal Court but within a

narrowly defined geographical scope, and over an expanded list of crimes.

The adoption of the Malabo Protocol is apparently a step in the right direction. The

regional criminal court could potentially play a positive role on a continent persistently

afflicted by the scourge of conflict and impunity for international crimes. In recent and

ongoing conflicts, thousands of civilians have lost their lives or have been maimed and

displaced from their homes. There are many accounts of killings, torture, rape, mutilation

of bodies, recruitment of child soldiers, and wanton destruction of property. Armed

groups and government forces alike are responsible for the abuses and violations.

Impunity is a common denominator in Africa’s conflicts, with those suspected of criminal

responsibility for crimes under international law rarely held to account. Often national

governments are unwilling or unable to conduct prompt, independent, impartial, and

effective investigations into allegations of international crimes and to bring all those

suspected of criminal responsibility to justice in fair trials. A regional criminal court, as

envisaged under the Malabo Protocol, has the potential to fill this accountability gap.

However, there are concerns about the motivations behind the proposal to establish the

criminal chamber of the ACJHR. Some commentators

have argued that the proposal is

an attempt by the AU to shield African heads of state and senior state officials from being

held to account when there are reasonable grounds to believe that they are criminally

F. M. Jackson, “Regional complementarity: The Rome Statute and Public International Law”, Journal of

International Criminal Justice (2016-14/5) 1061-1072.

On this issue see Amnesty International, Malabo Protocol – Legal and institutional implications of the merged

and expanded African Court, 2016.

See, among others, http://kptj.africog.org/wp-content/uploads/2016/11/Malabo-Report.pdf and

http://www.ejiltalk.org/a-case-of-negative-regional-complementarity-giving-the-african-court-of-justice-

and-human-rights-jurisdiction-over-international-crimes/.

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responsible for crimes under international law. Furthermore, there are doubts as to the

compatibility with the Rome Statute on the issue of complementarity, envisaged as a

national complementarity, but also given the express provision on immunity of process

regarding sitting heads of state, government or other seniors state officials.

An immunity clause is indeed considered to be the most controversial provision in the

amended ACJHR Statute. The relevant provision (Article 46Abis) reads as follows: “No

charges shall be commenced or continued before the Court against any serving African

Union Head of State or Government, or anybody acting or entitled to act in such capacity,

or other senior state officials based on their functions, during their tenure of office.”

So far the Malabo Protocol is not yet in force, having been signed only by 9 States and

ratified by none. A possible expansion of the Malabo Protocol of the African Court on

Human and People’s rights should be achieved in a way that it ensures greater

accountability, but does not undercut the ICC’s contribution to criminal justice. Such an

extension of the African Court must be developed in full respect and in conformity with

the Rome Statute that does not foresee immunity from jurisdiction for sitting Heads of

State. But it is precisely the issue of the irrelevance of the official capacity for criminal

prosecution that is the most problematic aspect of the Rome Statute for African States,

as it will be discussed in the next section.

3) Cooperation

Out of the 23 arrest and surrender requests issued by the ICC, 12 are still to be executed:

(a) Ivory Coast: Simone Gbagbo, since 2012; (b) Democratic Republic of Congo:

Sylvestre Mudacumura, since 2012; (c) Kenya: Walter Barasa, since 2013; (d) Lybia:

Saif Al-Islam Gaddafi, since 2011; (e) Darfur (Sudan): Ahmad Harun and Ali Kushayb,

since 2007; Omar Al Bashir, since 2009; Abdel Raheem Muhammad Hussein, since 2012;

and Bahar Idriss Abu Garda, since 2014; (f) Uganda: Joseph Kony, Vincent Otti and Okot

Odhiambo, since 2005.

The arrest and surrender of indicted persons depends on the cooperation of the States

Parties to the ICC, but also on the overall UN Members in the cases submitted under

Chapter VII of the UN Charter by the Security Council, as it was the case of Sudan and

Libya, that are not State Parties to the ICC. The ICC has asked, without success, the

Security Council to act upon the non-cooperation with regard to these two situations.

These outstanding arrests have also significantly affected the credibility of the Court and

of the system designed by the Rome Statute.

The Bashir case has been the one where tensions have been more evident. In particular,

in June 2015 while attending an African Union Summit in South African, President Bashir’s

arrest and surrender was object of an ICC request of cooperation to South Africa. The

High Court of South Africa issued an order requiring that he should not be permitted to

leave the country, but the South African government permitted him to do so before the

High Court could consider the request on the merits and the High Court subsequently

held that this was unlawful. Under Part IX of the Rome Statute, States Parties – including

South Africa – have obligations to cooperate with the Court. This is also so regarding

South African nation legislation implementing the Rome Statute.

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South Africa’s government

has argued that there is an unresolved legal question arising

from the fact that international law provides that serving heads of state are immune from

criminal jurisdiction of other states, including immunity from arrest and personal

inviolability. The question that arises is whether this immunity persists in cases in

national authorities are asked to arrest a head of State wanted for prosecution by the

ICC. The matter is further complicated when the head of state is that of a State not party

to the ICC Statute, though the case has been brought by a Security Council Chapter VII

Resolution.

According to South Africa, Article 27

and Article 98

of the Rome Statute represent the

intersection of the law on immunities applying to Heads of State and Government, and

the cooperation obligation of States Parties to the Statute. The relationship between State

Parties and non-State parties continues to be governed by customary international law

that bestows on a Head of State immunity ratione personae. Arrest of such a person by

a State Party pursuant to its Rome Statute obligations, may therefore result in a violation

of its customary law obligations.

This argument has been rejected by the ICC

(though not in a fully consistent way in

terms of the legal arguments), many States and scholars, arguing inter alia that Article

27 of the Rome Statute, following the Nuremberg precedent, has made irrelevant the

official capacity and customary law immunities for the purposes of prosecution by

international criminal tribunals for States Parties to the ICC. Moreover, since Sudan’s

situation was brought to the ICC by the Security Council in a binding Chapter VII

Resolution, the obligations of cooperation arising out from this case would also be binding

upon all and with regard to all UN Member States and not only ICC States Parties.

These different legal views on this question have persisted and it has been suggested by

commentators and even by the African Union that this matter should be the object of an

Cf., among others, “Declaratory statement by the Republic of South Africa on the decision to withdraw from

the Rome Statute of the International Criminal Court” available at

https://treaties.un.org/doc/Publication/CN/2016/CN.786.2016-Eng.pdf.

“1. This Statute shall apply equally to all persons without any distinction based on official capacity. In

particular, official capacity as a Head of State or Government, a member of a Government or parliament,

an elected representative or a government official shall in no case exempt a person from criminal

responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of

sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person,

whether under national or international law, shall not bar the Court from exercising its jurisdiction over such

a person.“

“1. The Court may not proceed with a request for surrender or assistance which would require the requested

State to act inconsistently with its obligations under international law with respect to the State or diplomatic

immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that

third State for the waiver of the immunity. 2. The Court may not proceed with a request for surrender which

would require the requested State to act inconsistently with its obligations under international agreements

pursuant to which the consent of a sending State is required to surrender a person of that State to the

Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for

the surrender.”

Cf. Decisions on Malawi (ICC-02/05-01/09-139-Corr of 13 December 2011), Chad (ICC-02/05-01/09-

151 of26 March 2013) and South Africa (ICC-02/05-01/09-242 of 13 June 2015).

Cf., among others, the discussions on this issue by D. Akande, “International Law Immunities and the

International Criminal Court”, American Journal of International Law (2004-98/3) 407-433; P. Gaeta, “Does

President Al Bashir enjoy immunity from arrest?”, Journal International Criminal Justice (2009-7/2) 315-

332; and C. Jalloh, “Reflections on the indictment of sitting Heads of State and Government and its

consequences for peace and stability and reconciliation in Africa”, African Journal of Legal Studies (2014-

7/1) 43-59.

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advisory opinion of the International Court of Justice.

Even if this is not the case, it

would be important legally and politically to clarify this question in a definitive and

consensual manner in order to alleviate some of the current tensions relating to the ICC.

4) The Crime of Aggression

In the run-up and during the Rome Diplomatic Conference in 1998 the discussion was

rather about the inclusion or not of the crime of aggression along the other 3 core

international crimes: genocide, crimes against humanity and war crimes. The dispute

was not so much about the possibility of criminally prosecuting aggression at the

individual level, since there were post World War II precedents (namely Nuremberg and

Tokyo) concerning the then called “crimes against peace”, but whether to include a more

narrow crime covering only “wars of aggression” or a broader one relating to “acts of

aggression” contained in the 1974 General Assembly Resolution adopted in the

meantime. The other thorny issue was the relationship between the ICC and the Security

Council, namely if the ICC should only prosecute crimes of aggression once the Security

Council had determined the existence of such act, or not.

During the Rome Conference, proposals were made for the inclusion of the crime of

aggression by several delegations. Many States supported the inclusion of this crime in

the jurisdiction of the Court, as long as it was possible to agree on a definition and on

the conditions for the exercise of such jurisdiction. In order not to jeopardize the overall

result and derail the negotiations, a compromise was found in Articles 5/1 and 2, to

include the crime of aggression, but leave the definition and the conditions for the

exercise of jurisdiction for later consideration, namely at the first Review Conference. A

mixed outcome was there the possible compromise: the crime was in the Statute, but

the Court could not exercise jurisdiction until further negotiations and agreement on the

two tracks of definition and conditions for the exercise of jurisdiction.

Resolution F of the Final Act of the Diplomatic Conference confirmed that this was an

issue to be continued and mandated the Preparatory Commission for the ICC, or

Preparatory Commission, to further work on the issue of aggression. Resolution F

mandated the Preparatory Commission to prepare proposals for a provision on

aggression, including the definition and the elements of crimes, and the conditions under

which the ICC shall exercise its jurisdiction. It also stated that the Commission should

submit such proposals to the Assembly of States Parties at a Review Conference, with a

view to arriving at an acceptable provision on the crime of aggression for inclusion in the

Statute.

Following the 1998 Rome Conference, the Preparatory Commission for the ICC

(PrepComm, 1999–2002) and later the Special Working Group on the Crime of

Aggression (SWGCA, 2003–2009) continued negotiations on the outstanding issues

regarding the crime of aggression. In February 2009, the SWGCA found a consensus

agreement on the definition of the crime of aggression. The 2010 Kampala Review

Conference used that definition and could thus focus on other outstanding issues, i.e. the

Cf. http://www.ejiltalk.org/an-international-court-of-justice-advisory-opinion-on-the-icc-head-of-state-

immunity-issue/ and http://au.int/en/sites/default/files/decisions/9651-assembly_au_dec_416-

449_xix_e_final.pdf.

See S. Barriga and C. Kreß, The Travaux Préparatoires of the Crime of Aggression, Cambridge University

Press, 2012.

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“conditions for the exercise of jurisdiction”. States Parties seized the historic opportunity

and adopted Resolution RC/ Res.6 by consensus. The resolution amended the Rome

Statute to include, inter alia, new Article 8bis containing a definition of the crime of

aggression and new Articles 15bis and 15ter, containing complex provisions on the

conditions for the exercise of jurisdiction. Notably, the compromise included a clause that

prevented the Court from exercising jurisdiction over the crime of aggression

immediately. Instead, the Assembly of States Parties would have to take a further one-

time decision to activate the Court’s jurisdiction, no earlier than 2017, by a 2/3 majority

of the States Parties. Also, one year must have passed since the 30th ratification, already

accomplished in June 2016, before the Court could exercise its jurisdiction over the crime

of aggression.

The Assembly of States Parties is thus now in a position to take a decision on the

activation of the ICC regarding the crime of aggression. The Permanent Members of the

Security Council, including ICC parties France and UK, have always questioned this crime,

especially the relationship between the Security Council, who has the political prerogative

of declaring that an act of aggression has been committed, and the ICC who will have to

do a judicial, and not political, analysis. Although the Kampala Amendments have

safeguarded many of the P5 concerns, it is expected that the activation of jurisdiction on

the crime of aggression may bring another layer of tension in the ICC realm in the current

political context. It is, therefore, of utmost importance that this process continues to be

built upon a solid basis at the next Assembly of States Parties and that the Kampala

compromise is not reopened.

III. Some Conclusions: Justice vs. Politics

The Rome Statute of the ICC was, undoubtedly, one of the most significant international

treaties to be signed in the post cold war period, at a moment where international law

and international institutions lived a very positive moment. It was at the centre of the

political discourse in the reaction against the gravest atrocities committed since World

War II, namely in the Former Yugoslavia and in Rwanda.

Today, it would most likely not be possible to repeat this feat and create on the most

innovative institutions in the international arena, breaking away from the Westphalian

model of sovereignty, but at the same time strongly anchored in that model, given the

dependency on State voluntary participation and cooperation.

The ICC, together with States, strives to promote the rule of law, the respect for human

rights and sustainable peace, in accordance with international law and the purposes and

principles of the Charter of the United Nations.

With the increasing workload of the Court, all cooperation efforts are fundamental for the

credibility of the Court and for the ICC to perform the role it was given by the Rome

Statute, not only to ensure accountability of the perpetrators of the most serious crimes

of concern to the international community as a whole, but also to assure that the rights

of the victims prevail.

See C. Kreß and L. von Holtzendorff, “The Kampala Compromise on the Crime of Aggression”, Journal of

International Criminal Justice (2010-8/5) 1179-1217 and S. Barriga and L. Grover, “A Historic Breakthrough

on the Crime of Aggression”, American Journal of International Law (2011-105/3) 517-533.

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It also has to be highlighted that the ICC has a complementary nature and was not

created to replace States. Bringing those responsible for the most serious crimes to

justice is, first and foremost, a responsibility of States and the Court should only act

where national authorities fail or are not in a position to take the steps necessary to

ensure accountability for such crimes.

However, one cannot forget that the ICC, though a judicial institution, inhabits the world

of realpolitik. As it has been said: “This is a harsh environment for the delicate plant of

international justice. But it is also a world where the demand and need for accountability

has never been greater.”

As we have briefly seen, the challenges are immense and the political moment a delicate

one for the institution. But the ICC is here to stay and is becoming an inherent feature

of today’s world. Both aspects of justice and politics have to be taken into account in

order for such challenges to be overcome, so that the mission of a permanent and central

instrument for the fight against impunity, that historically started in Rome in 1998,

becomes a definitive part of today’s world.

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