INTRODUCTION: THE INTERNATIONAL CRIMINAL COURT

The aim of this chapter is twofold. First, the process that led to the adoption of the Rome Statute of the ICC is described. Particular attention is given to the (unsuccessful) process to define aggression and the difficult task to draft a suitable definition in conformity with Articles 5(2), 121 and 123 of the Rome Statute of the ICC. Second, the process to define aggression is discussed contextually with reference to the relationship between the Security Council of the UN and the ICC. This contextual background serves as an introduction to Chapter VI, where the various definitional options for the crime of aggression will be critically analysed.

In Chapter VIII a number of factors relevant to the application of international criminal law at the national and regional levels are identified. It is pointed out that these concerns pose particular problems for prosecuting individuals in national and regional courts for the crime of aggression. It is concluded that, although the notion of universal jurisdiction and the possibility of so-called ‘direct application of international criminal law’ are today important features of the developing system of international criminal law, the peculiar nature of the crime of aggression leaves little scope for the prosecution of individuals in national courts for this crime. Regional courts may be better options, but there are significant limitations as well, as is pointed out in Chapter VIII.

Aggression is arguably the international crime par excellence. It is therefore ironic that the first permanent International Criminal Court (ICC) is, more than a decade after the entry into force of the Rome Statute, still not in a position to hear cases of aggression. This may change soon after 2017, as will be explained in subsequent chapters. Indeed, the adoption at the Kampala Review Conference in 2010 of a definition of aggression as well as conditions for the exercise of ICC jurisdiction over the crime is a significant development.

The historic first permanent ICC has jurisdiction over the most serious crimes under international law – genocide, crimes against humanity, war crimes and aggression.