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Pallas, Josh --- "Aggression: A Defining Moment For Jus Contra Bellum" [2020] UNSWLawJlStuS 11; (2020) UNSWLJ Student Series No 20-11


AGGRESSION: A DEFINING MOMENT FOR JUS CONTRA BELLUM

JOSH PALLAS[1]*

I INTRODUCTION

On 17 July 2018, the International Criminal Court’s[1] jurisdiction to investigate and prosecute the crime of aggression was activated.[2] For twenty years, Article 5(d) of the Rome Statute[3] was a placeholder for the crime of aggression, a crime without definition. Consequently, until July 2018, the Court was unable to prosecute aggression while it awaited definition of the crime by the Court’s Assembly of States Parties. This jurisdictional gap was significant, as the act of aggression was previously tried by the Nuremberg Tribunal as a crime against peace, and was considered one of the most egregious international crimes.[4]

Until the activation of the Court’s jurisdiction, almost without exception, jus contra bellum was the law that governed the use of force between states. Decisions about the way that the community of states respond to infringements of jus contra bellum were dominated by the United Nations[5] Security Council. International criminal law, insofar as it had jurisdiction to do so, could prosecute under jus contra bellum’s older sibling jus in bello and could also prosecute crimes against humanity and genocide.[6] The Court was therefore often inextricably linked to jus contra bellum because of the crimes that fell within its jurisdiction. But until the activation of the ICC’s jurisdiction to prosecute the crime of aggression, there was very little role for the ICC to consider and pass judgment on aggression – an act which is often central to any political context where the other ICC crimes take place.[7] This lack of jurisdiction over aggression was therefore a severe limitation on the Court. One which upon resolution, was celebrated by scholars and human rights defenders as being a great leap forward in further preventing impunity for those committing atrocity crimes.

In this paper, I will first consider the development of the crime of aggression and how it has been defined under the Rome Statute. I will compare and contrast this definition with the way that the UN has understood the ‘act of aggression’. I will then consider the opportunities that have been presented by the activation of the Court’s jurisdiction for jus contra bellum. I will consider the impact that this may have on the relationship between the ICC and Security Council. Finally, I will consider some of the challenges that this altered jus contra bellum landscape, which now includes the ICC, may present for maintaining international peace and security.

I argue that the activation of the Court’s jurisdiction to prosecute the crime of aggression presents an important and timely opportunity for jus contra bellum. The extension of criminal liability to leaders personally for the crime of aggression bolsters the general prohibition on the use of force between states under Article 2(4) of the Charter of the United Nations,[8] as there is now a mechanism to punish individuals who unlawfully use force. For the ICC, the activation of the jurisdiction to hear crimes of aggression gives the Court a full repertoire of crimes to prosecute. However, this opportunity is also subject to the significant challenge that is faced by the Security Council: state sovereignty and self-interest. Nevertheless, the activation of the Court’s jurisdiction itself presents a glimmer of hope in an increasingly hostile world order, that the international community remains committed to both the development of jus contra bellum and ensuring that there is no impunity for the crime of aggression, both of which strengthen the norm against the unlawful use of aggression as a tool of foreign policy.

II AGGRESSION – THE LEGAL FRAMEWORK

Jus contra bellum, formally known as jus ad bellum, has a long history of regulating the lawful use of force. Jus contra bellum (and its predecessor) predate the creation of any organised regime of international criminal law. This section traverses terrain that is covered more extensively elsewhere in order to orientate the later discussion.[9] I will begin with jus contra bellum, by introducing the general prohibition on the use of force and the UN Charter exceptions to the general prohibition. I will then provide a brief account of how the crime of aggression has been defined, and outline the Court’s jurisdiction to investigate and prosecute aggression. I will also compare the definition of aggression in jus contra bellum and the Rome Statute.

A General Prohibition on the Use of Force

Following the catastrophic destruction of World War Two, the victors led the push for the establishment of the UN, an organisation that would bring states together to maintain international peace and security[10] and promote respect for human rights.[11] The constitutional document of the UN is the UN Charter, concluded in 1945. The UN Charter’s principles were most recently reaffirmed by the state parties present at the World Summit in 2005.[12] Article 2(4) of the UN Charter establishes a general prohibition on the use of force, stating:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

The drafters of the UN Charter intended Article 2(4) to be a comprehensive and general prohibition on the use of force.[13] The Charter established the primary guardian of international peace and security within the UN system to be the Security Council.[14] There are only two exceptions to the prohibition on the use of force and both come under the scrutiny and control of the Security Council.

The first exception to the prohibition on the use of force is that a state can act in self-defence in response to an armed attack until such time as the UN Security Council has taken measures to respond under Article 51.[15] The state acting out of self-defence is compelled to notify the Security Council when they engage in an act of self-defence.[16] Collective actions in self-defence are also permitted.[17] The second exception to the prohibition gives the Security Council wide powers to authorise the use of force under Article 42, if non-forceful measures are inadequate,[18] and it makes a determination under Article 39 of ‘the existence of any threat to the peace, breach of the peace, or act of aggression’,[19] which requires the intervention of the Security Council to restore or maintain peace and security.

There is little guidance from the Security Council, General Assembly[20] or International Court of Justice[21] as to what constitutes an “act of aggression”. In 1974, the GA passed the ‘Definition of Aggression’ Resolution.[22] Aggression was defined in the resolution as ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition’.[23] Article 2 of the resolution establishes that the first use of the force is prima facie an act of aggression, and Article 3 provides prima facie examples of acts of aggression.[24] Article 5(2) interestingly departs from the language of “act of aggression”, adopted throughout the resolution, and states ‘[a] war of aggression is a crime against international peace’. This is the only reference to a war of aggression in the resolution, and also the only reference to its criminalisation.

The Security Council has seldom used the term aggression in determining whether there has been a breach of Article 2(4) under Article 39. In 1985, the Security Council made two determinations that an act of aggression had occurred. Security Council Resolution 573 concerned an Israeli violation of Tunisian sovereignty in an act of reprisal against the Palestinian Liberation Organisation.[25] The Security Council authorised member states to ‘take measures’ to prevent Israel from further violating sovereignty, but stopped short of authorising use of force.[26] In Security Council Resolution 577, which concerned the South African invasion of Angola, the Security Council again stopped short of authorising use of force, but condemned South Africa and called upon member states to assist Angola in economic reconstruction.[27] Neither resolution refers to GA Resolution 3314 or provides any explanation of the principles that the Security Council relied upon to determine whether each of the situations was an act of aggression.

The Security Council is deliberately sparing in its use of strong language which apportions blame for hostilities, as it may prevent unnecessary delay and debate about semantics within the Security Council in circumstances where a rapid response is required.[28] Accordingly, despite being authorised to do so, the Security Council has seldom used its authority to determine whether an act of aggression has occurred, and when it has done so, it has not elucidated principles regarding what constitutes an act of aggression. This is likely because the Security Council does not need to use such accusatorial concepts in order to maintain international peace and security.

B Crime of Aggression

On 2 July 1998 the Rome Statute was finalised, creating a Court to investigate and prosecute international crimes. Article 5 of the statute listed the crimes that fall within the Court’s jurisdiction. It included the crime of aggression, subject to the caveat that the Court did not have jurisdiction to investigate and prosecute this crime until the Assembly of States Parties activated the Court’s jurisdiction.[29] The crime of aggression has its roots in the statutes of the International Military Tribunals which tried the leaders of Nazi Germany and Japan in the post-World War Two period.[30] Aggression was considered to be an instantiation of crimes against peace, and was considered to be the ‘supreme international crime’ by the International Military Tribunal sitting in Nuremberg.[31] From this foundation, the crime of aggression was built into the Rome Statute.

Soon after the Rome Statute was concluded, diplomats began crafting the definition of the crime of aggression and consensus building in order to activate the Court’s jurisdiction. Jennifer Trahan explains that by the time that the Kampala Review Conference was convened in 2010, the definition of aggression was settled.[32] However, the Court’s jurisdiction to hear the crime remained contentious.[33] By consensus, a resolution[34] was passed, which defined the crime of aggression in what is now Article 8bis(1) of the Rome Statute, which says:

[T]he 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 aggress which, by its character, gravity and scale, constitutes a manifest violation of the [UN Charter].

For the purposes of the Rome Statute, an “act of aggression” is defined in Article 8bis(2) as ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the [UN Charter]’. Article 8bis refers to GA Resolution 3314 and list examples of aggression contained therein as aggression under the Rome Statute. At Kampala, “understandings” were also concluded with the intention of clarifying the intention of the Assembly of States Parties in crafting the Kampala Amendments.[35] The legal effect of the Kampala Understandings is undetermined.[36]

Articles 15bis and 15ter establish the jurisdiction of the Court to investigate and prosecute the crime of aggression. I will examine this jurisdiction in more detail in section 2.4 below. But for the purposes of continuing the chronology of how the Court’s jurisdiction became active, it is important to note that in order for the jurisdiction to be enlivened, thirty States Parties were required to ratify or accept the Kampala amendments.[37] Then, a further vote was required to take place after 1 January 2017 in which a two thirds majority of the States Parties to the Rome Statute must vote for the activation of the Court’s jurisdiction.[38] On 14 December 2017, a resolution of the Assembly of States Parties was passed by consensus, activating the Court’s jurisdiction.[39] The resolution stipulated that the Court’s jurisdiction over the crime of aggression would become active from 17 July 2018.

C Act or Crime – What is the Difference?

At first glance, there may appear to be little difference between the way that the crime of aggression and an act of aggression have been defined in their respective legal regimes. However, there are key differences. An act of aggression is a means of categorising state actions, whereas the crime of aggression categorises an action of an individual. When an individual engages in any preparation, planning or execution of an act of aggression, it is done so on behalf of a state and not (usually) in the individual’s personal capacity. It is therefore unsurprising that the crime of aggression has been cast in narrower terms than the act of aggression in order to only capture those with some sort of leadership responsibility within a state.

Interestingly, the crime of aggression has been constructed in such a way that the formulation of an “act of aggression” by the GA in Resolution 3314 is preserved verbatim as an element of the offence. Accordingly, the individual who has been convicted of the crime of aggression must exercise a level of direction or control over the planning, preparation, initiation or execution of a state based act of aggression. The drafters of the Kampala Amendments have built the crime of aggression from the jus contra bellum building block of Resolution 3314 and therefore created a permanent link between international criminal law and jus contra bellum.

However, the act of aggression element in Article 8bis is subject to one crucial qualifier that does not appear in Resolution 3314, that it must ‘by its character, gravity and scale, constitute a manifest violation of the [UN Charter]’.[40] In order for the prosecution to prove a crime of aggression, the alleged act of aggression must meet the objective requirement of being a manifest violation of the UN Charter on each, and all, of the registers of character, gravity and scale.[41] This objective requirement has been the subject of extensive academic consideration.[42] Sean Murphy considers that the word manifest qualifies the phrase ‘violation of the UN Charter’.[43] Murphy therefore considers that the scope of an act of aggression may be expanded to any manifest violation of Article 2(4) and not just those that can be categorised as an ‘act of aggression’.[44] However, quaere then why a Security Council determination that an ‘act of aggression’ has taken place is relevant to investigations commenced proprio motu or by state referral?[45] Others bemoan the narrowness of the definition, and the lost opportunity to modernise the definition by including not just state acts of aggression but also non-state acts of aggression,[46] or updating the examples of acts of aggression instead of simply relying on those contained in Resolution 3314.[47] However, there are presently no investigations or prosecutions of aggression by the ICC, so all commentary on the interpretation of the crime[48] is speculative.

Whilst Kampala Understanding 4 (recalling Article 10 of the Rome Statute) emphasises that the definition of act of aggression in the Rome Statute should play no role in prejudicing the development of ‘rules of international law for purposes of than this Statute’, there is now an intrinsic link between principles of jus contra bellum and the ICC. Kampala Understanding 6 leaves the Court in the unenviable position whereby it is required to determine whether an act of aggression has occurred ‘in accordance with the [UN Charter]’, which will inevitably lead to a body of ICC jurisprudence on jus contra bellum principles that have been developed in respect of the UN Charter by the ICJ and Security Council, without having any effect on the development of the understanding of jus contra bellum for either of those bodies. The corollary of this is also that pursuant to Article 15bis(9) and Article 15ter(4), the ICC is not bound by the findings of any other body as to whether an act of aggression has occurred. Thus the definition of the crime of aggression represents a political and legal compromise that intrinsically links the Rome Statute and jus contra bellum. Thus while the fates of both the ICC and the Security Council may be bound there is no obligation for either them to act in consonance with one another. Whilst it is too early to tell how this link will manifest, it could cause significant tension between the Security Council and the ICC.

D Jurisdiction

The Court’s jurisdiction to hear the crime of aggression was a major point of conjecture at the Assembly of States Parties. The Activation Resolution has left the Court’s jurisdiction more unclear than ever.[49] There has been a large amount of scholarship regarding the decisions made at the Assembly of States Parties to activate the Court’s jurisdiction, and whether the decisions made reflect the correct understanding of the treaty ratification protocol under the Rome Statute.[50] A reconsideration of the legality or otherwise of the Activation Resolution’s statements about jurisdiction is both outside the scope of this paper and frankly redundant, as the activation resolution has been passed and it is for the Court to now determine its own jurisdiction at an appropriate time.

The Court’s jurisdiction to investigate and prosecute the crime of aggression can be enlivened in three ways, namely, upon referral by a state, referral by the Security Council or by commencement proprio motu. In accordance with the Activation Resolution, the Court’s jurisdiction to hear the crime of aggression commenced on 17 July 2018, so any alleged crimes must be committed after this time.[51] The most legally clear, but politically contentious method of enlivening the Court’s jurisdiction is referral by the Security Council pursuant to Article 15ter(1), which allows referral of a situation in which an alleged crime under the Rome Statute has occurred to the ICC by the Security Council under Chapter VII of the UN Charter in accordance with pre-existing Article 13(b) of the Rome Statute. The contentiousness stems from the fact that it is within the Security Council’s power to make such a referral in respect of a situation irrespective of whether the states involved are parties to the Rome Statute.[52]

The present status of the Court’s jurisdiction arising from state referral or proprio motu under Article 15bis remains unclear. Article 15bis(5) clearly excludes the possibility of the crime of aggression being charged against the national of, or for conduct within, a state that is not party to the Rome Statute.[53] Conversely, the crime of aggression could be charged against the national of a state, or for conduct within another state party, where those states are party to the Rome Statute and those states have ratified the Kampala Amendments and not opted out of the Court’s jurisdiction over aggression.[54] On the basis of the Rome Statute and the Activation Resolution passed by the Assembly of States Parties, the ICC has no jurisdiction over the crime of aggression alleged against a state that is party to the Rome Statute, but has not ratified the Kampala Amendments.[55]

In relation to the prosecutor’s ability to commence an investigation proprio motu or because of state referral, an important role of the Security Council remains and serves as a ‘jurisdictional filter’ which gives the Security Council a significant level of control over the ICC’s work.[56] Article 15bis(5) stipulates that where the prosecutor is satisfied that there is a reasonable basis to commence an investigation into the crime of aggression, they must consider whether the Security Council has made a determination of an act of aggression in respect of the State in question.[57] If the Security Council has made a determination that an act of aggression has taken place, the investigation may proceed.[58] If the Security Council has not, the prosecutor must put the Secretary-General of the UN on notice of their intention to investigate, and if the Security Council has not made a determination of an act of aggression within six months of notice being given, the Prosecutor can proceed to investigate on the proviso that the Pre-Trial Division (distinct from Chamber) of the Court authorises the investigation in accordance with Article 15 of the Rome Statute.[59] The caveat in Article 16 of the Rome Statute remains applicable to the crime of aggression, whereby the Security Council can resolve to defer an ICC investigation or prosecution for periods of twelve months ad infinitum.[60]

The mechanics of the definition of the crime of aggression and the Court’s jurisdiction to investigate and prosecute the crime demonstrate that there is now a clear intersection between international criminal law and jus contra bellum. I will next consider how the activation of the Court’s jurisdiction may benefit the wider jus contra bellum framework and contribute positively to the general prohibition on the use of force.

III ACTIVATING A NEW ERA FOR JUS CONTRA BELLUM

The activation of the Court’s jurisdiction to investigate and prosecute the crime of aggression is a great step forward for the development of international criminal law. Many scholars have lauded this as heralding a new era for the prevention of global impunity for criminal activity and development of international criminal justice.[61] However, there has been less attention given to the positive impacts that the activation of the Court’s jurisdiction may have for jus contra bellum.

The general prohibition on the use of force has been described by O’Connell as the ‘heart’ of the UN Charter.[62] The UN Charter is based on liberal principles of maintaining friendly relations between states in a world order where the use of force is anathema to international peace and security.[63] Whilst the prohibition on the use of force is also considered to be a rule of customary international law and even has the status of a jus cogens norm,[64] it has not always been adhered to. Furthermore, the Security Council, as the primary body responsible for maintaining international peace and security, has not always acted responsibly in undertaking its mandated task. The Security Council has instead been held hostage to state based national interests.[65] Such was the level of malaise in 1970, that Thomas Franck penned a scathing attack on the Security Council in an article titled ‘Who Killed Article 2(4)?’[66] The process leading up to the activation of the Court’s jurisdiction to investigate and prosecute aggression, which took place by consensus, is a watershed moment for the development and extension of the prohibition on the use of force in jus contra bellum.

Further, whilst jus contra bellum delineates the rights and responsibilities of states, which can be enforced under public international law and can lead to judgments against states in the ICJ,[67] international criminal law provides a further deterrent function as individuals with leadership responsibilities within states may now be found personally liable for their roles in precipitating aggression. Acknowledging that the level of research on the deterrent function of the ICC is poor,[68] the effect of an unfettered right of the Security Council to make a referral of an act of aggression to the ICC for investigation and prosecution should not be underestimated. Whilst funds of state coffers and ongoing friendly international relations may be at stake in a finding of liability by the ICJ, an individual’s liberty is at stake from a finding of guilt before the ICC. Moreover, the political ramifications of leaders being arrested, indicted and found guilty may destabilise political parties and see leaders and parties displaced from office. The activation of the Court’s jurisdiction to investigate and prosecute aggression may make legal, political and military advisors think twice before engaging in acts of aggression when their own personal liberty is at stake.

With the Court’s new found jurisdiction, the Security Council now has a wider variety of options at its disposal in order to combat acts of aggression. Previously, the Security Council only had either non-forceful measures or the power to authorise use of force in response to acts of aggression. The Security Council now has the added option of making a referral of any situation to the ICC, a standing Court that is resourced and ready to take on new cases, as a way of denouncing and deterring acts of aggression. It will be interesting to see how the Security Council uses the referral power, and whether it may be seen as a more politically palatable response to aggression than authorising measures to be taken by UN member states under Articles 41 and 42 of the UN Charter. France and the United Kingdom, two of the permanent members of the Security Council, have signed up to a Code of Conduct that they will not veto referrals to the ICC for atrocity crimes.[69] It would send a strong message to states if the same agreement was reached with respect to aggression.

Notwithstanding the linkages outlined above, the Security Council’s relative power vis-a-vis the ICC has been further entrenched. Whilst the Kampala Amendments make it abundantly clear that ICC decisions are without prejudice to the findings of other bodies or the development of other bodies of law,[70] and that the ICC is equally not bound by the findings of other political and judicial bodies,[71] the Security Council’s power to defer an investigation or prosecution under Article 16 of the Rome Statute is preserved. The effect of the Security Council’s right under Article 16 is that ultimately the Security Council remains the premier global body that regulates the use of force. This leaves the ICC with a subsidiary, but nonetheless important role, which can be controlled by the Security Council. The preservation of the Security Council’s Article 16 right was crucial to a consensus decision being reached in Kampala,[72] and is important, because the Security Council and the UN more generally, have a broader mandate than the ICC.[73] The Security Council necessarily retains the power to use its discretion when responding to threats to international peace and security in a way that cannot be fettered by the ICC and are well beyond the Court’s remit.

Accordingly the activation of the Court’s jurisdiction to investigate and prosecute the crime of aggression adds to the normative force of the general prohibition on the use of force. Louis Henkin, responding to Thomas Franck’s doomsday comments, said that Article 2(4) demonstrates that ‘[e]xpectations of international violence no longer underlie every political calculation of every nation... [e]ven when force is used, the fact that it is unlawful cannot be left out of account’.[74] If that was true of 1971, it is truer still, now that acts of aggression are not just in breach of jus contra bellum but also international criminal law. Notwithstanding this development, there remain a number of challenges that may stymy the benefits of the expansion of jus contra bellum.

IV CHALLENGES FOR THE NEW REGIME

With all opportunities come challenges. This is particularly so for jus contra bellum in the current geopolitical climate, with the rise of President Donald Trump, the increasing isolation of a rising China, and states moving away from multilateralism. Thomas Franck bemoaned the self-interestedness of states decades ago in critique of the Security Council and its ability to maintain international peace and security.[75] The challenge of sovereignty and self-interestedness may be amplified by the political compromise of the Kampala Amendments which are replete with uncertainty with a complex definition of the crime that is interlinked with the UN Charter and a limited jurisdiction for the Court.

State sovereignty poses the most significant challenge that the ICC will have to overcome in order to truly prevent impunity for the crime of aggression, and add deterrent and denunciatory pressure to states to obey jus contra bellum. The ICC is a treaty based court and the prosecutor and other states can only make referrals for investigations and prosecutions in very limited circumstances. There are thirty-eight acceptances or ratifications of the Kampala Amendments,[76] and two reservations over aggression without acceptance or ratification.[77] Notably, none of the permanent members of the Security Council are parties to the Kampala Amendments.[78] States acting self-interestedly by not opening their leadership up to the scrutiny of the Court and potentially the liability for the crime of aggression is a significant limitation to the Court’s ability to exercise jurisdiction over the crime of aggression. Unless more ratifications or acceptances are forthcoming, the Court’s jurisdiction will be severely curtailed, and the Court will be reliant on Security Council referrals, which do not require acceptance or ratification by the states involved.

However, reliance on the Security Council is also risky, given that the permanent members of the Security Council do not have a strong history of supporting the ICC and all of them hold veto rights over Security Council resolutions. Moreover, only two referrals of situations in Darfur[79] and Libya[80] have been made by the Security Council to the ICC for other crimes within its jurisdiction. The Security Council was heavily criticised for its poor political responses in both situations.[81] France and the United Kingdom were also the architects of the current limitation on the Court’s jurisdiction under Article 15bis,[82] and their dogged stance of limiting the Court’s jurisdiction almost lead to the collapse of negotiations on activation of jurisdiction.[83] The structure of the Kampala Amendments is such that the Security Council holds all of the power, particularly given the state of ratifications of the Kampala Amendments. Given the attitudes of the five permanent members of the Security Council to the criminalisation of aggression, this poses a challenge to the effectiveness of investigations and prosecutions for aggression.

Additionally, the Security Council has the capacity to defer any investigation or prosecution under Article 16, and can also cause significant delays for the prosecutor if they are attempting to initiate an investigation proprio motu or following a state referral.[84] The Security Council holds significant power in being able to delay and interrupt the work of the Court in bringing aggressors to justice. The centrality of Article 39 determinations of acts of aggression by the Security Council to the working of Article 8bis, notwithstanding the various without prejudice clauses within the Kampala Amendments, affords the Security Council primacy over the ICC in jurisprudential developments on interpreting the definition of an act of aggression. It further cements the Security Council as the premier global body to make decisions about the use of force. Whilst the primacy of the Security Council is important given its broader powers to respond to use of force, if the Security Council continues to sparsely make use of its determination powers under Article 39, and the Court commences to hear cases and makes decisions about acts of aggression which do not accord with the views of the Security Council, this may lead to divergence and fragmentation of jus contra bellum as different understandings of principles emerge.

Despite the political realities of there being limited scope for a case concerning aggression even getting to the ICC in the present climate, there remains the difficulty of the objective ‘manifest violation’ requirement in Article 8bis. Commentators universally agree that the requirement that an act of aggression must be a ‘manifest violation’ of the UN Charter was included in the Kampala Amendments in order to provide certainty for states that legal grey areas in jus contra bellum are excised from the ICC’s jurisdiction.[85] However, there is uncertainty as to what types of force sit within grey areas of jus contra bellum. Anticipatory self-defence,[86] pre-emptive self-defence,[87] humanitarian intervention,[88] all arguably fall within grey areas of jus contra bellum. This difficulty is compounded by the fact that the Security Council, as a political body, seldom engages with explanations of how the facts of a situation map on to the law. Instead, the application of doctrine is left to scholars and states to propound cases for and against, as there are few contentious cases before the ICJ to assist. How the ICC stands to interpret the ‘manifest violation’ requirement also remains uncertain, and may drive a wedge between the development of doctrine in international criminal law and jus contra bellum. In the event that a case makes it to the Court for determination, if the Security Council does not like the way that the Court interprets jus contra bellum, it could also lead to difficulties for the Court’s legitimacy as a judicial body and may open the Court up to lessened cooperation and animosity with the Security Council.

Accordingly, the activation of the Court’s jurisdiction to investigate and prosecute the crime of aggression does not come without the challenges of practical implementation. The Court is a treaty body, and remains subject to the constraints of any organisation that is reliant on acceptance or ratification by sovereign states. Furthermore, the Security Council, a political body that is beholden to the whim of its powerful permanent members, retains capacity to control the work of the Court in investigating and prosecuting aggression. In light of the Court’s constrained jurisdiction, Heller says ‘it is very unlikely that the Court will ever prosecute someone for aggression’.[89] Problems of jurisdiction aside, the objective requirements that an act of aggression be a ‘manifest violation’ could also prove problematic for the prospects of any prosecution. The foundational framework for the crime of aggression allows room for substantial conflict between the ICC and the Security Council, which may prove to hinder the development of the general prohibition on the use of force.

V CONCLUDING REMARKS

From 17 July 2018, the ICC has had the jurisdiction to investigate and prosecute the crime of aggression. This final step of activating the Court’s jurisdiction over aggression represents a significant step forward in the development of international criminal justice and the prevention of global impunity. Genocide, crimes against humanity and war crimes are often intrinsically linked to acts of aggression, and with the Court now having jurisdiction over aggression, the final piece of the puzzle that is the Rome Statute is now in place.

The crime of aggression is inextricably linked with jus contra bellum. There has been less said academically, about the way that the definition of the crime of aggression plays a role in the development of that much older body of law. After the failure to agree on a definition of the crime of aggression upon conclusion of the Rome Statute in 1998, the Assembly of States Parties to the ICC, firstly, by defining the crime of aggression by consensus and secondly, by activating the Court’s jurisdiction to investigate and prosecute it by consensus, has sent a resounding message that the general prohibition on the use of force contained in the UN Charter remains important. In giving the Court jurisdiction to investigate and prosecute aggression, the states party to the Rome Statute have also sent a message that aggression warrants more severe sanctions, beyond state responsibility, which are levelled in personam at political leaders.

By no means is the framework surrounding the crime of aggression perfect. The shared and ongoing role of the ICC and Security Council in defining an act of aggression, and the centrality of Security Council’s role in effectively permitting investigations and prosecutions, is fraught with tensions which may neuter the Court’s ability to effectively prosecute. Both the ICC, as a judicial but nonetheless treaty based Court, and the Security Council, a political body dominated by five powerful members with veto rights, are beholden to state sovereignty which necessarily leads to unpredictability because of state self-interestedness.

Nonetheless, this new found role for the ICC presents an important opportunity for jus contra bellum, in a context where the Security Council has been criticised for not adequately policing the use of force. Interventions from the ICC may also assist in clarifying norms and principles of jus contra bellum, an area of law which could benefit from judicial clarification. Whilst the Court may presently be hamstrung by a very limited jurisdiction, the jurisdiction that it does have is a start. The Court’s short history has shown that there is a level of unpredictability to the way that the Court and prosecutor operate, and the level of state compliance in their interactions with the Court.[90] So from any start, there is an opportunity for development.

The general prohibition on the use of force is more important than ever in an increasingly polarised world. With the activation of the Court’s jurisdiction to investigate and prosecute aggression, jus contra bellum has an additional tool to mobilise in order to ensure that the message is heard by states that the gratuitous use of force is no longer an acceptable means of foreign policy. Mary Ellen O’Connell’s so called ‘heart’ of the UN Charter is now beating a little stronger as it seeps into international criminal law.

VI BIBLIOGRAPHY

A Article/Books/Reports

‘International Military Tribunal (Nuremberg), Judgment and Sentences, 1 October 1946’, (1947) 41 American Journal of International Law 172

‘United Nations: Security Council Resolution on Israeli Attack against Tunisian Territory’ (1985) 24(6) International Legal Materials 1740

Akande, D. and Tzanakopoulos, A., ‘Treaty Law and ICC Jurisdiction over the Crime of Aggression’ (2018) 29(3) European Journal of International Law 939

Barriga, S., ‘Negotiating the Amendments on the crime of aggression’ in Barriga, S. and Kreβ C., (eds), Crime of Aggression Library: The Travaux Préparatoires of the crime of aggression (Cambridge University Press, 2012) 3

Bellamy, A., ‘Libya and the Responsibility to Protect: The Exception and the Norm’ (2011) 25(3) Ethics and International Affairs 263

Blokker, N., ‘Reconfiguring the UN System of Collective Security’ in Weller, M. (ed), The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2015) 1, accessed online: https://www-oxfordhandbooks-com.wwwproxy1.library.unsw.edu.au/view/10.1093/law/9780199673049.001.0001/oxfordhb-9780199673049-e-25

Cowell, F, and Magini, A.L., ‘Collapsing Legitimacy: How the Crime of Aggression Could Affect the ICC’s Legitimacy’ (2017) 17 International Criminal Law Review 517

Cullen, M., ‘Questioning the Criminal Justice Imperative: UN Security Council Procedure and the Downside of Chapter VII Decisions Making for the Adjudication of International Crimes’ (2019) 25 Global Governance 327

De Hoon, M., ‘The Crime of Aggression’s Show Trial Catch – 22’ (2018) 29(3) European Journal of International Law 919

Franck, T.M., ‘Who Killed Article 2(4)?’ (1970) 64(5) The American Journal of International Law 809

Gray, C., International Law and the Use of Force (Oxford University Press, 2018)

Heller, K.J., ‘The Uncertain Legal Status of the Aggression Understandings’ (2012) 10 Journal of International Criminal Justice 229

Heller, K.J., ‘Who is Afraid of the Crime of Aggression’ (2019) Social Sciences Research Network, available online https://ssrn.com/abstract=3440408

Henkin, L., ‘The Reports of the Death of Article 2(4) Are Greatly Exaggerated’ (1971) 65(3) The American Journal of International Law 544

Johnstone, I., ‘Where the Security Council is Divided: Imprecise Authorizations, Implied Mandates and the ‘Unreasonable Veto’ in Weller, M. (ed), The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2015) 1, accessed online: https://www-oxfordhandbooks-com.wwwproxy1.library.unsw.edu.au/view/10.1093/law/9780199673049.001.0001/oxfordhb-9780199673049-e-25

Kemp, G., Individual Criminal Liability for the International Crime of Aggression (Intersentia: 2017)

Klabbers, J., ‘Intervention, Armed Intervention, Armed Attack, Threat to Peace, Act of Aggression, and Threat or Use of Force: What’s the Difference?’ in Weller, M. (ed), The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2015) 1, accessed online: https://www-oxfordhandbooks-com.wwwproxy1.library.unsw.edu.au/view/10.1093/law/9780199673049.001.0001/oxfordhb-9780199673049-e-25

Kreβ, C. and von Holtzendorff, L., ‘The Kampala Compromise on the Crime of Aggression’ (2010) 8 Journal of International Criminal Justice 1179

Kreβ, C., ‘On the Activation of ICC Jurisdiction over the Crime of Aggression’ (2018) 16 Journal of International Criminal Justice 1

Kreβ, C., Barriga, S., Grover, L. and von Holtzendorff, L., ‘Negotiating the Understandings on the crime of aggression’ in Barriga, S and Kreβ, C., (eds), Crime of Aggression Library: The Travaux Préparatoires of the crime of aggression (Cambridge University Press, 2012) 81

Mégret, F., ‘International Criminal Justice as a Peace Project’ (2018) 29(3) European Journal of International Law 835

Mégret, F., ‘What is the Specific Evil of Aggression’ in Kreβ, K. and Barriga, S., (eds), The Crime of Aggression: A Commentary (Cambridge University Press: 2017) 1398

Murphy, Sean D., ‘The Crime of Aggression at the International Criminal Court’ in Weller, M., (ed), The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2015) 1, accessed online: https://www-oxfordhandbooks-com.wwwproxy1.library.unsw.edu.au/view/10.1093/law/9780199673049.001.0001/oxfordhb-9780199673049-e-25

Neethling, T., ‘South Africa, the African union and international intervention in Libya: A critical appraisal’ (2012) 33(2) Australasian Review of African Studies 8

O’Connell, M.E. and Niyazmatov, M. ‘What is Aggression: Comparing the Jus ad Bellum and the ICC Statute’ (2012) 10 Journal of International Criminal Justice 189

O’Connell, M.E., ‘The prohibition on the use of force’ in White, N.D. and Henderson, C. (eds), Research Handbook on International Conflict and Security Law: Jus Ad Bellum, Jus in Bello and Jus Post Bellum (Edward Elgar Publishing Limited: 2013) 89

Peskin, V., ‘The International Criminal Court, the Security Council, and the Politics of Impunity in Darfur’ (2009) 4(3) Genocide Studies and Prevention 304

Politi, M., ‘The ICC and the Crime of Aggression’ (2012) 10 Journal of International Criminal Justice 267

Quintana, J.J., ‘A Note on the Activation of the ICC’s Jurisdiction over the Crime of Aggression’ (2018) 17 The Law and Practice of International Courts and Tribunals 236

Ruys, T., ‘Criminalizing Aggression: How the Future of the Law on the Use of Force Rests in the Hands of the ICC’ (2018) 29(3) European Journal of International Law 887

Ruys, T., ‘Justiciability, Complementarity and Immunity: Reflections on the crime of aggression’ (2017) 13(1) Utrecht Law Review 18

Schabas, W., Introduction to the International Criminal Court (Cambridge University Press, 4th ed, 2011)

Trahan, J., ‘From Kampala to New York – The Final Negotiations to Activate the Jurisdiction of the International Criminal Court over the Crime of Aggression’ (2018) 18 International Criminal Law Review 197

Trahan, J., ‘The Relationship between the International Criminal Court and the U.N. Security Council: Parameters and Best Practices’ (2013) 24 Criminal Law Forum 417

Udombana, N.J., ‘Still playing dice with lives: Darfur and security council resolution 1706’ (2007) 28(1) Third World Quarterly 97

Verhoeven, H., Soares de Oliveira, R. and Jaganathan, M.M., ‘To Intervene in Darfur or Not: Re-examining the R2P Debate and Its Impact’ (2015) 30 Global Society 21

Zimmermann, A., ‘A Victory for International Rule of Law? Or: All’s Well that Ends Well?’ (2018) 16 Journal of International Criminal Justice 19

B Cases

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 168

Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14

Certain Expenses Case: Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151

C Treaties

Charter of the United Nations, opened for signature on 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945)

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002)

D Other

2005 World Summit Outcome, GA Res 60/1, 60th sess, Agenda Item 46 and 120, UN Doc A/RES/60/1 (16 September 2005)

Definition of Aggression, GA Res 3314 (XXIX), 2319th plen mtg, (14 December 1974) annex I

ICC-ASP/16/Res. 5, of the Assembly of States Parties to the International Criminal Court, 13th plen mtg, (14 December 2017)

SC Res 1593, 5158th mtg, UN Doc S/Res/1593 (2005) (31 March 2005)

SC Res 1970, 6491st mtg, UN Doc S/Res/1970 (2011) (26 February 2011)

SC Res 577, 2631st mtg, (6 December 1985)

The crime of aggression, Resolution RC/Res. 6 of the Review Conference of the Rome Statute, 13th plen mtg (11 June 2010) annex I

Uniting for Peace, GA Res 377(V), 5th sess, 302nd plen mtg (3 November 1950)


* Josh Pallas is a solicitor and Master of Laws student at the University of New South Wales. The views expressed in this paper are my own and do not reflect those of my employer. Thank you to Associate Professor Chris Michaelsen, Jay Gillieatt and Ben Ye for their useful comments on this paper.

[1] Hereinafter referred to as ‘the Court’ or ‘ICC’.

[2] ICC-ASP/16/Res. 5, of the Assembly of States Parties to the International Criminal Court, 13th plen mtg, (14 December 2017), operative provision 1 (‘Activation Resolution’).

[3] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (‘Rome Statute’).

[4] Sean D. Murphy, ‘The Crime of Aggression at the International Criminal Court’ in Marc Weller (ed), The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2015) 1, 2, accessed online: https://www-oxfordhandbooks-com.wwwproxy1.library.unsw.edu.au/view/10.1093/law/9780199673049.001.0001/oxfordhb-9780199673049-e-25; Marieke de Hoon, ‘The Crime of Aggression’s Show Trial Catch – 22’ (2018) 29(3) European Journal of International Law 919, 920.

[5] Hereinafter referred to as “the UN”.

[6] Rome Statute art. 5.

[7] Frédéric Mégret, ‘International Criminal Justice as a Peace Project’ (2018) 29(3) European Journal of International Law 835, 840; Frédéric Mégret, ‘What is the Specific Evil of Aggression’ in Klaus Kreβ and Stefan Barriga (eds) The Crime of Aggression: A Commentary (Cambridge University Press: 2017) 1398, 1414-1420.

[8] Charter of the United Nations, opened for signature on 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945) (‘UN Charter’).

[9] See for example, Tom Ruys, ‘Criminalizing Aggression: How the Future of the Law on the Use of Force Rests in the Hands of the ICC’ (2018) 29(3) European Journal of International Law 887; Gerhard Kemp, Individual Criminal Liability for the International Crime of Aggression (Intersentia: 2017); Mary Ellen O’Connell and Mirakmal Niyazmatov, ‘What is Aggression: Comparing the Jus ad Bellum and the ICC Statute’ (2012) 10 Journal of International Criminal Justice 189; Murphy, (n 4); Stefan Barriga ‘Negotiating the Amendments on the crime of aggression’ in Stefan Barriga and Claus Kreβ (eds), Crime of Aggression Library: The Travaux Préparatoires of the crime of aggression (Cambridge University Press, 2012) 3.

[10] UN Charter (n 8) art 1(1).

[11] Ibid art 1(3).

[12] 2005 World Summit Outcome, GA Res 60/1, 60th sess, Agenda Item 46 and 120, UN Doc A/RES/60/1 (16 September 2005) para 1(2).

[13] O’Connell and Niyazmatov (n 9) 192.

[14] UN Charter (n 8) art 24(1); However, since the Uniting for Peace Resolution (Uniting for Peace, GA Res 377(V), 5th sess, 302nd plen mtg (3 November 1950), para 1), the General Assembly has also played a role in the maintenance of peace and security in circumstances where the Security Council ‘fails to exercise its primary responsibility’. This shared role between the Security Council and the General Assembly was confirmed by the International Court of Justice the Certain Expenses Case: Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151, 164.

[15] UN Charter (n 8) art 51.

[16] Ibid.

[17] Ibid; Christine Gray, International Law and the Use of Force (Oxford University Press, 2018), 176 – 180.

[18] UN Charter (n 8) art 41.

[19] UN Charter (n 8) art. 39

[20] Hereinafter referred to as “GA”.

[21] Hereinafter referred to as “ICJ”.

[22] Definition of Aggression, GA Res 3314 (XXIX), 2319th plen mtg, (14 December 1974) annex I (“Resolution 3314”).

[23] Ibid, art 1.

[24] I say prima facie because again this is subject to the final determination of the Security Council: Resolution 3314 arts 2-4.

[25] ‘United Nations: Security Council Resolution on Israeli Attack against Tunisian Territory’ (1985) 24(6) International Legal Materials 1740.

[26] Ibid para 3.

[27] SC Res 577, 2631st mtg, (6 December 1985).

[28] Jan Klabbers, ‘Intervention, Armed Intervention, Armed Attack, Threat to Peace, Act of Aggression, and Threat or Use of Force: What’s the Difference?’ in Marc Weller (ed), The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2015) 1, 2, accessed online: https://www-oxfordhandbooks-com.wwwproxy1.library.unsw.edu.au/view/10.1093/law/9780199673049.001.0001/oxfordhb-9780199673049-e-25.

[29] Rome Statute (n 3) art 5(2), now repealed.

[30] Kemp (n 9) Ch 3; Murphy (n 4) 2 – 5.

[31] ‘International Military Tribunal (Nuremberg), Judgment and Sentences, 1 October 1946’, (1947) 41 American Journal of International Law 172, 186.

[32] Jennifer Trahan, ‘From Kampala to New York – The Final Negotiations to Activate the Jurisdiction of the International Criminal Court over the Crime of Aggression’ (2018) 18 International Criminal Law Review 197, 201.

[33] Ibid.

[34] The crime of aggression, Resolution RC/Res. 6 of the Review Conference of the Rome Statute, 13th plen mtg (11 June 2010) annex I (“Kampala Amendments”). For a more comprehensive account of the Kampala Negotiations see Claus Kreβ and Leonie von Holtzendorff, ‘The Kampala Compromise on the Crime of Aggression’ (2010) 8 Journal of International Criminal Justice, 1179; Barriga (n 9) 3.

[35] Claus Kreβ, Stefan Barriga, Leena Grover and Leonie von Holtzendorff, ‘Negotiating the Understandings on the crime of aggression’ in Stefan Barriga and Claus Kreβ (eds), Crime of Aggression Library: The Travaux Préparatoires of the crime of aggression (Cambridge University Press, 2012) 81.

[36] Frederick Cowell and Ana Letiticia Magini, ‘Collapsing Legitimacy: How the Crime of Aggression Could Affect the ICC’s Legitimacy’ (2017) 17 International Criminal Law Review 517, 537; Kevin Jon Heller, ‘The Uncertain Legal Status of the Aggression Understandings’ (2012) 10 Journal of International Criminal Justice 229; Dapo Akande and Antonios Tzanakopoulos ‘Treaty Law and ICC Jurisdiction over the Crime of Aggression’ (2018) 29(3) European Journal of International Law 939, 947.

[37] Rome Statute art 15bis(2); art 15ter(2).

[38] Rome Statute art 15bis(3); art 15ter(2).

[39] Activation Resolution (n 2).

[40] Rome Statute (n 3) art 8bis(1).

[41] The crime of aggression, Resolution RC/Res. 6 of the Review Conference of the Rome Statute, 13th plen mtg (11 June 2010) annex III (“Kampala Understandings”), 7; The crime of aggression, Resolution RC/Res. 6 of the Review Conference of the Rome Statute, 13th plen mtg (11 June 2010) annex II (Amended Elements of Crime), 3.

[42] William Schabas Introduction to the International Criminal Court (Cambridge University Press, 4th ed, 2011) 150-152; Mauro Politi ‘The ICC and the Crime of Aggression’ (2012) 10 Journal of International Criminal Justice 267, 284; Claus Kreβ ‘On the Activation of ICC Jurisdiction over the Crime of Aggression’ (2018) 16 Journal of International Criminal Justice 1, 6; Kevin Jon Heller, ‘Who is Afraid of the Crime of Aggression’ (2019) Social Sciences Research Network 11-14, available online https://ssrn.com/abstract=3440408; Andreas Zimmermann ‘A Victory for International Rule of Law? Or: All’s Well that Ends Well?’ (2018) 16 Journal of International Criminal Justice 19, 27; Marieke De Hoon ‘The Crime of Aggression’s Show Trial Catch-22’ (2018) 29(3) European Journal of International Law 919, 922 – 925; Ruys (n 10) 892-895; Murphy (n 4) 6-7; Trahan (n 32) 214-215.

[43] Murphy (n 4) 6.

[44] Ibid.

[45] Rome Statute (n 3) art 15bis(6) – (8).

[46] Murphy (n 4) 6; Heller (n 42) 2-3; Politi (n 42) 286-287; Kreβ (n 42) 16; Trahan (n 32) 222; Zimmermann (n 42) 20; De Hoon (n 42) 930.

[47] Politi (n 42) 20 – 21; O’Connell and Niyazmatov (n 9) 203; Ruys (n 9) 890; De Hoon (n 42) 930.

[48] My own included.

[49] Juan José Quintana ‘A Note on the Activation of the ICC’s Jurisdiction over the Crime of Aggression’ (2018) 17 The Law and Practice of International Courts and Tribunals 236, 246-249; Akande and Tzanakopoulos (n 36) 942-943; Zimmermann (n 42) 22-23; Heller (n 42) 7.

[50] Akande and Tzanakopoulos (n 36) 943 – 949; Zimmermann (n 42) 27-28; Trahan (n 32) 231-237.

[51] Activation Resolution (n 2); Rome Statute art 22.

[52] Kampala Understanding (n 41) 2; Politi (n 42) 8; Schabas (n 42) 154- 155.

[53] Akande and Tzanakopoulos (n 36) 954.

[54] Rome Statute (n 3) art 15ter(4).

[55] Akande and Tzanakopoulous (n 36) 955. Notwithstanding my agreement with Akande and Tzanakopoulos on the present status of the law, I also consider it open to the Court to find that the Activation Resolution did indeed misrepresent the law, and that the more permissive approach to the Court’s jurisdiction proffered by Liechtenstein and other states was in fact a correct representation of the Court’s jurisdiction. For more on this see Zimmermann (n 42).

[56] Schabas (n 42) 153; Miriam Cullen, ‘Questioning the Criminal Justice Imperative: UN Security Council Procedure and the Downside of Chapter VII Decisions Making for the Adjudication of International Crimes’ (2019) 25 Global Governance 327, 345.

[57] Rome Statute (n 3) art 15bis(5).

[58] Rome Statute (n 3) art 15bis(7).

[59] Rome Statute (n 3) art 15bis(8).

[60] Rome Statute (n 3) art 15bis(8).

[61] Megret (n 7) 857 – 858; Akande and Tzanakopoulos (n 36) 959; Trahan (n 32) 242-243; Ruys (n 9) 917: Kreβ (n 42) 17; Politi (n 42) 287 - 288; Schabas (n 42) 146.

[62] Mary Ellen O’Connell, ‘The prohibition on the use of force’ in Nigel D. White and Christian Henderson (eds), Research Handbook on International Conflict and Security Law: Jus Ad Bellum, Jus in Bello and Jus Post Bellum (Edward Elgar Publishing Limited: 2013) 89, 99.

[63] UN Charter (n 8) arts 1-2.

[64] O’Connell, (n 62) 89.

[65] Thomas M. Franck, ‘Who Killed Article 2(4)?’ (1970) 64(5) The American Journal of International Law 809, 835; Ian Johnstone ‘Where the Security Council is Divided: Imprecise Authorizations, Implied Mandates and the ‘Unreasonable Veto’ in Marc Weller (ed), The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2015) 1, 13-17, accessed online: https://www-oxfordhandbooks-com.wwwproxy1.library.unsw.edu.au/view/10.1093/law/9780199673049.001.0001/oxfordhb-9780199673049-e-25 Niels Blokker, ‘Reconfiguring the UN System of Collective Security’ in Marc Weller (ed), The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2015) 1, 16-18, accessed online: https://www-oxfordhandbooks-com.wwwproxy1.library.unsw.edu.au/view/10.1093/law/9780199673049.001.0001/oxfordhb-9780199673049-e-25;

[66] Franck (n 65) 809.

[67] See for example, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 168.

[68] Ruys (n 9) 890.

[69] Trahan (n 32) 207.

[70] Rome Statute (n 3) art 10.

[71] Ibid art 15bis(9) and art 15ter(4).

[72] Politi (n 42) 273-274.

[73] Klabbers (n 28) 12-13.

[74] Louis Henkin ‘The Reports of the Death of Article 2(4) Are Greatly Exaggerated’ (1971) 65(3) The American Journal of International Law 544, 544.

[75] Franck (n 65) 835.

[76] As at 23 August 2019 according to the Court’s website.

[77] From Guatemala and Kenya.

[78] Noting that France and the United Kingdom are the only permanent five members of the Security Council that are states party to the Rome Statute.

[79] SC Res 1593, 5158th mtg, UN Doc S/Res/1593 (2005) (31 March 2005).

[80] SC Res 1970, 6491st mtg, UN Doc S/Res/1970 (2011) (26 February 2011).

[81] See for example re Darfur, Harry Verhoeven, Ricardo Soares de Oliveira and Madhan Mohan Jaganathan, ‘To Intervene in Darfur or Not: Re-examining the R2P Debate and Its Impact’ (2015) 30 Global Society 21; Nsongurua J. Udombana, ‘Still playing dice with lives: Darfur and security council resolution 1706’ (2007) 28(1) Third World Quarterly 97; Victor Peskin, ‘The International Criminal Court, the Security Council, and the Politics of Impunity in Darfur’ (2009) 4(3) Genocide Studies and Prevention 304. See for example re Libya, Theo Neethling, ‘South Africa, the African union and international intervention in Libya: A critical appraisal’ (2012) 33(2) Australasian Review of African Studies 8; Alex Bellamy ‘Libya and the Responsibility to Protect: The Exception and the Norm’ (2011) 25(3) Ethics and International Affairs 263.

[82] Quintano (n 49) 247; Trahan (n 32) 212-213.

[83] Ibid.

[84] Rome Statute (n 3) art 15bis(6)-(8).

[85] Cowell and Magini (n 36) 527; De Hoon (n 42) 922-923; O’Connell and Niyazmatov (n 9) 201-203; Kreβ (n 42) 6; Politi (n 42) 284; Ruys (n 9) 893; Trahan (n 32) 225.

[86] Ruys (n 9) 911; De Hoon (n 42) 930; Kreβ (n 42) 16.

[87] Ruys (n 9) 911; Kemp (n 9) 179; De Hoon (n 42) 930; Cowell and Magini (n 36) 531.

[88] Ruys (n 9) 911; De Hoon (n 42) 923; Cowell and Magini (n 36) 534; Kreβ (n 42) 16; Politi (n 42) 284.

[89] Heller (n 42) 17.

[90] Politi (n 42) 269.


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