Council of the United Nations”.’211
Option 1 and 2 concern the question of the conditions for the exercise of jurisdiction, which will be returned to shortly.
A reasonable conclusion on the work accomplished by the Preparatory Commission on the definitional part is that that it is possible to find both positive and negative aspects. On the downside, it must be seen as a disappointment that a final proposal could not be delivered to the Assembly of States Parties. The inability of participating States to reach a compromise resulted in that the contents of the crime of aggression remained unclear and that it continued to be linked to a high degree of uncertainty. On a positive note, the vast amount of proposals delivered showed that the question was still of great importance to many States. Furthermore, States had at least reached general agreement on parts of the crime, namely its character as a leadership crime and that it only exists in connection with an act of aggression. However, the most important breakthrough might have been the change in the methodological way of approaching the crime. The separation of the crime of aggression from the act of aggression presented an interesting way forward for future elaborations on the crime. The novelty of this methodological approach is that it indicates that States must focus on trying to find a definition for the crime of aggression rather than discussing when a State has committed an act of aggression.
3.4.1.2 Conditions for the Exercise of Jurisdiction
Like with the question of a definition, the question of the conditions for the exercise of jurisdiction over the crime of aggression was the object of
210 Ibid, p. 187.
211 UN Doc. PCNICC/2002/WGCA/RT.1/Rev.2. 11 July 2002 (included infra as ‘Annex’),
carried forward in ‘Report of the Preparatory Commission for the International Criminal Court’, UN Doc. PCNICC/2002/2/Add.2, 24 July 2002.
several proposals at the Preparatory Commission negotiations. The basis of the negotiations can be divided into three main models.
First, one model was based on the view of the Security Council as the only organ authorised to make a determination that an act of aggression has occurred, in accordance with Article 39 of the UN Charter. Thus, the conditions for the exercise of jurisdiction were settled by giving the Council an exclusive role. The previously mentioned Russian proposal on a definition was made ‘subject to a prior determination by the United Nations Security Council’.212 A similar proposal was delivered by Germany.213 Daniel D. Ntanda Nsereko has criticised this approach, claiming that the role of the Council for the maintenance of international peace and security is not exclusive. In his opinion, the ICC ‘must have power to pronounce for itself on the existence or non-existence of aggression for the purpose of seizing or declining to seize itself with jurisdiction over individuals – the architects of the crime’.214
As a second model, the ICC would get a chance to step in if the Security Council failed to make a determination within a certain period. Proposals adhering to this model can be seen as compromise proposals. While admitting the primary responsibility of the Council, this model assures that the jurisdiction of the ICC is upheld in case of failure to act by the former. A joint proposal by Greece and Portugal followed this line, providing that the ICC must first seek whether the Council has made a determination and, if not, request such a determination. If the Council were to fail to act within 12 months, the proposal stipulated that ‘the Court shall proceed with the case in question.’215
In an explanatory note to the proposal, the authors explained that if the Security Council were to make a determination in accordance with Article 39 of the UN Charter that aggression has occurred, it has to be taken into account by the ICC. The explanatory note also made clear that the role of the Council was not exclusive and that the proposed provision was an option, not an obligation, for the Council to act. In addition, the proposed period of 12 months was to be seen as ‘purely indicative and may be shortened’.216 Daniel D. Ntanda Nsereko points out that the proposal tries to
accord due recognition to the Security Council’s role in issues of aggression, without making it an exclusive one. Nevertheless, he argues that even where the Council has made a determination it should not be binding on the ICC.217
Under a third model, other organs, such as the General Assembly or the ICJ, would be involved in the process of making the determination that an act of aggression has occurred. Bosnia and Herzegovina, New Zealand and Romania tabled a proposal following this model. It is by far the most
212 UN Doc. PCNICC/1999/DP.12, 29 July 1999. 213 UN Doc. PCNICC/1999/DP.13, 30 July 1999.
214 Ntanda Nsereko, Daniel D, ‘Aggression under the Rome Statute of the International
Criminal Court’, 71 NJIL (2002), pp. 504-516 (italics in original, quote from p. 507).
215 UN Doc. PCNICC/1999/WGCA/DP.1, 7 December 1999, re-issued in UN Doc.
PCNICC/2000/WGCA/DP.5, 28 November 2000, including explanatory notes.
216 UN Doc. PCNICC/2000/WGCA/DP.5, 28 November 2000, pp. 2-3.
217 Ntanda Nsereko, Daniel D, ‘Aggression under the Rome Statute of the International
extensive and complex proposal delivered at the Preparatory Commission negotiations. In short, the ICC is allowed to proceed with a case if it is referred to them by the Security Council in accordance with Article 13(b) of the Rome Statute, but must in all other cases ascertain whether the Council has made a determination, acting under Article 39 of the UN Charter. There are three possible outcomes of the ICC’s inquiries. First, if the Council has made a positive determination, the ICC may proceed with the investigation and possible prosecution. Secondly, in case of the opposite, i.e. that an act of aggression has not taken place, the ICC is barred from proceeding with the case. Finally, if no determination has been made, the ICC should notify the Council of the situation at hand so that action may be taken. The major innovation of the proposal is found in the fifth and sixth paragraphs. They contain a special mechanism in case the Council does not make any determination or invoke the deferral provision in Article 16 of the Rome Statute within six months from the date of notification. If that is the case, the ICC may request the General Assembly to seek an advisory opinion from the ICJ, in accordance with Article 96 of the UN Charter and Article 65 of the Statute of the ICJ, on the legal question of whether or not aggression has been committed by the State concerned. If the outcome of the ICJ advisory opinion is that there has been aggression, the ICC can exercise its jurisdiction over the crime of aggression. 218
Matthias Schuster has commented on a previous proposal by the same States containing the same innovative mechanism. In his opinion, the involvement of the General Assembly results in a disregard of the Security Council’s responsibilities. In addition, there is a possibility that the ICJ could decide on matters without the consent of either State Party to the dispute, which could ‘undermine the legitimacy of the International Court of Justice in the eyes of all States’.219
In the Coordinator’s 2002 Discussion Paper, the issue of the conditions for the exercise of jurisdiction was dealt with in paragraphs four and five and the multiple versions contained therein. Under the fourth paragraph the ICC should first ascertain whether the Council has made a determination, and if not, notify the Council so that appropriate action may be taken. The fifth paragraph tried to include all alternatives put forward during the negotiations concerning what course of action to take when there is no determination by the Security Council:
‘5. Where the Security Council does not make a determination as to the existence of an act of aggression by a State:
Variant (a) or invoke article 16 of the Statute within six months from
the date of notification.
Variant (b) [Remove variant a.]
Option 1: the Court may proceed with the case.