Implications of the Criminalization of Aggression

The Forum has established the LI Haopei Lecture Series to honour the service to international law of the late Judge LI Haopei (1906-1997). Judge LI was a Chinese jurist, diplomat and academic. He was a leading authority on international law. From 1963 to 1993, he was concurrently Professor of International Law at Peking University and Legal Advisor to the Ministry of Foreign Affairs of China. Judge LI became the main representative of China at international conferences and tribunals. From 1993 to 1997, he was a Member of the Permanent Court of Arbitration. In the same period, he served as Judge at the Appeals Chamber at the International Criminal Tribunal for the Former Yugoslavia.

Judge Hans-Peter Kaul (Vice-President, the International Criminal Court) will present the first LI Haopei Lecture on the topic of the criminalization of aggression in the context of the Statute of the International Criminal Court. Judge LIU Daqun (Appeals Chamber, International Criminal Tribunals for the Former Yugoslavia and Rwanda) will comment on the lecture by Judge Kaul.

Crimes against peace were included in the 1945 Charter of the International Military Tribunal at Nuremberg, which convicted accused persons for such crimes. Nuremberg Principle VI of 1950 declared that crimes against peace are crimes under international  law. The crime of aggression was not included in the subject-matter jurisdiction of the ad hoc international(ised) criminal jurisdictions established after 1993. Article 5(2) of the 1998 Statute of the International Criminal Court (ICC) provides that the Court can exercise jurisdiction over the crime of aggression once a provision is adopted defining the crime and its jurisdictional parameters. At the first ICC Review Conference in May-June 2010, the States Parties agreed on a definition of crimes of aggression and the parameters for their inclusion in the Court's jurisdiction. But new Article 15ter(2) says that the Court 'may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties'. Furthermore, Article 15ter(3) subjects the Court's exercise of jurisdiction over such crimes to a decision to be taken after 1 January 2017 by a two-thirds majority of States Parties.  

These thresholds reflect the level of disagreement between States during the negotiation process leading up to and during the first ICC Review Conference. Given this disagreement, how likely is it that the Court will actually become able to exercise jurisdiction over crimes of aggression? What is the significance of the outcome of the Review Conference? What were the main factors leading to this outcome? What may the implications for States Parties and other States be if the new provisions in the ICC Statute become operational?