Lara Kajs | 6 August |
Mass atrocities have described some of the most tragic events in history. More often than not, nearly every mass atrocity began with the crime of aggression which frequently led to the perpetration of war crimes, crimes against humanity, and genocide.
This year marks 26 years since the adoption of the Rome Statute, the founding treaty of the International Criminal Court (ICC). The ICC seeks to protect people from genocide, crimes against humanity, war crimes, and crimes of aggression, also referred to as crimes against peace. Not since the post-WWII Nuremberg and Tokyo trials have the international courts been allowed to hold leaders individually criminally responsible for waging aggressive war.
The ICC’s Fourth Core Crime
As defined in Article 8 bis in the Rome Statute, the crime of aggression applies to individuals – not States. The perpetrator must be a political or military leader, “a person in a position effectively to exercise control over or to direct the political or military action of a State.” The Court must prove that the perpetrator was involved in the planning, preparation, initiation, or execution of the aggression.
The action must amount to an act of aggression per the definition contained in UN General Assembly Resolution 3314, and it must, by its character, severity, and scale, constitute a manifest violation of the UN Charter. Moreover, only the most serious forms of illegal armed force between States can be subject to the Court’s jurisdiction. Cases of lawful individual or collective self-defense, as well as actions authorized by the UN Security Council, are excluded.
Defining Aggression
Acts of aggression mean the use of armed force by a State against the sovereignty, territorial integrity, or political independence of another State. Regardless of a declaration of war, any of the following acts qualifies as an act of aggression.
The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State. For example, Russia’s attack and annexation of the Crimean Peninsula in February 2014, as well as the ongoing February 2022 invasion of Ukraine, is indicative of the use of armed force by a State against the sovereignty, integrity, and independence of another State and directed by Russian President Vladimir Putin.
Similarly, it could be argued that Israeli occupation of the West Bank, including the development of illegal settlements by Israeli occupants is an act of aggression, perpetrated by Israeli Prime Minister Benjamin Netanyahu.
Additionally, the bombardment, blockade of ports or coasts, an attack on the land, sea, or air forces or the use of weapons by the armed forces of a State against the territory of another State, is identified as a crime of aggression. Also considered a component of aggression, is the action of a State in allowing its territory to be used by another State, that then perpetrates an act of aggression against a third victim State. Lastly, the sending by one State of armed groups, or mercenaries, to carry out acts of armed force against another State constitutes the crime of aggression.
Evaluating the Scale of Armed Force
In international law, the use of armed force is evaluated on a three-tiered scale, determined by its intensity.
Use of Force: This is a baseline standard, resulting in state accountability for violations of basic international norms. According to the minimal threshold principle, even minor territorial invasions by armed forces with hostile intent fall within this category.
Armed Attack: At the intermediate level, if the use of force amounts to an armed attack, the victim State has the right to use force in self-defense. Defining what precisely constitutes an armed attack is controversial. Essentially any use of armed force would amount to an armed attack except for very minor territorial invasions. However, the ICJ previously ruled that an operation may be classified as an armed attack because of its “scale and effect” distinguishing it from border skirmishes that do not invoke the right to self-defense.
Act of Aggression: This is the most egregious form of illegal armed force and is a severe breach of international law. But not every act of aggression is criminal. Before the Rome Statute’s 2010 Conference in Kampala formalized the current definition of the crime of aggression, states debated the nature of aggression and whether it warranted personal criminal liability.
Prosecuting Crimes of Aggression
A determination of whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the severity of the acts concerned and their consequences, according to the United Nations Charter.
The principle of criminal responsibility for aggression is solidified in international law and preserved in Article 2 (4) of the UN Charter, which mandates that member States “refrain in their international relations from the threat of 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.”
A singular act of illegal use of armed force can lead to criminal responsibility for aggression, if it constitutes aggression, or is part of broader hostilities that in their entirety amount to the overarching state conduct element. Furthermore, every subsequent act of armed force by the aggressive state after the initial breach extends the initial crime and might incur individual responsibility.
In the case of Russia’s invasions into Ukraine’s territory – past and present – the evidence indicates that Russia has committed the crime of aggression and warrants prosecution. The initial invasion and annexation of Crimea are subject to criminal liability, and its leaders should bear responsibility, for this as well as the ongoing acts in Ukraine.
The prosecution of the crime of aggression gets us one step closer to ending impunity for the most serious crimes under international law.
Photo credit: “Anti-terrorist operation in eastern Ukraine (War Ukraine) by the Ministry of Defense of Ukraine. Licensed under CC By SA 2.0.