Crime of Aggression
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Can and should the Kampala amendment be both ratified by the Crown, and incorporated into domestic statute by Parliament, before 2017?

Presentation by Robert Manson LLB |*|

Is it right that a state party cannot ratify before 2017, or at least that there is little or no point is so doing?

Clearly a nonsense. The amendment has been 'open' for ratification or acceptance since it was formally placed on deposit with, and its official text published by, the appropriate international treaty registration body in this instance the United Nations. Lodgement of a declaration is by means of simple communication with the Registrar of the Court in The Hague.

I am advised that not only several EU states parties such as principally Austria, Belgium, Germany, Italy & Spain are already far advanced with their internal procedures for ratification, but even Commonwealth States, such as Australia, Canada, South Africa & New Zealand all anticipate being able to ratify within the next 12 to 18 months.

Were it the case that all states parties adopted such an extraordinarily insular, selfish and uncooperative position, namely that there was no point in ratifying the amendment before 2017, merely because the Court itself is not able to exercise its jurisdiction at the earliest before then, it must follow that, at that time, there would instead then be very little reason to take that vote, since there would then be no possibility of thereby activating the exercise of the court's jurisdiction, which would still have to await a single, let alone 30, such state party ratifications. Equally as I say if the school of thought on the limited right of participation in that vote is correct, then it would obviously follow that absent any ratifications no such vote could then take place.

Not only this but, as well thereby contributing positively to the ability of the ASP to take the 'activation vote' in 2017, a State Party who has by then ratified the Kampala Amendment, need not even thereby necessarily also then expose itself, as in with respect to its own nationals and/or its territory, to liability to the exercise of jurisdiction by the Court in the event that the activation vote is then affirmatively taken. The notorious provisions of the new article 15bis (4), now allows for any state party, even though it has ratified the amendment, to also enter a further declaration 'withdrawing' from the exercise of jurisdiction by the court with respect to its powers re a crime of aggression as well !

Accordingly, if (at any time) any state party lodges such a declaration then it ensures, for so long as that declaration itself is not subsequently withdrawn that, even though it has ratified the Kampala amendment, its own nationals and/or territory nevertheless remain immune from the jurisdiction of the court over the crime. In short, any ICC state party willing to genuinely promote the cause of the criminalisation of the international crime of aggression, has no reason whatever, to now hesitate in contributing to that cause by means of ratifying the Kampala amendment.

Is it right that the UK cannot implement/incorporate the crime into its own domestic legislation before 2017, or at least that there is little or no point in its doing so?

Once again patent non-sense. Most states in this world are subject to a domestic constitutional provision which provides that their governments cannot subsequently ratify and thus bind themselves to any existing accession to an international treaty, unless and until their national legislature first provides the relevant approval/authorisation, such that national incorporation/implementation of any treaty obligations/provisions, where then also called for, is then customarily done together with obtaining the requisite constitutional domestic legislative authorisation for ratification of the same. In such a system clearly the convention is likely to be for ratification to first await a successful legislative domestic incorporation, where that is required as a concomitant to Parliamentary approval/authorisation of the ratification |1|. Even so that places the delay factor on the international ratification procedure, as having to await completion of prior national implementation as the priority, rather than the other way around.

However, that is not the position here in the UK which operates a different system entirely. Even after the introduction of the new statutory provisions now compelling the Crown to first 'consult' with and seek Parliamentary approval before ratifying any international treaty obligations |2| ultimately the power to so ratify has remained a prerogative privilege of the Crown which does not require Parliamentary approval. Equally, and in this instance more significantly, there simply is no requirement here as to domestic implementing legislation as a concomitant of international ratification. For example Understanding #5 in the Annex to the Conference resolution, inserted at the request of the United States, makes it clear, if there was ever any doubt on the point that:

    "It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State."

Equally there is not even any direct 'obligation' under the Rome Statute to create any implementing domestic legislation with a view to enabling the investigation and prosecution of an act of aggression committed even by one's own State, or more precisely by the criminal actions of one's own nationals. In practice, own's head of government, chief of staff, Secretary of Defence the relevant time The consequence of failing to do so, however, under the application and implementation of the principle of 'complementarity', under which the ICC as an institute operates, would be that, when and where the ICC was itself able to exercise its own jurisdiction to do so instead, with respect to that crime, and it was satisfied that the state party which has international jurisdiction is genuinely unable to conduct the necessary investigation and/or prosecution |3|, including because it simply lacked the requisite domestic criminal legislation to do so, it could then step in and seek the surrender of the accused individuals to be dealt with in The Hague instead.

However, "complementarity" is one way street - it works in an upward direction only. It serves so as to enable The Hague to step in, when it can, as a 'judicial venue of last resort' where otherwise there is no possibility for a preferable adjudication at the national level instead. It simply does not then follow that, when the exercise of that complementary jurisdiction, is as yet not available in The Hague, because the necessary preconditions to its exercise are not as yet in place, neither should it then be instituted at the national level either, by means of the creation of national legislative measures for the incorporation or implementation of the agreed definition of the crime into the domestic criminal code instead. That view is simply absurd. The complementary jurisdiction of the ICC is meant to supplement the preferable criminal jurisdiction at national level, not substitute for it, still less comprise any species of requisite precondition to its enactment.

To date the principal excuse deployed by the Crown for its lamentable and prolonged failure to follow the example of at least 25 other nations states in this world |4|, who had already created domestic criminal offences of committing international aggression long before the Rome Statute was ever even conceived, was to say that, in the absence of an agreed international definition for the offence, it would be counter-productive and unhelpful for the UK to go ahead, like one of those Eastern European or former Soviet states and create its own domestic offence, which might turn out to be wholly inconsistent and incompatible with whatever emerged ultimately as the internationally agreed definition instead. So be it. That enabling condition has now been overcome. Whatever the continuing concerns and apprehensions felt by the Crown, with respect to the conditions for the exercise of jurisdiction by the ICC, as now set out in the Amendment and as that has any effect upon the international relationship between the Court and the UN Security Council, nothing in any of that can effect or impinge upon the simple and straightforward domestic incorporation of the separate language on the agreed definition, about which the Crown has raised no concerns whatever.

What is more it is a concomitant and indeed complementary feature of our constitutional settlement that whilst ratification of an international treaty obligation/provision is a matter reserved to the Crown, in the exclusive exercise of its royal prerogatives, equally the domestic incorporation of this country's international criminal law obligations, by means of amendment to our existing criminal statutory law, is wholly a matter for Parliament, acting in the interest of the public and their desire to see this nation an active party to the advancement and codification of such important, indeed 'supreme' aspects of international criminal law, for the enforcement of, and respect for which, they have in previous decades and centuries fought and died in their thousands upon thousands.

Robbie Manson

|*| Documentation note: Hosted by Stephen Lloyd MP ( Eastbourne and Willingdon), a meeting of MPs and peers was briefed on 23Nov11 on how the UK Parliament can join the international drive to criminalise aggressive war, a crime under international law, by incorporating the recently agreed definition of the Crime of Aggression into the statute which incorporates the ICC crimes into UK law.

The Parliamentary meeting was arranged to raise awareness of the Crime of Aggression, and to ask whether it should be adopted into domestic law before its use by the ICC - incorporating it into the International Criminal Court Act 2001 which already incorporates the ICC crimes of Genocide, Crimes against Humanity and War Crimes. It was organised by the Institute for Law Accountabality and Peace (INLAP). The speakers were Professor Nick Grief: Professor of Law at the University of Kent and practising at the Bar from Doughty Street Chambers; and Robert Manson LLB: co-founder of INLAP. This document is the summary of Robert Manson's presentation. [Back]


1. As for instance is required by art.146 of the IV Geneva Convention on the Protection of Civilian Person in time of war. [Back]

2. See now s.20 of the Constitutional Reform & Governance Act 2010. [Back]

3. Art 17(1)(a) of the Rome Statute. [Back]

4. See list on the website of the Global Institute for the Prevention of Aggression. [Back]

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Crime of Aggression
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