Crime of Aggression
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Statutory Incorporation of the Crime of Aggression

Presentation by Professor Nick Grief |1|

  1. There is no legal barrier to incorporating the crime of aggression now instead of waiting until 2017 at the earliest. In legal terms, operationalising the Kampala amendment to the Rome Statute and incorporating the crime of aggression into our domestic law are unconnected:

      a. The Rome Statute does not require States to incorporate ICC crimes (currently genocide, crimes against humanity and war crimes) into their domestic law. |2| We have chosen to do so - but we could have done so even if the Rome Statute had not been not in force and the ICC had not existed. Indeed, genocide and war crimes were triable in the UK under previous legislation enacted long before the ICC was established. |3|

      b. The jurisdiction of our courts over these most serious international crimes is not dependent upon that of the ICC. The ICC is a court of last resort. Its jurisdiction is complimentary to that of national courts. |4| It is there in case national courts cannot or will not act. The expectation is that they will act.

      c. The jurisdiction of our courts over these international crimes is not coterminous with that of the ICC. The ICC has jurisdiction over crimes committed on or after 1 July 2002, when the Rome Statute came into force; whereas the ICC Act 2001 as amended by the Coroners and Justice Act 2009 makes provision for the retrospective application of the crimes of genocide, crimes against humanity and war crimes to things done on or after 1 January 1991. |5|

  2. In a very real sense, of course, this would not be 'early' incorporation. The crime of aggression has been recognised in customary international law since Nuremberg at least, and there has been a moral imperative to recognise the crime in our domestic law since that time. Hansard records that in December 1963 the Lord Chancellor, Lord Dilhorne, stated that 'the principles of international law, recognised by the Charter of the Nuremberg Tribunal which was annexed to the London Agreement of 1945 and by the Judgment of the Nuremberg Tribunal, were unanimously affirmed by the General Assembly of the United Nations in a Resolution adopted at its First Session on December 11, 1946. |6| Her Majesty's Government concurred in the view expressed in that Resolution, which is regarded as confirming that the principles are generally accepted among States and have the status of customary international law.' |7|

  3. As Lord Bingham declared in R v Jones and Milling, |8| 'the core elements of the crime of aggression have been understood, at least since 1945, with sufficient clarity to permit the lawful trial (and, on conviction, punishment) of those accused of this most serious crime. It is unhistorical to suppose that the elements of the crime were clear in 1945 but have since become in any way obscure.' |9|

  4. But Lord Bingham went on to hold that the crime of aggression (and other customary international law crimes) cannot become part of our domestic law without statutory incorporation. |10| He said that today there is no power in the courts to create new criminal offences; and that when it is sought to give domestic effect to customary international law crimes the practice is to legislate. While one might take issue with the suggestion that the crime of aggression is a 'new' offence, I would certainly endorse what Lord Bingham called an important democratic principle: 'that it is for those representing the people of the country in Parliament, not the executive and not he judges, to decide what conduct should be treated as lying so far outside the bounds of what is acceptable in our society as to attract criminal penalties.' |11|

  5. It is true that in the United Kingdom the normal practice is for statutory incorporation of treaty rights and obligations to march in step with ratification of (or accession to) the treaty in question. Although Parliament does not have to consent to the Government entering into a treaty and, being supreme, can enact legislation which is inconsistent with the UK's treaty obligations, |12| normally the intention is that our domestic law will be consistent with those obligations. |13|

  6. But this is not about the incorporation of treaty rights and obligations. And legislating to create the crime of aggression in our domestic law is not dependent upon our recognising that the ICC can exercise jurisdiction over that crime as a matter of international treaty law.

  7. This is an opportunity for Parliament to demonstrate the moral and legal leadership to ensure that any political or military leader (or rather, former leader) |14| who has committed the crime of aggression will not find a safe haven in the UK. Parliament has demonstrated similar leadership before. In 1807 the Slave Trade Act outlawed the slave trade in the British Empire. Ten years later, in the Le Louis case, observing that some nations still adhered to the practice, Sir William Scott (later Lord Stowell) declined to regard the slave trade as criminal in international law. |15| In 1833 the Slavery Abolition Act abolished slavery in most parts of the British Empire. However, it was not until 1926 that the League of Nations Slavery Convention outlawed slavery and associated practices.

  8. Parliament was ahead of the curve as regards the abolition of the slave trade and of slavery. There are parallels between the prohibition of slavery and the prohibition of aggression. In international law, both are jus cogens (compelling law) and both create obligations erga omnes (owed to all States). Statutory incorporation of the long-established crime of aggression now would be consistent with its superior status. That superiority is not merely legal. As Sir Norman Birkett declared at Nuremberg 65 years ago: 'To initiate a war of aggression, therefore, is not only an international crime, it is the supreme crime, differing only from other crimes in that it contains within itself the accumulated evil of the whole.'

  9. There is an agreed definition of the crime of aggression which the UK Government supported at Kampala. |16| Only 'an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the [UN] Charter' |17| will qualify. And if the crime were incorporated into our law by amending the International Criminal Court Act 2001, proceedings could not be instituted except by or with the consent of the Attorney General. |18| This would ensure that there were no vexatious prosecutions - all the more important if, consistent with the Act's policy, the crime of aggression amendment had retrospective effect. |19|

  10. Unlike the Kampala amendment to the Rome Statute, the change to our own criminal law can and should occur now. There is no need to wait.
Prof. Nick Grief
Professor and Director of Legal Studies, Medway
Kent Law School

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 Prof. Nick Grief's presentation.


1. Kent Law School and an associate tenant at Doughty Street Chambers. Email: [Back]

2. However, the 2001 Act does enable the UK to meet Rome Statute obligations relating, in particular, to the arrest and surrender of persons wanted by the ICC and the provision of assistance for ICC investigations. [Back]

3. The Genocide Act 1969; and the Geneva Conventions Act 1957 as amended by the Geneva Conventions (Amendment) Act 1995. [Back]

4. Art 1 of the Rome Statute. [Back]

5. International Criminal Court Act 2001 as amended, s 65A. [Back]

6. A/RES/95(l). [Back]

7. Hansard, HL Deb, 2 December 1963, vol 253, cc 831-2. In 1950, at the request of the General Assembly, the principles were formulated by the International Law Commission. [Back]

8. R v Jones and Others; Ayliffe and Others v DPP; Swain v DPP [2006] UKHL 16. [Back]

9. Para 19. [Back]

10. An exception to the accepted principle that rules of customary international law are part, or at least a source, of the common law. [Back]

11. Paras 27-29. [Back]

12. A Aust, Handbook of International Law, CUP, 2nd edition, 2010, p 76; Modern Treaty Law and Practice, CUP, 2000, p 152. [Back]

13. This ensures compliance with the fundamental principle of the law of treaties, pacta sunt servanda: 'Every treaty in force is binding upon the parties to it and must be performed by them in good faith.' The corollary is that 'A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.' See Arts 26 and 27 of the Vienna Convention on the Law of Treaties 1969. [Back]

14. A serving foreign Head of State or Government or Foreign Minister would enjoy immunity from the criminal jurisdiction of our courts, though not from the jurisdiction of the ICC. See e.g. Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), ICJ Reports 2002, p 3, para 58. Cf Art 27 of the Rome Statute on the irrelevance of official capacity in proceedings before the ICC. [Back]

15. Le Louis (1817) 165 Eng Rep 1464 (High Court of Admiralty). [Back]

16. At the ICC Assembly of States Parties in New York on 7 December 2010, the representative of the United Kingdom recalled that the UK had 'welcomed the positive outcome that was reached on aggression in Kampala'. See [Back]

17. Art 8 bis (1) of the Rome Statute. [Back]

18. International Criminal Court Act 2001, s 53(3). [Back]

19. The amendment would need to comply with Art 7 ECHR, which enshrines the 'no punishment without law' principle. To prosecute someone in accordance with the legal principles applicable to retrospection, it would be necessary to show that the relevant conduct amounted in the circumstances at the time to a criminal offence under international law. [Back]

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Crime of Aggression
small logoThis document has been published on 17Sep12 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.