Harmonization of the ICC’s jurisdiction over the crime of aggression: a call to States Parties to take the opportunity for reform

We respectfully call on all states parties to take the steps required to amend the International Criminal Court’s jurisdiction over the crime of aggression. What the international community needs is a legal framework that can end impunity and effectively deter state leaderships from waging aggressive wars and other acts of aggression. To work towards these goals, the ICC must be able to prosecute the crime of aggression under the same conditions that exist for the other three core international crimes. Recourse to aggression in the last years painfully illustrates that this reform is crucial and overdue. States parties must therefore seize the opportunity they will be presented with in 2025 to fill the gaps in the ICC’s jurisdiction regarding the crime of aggression.

The current legal framework for the prosecution of the crime of aggression is too limited and leads to glaring accountability gaps. The crime of aggression is a leadership crime, committed by those “in a position effectively to exercise control over or direct the political or military action of a state”. The ICC, as the international court with universal aspirations and thus particularly suited and legitimized to focus on the highest-ranking perpetrators, should be enabled to effectively end impunity for “the most serious crimes of concern to the international community as a whole”. However, due to the restrictive jurisdictional regime implemented for the crime of aggression in Art. 15bis Rome Statute, the ICC is currently barred from doing so in most instances.

For the other three core crimes, in cases of proprio motu investigations or state party referrals, Art. 12 Rome Statute provides for ICC jurisdiction where the crime is committed on the territory, or by a national, of a state party or a state lodging an ad hoc acceptance of jurisdiction. This also covers crimes committed by non-state party nationals if committed on the territory of a state party. By contrast, concerning the crime of aggression, the ICC cannot exercise its jurisdiction in the case of non-state party nationals or crimes committed on the territory of non-states parties (Art. 15bis (5)), except if the Security Council refers the situation to the Court (Art.15ter). This holds true independently of whether it is a state party that is being attacked by a non-state party. Moreover, states parties have the option to declare that they do not accept jurisdiction (Art. 15bis (4)). While the UN Security Council remains competent to refer cases (Art. 15ter), the Russian war of aggression against Ukraine illustrates that there is a high risk of deadlock due to the use of the veto power by its permanent members – both to block referrals pertaining to their own state and referrals related to their allies. The current legal framework hence leaves it up to the most powerful states (under Art. 15ter) to decide whether accountability for the crime of aggression by leaders not covered by Art. 15bis is possible.

States parties must prioritize remedying this dire situation. This is not only crucial to discourage state leaderships from waging aggressive wars and from other acts of aggression against other states, but also to add another layer of protection for states at risk of being a victim of aggression. Only an amendment of the Rome Statute’s jurisdiction over the crime of aggression can help ensure that states parties are better protected from the crime being committed against them, and that the ICC will be in a position to ensure accountability. The amendment is also crucial to be able to hold accountable those who are responsible for causing immense suffering to entire populations – including to soldiers on both sides, as well as civilians subjected to attacks, not all of which can be prosecuted as war crimes, but are part of the aggression itself. Finally, as a matter of consistency and legitimacy of the international justice system, its framework must ensure accountability not only in a few instances, but with the aspiration to uphold the prohibition of the crime of aggression as universally as possible, without selectivity and double-standards.

By resolution adopted in 2010 (RC/Res. 6(4)), states parties mandated a review of the crime of aggression provisions to occur in 2025. An opportunity to close the gaps in the Court’s ability to exercise its jurisdiction over this crime is thus right around the corner. We urge states parties to seize it by harmonizing the conditions for the ICC’s exercise of jurisdiction over the crime of aggression with those applicable to its other core crimes. In preparation of the review, we call for a transparent and inclusive process appropriate to the task.

Signed by:

Action des Chrétiens Activistes des Droits de l’Homme à Shabunda (ACADHOSHA)

Africa Legal Aid (AFLA)

Aotearoa Lawyers for Peace

Armenian United Nations Association

Asociación Española para el Derecho Internacional de los Derechos Humanos

Atrocities Watch Africa

A world without chemical and biological weapons-www

Baltimore Nonviolence Center

Basel Peace Office

Center for Truth and Justice

Citizens for Global Solutions

Civil Rights Defenders

Crimean Human Rights Group

CRIMEASOS

Democracy Today

European Center for Constitutional and Human Rights, e.V.

Global Institute for the Prevention of Aggression

Global Justice Group

Global Justice Intelligence Eyes

Global Rights Compliance

Guinean National Coalition for the ICC

Human Rights Center ZMINA

Human Rights Defenders Solidarity Network – Uganda

Human Rights Platform

International Community for Georgia Development and the Progress

International Federation for Human Rights (FIDH)

Iranian Center for International Criminal Law

Just Access e.V.  Justice Call

Keen and Care Initiative (KCI), Nigeria

Kenya Human Rights Commission (KHRC)

Kenyan Section of the International Commission of Jurists (ICJ)

Kharkiv Anticorruption Center

Kurdish Organizations Network Coalition for the International Criminal Court (KONCICC)

Kurdistan Organizations Network to Abolish Nuclear and Mass Destruction Weapons

Kurdocide Watch-CHAK

Kurdistan without Genocide

Life campaign to abolish the death sentence in Kurdistan

Manawa Organization for Martyrs & Anfal’s Inquiry

Media Initiative for Human Rights

National Forum for Human Rights, Yemen

Nonviolence International

Norwegian Helsinki Committee

Norwegian Section of the International Commission of Jurists (ICJ)

Office of the Youth in Maritime (YIMO)

Open Society Justice Initiative

Organization Against Weapons of Mass Destruction in Kurdistan

Organization of the Justice Campaign

Parliamentarians for Global Action

Peace Action WI

Permanent Peace Movement, Lebanon

Platform for Peace and Humanity

REDRESS

Regional Advocacy for Women’s Sustainable Advancement (RAWSA)

Alliance for African & Arab States

RootsAction.org

Synergy for Justice

The Reckoning Project

Ukrainian Helsinki Human Rights Union

Ukrainian Legal Advisory Group

UNASCAD (Union des Amis Socio Culturels d’Action en Developpement), Haiti

United Nations Association of Chad

United Nations Association of Estonia

United Nations Association of Sweden

Universal Peace and Violence Amelioration Centre (UPVAC)

U.S. Section, Women’s International League for Peace and Freedom

Visionary Ethics Foundation (VEF)

World BEYOND War

World Federalist Movement – Institute for Global Policy

Youth for Peace and Dialogue between Cultures