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Treatise on International Criminal Law - Volume II: The Crimes and Sentencing by Ambos, Kai (9th January 2014)

Ch.IV The Crime of Aggression

From: Treatise on International Criminal Law: Volume II: The Crimes and Sentencing

Kai Ambos

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 January 2019

Subject(s):
Aggression

(p. 184) Chapter IV  The Crime of Aggression

  • Alexander, L., and Kessler Ferzan, K., Crime and Culpability—A Theory of Criminal Law (New York: Cambridge University Press, 2009);
  • Ambos, K., ‘Some Preliminary Reflections on the Mens Rea Requirements of the Crimes of the ICC Statute and of the Elements of Crimes’, in Vohrah, L. C. et al., eds., Man’s Inhumanity to Man—Essays on Ιnternational Law in Honour of Antonio Cassese (The Hague: Kluwer Law International, 2003), 11–40;
  • id, ‘Strafrecht und Krieg—Strafbare Beteiligung der Bundesregierung am Irak-Krieg?’, in Arnold, J. et al., eds., Menschengerechtes Strafrecht—Festschrift für Albin Eser zum 70. Geburtstag (Munich: C. H. Beck, 2005), 671–90;
  • id, ‘Nulla Poena Sine Lege in International Criminal Law’, in Haveman, R. and Olusanya, O., eds., Sentencing and Sanctioning in Supranational Criminal Law (Antwerpen, Oxford: Intersentia, 2006), 17–35;
  • id, ‘Article 25—Individual Criminal Responsibility’, in Triffterer, Commentary (2008), 743–70;
  • id, ‘The Crime of Aggression after Kampala’, GYIL, 53 (2010), 463–509;
  • Ambos, K. and Arnold, J., eds., Der Irak-Krieg und das Völkerrecht (Berlin: Berliner Wissenschafts-Verlag, 2003);
  • Anggadi, F., French, G. and Potter, J., ‘Negotiating the Elements of the Crime of Aggression’, in Barriga and Kreß, Travaux Préparatoires (2012), 58–80;
  • Barriga, S., ‘Against the Odds—The Results of the Special Working Group on the Crime of Aggression’, in Barriga, Danspeckgruber and Wenaweser, Princeton (2009), 1–20;
  • id, ‘Negotiating the Amendments on the Crime of Aggression’, in Barriga and Kreß, Travaux Préparatoires (2012), 3–57;
  • Blokker N. and Kreß C., ‘A Consensus Agreement on the Crime of Aggression—Impressions from Kampala’, LJIL, 23 (2010), 889–95;
  • Clark, R. S., ‘Rethinking Aggression as a Crime and Formulating Its Elements—The Final Work-Product of the Preparatory Commission for the International Criminal Court’, LJIL, 15 (2002), 859–90;
  • id, ‘Nuremberg and the Crime against Peace’, WashUGlSLR, 6 (2007), 527–50;
  • id, ‘Ambiguities in Articles 5 (2), 121 and 123 of the Rome Statute’, CWRJIL, 41 (2009), 413–27;
  • id, ‘Negotiating Provisions Defining the Crime of Aggression, its Elements and the Conditions for ICC Exercise of Jurisdiction over It’, EJIL, 20 (2009), 1103–15;
  • id, ‘The Crime of Aggression’, in Stahn and Sluiter, Emerging Practice (2009), 707–24;
  • id, ‘Amendments to the Rome Statute of the International Criminal Court Considered at the First Review Conference on the Court, Kampala, 31 May–11 June 2010’, GoJIL, 2 (2010), 689–711;
  • id, ‘Alleged Aggression in Utopia—An International Criminal Law Examination Question for 2020’, in Schabas et al., Research Companion ICL (2013), 63–78;
  • Condorelli, L., ‘Conclusions Générales’, in Politi and Nesi, The ICC and Aggression (2004), 151–62;
  • Creegan, E., ‘Justified Uses of Force and the Crime of Aggression’, JICJ, 10 (2012), 59–82;
  • Corredor Carvajal, I. F., El crimen de agresión en derecho penal internacional (Bogotá: Universidad del Rosario, 2012);
  • Dascalopoulou-Livada, P., ‘Aggression and the ICC—Views on Certain Ideas and Their Potential for a Solution’, in Politi and Nesi, The ICC and Aggression (2004), 79–85;
  • Drumbl, ‘The Push to Criminalize Aggression—Something Lost Amid the Gains?’, CWRJIL, 41 (2009), 291–319;
  • Escarameia, P., ‘The ICC and the Security Council on Aggression—Overlapping Competencies?’, in Politi and Nesi, The ICC and Aggression (2004), 133–43;
  • Eser, A., ‘Individual Criminal Responsibility’ in Cassese et al., Rome Statute, i (2002), 767–948;
  • Ferencz, B. B., ‘Ending Impunity for the Crime of Aggression’, CWRJIL, 41 (2009), 281–90;
  • Ferencz, D. M., ‘The Crime of Aggression—Some Personal Reflections on Kampala’, LJIL, 23 (2010), 905–8;
  • Fernández de Gurmendi, S. A., ‘An Insider’s View’, in Politi and Nesi, The ICC and Aggression (2004), 175–88;
  • Gaja, G., ‘The Long Journey towards Repressing Aggression’, in Cassese et al., Rome Statute, i (2002), 427–41;
  • id, ‘The Respective Roles of the ICC and the Security Council in Determining the Existence of an Aggression’, in Politi and Nesi, The ICC and Aggression (2004), 121–4;
  • Gerth, H. H. and Mills, C. W., From Max Weber—Essays in Sociology (New York: Oxford University Press, 1946);
  • Glennon, M. J., ‘The Blank-Prose Crime of Aggression’, YaleJIL, 35 (2010), 71–114;
  • Gomaa, M. M., ‘The Definition of the Crime of Aggression and the ICC Jurisdiction over that Crime’, in Politi and Nesi, The ICC and Aggression (2004), 55–77;
  • Griffiths, R. L., ‘International Law, the Crime of Aggression and the Ius Ad Bellum’, ICLR, 2 (2002), 301–73;
  • Haumer, S. and Marschner, L., ‘Der Internationale Strafgerichtshof und das Verbrechen der Aggression nach Kampala—Zu den neuesten Ergänzungen im IStGH-Statut und Ihren Auswirkungen auf das deutsche Strafrecht’, HuV-I, 23 (2010), 188–96;
  • Heinsch, R., ‘The Crime of Aggression After Kampala—Success or Burden for the Future?’, GoJIL, 2 (2010), 713–43;
  • Heller, K. J., ‘Retreat from Nuremberg—The Leadership Requirement in the Crime of Aggression’, EJIL, 18 (2007), 477–97;
  • id, ‘The Uncertain Legal Status of the Aggression Understandings’, JICJ, 10 (2012), 229–48;
  • Hummrich, M., Der völkerrechtliche Straftatbestand der Aggression—Historische Entwicklung, Geltung und Definition im Hinblick auf das Statut des Internationalen Strafgerichtshofes (Baden-Baden: Nomos, 2001);
  • Kaul, H. P., ‘The Crime of Aggression—Definitional Options for the Way forward’, in Politi and Nesi, The ICC and Aggression (2004), 97–108;
  • id, ‘Kampala June 2010—A First Review of the ICC Review Conference’, GoJIL, 2 (2010), 649–67;
  • Kemp, G., Individual Criminal Liability for the International Crime of Aggression (Antwerp, Oxford: Intersentia, 2010);
  • King, F. P., ‘The Crime of Aggression—Is It Amenable to Judicial Determination?’, in Brown, Handbook ICL (2011), 114–40;
  • Koh, H. H., Legal Adviser, US Department of State, ‘Statement at the Review Conference of the International Criminal Court, 4 June 2010’, <state.gov/s/l/releases/remarks/14266S.htm> accessed 1 April 2013;
  • Kolb, R., ‘Droit international pénal’, in Kolb, Droit international pénal (2008), 1–264;
  • Kreß, C., ‘Strafrecht und Angriffskrieg im Licht des “Falles Irak”’, ZStW, 115 (2003), 294–351;
  • id, ‘Time for Decision—Some Thoughts on the Immediate Future of the Crime of Aggression—A Reply to Andreas Paulus’, EJIL, 20 (2009), 1129–46;
  • id, ‘Der Kompromiss von Kampala über das Verbrechen der Aggression’, GA, 158 (2011), 65–94;
  • Kreß, C. and von Holtzendorff, L., ‘The Kampala Compromise on the Crime of Aggression’, JICJ, 8 (2010), 1179–217;
  • Kreß, C., Barriga, S., Grover, L. and von Holtzendorff, L., ‘Negotiating the Understandings on the Crime of Aggression’, in Barriga and Kreß, Travaux Préparatoires (2012), 81–97;
  • Lehto, M., ‘The ICC and the Security Council—About the Argument of Politicization’, in Politi and Nesi, The ICC and Aggression (2004), 145–9;
  • Manacorda, S., ‘Planning’, in Cassese, Companion (2009), 456–7;
  • Mancini, M., ‘A New Definition for the Crime of Aggression—The Kampala Outcome’, NordJIL, 81 (2012), 277–48;
  • Manson, R. L., ‘Identifying the Rough Edges of the Kampala Compromise’, CLF, 21 (2010), 417–43;
  • id, ‘Smoothing out the Rough Edges of the Kampala Compromise, 18 June 2010’, <mediafire.com/?kmdzhwozudo> accessed 1 April 2013;
  • McDougall, C., ‘When Law and Reality Clash—The Imperative of Compromise in the Context of the Accumulated Evil of the Whole—Conditions for the Exercise of the International Criminal Court’s Jurisdiction over the Crime of Aggression, ICLR, 7 (2007), 277–333;
  • Meron, T., ‘Defining Aggression for the International Criminal Court’, Suffolk Transnat’lLR, 25 (2001–2002), 1–15;
  • Milanovic, M., ‘Aggression and Legality—Custom in Kampala’, JICJ, 10 (2012), 165–87;
  • Müller, T., ‘Bericht über die Verhandlungen der I. Sektion—Strafrecht Allgemeiner Teil: erweiterte Formen der Vorbereitung und der Teilnahme’, ZStW, 122 (2010), 453–7;
  • Müller-Schieke, I. K., ‘Defining the Crime of Aggression under the Statute of the International Criminal Court’, LJIL, 14 (2001), 409–30;
  • Murphy, S. D., ‘Aggression, Legitimacy and the International Criminal Court’, EJIL, 20 (2009), 1147–56;
  • id, ‘Criminalizing Humanitarian Intervention’, CWRJLR, 41 (2009), 341–77;
  • O’Connel, M. E. and Niyazmatov, M., ‘What is Aggression—Comparing the Jus ad Bellum and the ICC Statute’, JICJ, 10 (2012), 189–207;
  • Paulus, A., ‘Second Thoughts on the Crime of Aggression’, EJIL, 20 (2009), 1117–28;
  • Politi, M., ‘The ICC and the Crime of Aggression—A Dream that Came Through and the Reality Ahead’, JICJ, 10 (2012), 267–88;
  • Puschke, J., ‘Grund und Grenzen des Gefährdungsstrafrechts am Beispiel der Vorbereitungsdelikte’, in Hefendehl, R., ed., Grenzenlose Vorverlagerung des Strafrechts? (Berlin: Berliner Wissenschafts-Verlag, 2010), 9–40;
  • Reddi, V. J., ‘The ICC and the Crime of Aggression—A Need to Reconcile the Prerogatives of the SC, the ICC and the ICJ’, ICLR, 8 (2008), 655–86;
  • Reisinger-Coracini, A., ‘The International Criminal Court’s Exercise of Jurisdiction over the Crime of Aggression—At Last … in Reach … over Some’, GoJIL, 2 (2010), 745–89;
  • id, ‘Evaluating Domestic Legislation on the Customary Crime of Aggression under the Rome Statute’s Complementarily Regime’, in Stahn and Sluiter, Emerging Practice (2009), 725–54;
  • ‘Resolution of the XVIII AIDP International Congress of Penal Law (Istanbul, 20–27 September 2009)’, ZStW, 122 (2010), 473–91;
  • Schabas, W., ‘The ICC Review Conference—Kampala 2010’, <iccreviewconference.blogspot.com> accessed 1 April 2013;
  • Schaeffer, R., ‘The Audacity of Compromise—The UN Security Council and the Pre-conditions to the Exercise of Jurisdiction by the ICC with Regard to the Crime of Aggression’, ICLR, 9 (2009), 411–33;
  • Scheffer, D., ‘A Pragmatic Approach to Jurisdictional Requirements for the Crime of Aggression in the Rome Statute’, CWRJIL, 41 (2009), 397–411;
  • id, ‘The Complex Crime of Aggression under the Rome Statute’, LJIL, 23 (2010), 897–904;
  • id, ‘State Parties Approve New Crimes for International Criminal Court’, ASIL Insight, 14 (2010), <asil.org/files/insight100622pdf.pdf> accessed 1 April 2013;
  • Schmalenbach, K., ‘Das Verbrechen der Aggression vor dem Internationalen Strafgerichtshof: Ein politischer Erfolg mit rechtlichen Untiefen’, JZ, 65 (2010), 745–52;
  • Schuster, M., ‘The Rome Statute and the Crime of Aggression—A Gordian Knot in Search of a Sword’, CLF, 14 (2003), 1–57;
  • Sellars, K., ‘Delegitimizing Aggression—First Steps and False Starts after the First World War’, JICJ, 10 (2012), 7–40;
  • Solera, O., Defining the Crime of Aggression (London: Cameron May, 2007);
  • Stahn, C., ‘The “End,” the “Beginning of the End” or the “End of the Beginning?” Introducing Debates and Voices on the Definition of “Aggression”’, LJIL, 23 (2010), 875–82;
  • Trahan, J., ‘The Rome Statute’s Amendment on the Crime of Aggression—Negotiations at the Kampala Review Conference’, ICLR, 11 (2011), 49–104;
  • van Schaack, B., ‘The Crime of Aggression and Humanitarian Intervention on Behalf of Women’, ICLR, 11 (2011), 477–93;
  • id, ‘Par in Parem Imperium Non Habet—Complementarity and the Crime of Aggression’, JICJ, 10 (2012), 133–64;
  • Vest, H., ‘Business Leaders and the Modes of Individual Criminal Responsibility under International Law’, JICJ, 8 (2010), 851–72;
  • von Braun, L. and Micus, A., ‘Judicial Independence at Risk—Critical Issues Regarding the Crime of Aggression Raised by Selected Human Rights Organizations’, JICJ, 10 (2012), 111–32;
  • Weber, M., Grundriß der Sozialökonomik—Abteilung III—Wirtschaft und Gesellschaft (Tübingen: Mohr, 1922);
  • Weigend, T., ‘In General a Principle of Justice—The Debate on the “Crime against Peace” in the Wake of the Nuremberg Judgment’, JICJ, 10 (2012), 41–58;
  • Weisbord, N., ‘Prosecuting Aggression’, HarvILJ, 49 (2008), 161–220;
  • id, ‘Conceptualizing Aggression’, DukeJComp&IL, 20 (2009–2010), 1–68;
  • id, ‘Judging Aggression’, ColJTransnat’lL, 50 (2011–2012), 82–168;
  • Wenaweser, C., ‘Reaching the Kampala Compromise on Aggression—The Chair’s Perspective’, LJIL, 23 (2010), 883–7;
  • Wills, A. W., ‘The Crime of Aggression and the Resort to Force against Entities in Statu Nascendi’, JICJ, 10 (2012), 83–110;
  • Wilmshurst, E., ‘Definition of the Crime of Aggression—State Responsibility or Individual Criminal Responsibility?’, in Politi and Nesi, The ICC and Aggression (2004), 93–6;
  • id, ‘Aggression’, in Cryer et al., Introduction ICL (2010), 312–33;
  • Yengejeh, S. M., ‘Reflections on the Role of the Security Council in Determining an Act of Aggression’, in Politi and Nesi, The ICC and Aggression (2004), 125–32;
  • Zimmermann, A., ‘Article 5—Crimes within the Jurisdiction of the Court’, in Triffterer, Commentary (2008), 129–42;
  • id, ‘Amending the Amendment Provisions of the Rome Statute—The Kampala Compromise on the Crime of Aggression and the Law of Treaties’, JICJ, 10 (2012), 209–27.

A. Introduction: Historical Development, Concept, and Protected Legal Interests

The crime of aggression was prosecuted for the first time under the title of ‘crime against peace’ by the Nuremberg and Tokyo Tribunals,1 which defined it as ‘planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances …’.2 In the Nuremberg Trials, ‘to initiate a war of aggression’3 was still considered to be ‘the supreme international crime’, containing ‘within itself the accumulated evil of the whole’,4 while before the International Military Tribunal for the Far East (IMTFE) aggression belonged to the ‘major war crimes’ (so-called ‘Class A’ crimes).5

(p. 185) On 14 December 1974, the UN General Assembly (GA) adopted a groundbreaking definition of an ‘act of aggression’6 in Resolution 3314 (XXIX)7 which served as the basis for all subsequent discussion leading up to the Kampala compromise. In June 1998, the Rome Conference granted the ICC jurisdiction over the crime of aggression (Article 5(d) ICC Statute), but was unable to reach a consensus on a concrete definition of the crime and further possible conditions for the exercise of jurisdiction.8 This task was assigned to a Working Group on the Crime of Aggression (1999–2002) of the Preparatory Commission,9 and then to the Special Working Group on the Crime of Aggression (SWGCA) (2003–2009), which presented its final report to the Assembly of States Parties (ASP) on 13 February 2009.10 The SWGCA’s proposal was adopted by the ASP on 26 November 2009 by consensus11 and presented to the Kampala Review Conference as a ‘Conference Room Paper on the Crime of Aggression’ on 25 May 2010.12 In Kampala, as in Rome, delegates strived to reach consensus, even though a two-thirds majority would have been sufficient.13

(p. 186) The crime of aggression protects collective legal interests, namely the peace, security and well-being of the world,14 and has a dual nature. It encompasses the collective state act of aggression (‘Gesamttat’)15 at the macro level and the individual crime of aggression at the micro level (‘Einzeltat’).16 Individual criminal responsibility is defined broadly, encompassing, on the one hand, as part of the crime definition, ‘participation in a common plan or conspiracy for the accomplishment’ of any of the acts of aggression;17 on the other hand, extending to ‘leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit’ a crime against peace ‘for all acts performed by any persons in execution of such plan’.18

This short historical overview shows that the discussions about the crime of aggression centred on the issue of the crime definition and, with a view to the ICC, the exercise of jurisdiction. Both issues are closely interrelated and one cannot be analysed without the other to fully understand the crime of aggression. It is for this reason that the exercise of jurisdiction over the crime of aggression must be considered here, although it largely concerns international criminal procedure and would thus otherwise be included in the third volume of this treatise. The following considerations are divided into two parts which, in turn, are subdivided into a further two parts dealing with the two areas mentioned. We will first look more closely at the solutions provided by the Kampala compromise in these two areas, and then perform a critical analysis of the solutions reached.19

B. The Compromise at the ICC’s First Review Conference in Kampala

Pursuant to Article 5(2) ICC Statute, the Court’s exercise of jurisdiction20 over the crime of aggression depends on two requirements: States Parties must agree on a definition of the crime and ‘the conditions under which the Court shall exercise jurisdiction’. While the definition of aggression was already agreed on at the February 2009 session of the SWGCA, jurisdictional issues almost led to the failure of the entire endeavour. These issues boiled down to two major questions: whether France and the UK (as the two States Parties which are also permanent members of the UN Security Council) would give up their positions on the Security Council’s role in the (p. 187) (preliminary) determination of an act of aggression, and how dissenting states could be accommodated.21

(1)  The definition

The definition proposed in the February 2009 report22 was adopted, tel quel, by the ASP in November 200923 and also by the Kampala Conference.24 It was only opposed by those states—the USA, in particular—that did not take part in the SWGCA and rejected the crime of aggression for reasons of principle.25 The definition reads as follows:

Article 8bis

Crime of aggression

  1. 1. For the purpose of this Statute, ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

  2. 2. For the purpose of paragraph 1, ‘act of aggression’ means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:

    1. a)  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 or part thereof;

    2. b)  Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

    3. c)  The blockade of the ports or coasts of a State by the armed forces of another State;

    4. d)  An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

    5. e)  The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

    6. (p. 188) f)  The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

    7. g)  The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

While para. 2 of this definition adopts a conservative approach regarding the definition of an ‘act of aggression’ which essentially repeats Articles 1 and 3 of Resolution 3314 (XXIX),26 para. 1 is innovative in at least two respects. First, it limits individual responsibility to persons in command or leadership positions, that is, ‘in a position effectively to exercise control over or to direct the political or military action of a State’. Article 25(3) was adjusted accordingly, with a para. 3bis limiting individual responsibility for the crime of aggression to those responsible leaders.27 Secondly, it introduces a threshold requirement, limiting a ‘crime of aggression’ to an act that ‘by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’. In contrast, the conduct required (‘planning, preparation, initiation or execution’) follows the historical precedents of Nuremberg and Tokyo.28 The first three forms of conduct are identical29 and thus preparatory acts are still covered.30 The change in the last form—‘execution’ instead of ‘waging of a war of aggression’—is only a change in wording and does not entail a difference in substance. In both cases the actual carrying out of an act of aggression is required.31

Arguing that the definition contained considerable deficits,32 the USA proposed supplementary ‘Understandings’ on its interpretation.33 Following informal discussions (p. 189) moderated by the German focal point, the six US proposals could be converted into three additional Understandings:

  • •  a clarification that any amendment solely affects the ICC Statute;34

  • •  the understanding that aggression is ‘the most serious and dangerous form of the illegal use of force’ to be determined considering ‘all the circumstances of each particular case’ in accordance with the UN Charter;35 and

  • •  the threshold required for a ‘manifest’ violation of the UN Charter presupposes that the ‘three components of character, gravity and scale’ exist not only isolated but in a combined form, that is, two out of three elements must be present.36

The SWGCA continued to discuss the Elements of Crimes for the crime of aggression following its June 2004 Princeton meeting.37 On the basis of a discussion paper prepared by the Australian and Samoan delegations,38 Draft Elements were adopted at the June 2009 Princeton inter-sessional meeting.39 The Draft was approved by the (p. 190) ASP in November 2009,40 presented to the Kampala Conference41 and so adopted.42 The Elements now read:

Introduction

  1. 1. It is understood that any of the acts referred to in Article 8bis, paragraph 2, qualify as an act of aggression.

  2. 2. There is no requirement to prove that the perpetrator has made a legal evaluation as to whether the use of armed force was inconsistent with the Charter of the United Nations.

  3. 3. The term ‘manifest’ is an objective qualification.

  4. 4. There is no requirement to prove that the perpetrator has made a legal evaluation as to the ‘manifest’ nature of the violation of the Charter of the United Nations.

Elements

  1. 1. The perpetrator planned, prepared, initiated or executed an act of aggression.

  2. 2. The perpetrator was a person43 in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression.

  3. 3. The act of aggression—the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations—was committed.

  4. 4. The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations.

  5. 5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations.

  6. 6. The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations.

(2)  The exercise of jurisdiction

(a)  The starting point

The most contentious issue with regard to the Court’s jurisdiction over aggression was the role of the UN Security Council.44 While the five permanent members of the Security Council defended, for obvious reasons, the Security Council’s primary power in determining whether an act of aggression has occurred (Articles 24, 39 UN Charter), many other states favoured, in accordance with Articles 13(c) and 15 ICC Statute, an (p. 191) additional proprio motu power of the Prosecutor submitted to an internal judicial check by the Pre-Trial Chamber (PTC).45 Further, the position of the European states (with the exception of Switzerland and Greece), demanding the consent of the aggressor state to trigger jurisdiction, was controversial. It was strongly opposed mainly by African, Latin American, and Caribbean states. Linked to this question was the issue of the appropriate amendment procedure according to Article 121(3)–(5).46

Thus, the SWGCA’s proposal,47 as adopted by the ASP48 and presented to the Review Conference,49 read as follows:

Article 15bis

Exercise of jurisdiction over the crime of aggression

  1. 1. The Court may exercise jurisdiction over the crime of aggression in accordance with Article 13, subject to the provisions of this Article.

  2. 2. Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents.

  3. 3. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression.

  4. 4. (Alternative 1) In the absence of such a determination, the Prosecutor may not proceed with the investigation in respect of a crime of aggression,

Option 1—end the paragraph here.

Option 2—add: unless the Security Council has, in a resolution adopted under Chapter VII of the Charter of the United Nations, requested the Prosecutor to proceed with the investigation in respect of a crime of aggression.

  1. 4. (Alternative 2) Where no such determination is made within [6] months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression,

Option 1—end the paragraph here.

Option 2—add: provided that the Pre-Trial Chamber has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in Article 15;

Option 3—add: provided that the General Assembly has determined that an act of aggression has been committed by the State referred to in Article 8bis;

Option 4—add: provided that the International Court of Justice has determined that an act of aggression has been committed by the State referred to in Article 8bis.

(p. 192)

  1. 5. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute.

  2. 6. This Article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in Article 5.

The crux of the issue resides in para. 4, with its two alternatives referring to the situation where the Security Council has abstained from making a determination of an act of aggression.50 According to alternative 1, the Prosecutor does not have a proprio motu triggering power, and this signals the end of the story. In contrast, however, alternative 2 grants such a power after a certain amount of time has lapsed, although leaving the final word to another organ, namely either the PTC, or the UN GA or ICJ (options 2–4). It is important to note that the SWGCA saw no necessity for splitting the triggering procedure of Article 13 into two, distinguishing between a state referral and a proprio motu investigation of the Prosecutor, on the one hand, and a Security Council referral on the other.

(b)  The negotiations

In the course of the negotiations, the different positions were expressed in different ‘non-papers’.51 The so-called ‘ABS proposal’, distinguished for the first time between a Security Council referral (amendment 1) and a state referral/proprio motu action of the Prosecutor (amendment 3) and provided for different modalities for the entry into force of these different amendments (operative para. 1 of the proposal): amendment 3 should enter into force for all States Parties one year after ratification by seven-eighths of the States Parties (Article 121(4)); in contrast, amendment 1 should enter into force one year after ratification by a given State Party for that Party only (an opt-in regime) (Article 121(5)).52 As a consequence, the Court would have immediate jurisdiction (one year after the first ratification) for Security Council referrals only, while the jurisdiction for state referrals or proprio motu action of the Prosecutor would be considerably delayed. On 8 June 2010, Canada proposed53 for the allowance of a proprio motu investigation after six months with authorization of the Pre-Trial Chamber, with the limitation that at least both the victim and the aggressor state must have accepted this paragraph. On the same day, Slovenia presented a further proposal for Article 15bis, trying to combine the ABS and Canadian proposals by giving the (p. 193) Prosecutor the possibility to ‘read[d]ress the possibility of the Security Council referral’ if the States Parties concerned had not accepted the proprio motu investigation. On 9 June 2010, at 4pm, still within the SWGCA negotiations, the ABS group and Canada presented a joint proposal for the contentious issue of state referral/proprio motu action (Article 15bis) introducing two innovations: first, a postponement or suspension clause as to the beginning of the Court’s exercise of jurisdiction pursuant to a state referral/proprio motu action (‘… five years after the entry into force … for any State Party’, Article 15bis(1)), thereby trying to respond to concerns already voiced at the beginning of the negotiations);54 and, secondly, an opt-out clause for States Parties (‘declaration of non-acceptance of the jurisdiction’) which do not want to accept jurisdiction on the basis of a state referral/proprio motu action (para. 4bis).

Moving from the SWGCA to the plenary, a series of ‘informal informal’ meetings took place and the President of the ASP, Christian Wenaweser, issued various non-papers on 10 and 11 June 2010 containing a draft resolution.55 The splitting of the triggers in an Article 15bis (state referral/proprio motu) and Article 15ter (Security Council referral) was now accepted, but it was not until the final proposal of 11 June at 4.30pm that it was decided that the Prosecutor would have a proprio motu power after six months of inactivity by the Security Council, ‘provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in Article 15, and the Security Council has not decided otherwise in accordance with Article 16’.56

While this was clearly a success for the states in favour of a strong Prosecutor, in other words, most States Parties except the five permanent members of the Security Council, it was not without consequences.57 The same proposal confirmed the postponement (Articles 15bis and ter para. 3)58 and opt-out clauses (operative para. 1 and Article 15bis(4))59 introduced by the ABS-Canada proposal and excluded non-parties from jurisdiction over aggression, even if committed by those states on the territory of a (p. 194) State Party (Article 15bis(5)).60 In fact, a double postponement was proposed with regard to the entry into force: in addition to the delay clause contained in para. 3, which was still to be exactly defined, the Court’s exercise of jurisdiction would only be possible one year after ratification by thirty States Parties (Article 15bis(2)).

(c)  The final compromise

The last draft resolution paved the way for compromise. When the President of the Conference put forward the motion for consensus,61 the compromise was accepted by the negotiators, as neither France nor the United Kingdom asked for the floor,62 and Japan, despite stating its ‘serious doubts on the legal integrity of the amendment’,63 did not question the deal. The new key provisions, Articles 15bis and ter, read:64

Article 15bis

Exercise of jurisdiction over the crime of aggression

(State referral, proprio motu‎)

  1. 1. The Court may exercise jurisdiction over the crime of aggression in accordance with Article 13, paragraphs (a) and (c), subject to the provisions of this article.

  2. 2. 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 State Parties.

  3. 3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of State Parties as is required for the adoption of an amendment to the Statute.

  4. 4. The Court may, in accordance with Article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years.

  5. (p. 195) 5. In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.

  6. 6. Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents.

  7. 7. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression.

  8. 8. Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in Article 15, and the Security Council has not decided otherwise in accordance with Article 16.

  9. 9. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute.

  10. 10. This Article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in Article 5.

Article 15ter

Exercise of jurisdiction over the crime of aggression

(Security Council referral)

  1. 1. The Court may exercise jurisdiction over the crime of aggression in accordance with Article 13, paragraph (b), subject to the provisions of this article.

  2. 2. 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 State Parties.

  3. 3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of State Parties as is required for the adoption of an amendment to the Statute.

  4. 4. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute.

  5. 5. This Article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in Article 5.

As to entry into force, the interplay of paras. 2 and 3 (of both Article 15bis and ter) entails that the ICC may exercise its jurisdiction at earliest after 1 January 2017 if a majority of the States Parties have made a decision pursuant to para. 3 and if, at that time, one year has passed since the acceptance of the amendment by the first thirty States Parties (para. 2). In other words, the exercise of jurisdiction requires a (further) positive collective decision of the States Parties (presumably the ASP) and individual acceptance decisions of up to thirty States Parties. The importance of these postponement rules is reinforced by the first (p. 196) three Understandings adopted.65 Understandings 1 and 3 confirm that in both a Security Council referral pursuant to Article 15ter (Understanding 1) and a state referral/proprio motu investigation pursuant to Article 15bis (Understanding 3) the Court may only exercise jurisdiction if the decision regarding the 2017 date has been taken and, in addition, one year has passed since the ratification or acceptance of thirty States Parties. As to a Security Council referral, it is also binding for non-parties, as it is additionally clarified in Understanding 2 that the Court ‘shall’ exercise jurisdiction ‘irrespective of whether the state concerned has accepted the Court’s jurisdiction in this regard’.

C. Critical Analysis

(1)  Preliminary clarifications

While the customary law character of the crime of aggression is beyond dispute among both supporters and sceptics of its criminalization,66 it is an entirely different matter, and thus highly controversial, whether a workable and legally satisfactory definition can be achieved at all and whether it was effectively achieved in Kampala.67 In fact, radical sceptics are opposed to any attempt to define the crime of aggression in the first place,68 a position perhaps academically sound but not an option for the SWGCA in light of the clear mandate of Article 5(2) ICC Statute. In fact, this clear mandate downplayed various fundamental questions,69 including the fact that one may question the decision to work for years on a consensus of a highly controversial and immanently (p. 197) political crime, instead of using these resources for the consolidation of the ICC project at a time when the Court was struggling at various fronts.70

A second, more fundamental issue concerns the unprincipled approach adopted in the law-making process of ICL as far as the underlying normative foundations and justifications of the international core crimes are concerned. While this issue goes beyond the mere text of the compromise reached, it also influences the assessment, and perhaps even the subsequent interpretation, of the aggression definition. The pragmatic, policy-driven and norm-creating process of ICL always took a predominantly positivist, anti-normative approach, unconcerned with theoretical considerations as to punitive power, overall function, and purposes of punishment in ICL,71 as if general recourse to the Nuremberg and Tokyo precedents (or on any other norm of international law) would render the discussion of these underlying normative questions superfluous. As to the crime of aggression, the positivist approach is particularly doubtful given the widespread criticism of the Nuremberg law (not only by German defence lawyers)72 and of GA Resolution 3314.73 Indeed, it was recognized more than once in the SWGCA that there was a need to do better74 and that Resolution 3314 constituted a rather problematic starting point for a definition.75

All this said, now the existence of the Kampala compromise leaves no other option than to accept it and submit it to a critical legal analysis elaborating a constructive, bona fide interpretation in order to mitigate, as far as possible, negative (and unintended) consequences. Such an analysis should proceed step by step along the lines of the normative structure now before us, but it must not, with a view to the overall assessment, focus on its individual elements in isolation, since then it would run the risk of losing sight of the whole picture. By way of example: an isolated analysis of the ‘act of aggression’ as defined in Article 8bis(2) without taking into account the definition of the ‘crime of aggression’ in Article 8bis(1) does not do justice to the result achieved, as it would effectively bring together the collective (i.e. act) and individual (p. 198) (i.e. crime) level in one common definition.76 We will return to the underlying structural issue later. Similarly, an overall assessment must not separate the crime definition from the jurisdictional compromise, but must instead take into account the overall result of the negotiations.

(2)  The definition

(a)  The dual nature of the crime of aggression and the threshold clause

As already explained,77 the crime of aggression has a dual nature encompassing the collective state act of aggression at the macro level and the individual crime of aggression at the micro level.78 From this it follows that the existence of an (unlawful) act of aggression, as defined by Article 8bis(2) on the basis of GA Resolution 3314, does not automatically entail the individual criminal responsibility of the persons involved in this act. While this was not yet the view of the Nuremberg law79 which relied essentially on the Kellog-Briand Pact’s80 prohibition of the criminalization of the Nazi war of aggression,81 GA Resolution 3314 itself distinguishes between an act of aggression and a ‘war of aggression’, qualifying only the latter as a ‘crime against international peace’ (Article 5(2)).82 Yet, since GA Resolution 3314 was only concerned with the macro level, that is, the definition of the collective state act of aggression, it did not further elaborate on the qualitative difference which transforms the merely unlawful act into a crime entailing individual criminal responsibility. This qualitative difference is now captured in the threshold clause of Article 8bis(1) requiring an ‘act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’.83 The obvious purpose of this threshold is to clearly exclude minor incidents (e.g. border skirmishes) or legally controversial cases (e.g. a humanitarian intervention) from criminalization.84 While the threshold clause remained (p. 199) controversial until the end of the SWGCA’s mandate,85 the principled decision for an objective qualification had already been taken in 2002 by the Working Group of the Preparatory Commission with a slightly different formula.86 The alternative subjective approach calling for a specific aggressive intent or purpose (animus aggressionis), coupled with the aim of (long-term) occupation, subjugation, or annexation,87 albeit still mentioned in the 2002 Working Group discussion paper,88 did not find enough support and was not pursued further by the SWGCA.89

It should be clear from this explanation that there was hardly an alternative to a threshold clause to capture the qualitative difference between an ‘act’ and a ‘crime’ of aggression.90 The remaining question, then, is whether this difference could have been expressed in more precise terms as insinuated by those who point, with quite some reason, to the vagueness and ambiguity of the threshold clause.91 However, the critics themselves do not propose anything more precise—maybe because they are, as suggested earlier,92 opposed to the whole endeavour in the first place.93 In any case, it is difficult, if not impossible, to think of a more precise formula. In fact, the lack of precision is embedded in the primary norm regulating the use of force. Indeed, if it is not possible to clearly delimitate lawful from unlawful use of force, how could the lines (p. 200) be drawn any more clearly at the level of the secondary norm criminalizing the unlawful use of force?94 Apart from that, given the highly normative content of any qualifier attempting to capture the criminal essence of a certain act, and the general problem of describing concrete human conduct in a sufficiently precise form using abstract legal terms, it is barely possible to think of any objective definition which would express the substance of the threshold clause more precisely. Also, if Andreas Paulus is right and ‘any lawyer of some quality [may] find reasons why almost anything is legal or illegal under prevailing circumstances’ a more precise definition would, at most, gradually diminish legal uncertainty but not eliminate it completely.95 In the result, both a high threshold, as expressed by the term ‘manifest’,96 to be understood objectively97 and qualitatively,98 and the combined existence of character, gravity, and scale,99 albeit confused by Understandings 6 and 7,100 are necessary to stress the difference between the act and crime of aggression, and to avoid its trivialization.101 In contrast, it does not seem plausible that an excessively high threshold combined with the absence of prosecution entails the unintended consequence of legalizing, or even legitimizing controversial forms of use of force.102 In fact, this concern overstates, on (p. 201) the one hand, the impact that a negative prosecutorial decision could have on the question of the lawfulness of the use of force and, on the other hand, does not fully account for the fundamental distinction between the prohibition (regarding the act of aggression) and the actual crime. For example, while classical wars of aggression such as the Nazi attacks on neighbouring countries in 1939 and the Iraqi invasion in Kuwait in 1990 constitute both acts and crimes of aggression, the 2003 US-led invasion in Iraq, albeit considered by most international lawyers as an unlawful act of aggression,103 might not have amounted to a crime of aggression due to the absence of a ‘manifest violation’ of the UN Charter in light of the fact that a respectable scholarly view existed according to which the invasion was justified, especially on the basis of Security Council Resolution 678 of 29 November 1990.104 All this said, the inclusion of the alternative subjective requirement mentioned earlier would—despite its obvious evidentiary problems105—as an additional threshold still have been preferable.106 The combination of an objective–subjective threshold makes it easier to decide difficult cases for the simple fact that this places not just one (objective), but two (objective and subjective) qualifiers at one’s disposal. Thus, for example, in the case of humanitarian intervention, the subjective qualifier would more clearly exclude criminality than a mere objective threshold since the essence of such an intervention is, provided that the states involved are acting bona fide, its humanitarian purpose.107 Even in the more controversial case of the 2003 Iraq invasion, the subjective threshold would confirm the objective negation of a crime of aggression, for one can hardly argue that the US-led coalition acted with a specific animus aggressionis with a view to the long-term occupation of Iraq.108

(p. 202) (b)  The reference to Resolution 3314

The interplay of Article 8bis(1) and (2) para. 2 as the primary conduct norm containing the prohibition, and para. 1 as the secondary decision norm providing for a criminal sanction,109 is a consequence of the dual nature of the crime of aggression, and shows that the SWGCA was well aware of this dual nature.110 This entails the further consequence, as explained earlier,111 that para. 2 must not be interpreted in isolation and detached from para. 1. After all, to do justice to the drafters, it should be recognized that the combined adoption of Articles 1 and 3 of GA Resolution 3314—instead of agreeing on an autonomous and generic definition of an act of aggression112—was quite controversial and, for many delegations, only acceptable in light of the high threshold in para. 1.113 In fact, as is often the case in diplomatic negotiations, Resolution 3314 was finally used because it was ‘already there’ and, being a GA Resolution, carried some authority having been invoked on various previous occasions.114 However, the obvious problem with this approach is that Resolution 3314 was not drafted with a future criminal law provision in mind, but only to help the Security Council determine an ‘act of aggression’ in the sense of Article 39 of the UN Charter with a view to its powers under Chapter VII.115 As a consequence, the Resolution equates ‘aggression’ with ‘use of force’116 and its Articles 2 and 4 give the Security Council special powers of definition which are incompatible with the ‘self-contained’ criminal law regime of the ICC Statute where, according to the principle of legality (Articles 22–24), criminal responsibility cannot be established ex post facto and the definitions of crimes must be strictly construed.117 For this very reason the list of acts contained in Article 8bis(2) can neither be open nor ‘semi-open’ but must be considered exhaustive.118 (p. 203) A semi-open interpretation in the sense of accepting further acts not listed but falling within the generic definition of the existing acts119 could only be compatible with the principle of legality if Article 8bis(2) ICC Statute would provide for such an ‘extension’ by referring, as does Article 7(1)(k), for example, to other similar acts.120 Yet, even such an interpretation would be difficult to reconcile with a strict reading of the lex certa element of the legality principle.121 Apart from that, the actual list contains a number of acts which do not even constitute a use of force stricto sensu, for example lit. (c) and (e), and therefore are far below the gravity threshold of Article 8bis(1).122 Also, from a criminal law perspective, lit. (f) and (g) confuse the proper use of force in the sense of perpetration with the assistance of the use of force by another state (lit. (f)) or non-state actors (lit. (g)).123 Last but not least, the first strike principle contained in Article 2 of GA Resolution 3314 is but one possible test for identifying an aggressor state and does not sufficiently account for a pre-emptive reaction to imminent threats from long distance weapons.124

While most of these flaws may not become relevant at the level of the crime itself because of the threshold clause or a reasonably restrictive interpretation by the Court, the reference to Resolution 3314 entails the more fundamental problem that the definition of aggression turns out to be exclusively state-centric125 and thus unable to capture modern forms of aggression carried out by non-state actors in asymmetric conflicts.126 While, from a traditional state-oriented perspective, such an expansion of the crime may be (p. 204) questioned or even rejected,127 ICL’s human-oriented approach, focusing on individual criminal responsibility, strongly suggests the inclusion of non-state actors.128 The essence of the crime of aggression is not so much determined by the actor but by the wrongfulness of the act. This brings us back to the unprincipled approach of the drafters, previously criticized,129 which prevented them from inquiring more fundamentally with regard to the interests and values to be protected by a modern definition of the crime of aggression. Depending on the outcome of such an inquiry, the crime must be either more narrowly or broadly defined, in the latter case going beyond the state-centric approach of the Nuremberg law and Resolution 3314. To be sure, the SWGCA’s state-centric approach is defensible (e.g., by using the argument that the maintenance of the existing legal order is predicated on states),130 but such a defence cannot be limited merely to a formal recourse to pre-existing international law. In any case, as the law stands now, it is difficult, if not impossible, to read non-state acts of aggression into Article 8bis(2).131 Any extension of the list, especially by way of an analogy,132 conflicts with the principle of legality, as explained earlier. Apart from that, it would not eliminate the state-centric nature of the definition which already follows from the first sentence of Article 8bis(2) where reference is made to the use of ‘armed force by a State’. A broad reading of the term ‘armed’—if at all compatible with the principle of legality—would not change this requirement either. It may only be more inclusive with a view to other types of state attack, for example by way of the internet (‘cyber attacks’).133

(c)  The special offence character of the crime and the leadership clause

The leadership character of the crime of aggression has long been recognized.134 It is ultimately a consequence of the collective nature of the crime of aggression as a state (p. 205) crime which can only, if at all, be brought about by the leader(s) of the aggressive state acting in a collective form.135 Yet, the leadership requirement does not answer the question of who exactly belongs to the leadership circle (insider, intraneus/intranei) and how the possible criminal responsibility of persons outside the circle (outsider, extraneus/extranei) should be treated.

As to the first question, the definition of Article 8bis(1)—‘a person in a position effectively to exercise control over or to direct the political or military action of a State’—focuses on de facto effective control and direction rather than formal status. For that reason, leadership is not per se limited to political leaders and/or members of government, but may also extend to business or religious leaders.136 While it is true that the ‘effective control’ requirement is stricter than the Nuremberg ‘shape or influence policy’ criterion,137 this ‘retreat from Nuremberg’138 is justified since the ‘shape or influence’ or similar ‘major role’139 standards are so broad that, especially in democracies, an excessively large group of people would be covered.140 Criminal responsibility requires more than mere influence—namely, it requires effective control over aggressive policy in the sense of the control theories discussed in connection with (indirect) perpetration and command responsibility.141 Ultimately, this standard does cover non-political leaders with sufficient effective control142 and still extends too far (p. 206) down the political hierarchy for some.143 Indeed, the Nuremberg prosecutions of top bureaucrats, high-ranking military officials and industrialists show how difficult it is to hold persons directly below the actual leadership of a criminal regime responsible for a crime of aggression—at least if one wants to prove their personal responsibility, especially their mens rea.144

The second question as to the responsibility of extranei depends on the extent to which the leadership requirement reaches into the forms of participation recognized under the differentiated model of Article 25(3) ICC Statute.145 While the SWGCA’s decision to apply Article 25 to the crime of aggression is convincing from a systematic perspective since it is in line with the ICC Statute’s application of its general principles (the general part) to the crimes (the special part),146 the extension of the leadership clause to Article 25(3) by incorporating a subpara. 3bis reduces the effect of this differentiated solution to virtually nil (contrary to what the language of a qualitative ‘differentiated approach’, used during the negotiations, suggests). While an unreserved, differentiated solution would mean that extranei could be liable as ‘ordinary’ participants to a crime of aggression, the new Article 25(3bis) means that all these and other extranei are exempted from criminal responsibility since it is limited to intranei, that is, those ‘persons in a position effectively to exercise control over or to direct the political or military action of a State’ (subpara. 3bis). Thus, for example, the bureaucrat who prepares the plan for the invasion but does not belong to the leadership level cannot be held responsible for assisting a crime of aggression according to Articles 25(3)(c), 8bis.147 The soldier who forms part of the invasion army does not incur responsibility as a direct (physical) perpetrator of a crime of aggression according to Articles 25(3)(a), 8bis. Thus, Article 25(3bis), by limiting the application of Article 25 for the crime of aggression exclusively to intranei, creates impunity for extranei (at least as far as (p. 207) aggression is concerned).148 While this was apparently a conscious policy decision,149 albeit related to the decision in favour of the differentiated approach,150 the ensuing wide exemption of responsibility covering everyone who does not belong to the leadership circle is highly questionable and certainly deserves criticism.

Apart from that, it is questionable whether the leadership concept, rooted in a Weberian, Prussian model of organization with a clear hierarchy and chain of command151—which is, in fact, just as state-centric as the concept of act of aggression already criticized152—can be interpreted flexibly enough so as to capture modern, post-bureaucratic forms of organization as represented, for example, by paramilitary or terrorist non-state actors.153 For this purpose one would have to interpret the effective control criterion broadly and read into its second part (‘or to direct’) a form of decisive influence.154 But here again the limits imposed by the principle of legality must be respected and the intention of the drafters to narrow responsibility by the leadership requirement should not be ignored. In any case, what remains from the differentiated approach is the application of the forms of participation of Article 25(3) only to leaders,155 that is, in practice their responsibility as direct, indirect, or co-perpetrators (p. 208) (subpara. (a)),156 for ordering, instigating (both subpara. (b)), or any form of assistance (subpara. (c)). In contrast, responsibility for a contribution to a crime of aggression by a group of leaders (subpara. (d)) does not appear to be of great relevance, because a leader himself will normally belong to the criminal group committing such crime. Similarly, responsibility for an attempted crime (subpara. (f)) is, as generally in ICL,157 of little practical importance. We will return to this anticipated form of responsibility in the next subsection. Finally, superior responsibility within the meaning of Article 28, indeed discussed in the SWGCA,158 is logically impossible since it rests on the commission of the ‘base crimes’ by the subordinates who, however, due to the very existence of the leadership clause, cannot be perpetrators (or even secondary participants) of aggression.159

(d)  The conduct verbs and the criminalization of preparatory acts

As to the actual conduct entailing criminal responsibility, Article 8bis (1) borrows again from Nuremberg (and Tokyo), adopting the same wording apart from the final term, where ‘execution’ instead of ‘waging of a war’ is used.160 Thus, the drafters again preferred to rely on a historic precedent161 instead of initiating a principled discussion with a view to achieving an improved codification. In fact, the criminalization of clearly preparatory acts (‘planning’ and ‘preparation’)162 and the ensuing anticipated early intervention of criminal law is highly problematic for reasons of principle. Both the harm principle and the Rechtsgutslehre require the actual causation of harm or the actual violation of a protected (legal) interest in order to justify the intervention of the criminal law without violating the principle of culpability.163 Preparatory conduct, in contrast, creates, at most, certain risks which may lead to actual harm or a violation of a legal interest.164 In more practical terms current (customary) international law (p. 209) supports the criminalization of the preparation of an aggression only, at best, if hostilities are actually initiated.165 Thus, the criminalization of ‘planning’ and ‘preparation’ presupposes that the collective act of aggression has at least been ‘initiated’, that is, has reached the attempt stage. In any case, it seems as if Article 8bis(1) requires, as to the collective act, more than a mere attempt or threat since the drafters focused on the actual ‘act of aggression’, abandoning any preliminary conduct, in particular a mere threat to commit such an act.166 This is confirmed by the Elements, which make clear that the act of aggression must be ‘committed’.167

If this is the correct reading, any form of individual conduct contained in Article 8bis(1) can only become relevant if a qualified (collective) act of aggression, in the sense of para. 1 in connection with para. 2, has actually occurred. While this makes sense with a view to the generally restrictive tendency seen in the definition of the crime, the problem remains that the first three conduct verbs (‘planning’, ‘preparation’, and ‘initiation’) contained in para. 1 refer to a stage of the iter criminis before the actual ‘execution’, that is, apparently to stages of attempt (‘initiation’) and preparation (‘planning’, ‘preparation’).168 How can this be reconciled with the general criminalization of (individual) attempt according to Article 25(3)(f) which, by way of the differentiated solution mentioned earlier,169 also applies to the leaders (Article 25 (3bis)) involved in a crime of aggression? The answer depends on the exact meaning of these three conduct verbs with regard to general attempt in the sense of Article 25(3)(f). If one argues, as has been insinuated, that the last of these verbs (‘action that commences its execution by means of a substantial step’) corresponds to the ‘initiation’ phase of aggressive conduct, while ‘planning’ and ‘preparation’ belong to an earlier phase, preceding attempt in a similar manner to conspiracy,170 only ‘planning’ and ‘preparation’ would criminalize conduct that is not already covered by Article 25(3)(f), while the separate codification of ‘initiation’ by Article 8bis(1) would be superfluous. Apart from this, the possibility of an attempted crime of aggression (Articles 8bis(1), 25(3)(f)) (p. 210) entails, if taken at face value, the criminalization of attempted preparatory acts (‘planning’, ‘preparation’) and attempted attempt (‘initiation’). There is no convincing reason for such an overcriminalization.

From a more fundamental perspective of principle and policy, the anticipated ICL intervention brought about by the new crime of aggression raises serious questions.171 First of all, such an unprincipled extension of punishability is, as explained earlier,172 at least with regard to mere preparatory acts, difficult to justify in light of the harm principle and the Rechtsgutslehre (although the tension with these theories is mitigated by the fact that an act of aggression must actually have occurred).173 More importantly, such an overcriminalization will not have any tangible practical effect. In the SWGCA itself it was suggested that attempt is of little practical relevance174 and this applies, a fortiori, to mere preparatory acts. This is confirmed by the fact that attempt has, as an autonomous form of responsibility, never played any significant role in international criminal proceedings.175 It was implicitly recognized in the preparatory acts for the Nuremberg and Tokyo crimes against peace, but even there it became only judicially relevant as conspiracy176 (which is not included in Article 8bis!).177 In fact, prosecutors and courts normally only take recourse to preparatory acts if the actual crime has not been executed or consummated, not least for the evidentiary challenges involved in proving anything prior to the actual execution.178 While this could theoretically happen in the case of an aggression,179 it is not very probable that it will actually happen in the practice of the ICC, given the generally restrictive definition of Article 8bis(1) and the restrictive conditions for the exercise of jurisdiction. Indeed, if definition and jurisdiction are taken together, it is not very likely that a case of aggression still in the preparatory or attempt stage will ever come before the Court.

(p. 211) (e)  The mental element

As to the mens rea of a leader participating in the crime of aggression, it was recognized quite early by the SWGCA that Article 30 applies as a default rule and therefore any reference to mental elements in the definition of the crime, even to a special animus aggressionis,180 would be superfluous.181 As a consequence, the specific mental requirement depends on the qualification of the corresponding objective element as conduct, consequence or circumstance (Article 30(2)(a), (b) and (3)).182 Thus, for example, as to the leadership qualifier—a circumstance in the sense of Article 30(3)—in order to effectively control and direct state action, awareness of the factual position is required.183 As in the other international crimes,184 the mental element serves as the linking interface between the objective acts and the overarching criminal context, which is here the aggressive states’ conduct.185 Thus, the respective leader must be aware of the state act of aggression and of its criminal character.186

Yet, this awareness does not, as in the other crimes of the Statute,187 amount to a legal understanding, that is, to knowledge of the legal elements that turn a certain use of force into an unlawful act of state or even a crime of aggression.188 Awareness presupposes actual knowledge, not a lower standard of constructive knowledge, or even recklessness.189 Thus, regarding the use of force, for example, it is required that ‘the perpetrator knew of facts establishing the inconsistency of the use of force with the (p. 212) Charter of the United Nations’.190 The preference of ‘knowledge of facts’ over ‘knowledge of law’ entails that, in principle, only a mistake of fact (Article 32(1) ICC Statute) would be relevant, while a mistake of law (Article 32(2)) would be a limine precluded191 unless it negates the mental element required by the crime (Article 32(2 cl. 2)). This may be the case if the mistake refers to normative elements of the actus reus, that is, in casu, to ‘manifest’ or ‘use of force’.192

(3)  The exercise of jurisdiction

(a)  The trigger procedures and the role of the Security Council

In light of the Security Council’s primary, albeit not exclusive, power to determine whether an act of aggression has occurred (Articles 24, 39 UN Charter)193 and the options on the table in Kampala, including the Council’s exclusive authority to trigger an investigation,194 it is fair to say that the final result is a success in that the Court’s autonomy and integrity towards the Council was secured. The first achievement in this respect, already brought about by the SWGCA overcoming the former position of the Preparatory Commission’s working group,195 was to de-couple the definition of the crime of aggression (Article 8bis ICC Statute) from the conditions for the exercise of jurisdiction (Articles 15bis/ter).196 If this had not been achieved, the Security Council would have obtained the power to determine jurisdiction by way of the definition, and an unacceptable politicization and disastrous subversion of the Court’s authority would have ensued.197 However, while the Security Council is not—indeed, cannot be (p. 213) (according to Article 24 UN Charter)—prevented from making a determination of an act of aggression (Article 15bis(6)–(8) ICC Statute), such a determination ‘by an organ outside the Court’ is ‘without prejudice to the Court’s own findings’ (Articles 15bis(9), 15ter(4)). More importantly, such a determination is not a prerequisite for the exercise of jurisdiction given that all ‘ordinary’ triggers (Article 13) apply (Articles 15bis(1), 15ter(1))198 and the Security Council operates as a kind of ‘jurisdictional filter’.199 Thus, not only is the Court’s independence secured200 and it remains the ‘master of its own decisions’,201 but also the Prosecutor’s proprio motu authority (Article 15) has been maintained and even reinforced, since the Prosecutor may proceed even in the absence of a Security Council determination after six months ‘provided that the Pre-Trial Division authorizes the commencement of an investigation’ (Article 15bis (8)).202 Similar to the control of the Prosecutor’s ‘ordinary’ proprio motu authority under Article 15, the negotiators succeeded in avoiding external (preemptive) interference (by a political organ such as the Security Council) leaving it to the Court itself to make sure that there will be no abuse of power by the Prosecutor. The only difference is that Article 15bis(8) provides for an ‘enhanced internal filter’,203 entrusting the Pre-Trial Division instead of a mere Pre-Trial Chamber (see Article 15(3)) with the control, that is, a majority of all six members of that Division (Article 39(1)) sitting together en banc.204 Although the Security Council may suspend an ongoing investigation or prosecution pursuant to Article 16, (p. 214) this is, again, a power which it already possesses under the ordinary procedure205 and which has not yet been used to this effect.206

It is not entirely clear, however, what will happen if the Security Council makes a negative determination. This situation is not explicitly regulated in Article 15bis since it only speaks of a ‘determination’ (paras. 6–9). This refers to a positive determination as follows from para. 6 (‘determination of an act of aggression committed’) which serves as the basis of para. 7, 8 (‘such (a) determination’).207 Consequently, a negative determination must be treated equivalently to a non-determination in the sense of para. 8, and the corresponding procedure is applicable. It may well be in such a situation that the Prosecutor and/or the Pre-Trial division take the negative determination as a strong argument against proceeding with an investigation, but formally, pursuant to para. 9 (‘without prejudice to the Court’s own findings’), they are not obliged to do so.208

All in all, it is fair to say that the final compromise reconciles these conflicting views,209 namely those that did not want to renounce the Security Council’s authority (i.e. especially its permanent members) and those that wanted to ensure the integrity and autonomy of the Court on the basis of the ordinary rules (especially Article 15). Indeed, the compromise certainly achieved the realistic (and, at the same time, unexpected)210 maximum in terms of ensuring the Court’s independence211 and also accounts for the fears of those critics who predicted a (further) politicization of the Court through the strong involvement of the Security Council.212

(b)  Conditions for the exercise of jurisdiction and jurisdictional limitations (Article 15bis(4) and (5))

As described in the previous subsection, the interplay of paras. 2 and 3 (of both Article 15bis and ter) makes the Court’s exercise of jurisdiction dependent on two separate, (p. 215) but cumulative213 mechanisms whose final outcome in terms of substance and timing is difficult to predict. What is clear is that the Court cannot exercise jurisdiction before 1 January 2017, that is, before a ‘majority of State Parties’ (i.e. two-thirds214) has taken the decision required by para. 3 (of Article 15bis/ter), even if the thirty States Parties necessary pursuant to para. 2 have already ratified or accepted the amendment by 31 December 2015215 (i.e. one year before the postponement date provided for in para. 3).216 It is much more probable, though, that the exercise of jurisdiction will be delayed217 well beyond 1 January 2017, either because the respective decision required according to para. 3 will be taken months or years later—indeed para. 3 only speaks of a decision to be taken ‘after’—or because thirty States Parties will not have ratified or accepted the amendment by this date.218 Even worse, if the ‘majority of States Parties’ does not take the decision provided for in para. 3 at all—considered an unlikely scenario by some219—the compromise in Kampala could turn out to be little more than a paper tiger. In fact, as of 19 August 2013 only seven States Parties have ratified the amendments on the crime of aggression.220 In practical terms, it is probable that the ASP will decide to hold a new Review Conference in 2017, or once the thirty ratifications become effective (if this is later than 2017). The ASP could also decide to adopt the new definition of aggression on its own. A different issue is whether the Court can exercise its jurisdiction over a crime of aggression committed before the para. 3 decision has been taken but after the receipt of the thirtieth instrument of ratification pursuant to para. 2. While this is incompatible with Understandings 1 and 3,221 which provide for the cumulative fulfillment of paras. 2 and 3, the legal nature of the Understandings is controversial.222

(p. 216) Against this background, it seems to be of minor importance to establish the exact provisions according to which such decisions must be taken. In fact, this rather technical question has been largely ignored in academic discussion so far. The starting point is Article 5(2),223 which refers in not unambiguous terms224 to Article 121 and 123, the former being the relevant Article for amendments. According to Article 121(3), an amendment may be ‘adopted’ by the ASP or a Review Conference with a two-thirds majority if consensus cannot be reached. Yet, ‘adoption’ in the sense of Article 121(3) only requires simple approval by the Review Conference giving full effect to the amendment without further ado. In particular, a national ratification procedure is not required. This may be adequate for amendments of an institutional nature according to Article 122, but does not suffice for a substantive amendment creating an actionable crime, which can hardly be accepted by states without an internal process of approval. This remains the case even if its basis was already laid in Rome with Article 5(2), and this kind of ‘automatic’ adoption seems to be in line with the automatic jurisdiction regime of Article 12(1).225 Thus, ‘adopted’ in Article 5(2) means more than ‘adoption’ in Article 121(3), calling for a qualified adoption procedure going beyond mere approval in the sense of Article 121(3).226 While the mention of the ‘same majority of States Parties’ in Article 15bis/ter(3) refers to the two-thirds majority of States Parties of Article 121(3) (Articles 15bis/ter(3) only require a ‘decision’),227 Articles 15bis/ter(2) require individual ratification by States Parties to ensure the qualified adoption procedure mentioned. It must be read together with para. 1 of the operative part of the Resolution stipulating that the amendment is ‘subject to ratification or acceptance and shall enter into force in accordance with Article 121, paragraph 5’.228

Article 121(5), in turn, refers to amendments of Articles 5–8 and is insofar lex specialis to Article 121(4), which applies to other (jurisdictional or procedural) amendments.229 Yet, the difficult question remains whether adoption in the sense of Article 5(2) is an ‘amendment’ in the sense of Article 121(5). While this is debatable and indeed was debated quite extensively during the negotiations,230 the different consequences of (p. 217) both provisions are reasonably clear. While Article 121(4) binds all States Parties but requires a seven-eighths majority, Article 121(5) provides for an individual acceptance procedure per state and thus corresponds, in essence, to Articles 15bis and ter(2).231 In any case, the fact that Article 121(4) is no longer mentioned in the final resolution, but Articles 15bis/ter(5) are mentioned (explicitly in para. 1 and implicitly in para. 2), quite clearly indicate that the drafters, ultimately, opted for Article 121(5).232 This provision is predicated on the distinction between States Parties that accept an amendment and those that do not. In the latter case the Court cannot exercise jurisdiction over the respective crime ‘when committed by that State Party’s nationals or on its territory’. Taken at face value, this means—in the sense of a so-called negative understanding233—that the Court has no jurisdiction over the nationals of an aggressor State Party if this state has not accepted the amendment.234 This means that if State Party A (aggressor state), which has not accepted the amendment, invades State Party B (victim state), which has accepted it, the nationals of State Party A could not be prosecuted by the Court, even though the territoriality principle (Article 12(2)(a))—A acts on the territory of B!—would demand so. This negative understanding has two further implications. First, it creates two jurisdictional regimes for aggression and the other crimes of the Rome Statute, since the territoriality principle fully applies to the latter without any opt-out possibility for States Parties or even other states (not Parties).235 Secondly and more importantly, it discriminates against non-States Parties who do not have the possibility of not accepting the amendment for the very fact that they are not States Parties, as Article 121(5) only addresses States Parties.236

To avoid this discrimination and respect state sovereignty to the fullest extent possible, Article 15bis(5) generally excludes jurisdiction over non-States Parties (adopting the wording of Article 121(5) cl. 2 last part),237 while para. 4 provides for an opt-out declaration—relatively similar to Article 124—for States Parties.238 Both provisions (p. 218) establish true ‘conditions’ for the exercise of jurisdiction in the sense of Article 5(2),239 but raise some critical questions. Para. 4 recognizes Article 12 and thus implicitly amends Article 121(5), second sentence, in that the jurisdiction over the crime of aggression is automatic (Article 12(1));240 yet, at the same time, para. 4 creates an exception from this by allowing an opt-out.241 The declaration must be made ‘previously’, even ‘prior to ratification or acceptance’ (para. 1 Resolution), that is, in any case before the actual commission of an act of aggression.242 The problem is, apart from the difficult relationship with Article 121(5)(2),243 para. 4 could lead to the rather strange situation that a State Party first ratifies the amendment and helps to reach the thirty States Parties threshold of para. 2 and then decides to opt out.244 Why would it do that? To make the crime enforceable in general but not against itself?245 To make it possible that only the Security Council can refer cases to the Court?246 Para. 5, in fact, privileges the three permanent members of the Security Council that are not States Parties (China, Russia, USA) over other non-States Parties. Because Article 15ter applies to all states, the Security Council could, if this was initiated by these three members, refer a situation concerning other non-States Parties, but it would obviously never use this power against its own members.247 Yet, apart from that, para. 5 should not be interpreted as implying a form of reciprocity which would also exclude jurisdiction over States Parties which act together with a non-State Party or commit the crime of aggression against a non-State Party.248 Para. 5 only impedes jurisdiction for acts ‘committed by that State’s [i.e., the non-State Party’s] nationals or on its [i.e., the non-State Party’s] territory’. In contrast, if a State Party is the aggressor, alone or jointly with a non-State Party, only Article 15bis(1)–(4) would apply, that is, the Court’s jurisdiction depends on the type of referral (para. 1), the general entry into force (paras. (p. 219) 2, 3) and the absence of an opt-out declaration (para. 4). If all these conditions are fulfilled, the general rule of Article 12 applies, so that jurisdiction can be based on the principles of territoriality or nationality.249 Thus, if, for example, State Party A attacks non-State Party B, the Court’s jurisdiction could be based either on territoriality (Article 12(2)(a)) for the acts carried out on A’s territory, or on nationality (Article 12(2)(b)) for the acts carried out on B’s territory in as far as A’s nationals participate in the aggression.

Clearly, the restrictions of paras. 4 and 5 refer only to state referrals and proprio motu proceedings, but not to Security Council referrals. The Security Council acts on the basis of its Chapter VII authority and thus may extend jurisdiction to non-States Parties once the amendment has entered into force (Article 15ter omitting Article 15bis(4) and (5)). Nothing different follows from Article 15ter(2), since the ratification of thirty States Parties is only a ‘procedural hurdle’ to the entry into force.250 Also, quite remarkably, a Security Council referral is not predicated on a (explicit) Security Council determination of an act of aggression.251

A further controversial question, referring to both Article 15bis and ter, is whether, with the ratification of the thirty States Parties (para. 2) and the two-thirds majority decision to be taken after 1 January 2017 (para. 3 in connection with Article 121(3)), the new provisions will enter into force for all States Parties.252 While this seems to fly in the face of Article 121(5) since this provision requires an entry into force per state (‘for those State Parties that …’), it would give the opt-out clause of Article 15bis(4) its full effect, leaving it then in the hands of each State Party if it wants to be bound by the (new) crime of aggression.253 This seems to be a reasonable interpretation. The apparent conflict with Article 121(5) could be resolved by interpreting Articles 15bis/ter(2) as a partial lex specialis, and posterior to Article 121(5) as to the number of ratifications required. In other words, Article 121(5) applies with a view to Articles 15bis/ter(2) (only) until thirty ratifications have been reached.

Taken together, the general conditions for the exercise of jurisdiction (Article 15bis/ter(2) and (3)) and the jurisdictional limitations only applicable to state referral and proprio motu investigations (Article 15bis(4) and (5)) lead to a situation which an experienced observer has aptly described as the ‘patchy coverage’ of the crime of aggression.254 Indeed, while under the current jurisdictional regimes the Prosecutor must basically distinguish, except in case of a Security Council referral, between States and non-States Parties (Article 12), the new crime of aggression will make a more (p. 220) sophisticated analysis necessary to determine jurisdiction.255 If the current regime and proliferation of international criminal courts makes the lives of interested observers, especially journalists, difficult, things will get much worse once the jurisdiction over the crime of aggression can be exercised. Apart from that the overall assessment is mixed. While the ‘delayed’ start for the jurisdiction is beneficial for both the States Parties and the Court in that it leaves enough time for them to prepare for the entry into force,256 the jurisdictional exceptions constitute significant limitations which may undermine the Court’s legitimacy, at least with regard to its treatment of the crime of aggression.257

D. Final Remarks

Given the effort spent on codifying the crime of aggression over many decades, the complex issues involved and the generally pessimistic expectations as to the actual implementation of Article 5(2),258 the results achieved at Kampala can rightly be qualified as a success.259 Of course, the drafters’ heavy reliance on the historical precedents (Nuremberg, Tokyo, and Resolution 3314) and the ensuing unprincipled (p. 221) approach may give rise to the criticism that the result (establishing any crime of aggression) was more important than its contents,260 but this would ignore the dynamics of diplomatic negotiations of this kind. In any case, only time will tell if this success will also, despite the flaws and inconsistencies in the final outcome, translate into an effective instrument to fight and ultimately reduce aggressive wars by means of classical criminal law deterrence.261 The delegates’ successful attempt to maintain the integrity of the Court and to reduce the interference of the Security Council to the unavoidable minimum, thereby preventing the politicization of the crime of aggression from the outset, gives reason to hope that the judges of the ICC will indeed, as stated by its current Vice-President, ‘reject every attempt to politically exploit the Court’.262

Footnotes:

1  For a thorough historical account, see Solera, Aggression (2007), pp. 15 ff.; Kemp, Aggression (2010), pp. 73 ff.; Corredor C., Agresión (2012), pp. 5 ff.; Sellars, JICJ, 10 (2012), 7 ff. (mainly between the two world wars); for more succinct accounts see Werle, Principles (2009), mn. 1312 ff.; Werle, Völkerstrafrecht (2012), mn. 1420 ff.; Safferling, Internationales Strafrecht (2011), § 6 mn. 165 ff.; Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), pp. 312 ff.; Gaja, ‘Repressing Aggression’, in Cassese et al., Rome Statute, i (2002), pp. 427 ff.; Kreß and von Holtzendorff, JICJ, 8 (2010), 1180 ff.; Kreß, GA, 158 (2011), 66 ff.; Kacker, Suffolk Transnat’lLR, 33 (2010), 258 ff; Kolb, ‘Droit international pénal’ in Kolb, Droit international pénal (2008), pp. 169–70; Bassiouni, Introduction to ICL (2013), pp. 632 ff.

2  See Article 6(a) IMT(S) reprinted in UNTS, 82 (1951), 280; Article 5 (a) IMTFE(S) reprinted in Boister and Cryer, Tokyo Tribunal (2008), pp. 7–11. See also Principle VI (a)(i) Nuremberg Principles, UN-YB ILC 1950 II, 3, 376 ff.; on the Nuremberg Principles, see Volume I of this treatise, pp. 9–10; see also Einarsen, Universal Crimes (2012), p. 43–5.

3  On the meaning of ‘war of aggression’, see also Müller-Schieke, LJIL, 14 (2001), 418–19; critically, Clark, LJIL, 15 (2002), 878; on violation of the nullum crimen principle, see Vest, Gerechtigkeit für Humanitätsverbrechen? (2006), p. 148; critical also Zahar and Sluiter, ICL (2008), pp. 84–5; on the judgments of the IMTFE, see Boister and Cryer, Tokyo Tribunal (2008), pp. 119 ff. On the historical importance of the Nuremberg Trials for the Kampala Compromise, see Kaul, ZIS, 5 (2010), 637 ff.

4  cf. IMT, Judgment of IMT (1946), p. 12; Bassiouni, Introduction to ICL (2013), p. 227 (‘most harmful [crime] to peace and security’). For a critical analysis of the Nuremberg Judgment in this regard, see Weigend, JICJ, 10 (2012), 44 ff.

5  cf. Pritchard, Tokyo Trial ii (1998), p. xxxv; also Roggemann, Die internationalen Strafgerichtshöfe (1998), p. 185.

6  GA Res. 3314 (XXIX) (14 December 1974), UN Doc. A/RES/3314(XXIX), Annex, Definition of Aggression: Article 1: ‘Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations […]; Article 3: Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of Article 2, qualify as an act of aggression: (a) 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 or part thereof, (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.’

7  Reprinted in Barriga, Danspeckgruber, and Wenaweser, Princeton (2009), pp. 231–4 (hereafter ‘Princeton (2009)’).

8  See for the Rome negotiations, Solera, Aggression (2007), pp. 356 ff.; Kemp, Aggression (2010), pp. 194 ff.; Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), pp. 316–17; Gaja, ‘Repressing Aggression’, in Cassese et al., Rome Statute, i (2002), pp. 430 ff., 435 ff.

9  On its work, see Fernández de Gurmendi, ‘An Insider’s View’, in Politi and Nesi, The ICC and Aggression (2004), pp. 175, 176 ff.

10  SWGCA, February 2009 Report (February 2009—ICC-ASP/7/20/Add.1, Annex II), reprinted in Princeton (2009), pp. 49–59; all ICC Documents are available at <http://icc-cpi.int>. See on the post-Rome negotiations, Clark, ‘Aggression’, in Stahn and Sluiter, Emerging Practice (2009), p. 709; Kemp, Aggression (2010), pp. 207 ff.; Kreß and von Holtzendorff, JICJ, 8 (2010), 1183 ff.; Trahan, ICLR, 11 (2011), 54 ff.; Weisbord, DukeJComp&IL, 20 (2009), 1 ff.

11  Resolution No. ICC-ASP/8/Res.6, 26 November 2009, 1. The proposal is annexed as Appendix I to the February 2009 Report, see note 10, pp. 60–2.

12  RC/WGCA/1, 25 May 2010, available at <http://icc-cpi.int/iccdocs/asp_docs/RC2010/RC-WGCA-1-ENG.pdf> accessed 1 April 2013; thereto, Wenaweser, LJIL, 23 (2010), 884.

13  See Rules 49(2), 51 of the Review Conference Rules of Procedure, Resolution No. ICC-ASP/6/Res.2, Annex IV, 28, available at <http://icc-cpi.int/iccdocs/asp_docs/Resolutions/ICC-ASP-ASP6-Res-02-ENG.pdf> accessed 1 April 2013. See also Kreß and von Holtzendorff, JICJ, 8 (2010), 1201 on the uncertain political will to even hold a vote and the uncertainty as to the sufficient number of delegates; ‘on the power of consensus’ in this context, see Blokker and Kreß, LJIL, 23 (2010), 890–1. On the negotiations, see also Wenaweser, LJIL, 23 (2010), 883 ff.; Manson, CLF, 21 (2010), 417 ff.; Corredor C., Agresión (2012), 35 ff.

14  On protected legal interests in ICL, see Volume I of this treatise, pp. 60 ff., 66; cf. also Safferling, Internationales Strafrecht (2011), § 6 mn. 174; Bassiouni, Introduction to ICL (2013), p. 227.

15  On the distinction between ‘Einzeltat’ and ‘Gesamttat’, see Volume I of this treatise, pp. 84 ff. with further references.

16  Hummrich, Aggression (2001), p. 149; van Schaack, JICJ, 10 (2012), 149 (‘State committed an act of aggression as a predicate to assigning individual criminal responsibility’); stressing the collective dimension of aggression Fletcher, Grammar (2007), p. 333.

17  Article 6(a) IMT(S); Article 5(a) IMTFE(S); Principle VI(a)(ii) Nuremberg Principles.

18  Article 6 IMT(S) and Article 5 IMTFE(S), both last clauses (emphasis added).

19  The following considerations draw largely on Ambos, GYIL, 53 (2010), 463 ff.

20  Note that, according to Article 5(1), the crime of aggression was already within the jurisdiction of the Court and thus the question for the states to solve concerned the conditions for the exercise of this jurisdiction, see also Manson, CLF, 21 (2010), 425. Critical of whether Article 5(2) can be the ‘basis for bringing into force any amendment regarding the crime of aggression’, see Zimmermann, JICJ, 10 (2012), 212–15.

21  See also Kaul, GoJIL, 2 (2010), 663: ‘The real debate was on three related issues regarding the exercise of jurisdiction by the Court’; similarly, Heinsch, GoJIL, 2 (2010), 716; Schmalenbach, JZ, 65 (2010), 746–7.

22  Report of the SWGCA (see note 10), Appendix I. See also for the different ‘definitional models’, Kaul, ‘Aggression’, in Politi and Nesi, The ICC and Aggression (2004), pp. 99 ff.

23  See note 11.

24  Resolution No. RC/Res.6, advance version, 16 June 2010. Critical, see Scheffer, LJIL, 23 (2010), 897 ff.; detailed, see Kacker, Suffolk Transnat’lLR, 33 (2010), 258 ff.

25  See Koh, ‘Statement at the Review Conference’, available at <http://state.gov/s/l/releases/remarks/142665.htm> accessed 1 April 2013: ‘Finishing the unfinished business of Rome does not mean rushing into a premature conclusion on institution-transforming amendments [without] genuine consensus’. On the US engagement in the negotiations, see Kreß and von Holtzendorff, JICJ, 8 (2010), 1204 ff.; Kreß, GA, 158 (2011), 84 ff.

26  Reprinted in Princeton (2009), pp. 231–4.

27  Resolution No. RC/Res. 6, advance version, 16 June 2010. Annex I No. 5. On the special offence character of the crime of aggression as a Leadership Crime, see Section C. (2)(c); Kacker, Suffolk Transnat’lLR, 33 (2010), 258 ff.; on the roots of the Leadership Clause see Weisbord, DukeJComp&IL, 20 (2009), 44 ff.

28  See note 2 and main text. For the travaux, see SWGCA, November 2008 Report (November 2008—ICC-ASP/6/SWGCA/1), para. 29, reprinted in Princeton (2009), p. 76 (‘mainly for historical reasons’); see also SWGCA, December 2007 Report (December 2007—ICC-ASP/6/SWGCA/1), para. 8, reprinted in Princeton (2009), p. 100. See also Corredor C., Agresión (2012), p. 70.

29  ‘Planning requires that one or more persons design the criminal conduct constituting [the] statutory crime[s] that [is] later perpetrated’ (cf. Manacorda, ‘Planning’, in Cassese, Companion (2009), pp. 456–7); ‘Preparation’ means ‘the act or process of devising the means necessary to commit a crime’ (Garner, Law Dictionary (2009), p. 1301). ‘Initiation’ means that the perpetrator is ‘taking action that commences the execution by means of a substantial step’ (Eser, ‘Article 25’, in Cassese et al., Rome Statute, i (2002), p. 812). See also Corredor C., Agresión (2012), pp. 63 ff.

30  On the overcriminalization to which this early intervention of criminal law leads, see Section C. (2)(d).

31  cf. Section C. (2)(d).

32  See Koh, ‘Statement at the Review Conference’, available at <http://state.gov/s/l/releases/remarks/142665.htm> accessed 1 April 2013, pp. 3 ff. In the view of the USA, certain uses of force would remain both lawful and necessary and the proposed definition did not truly reflect customary international law. Furthermore, Koh criticized the risk of unjustified domestic prosecutions, as too little attention had been paid to the application of the principle of complementarity and the dependence of the definition on the trigger mechanism was not sufficiently addressed.

33  See Trahan, ICLR, 11 (2011), 73 ff.; Blokker and Kreß, LJIL, 23 (2010), 892; Resolution No. RC/Res. 6, advance version, 16 June 2010, Annex III (Understandings regarding the amendments to the Rome Statute on the ICC on the Crime of Aggression); on the Understandings, see Kreß, Barriga, Grover, and von Holtzendorff, ‘Negotiating the Understandings’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 81 ff; on the legal status of the Understandings, see Heller, JICJ, 10 (2012), 231 ff. who considers them as mere supplementary means of interpretation that can be ignored by the court (245 ff.).

34  Resolution No. RC/Res. 6, advance version, 16 June 2010, Annex III: ‘4. It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with Article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. 5. 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.’ These Understandings respond to concerns voiced at the beginning of the Conference, see ICC, Non-Paper by the Chair: Further elements for a solution on the Crime of Aggression, RC/WGCA/2, 25 May 2010, para. 4; see Kreß, Barriga, Grover, and von Holtzendorff, ‘Negotiating the Understandings’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 90–4.

35  Resolution No. RC/Res. 6, advance version, 16 June 2010, Annex III: ‘6. it is understood that aggression is the most serious and dangerous form of the illegal use of force; and that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations.’ See Kreß, Barriga, Grover, and von Holtzendorff, ‘Negotiating the Understandings’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 95–6.

36  Resolution No. RC/Res. 6, advance version, 16 June 2010, Annex III: ‘7. It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself.’

37  First mentioned under ‘list of issues’ in the SWGCA, June 2004 Report (June 2004—ICC-ASP/3/SWGCA/INF.1), Appendix, section II, reprinted in Princeton (2009), p. 210; see then—in chronological order with increasing importance—June 2005 Report (June 2005—ICC-ASP/4/32), Appendix II No. 4, reprinted in Princeton (2009), p. 183; June 2006 Report (June 2006—ICC-ASP/5/SWGCA/INF.1), Appendix II, section II, reprinted in Princeton (2009), pp. 159–60 (preliminary draft); December 2007 Report (December 2007—ICC-ASP/6/SWGCA/1), para. 40, reprinted in Princeton (2009), p. 106; June 2008 Report (June 2008—ICC-ASP/6/20/Add.1, Annex II), paras. 93–7, reprinted in Princeton (2009), pp. 92–3; November 2008 Report (November 2008—ICC-ASP/6/SWGCA/1), paras. 30–4, reprinted in Princeton (2009), pp. 76–7; February 2009 Report (February 2009—ICC-ASP/7/20/Add.1, Annex II), section IV, reprinted in Princeton (2009), p. 58; on the negotiations for the Elements, see Anggadi, French and Potter, ‘Negotiating the Elements’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 58 ff.

38  SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), Annex II No. 2 and Appendix I, reprinted in Princeton (2009), pp. 36–7.

39  SWGCA, June 2009 Report, Annex I, reprinted in Princeton (2009), p. 35.

40  Res. No. ICC-ASP/7/20/Add. 1, Annex II, Appendix 7.

41  RC/WGCA/1, 25 May 2010, Annex II, 6.

42  Amendments to the Elements of Crimes, Resolution No. RC/Res. 6, advance version, 16 June 2010, Annex II, 5. See also Clark, GoJIL, 2 (2010), 694; Heinsch, GoJIL, 2 (2010), 720.

43  With respect to an act of aggression, more than one person may be in a position to meet these criteria (footnote in the original); cf. Anggadi, French, and Potter, ‘Negotiating the Elements’, in Barriga and Kreß, Travaux Préparatoires (2012), p. 67.

44  See also Barriga, ‘Against the Odds’, in Princeton (2009), pp. 11 ff.; Wenaweser, LJIL, 23 (2010), 884; Werle, Völkerstrafrecht (2012), mn. 1461 ff.; Werle, Principles (2009), mn. 1349 ff; Weisbord, ColJTransnat’lL, 50 (2011–2012), 93–8; Corredor C., Agresión (2012), pp. 140 f, 145; Bassiouni, Introduction to ICL (2013), pp. 635; Politi, JICJ, 10 (2012), 272 ff. Critical of the role of the Security Council from the perspective of human rights organizations, see von Braun and Micus, JICJ, 10 (2012), 115 ff.

45  See Clark, GoJIL, 2 (2010), 699–700; Schmalenbach, JZ, 65 (2010), 749 left column. On the correct legal interpretation, see note 193; in particular on the possible options, see Trahan, ICLR, 11 (2011), 60 ff.

46  On the appropriate amendment regime applicable to the crime of aggression, see Zimmermann, JICJ, 10 (2012), 212 ff.

47  SWGCA, February 2009 Report (February 2009—ICC-ASP/7/20/Add.1, Annex II), reprinted in Princeton (2009), pp. 49 ff.

48  Res. No. ICC-ASP/8/Res. 6 (note 11), Annex II, 3.

49  RC/WGCA/1/Rev.1, (note 12), Annex I, 3.

50  See also Barriga, ‘Against the Odds’, in Princeton (2009), p. 14; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 33–6.

51  All non-papers quoted here are also reproduced in Trahan, ICLR, 11 (2011), 96 ff. For detailed daily summaries, see the blog of William Schabas, ‘The ICC Review Conference: Kampala 2010’, <http://iccreviewconference.blogspot.com> accessed 1 April 2013; see also Reisinger-Coracini, GoJIL, 2 (2010), 756 ff.; Schmalenbach, JZ, 65 (2010), 746; Barriga, ZIS, 5 (2010), 645 ff.; Trahan, ICLR, 11 (2011), 68 ff.; on the four boxes relating to the filter mechanisms, Trahan, ICLR, 11 (2011), 62–3.

52  The proposal was made by Argentina, Brazil, and Switzerland on 6 June. See also Barriga, ‘Against the Odds’, in Princeton (2009), pp. 15–16; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 37–9; Wenaweser, LJIL, 23 (2010), 885; Kreß and von Holtzendorff, JICJ, 8 (2010), 1202; Manson, CLF, 21 (2010), 421.

53  Canada proposed an Article 15bis based on the Working Group’s proposal of para. 4, alternative 2, option 2 as quoted earlier.

54  See RC/WGCA/2, 25 May 2010, para. 2: ‘Timing of the entry into force of the amendments: Concerns have been raised at the prospect of an early entry into force of the amendments on the crime on aggression in case Article 121, paragraph 5, of the Statute was to be applied. Such concerns could possibly be addressed by a provision specifying that the Court should begin exercising jurisdiction over the crime of aggression at a later stage only. Such a provision would not as such affect the timing of the entry into force of the amendments, but would effectively delay the Court’s exercise of jurisdiction …’ (emphasis in the original). cf. Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 50–1.

55  Wenaweser, LJIL, 23 (2010), 886. For a summary of the President’s papers and non-papers, see Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 51–6.

56  Article 15bis (8). The emphasis is in the original to make clear that the bold part was added to this last proposal.

57  Critically, Stahn, LJIL, 23 (2010), 878–9.

58  Para. 3 reads: ‘[3. insert provision on delayed entry into force] The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute’ (italics and brackets in original).

59  Para. 4 reads: ‘The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years.’

60  Para. 5 reads: ‘In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory’ (emphasis added).

61  According to Reisinger-Coracini, GoJIL, 2 (2010), 763 the time was 12:19am, on 12 June 2010 (the clocks in the conference hall had been taken down); on the Final Compromise Proposal, see also Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 56–7.

62  According to Blokker and Kreß, LJIL, 23 (2010), 893, the consensus solution became possible because ‘the delegations of the United Kingdom and of France had to realize their isolation within the community of State Parties to the Rome Statute’.

63  Manson, CLF, 21 (2010), 434–5; Manson, ‘Smoothing out the Rough Edges of the Kampala Compromise, 18 June 2010’, 6 <http://mediafire.com/?kmdzhwozudo> accessed 1 April 2013; Schmalenbach, JZ, 65 (2010), 746; Kreß and von Holtzendorff, JICJ, 8 (2010), 1180.

64  Resolution No. RC/Res.6, advance version, 16 June 2010, Annex I, Nos. 3 and 4, 3–4 (emphasis added). A critical analysis of the exercise of jurisdiction follows in Section C. (3); crit. also Scheffer, LJIL, 23 (2010), 901 ff.; Manson, CLF, 21 (2010), 420 ff.

65  Resolution No. RC/Res.6, advance version, 16 June 2010, Annex III, No. 6. On the advantages of this postponement see Politi, JICJ, 10 (2012), 270 ff.

66  See, on the one hand, Kreß, EJIL, 20 (2009), 1132–3 and, on the other, Paulus, EJIL, 20 (2009), 1118. See also Griffiths, ICLR, 2 (2002), 313; Werle, Principles (2009), mn. 1322 ff.; Werle, Völkerstrafrecht (2012), mn. 1430 ff.; Satzger, Internationales Strafrecht (2013), § 16 mn. 77 ff.; Satzger, ICL (2012), § 14 mn. 77 ff.; Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), pp. 312, 321; Cassese et al., ICL (2013), pp. 139–40, 142–3; Reddi, ICLR, 8 (2008), 686; Reisinger-Coracini, ‘Evaluating Domestic Legislation’, in Stahn and Sluiter, Emerging Practice (2009), p. 725; Gomaa, ‘The Definition of the Crime of Aggression’, in Politi and Nesi, The ICC and Aggression (2004), pp. 72 ff.; Manson, CLF, 21 (2010), 439 (even ius cogens); Bassiouni, Introduction to ICL (2013), p. 667 (‘codifies developments in customary international law’). From the case law, see R v Jones et al. [2006] UKHL 16 paras. 12, 19, 44, 59, 96, 97 and 99 (2006). See also Mancini, NordJIL, 81 (2012), 245 ff., considering that the Kampala definition of aggression is broader than that of customary international law.

67  Critically, Satzger, Internationales Strafrecht (2013), § 16 mn. 87; Satzger, ICL (2012), § 14 mn. 87; in favour of a judicial determination of the crime, see King, ‘Aggression’, in Brown, Handbook ICL (2011), p. 140; on the concerns of human rights organizations as to an ‘overburdening and politicizing the Court’ through a definition of the crime of aggression, see von Braun and Micus, JICJ, 10 (2012), 118 ff.

68  See, for example, Schuster, CLF, 14 (2003), 2, suggesting the deletion of aggression from the Statute because a ‘legally sound’ definition is not possible and because its codification cannot be supported by arguments of precedent, supremacy or deterrence (9 ff., 18); also critical, Creegan, JICJ, 10 (2012), 62 ff. arguing that aggression is a ‘political crime’. For a ‘cautious attitude towards […] the invocation of criminal law to regulate the use of force by States’, see also Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), p. 332; sceptical also Kittichaisaree, ICL (2002), p. 217 (‘doubtful whether an iron clad definition of aggression that satisfies the principle of legality … could ever be agreed upon’); cf. also Milanovic, JICJ, 10 (2012), 172 ff., advocating for independence of the Statute from customary law in ‘creating the international crimes defined within it’.

69  For example, the question whether of the prosecution of jus ad bellum violations has a negative impact on compliance with jus in bello rules by the State concerned; see Paulus, EJIL, 20 (2009), 1126; cf. also contra Kreß, EJIL, 20 (2009), 1133–5.

70  See, for example, Paulus, EJIL, 20 (2009), 1127, with the similar argument that the Court is ‘grappling with problems partly of its own making, partly being the inevitable result of its remoteness from the scenes of the crimes under its jurisdiction, it needs to keep the ranks closed …’.

71  cf. Volume I of this treatise, pp. 56 ff.

72  For a reappraisal of the classical criticism in terms of the principle of legality, see May, Aggression (2008), pp. 146 ff.; Glennon, YaleJIL, 35 (2010), 74 ff. See also Werle, Principles (2009), mn. 1324; Werle, Völkerstrafrecht (2012), mn. 1432. This sharply contrasts with Benjamin Ferencz’s quite romantic glorification of Nuremberg, see Ferencz, CWRJIL, 41 (2009), 281, considering the crime to have been ‘adequately defined’.

73  cf. Glennon, YaleJIL, 35 (2010), 78 ff.

74  As put by one of the drafters himself: ‘The ultimate challenge that Nuremberg leaves us with, in respect of the crime against peace is whether twenty-first century drafters can do better than those in London sixty-one years ago. It is still a daunting task’ (Clark, WashUGlSLR, 6 (2007), 550).

75  See SWGCA, June 2005 Report, (June 2005—ICC-ASP/4/32), Discussion Paper 3, reprinted in Princeton (2009), p. 196; SWGCA, June 2006 Report (June 2006—ICC-ASP/5/SWGCA/INF.1), reprinted in Princeton (2009), pp. 142–3, pp. 145–6; SWGCA, January 2007 Report (January 2007—ICC-ASP/5/SWGCA/1), reprinted in Princeton (2009), p. 134; SWGCA, June 2007 Report (June 2007—ICC-ASP/6/SWGCA/INF.1), reprinted in Princeton (2009), pp. 116–17; SWGCA, December 2007 Report (December 2007—ICC-ASP/6/SWGCA/1), reprinted in Princeton (2009), p. 101; SWGCA, June 2008 Report (June 2008—ICC-ASP/6/20/Add.1, Annex II), reprinted in Princeton (2009), p. 89. See also Barriga, ‘Against the Odds’, in Princeton (2009), pp. 9–10; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 24–8; Kreß, EJIL, 20 (2009), 1136; Corredor C., Agresión (2012), pp. 106–7.

76  See also Clark, EJIL, 20 (2009), 1104–5. In contrast, Glennon’s analysis (YaleJIL, 35 (2010), 88 ff., 98) appears quite isolated.

77  See Section A. (1); cf. also Schabas, Introduction (2011), p. 149; Safferling, Internationales Strafrecht (2011), § 6 mn. 175 ff.; King, ‘Aggression’, in Brown, Handbook ICL (2011), pp. 120 ff.

78  For the three different levels (Security Council, ICJ, ICL) of the ‘notion of aggression’, see also Reddi, ICLR, 8 (2008), 660.

79  See Article 6 (a) IMT(S) reprinted in UNTS, 82 (1951), 280; Principle VI (a)(i) Nuremberg Principles, UN-YB ILC 1950 II, 3, 376 ff.

80  Treaty for the Renunciation of War as an Instrument of National Policy of 27 August 1928, available at <www.iilj.org/courses/documents/kellogg-briandpact_000.pdf> accessed 1 April 2013.

81  See Ambos, Der Allgemeine Teil (2002/2004), pp. 111 ff. with further references in note 221250.

82  See also Clark, GoJIL, 2 (2010), 695 (‘drafting convention that builds on this combination of state and individual responsibility’).

83  For a basis in ICJ case law and a comparison to the grave breaches regime of IHL, see Heinsch, GoJIL, 2 (2010), 726, 727, 731. Considering the violation of the UN Charter as the main criterion for the qualification of the crime of aggression, see Rebut, Droit pénal international (2012), mn. 1013.

84  See SWGCA, June 2005 Report (June 2005—ICC-ASP/4/32), Discussion Paper 3, No. 3, reprinted in Princeton (2009), p. 197; see also Barriga, ‘Against the Odds’, in Princeton (2009), p. 8; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 29; cf. also Clark, ‘Alleged Aggression in Utopia’, in Schabas et al., Research Companion ICL (2013), p. 66. On the non-punishability of humanitarian intervention as a matter of principle, see May, Aggression (2008), pp. 273 ff.

85  See SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), paras. 23 ff., reprinted in Princeton (2009), pp. 27–8; see also SWGCA, November 2006 Report (November 2006—ICC-ASP/5/SWGCA/1), reprinted in Princeton (2009), p. 140; SWGCA, January 2007 Report (January 2007—ICC-ASP/5/SWGCA/1), reprinted in Princeton (2009), p. 133; SWGCA, June 2007 Report (June 2007—ICC-ASP/6/SWGCA/INF.1), reprinted in Princeton (2009), p. 119; SWGCA, December 2007 Report (December 2007—ICC-ASP/6/SWGCA/1), reprinted in Princeton (2009), p. 103; SWGCA, June 2008 Report (June 2008—ICC-ASP/6/20/Add.1, Annex II), reprinted in Princeton (2009), pp. 87–8; SWGCA, February 2009 Report (February 2009—ICC-ASP/7/20/Add.1, Annex II), reprinted in Princeton (2009), p. 51; see also Barriga, ‘Against the Odds’, in Princeton (2009), pp. 8–9; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 28–30; Solera, Aggression (2007), pp. 409 ff.

86  ‘Flagrant’ instead of ‘manifest’ violation, see ‘Discussion paper on the definition of the elements of the crime of aggression prepared by the Coordinator of the Working Group on the Crime of Aggression during the Preparatory Commission of the ICC’, in Assembly of State Parties to the Rome Statute of the International Criminal Court, Second session, New York, 8–12 September 2003, Official Records ICC-ASP/2/10, 234; see also SWGCA, June 2005 Report (June 2005—ICC-ASP/4/32), Discussion Paper 3, No. 3, in Princeton (2009), p. 197.

87  cf. Werle, Principles (2009), mn. 1331, 1342; Werle, Völkerstrafrecht (2012), mn. 1439, 1450; Cassese et al., ICL (2013), pp. 142, 144; Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), pp. 325, 327; Solera, Aggression (2007), pp. 423 ff., 427. See also May, Aggression (2008), pp. 14–15, arguing that such an aggressive intent may frequently be missing since state leaders are often only aiming to advance legitimate state interests; see also May, Aggression (2008), pp. 257–8.

88  See ICC-ASP/2/10, 234.

89  Kreß, EJIL, 20 (2009), 1139–40.

90  See also Clark, GoJIL, 2 (2010), 698–9, quoting the Legal Adviser to the US Department of State; Dascalopoulou-Livada, ‘Aggression and the ICC’, in Politi and Nesi, The ICC and Aggression (2004), p. 83; Wilmshurst, ‘Aggression’, in Wilmshurst, pp. 93 ff.; critical of the distinction, see Corredor C., Agresión (2012), pp. 88–9.

91  See Glennon, YaleJIL, 35 (2010), 101–2; Paulus, EJIL, 20 (2009), 1121; Murphy, EJIL, 20 (2009), 1150–1; Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), pp. 326–7; Heinsch, GoJIL, 2 (2010), 726–7; Corredor C., Agresión (2012), pp. 86 ff., 215 (with Colombia’s attack on FARC rebels in Ecuador as a concrete example at pp. 127 ff).

92  See note 68 and main text.

93  See especially Glennon, YaleJIL, 35 (2010), 101 (‘A statute permitting the prosecution of only clear-cut, blatant instances of “impropriety” would still be vague. This is the central difficulty in seeking to eliminate vagueness merely by announcing that marginality is excluded: it is impossible to know from the terms at issue what within their reach is marginal and what is essential’) and also, 102, arguing that the threshold clause is ‘irretrievably vague’.

94  See Murphy, EJIL, 20 (2009), 1152–4 providing a table with forms of coercive acts which may amount to unlawful use of force and a crime of aggression.

95  Paulus, EJIL, 20 (2009), 1123.

96  Especially critical of this term, see Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), p. 326; also critical, see Corredor C., Agresión (2012), pp. 91 ff.

97  Amendments to the Elements of Crimes, Resolution No. RC/Res. 6, advance version, 16 June 2010, Annex II, introduction No. 3. See also SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), reprinted in Princeton (2009), pp. 28, 39, para. 25 and Appendix II No. 7; see also Anggadi, French, and Potter, ‘Negotiating the Elements’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 76–7; Clark, ‘Alleged Aggression in Utopia’, in Schabas et al., Research Companion ICL (2013), p. 67 (‘“reasonable statesmen or soldier” test’).

98  Kreß, EJIL, 20 (2009), 1138.

99  See Resolution No. RC/Res. 6, advance version, 16 June 2010, Annex III No. 7. According to Kreß, EJIL, 20 (2009), 1138 ‘gravity and scale’ are to be understood quantitatively.

100  See Koh, ‘Statement at the Review Conference’, available at <http://state.gov/s/l/releases/remarks/142665.htm> accessed 1 April 2013; Trahan, ICLR, 11 (2011), 73 ff.; Blokker and Kreß, LJIL, 23 (2010), 892; Resolution No. RC/Res. 6, advance version, 16 June 2010, Annex III (Understandings); on the negotiations of these two Understandings see Kreß, Barriga, Grover, and von Holtzendorff, ‘Negotiating the Understandings’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 95–6. While Article 8bis (1) treats ‘character, gravity and scale’ equally, Understanding 6 focuses on gravity. In addition, while a literal reading of Article 8bis (1) implies that the three qualifiers must exist cumulatively (‘and’), the second sentence of Understanding 7 suggests that two ‘components’ would suffice (for the first reading Schmalenbach, JZ, 65 (2010), 748 right column). Also, Understanding 7 speaks of a ‘manifest determination’, but Article 8bis (1) of a ‘manifest violation’; admittedly, the reference is clear but it is unclear how the three qualifiers can contribute to the qualification of a violation as ‘manifest’. For a good critique see Heinsch, GoJIL, 2 (2010), 728–9; critical also Scheffer, LJIL, 23 (2010), 898 ff.; Corredor C., Agresión (2012), pp. 89–90; O’Connel and Niyazmatov, JICJ, 10 (2012), 201–4.

101  cf. Kreß, EJIL, 20 (2009), 1142; in favour, as a matter of principle, also May, Aggression (2008), p. 73; Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), p. 321; for the same result Scheffer, CWRJIL, 41 (2009), 400, 409; Kemp, Aggression (2010), pp. 234, 243, 249; see also Einarsen, Universal Crimes (2012), p. 216 (‘considering that ‘“character” and “scale” can … contribute to the cumulative gravity of a concrete act of aggression, which in turn determines whether the acts oversteps the threshold of a “manifest violation” …’); critical of these three qualifiers for enabling ‘any party to address potentially unlawful but nonetheless legitimate uses of force’, see van Schaack, ICLR, 11 (2011), 486.

102  See Paulus, EJIL, 20 (2009), 1124, 1127; Murphy, CWRJLR, 41 (2009), 361 ff. In contrast, Creegan, JICJ, 10 (2012), 69 ff., 81–2 criticizes the ‘doctrinal messy and normatively confusing’ penalization of uses of force which may be desirable and legitimate for pursuing just purposes, for example humanitarian intervention, anticipatory self-defence, substituted law enforcement and defence against non-state actors, prevention of conflict escalation, self-determination of peoples, restoring rightful or democratic regimes.

103  See Kreß, ZStW, 115 (2003), 313 ff., 331 with further references; see also Ambos and Arnold, Der Irak-Krieg (2003).

104  Kreß, ZStW, 115 (2003), 331; see also Ambos, ‘Strafrecht und Krieg’, in Arnold et al., FS Eser (2005), 681–2; critical, Paulus, EJIL, 20 (2009), 1123.

105  See Solera, Aggression (2007), pp. 428 ff.

106  For this subjective element as the ‘determinant factor’, see Solera, Aggression (2007), pp. 415, 423 ff.; for a ‘special intent’ (in relation to conspiracy), see May, Aggression (2008), pp. 260 ff.

107  In the same vein, see Kreß, EJIL, 20 (2009), 1141 arguing that in the case of humanitarian intervention ‘a specific collective intent … is conspicuously absent’. For the same result, see Solera, Aggression (2007), pp. 461 ff. with regard to NATO’s ‘humanitarian intervention’ against Yugoslavia in favour of Kosovo (462: ‘difficult to assert that NATO acted with the specific animus aggressionis …’; ‘difficulty of establishing an aggressive intent’); van Schaack, ICLR, 11 (2011), 479, 482 ff., 493 (‘exempt bona fide humanitarian interventions from prosecution as the crime of aggression’); May, Aggression (2008), pp. 294–5 considering that the mens rea element is the most difficult to prove. For an explicit exclusion of the humanitarian intervention from the offence definition, see Trahan, ICLR, 11 (2011), 78. Considering humanitarian intervention as a ‘noble aggression’ and therefore exempt from criminalization, see Creegan, JICJ, 10 (2012), 69 ff.

108  See Ambos, ‘Strafrecht und Krieg’, in Arnold et al., FS Eser (2005), 681. The withdrawal of US troops from Iraq in 2011 (see BBC, 18 December 2011, ‘Last US troops withdraw from Iraq’ <http://www.bbc.co.uk/news/world-middle-east-16234723> accessed 27 April 2013) and the official end of the US military mission in Iraq in 2013 (see USF-Iraq, 28 January 2013, ‘US Military Mission in Iraq ends’ <http://usf-iraq.com/2013/01/28/us-military-mission-in-iraq-ends> accessed 27 April 2013) confirms this view. For Solera, Aggression (2007), pp. 477 ff., 500, ‘the lraq case illustrates the difficulties of establishing the mental element […] when various defenses can be introduced to justify action’.

109  For two different legal regimes, see Cassese et al., ICL (2013), pp. 142 ff.

110  It is therefore incorrect for Glennon, YaleJIL, 35 (2010), 79 with n. 63 to state that the ‘SWGCA ignored this distinction’.

111  See note 76 and main text.

112  See SWGCA, June 2005 Report (June 2005—ICC-ASP/4/32), Discussion Paper 3, No. 1, reprinted in Princeton (2009), p. 196. See WGCA, June 2005 Report (June 2005—ICC-ASP/4/32), Discussion Paper 3, No. 2 on the different terms (use of force, armed attack, use of armed force) discussed as an alternative to ‘act of aggression’.

113  See Barriga, ‘Against the Odds’, in Princeton (2009), pp. 9–10; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 25 ff.; Kreß, EJIL, 20 (2009), 1136.

114  See Glennon, YaleJIL, 35 (2010), 79 (‘… recurring presence in subsequent efforts to define aggression …’); in favour for this reason, see Heinsch, GoJIL, 2 (2010), 725–6; for a thoughtful critique of the Resolution, see Weisbord, DukeJComp&IL, 20 (2009), 21 ff.

115  See Paulus, EJIL, 20 (2009), 1121; Glennon, YaleJIL, 35 (2010), 79; Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), p. 326; Heinsch, GoJIL, 2 (2010), 723; especially critical, see Corredor C., Agresión (2012), pp. 123 ff., 219 calling the definition ‘anacrónica y desconectada’; cf. also O’Connel and Niyazmatov, JICJ, 10 (2012), 198 ff., stressing the need for a maintenance of the jus ad bellum understanding of aggression, namely as ‘any serious violation of the UN Charter, irrespective of the ICC Statute’s definition of the crime’ (200).

116  For a critical view, see Murphy, EJIL, 20 (2009), 1151.

117  See also Barriga, ‘Against the Odds’, in Princeton (2009), p. 12; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 30–1. On the nullum crimen principle see Volume I of this treatise, pp. 88–93. On the principle in the Nuremberg Judgment, see Weigend, JICJ, 10 (2012), 51 ff; cf. also Milanovic, JICJ, 10 (2012), 167 ff.

118  For the discussion in the SWGCA see SWGCA, November 2006 Report (November 2006—ICC-ASP/5/SWGCA/1), reprinted in Princeton (2009), p. 140; SWGCA, June 2007 Report (June 2007—ICC-ASP/6/SWGCA/INF.1), reprinted in Princeton (2009), pp. 117–18; SWGCA, December 2007 Report (December 2007—ICC-ASP/6/SWGCA/1), reprinted in Princeton (2009), pp. 102–3; SWGCA, June 2008 Report (June 2008—ICC-ASP/6/20/Add.1, Annex II), reprinted in Princeton (2009), pp. 89–90. See also Barriga, ‘Against the Odds’, in Princeton (2009), pp. 10–11; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), p. 28. The Elements do not clarify the matter since they only repeat that ‘any of the acts … qualify as an act of aggression’, see Amendments to the Elements of Crimes, Resolution No. RC/Res.6, advance version, 16 June 2010, Annex II, Introduction No. 1; see also Anggadi, French, and Potter, ‘Negotiating the Elements’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 69–72.

119  See Kreß, EJIL, 20 (2009), 1117; Clark, EJIL, 20 (2009), 1105; Clark, GoJIL, 2 (2010), 696; crit. of an open list also Corredor C., Agresión (2012), pp. 113–14.

120  For a critical analysis see Chapter II, Section C. (11).

121  Against such a strict reading, apparently, Kreß, EJIL, 20 (2009), 1137 who does not even require a ‘similar acts’ clause as contained in Article 7(1)(k). Without such a clause the extension of the list would, however, violate the lex praevia in the first place. In any case, Kreß is right in that the principle of legality is not clearly defined in ICL and especially the lex certa component has been largely ignored; see Volume I of this treatise, pp. 91–2; previously, Ambos, ‘Nulla Poena’, in Haveman and Olusanya, Sentencing and Sanctioning (2006), pp. 23 ff. For a more flexible approach, see also Heinsch, GoJIL, 2 (2010), 724–5, 742; against an open-ended list, see Kemp, Aggression (2010), pp. 236, 249. Far too imprecise, however, is Scheffer’s proposal (Scheffer, CWRJIL, 41 (2009), 409) according to which the ‘elements of the crime of aggression shall draw, inter alia [sic!], from Articles 2 and 3’ of GA Res. 3314.

122  cf. Kreß, EJIL, 20 (2009), 1137. For a detailed analysis of the acts, see Corredor C., Agresión (2012), pp. 116 ff.

123  cf. Paulus, EJIL, 20 (2009), 1121; Kreß, EJIL, 20 (2009), 1137.

124  See for a discussion, May, Aggression (2008), pp. 21, 81 ff., 90 ff., 217 ff. calling for a more normative understanding of a first strike as a ‘first wrong’.

125  In the same vein, see Solera, Aggression (2007), pp. 416–18; Corredor C., Agresión (2012), pp. 124–5 (critical of the requirement of a state territory to be attacked).

126  For a thoughtful analysis in this regard, see Weisbord, DukeJComp&IL, 20 (2009), 23 ff.; Drumbl, CWRJIL, 41 (2009), 305; see also May, Aggression (2008), suggesting treating non-state actors like states if they act like states (298), applying this affirmatively to terrorist groups (306 ff.) and arguing in favour of their prosecution for aggression (308 ff.); in the same vein, see Wills, JICJ, 10 (2012), 84 ff., arguing in favour of a broader understanding of the term ‘state’ in the Kampala definition, in order to include so-called ‘quasi-international armed conflicts’.

127  cf. Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), pp. 318, 319.

128  cf. Cassese et al., ICL (2013), pp. 140, 144. See also the Protocol of Non-Aggression and Mutual Defense in the Great Lakes Region, 30 November 2006, <www.lse.ac.uk/collections/law/projects/greatlakes/1.%20Peace%20and%20Security/1c.%20Protocols/Protocol%20-%20Non-Aggression.pdf> accessed 1 April 2013, extending aggression to ‘an armed group’ as a non-state actor but always directed against the territorial integrity of a state (Article 1[2]).

129  See Section C. (1).

130  The recognition of non-state actors as a legal category disrupts this order; see, similarly, May, Aggression (2008), pp. 298.

131  In this vein, see Rebut, Droit pénal international (2012), mn. 1012 (‘par un État … contre un autre État’).

132  See Weisbord, DukeJComp&IL, 20 (2009), 40, who, however, sees the conflict with Article 22(2) Rome Statute; in the same vein, see Rebut, Droit pénal international (2012), mn. 1012 (‘ce qui exclut toutes les aggressions d’un autre type’, ‘Les actes … sont préciséments définis …’).

133  See for this interpretation, Weisbord, DukeJComp&IL, 20 (2009), 40–1. On cyber attacks as a violation of the prohibition of the use of force and thus perhaps amounting to a crime of aggression, see Schmitt, Tallinn Manual Cyber Warfare (2013), pp. 42–53 (defining, as Rule 11, a ‘cyber operation’ as use of force ‘when its scale and effects are comparable to non-cyber operations rising to the level of a use of force’); sceptical ‘about the ability of [this] definition … to address future conflicts’ carried out with ‘types of modern warfare’, see Bassiouni, Introduction to ICL (2013), pp. 671, 674.

134  See Ambos, ‘Strafrecht und Krieg’, in Arnold et al., FS Eser (2005), 677 with various references in n. 46. There was also a quite early consensus on this question in the SWGCA, see SWGCA Report, June 2006, in Princeton (2009), p. 154, para. 88; see also Weisbord, DukeJComp&IL, 20 (2009), 43; Clark, ‘Aggression’, in Stahn and Sluiter, Emerging Practice (2009), pp. 718–19; Clark, ‘Alleged Aggression in Utopia’, in Schabas et al., Research Companion ICL (2013), p. 66; May, Aggression (2008), pp. 11, 14, 16; Cassese et al., ICL (2013), p. 141; Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), p. 318; Kemp, Aggression (2010), pp. 236–7.

135  Thus, the leadership element does not entail the lonely conduct of ‘un dictateur absolu’ (misleading insofar Condorelli, ‘Conclusions Générales’, in Politi and Nesi, The ICC and Aggression (2004), p. 157). See for an interesting discussion about the ‘conceptual puzzle’ arising out of the State and individual nature of the crime of aggression, May, Aggression (2008), pp. 229 ff., 232. See also on the impossibility of an individual act of aggression (without a State structure), Corredor C., Agresión (2012), pp. 66, 68.

136  cf. Barriga, ‘Against the Odds’, in Princeton (2009), p. 8; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 22–3; Clark, EJIL, 20 (2009), 1105; Schmalenbach, JZ, 65 (2010), 748 right column; earlier, Kemp, Aggression (2010), p. 251. See also SWGCA, February 2009 Report (February 2009—ICC-ASP/7/20/Add.1, Annex II), reprinted in Princeton (2009), p. 54, para. 25. For a more restrictive understanding, apparently, see Heinsch, GoJIL, 2 (2010), 722–3, referring to political and military leaders; in the same vein, see Corredor C., Agresión (2012), pp. 77 ff. (79); Rebut, Droit pénal international (2012), mn. 1014 (‘dirigeants politiques ou militaires’).

137  See SWGCA, June 2007 Report (June 2007—ICC-ASP/6/SWGCA/INF.1), reprinted in Princeton (2009), p. 111, para. 12 with note 5 referring to the Nuremberg case law. See also SWGCA, December 2007 Report (December 2007—ICC-ASP/6/SWGCA/1), para. 9, in Princeton (2009), p. 100, and SWGCA, June 2006 Report (June 2006—ICC-ASP/5/SWGCA/INF.1), para. 88, reprinted in Princeton (2009), p. 154, (‘ability to influence policy’).

138  See Heller, EJIL, 18 (2007), 478–9 arguing that the SWGCA’s approach is more restrictive than what he identifies as the ‘shape or influence’ standard articulated at Nuremberg by both the Nuremberg IMT and the subsequent military tribunals; Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), p. 319. Critical also Drumbl, CWRJIL, 41 (2009), 316.

139  SWGCA, June 2004 Report (June 2004—ICC-ASP/3/SWGCA/INF.1), para. 44, reprinted in Princeton (2009), p. 204.

140  cf. Barriga, ‘Against the Odds’, in Princeton (2009), p. 8; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), p. 22. Also too imprecise, Scheffer’s proposal (Scheffer, CWRJIL, 41 (2009), 404, 409) requiring effective control and direction only ‘in whole or substantial part’.

141  cf. Volume I of this treatise, pp. 150, 151, 154 ff., 210 ff.

142  See also SWGCA (see note 139), p. 205, para. 49 (‘broad enough to encompass most influential leaders’). Similarly, Heinsch, GoJIL, 2 (2010), 723, focusing on the influence over policy; Schmalenbach, JZ, 65 (2010), 748 right column. Clearly, the scope of liability depends on the concept of ‘business’ or ‘religious leader’; for a definition of the former, see Vest, JICJ, 8 (2010), 852.

143  Critical, for example, Glennon, YaleJIL, 35 (2010), 99–100.

144  cf. May, Aggression (2008), pp. 153 ff., 165 ff., 185 ff., convincingly demonstrating by way of reference to several Nuremberg cases (Karl Dönitz/Erich Raeder, accused before the IMT; Ernst von Weizsäcker, Ministries Case; and Alfried Krupp/Karl Krauch, Krupp/IG Farben Cases) how difficult it is to prosecute top responsible persons close to, but not an immediate part of the leadership.

145  On the (controversial) model of Article 25(3) ICC Statute, see Volume I of this treatise, pp. 144 ff.; on participation regarding the crime of aggression, see p. 171.

146  On the respective dispute along the lines of so-called ‘monistic’ and ‘differentiated’ approaches, see especially SWGCA, June 2005 Report (June 2005—ICC-ASP/4/32), Discussion Paper 1, reprinted in Princeton (2009), pp. 184, 190. See also the sometimes confusing discussion in the SWGCA, June 2006 Report (June 2006—ICC-ASP/5/SWGCA/INF.1), reprinted in Princeton (2009), pp. 153–4, paras. 84–93 and p. 161, Appendix III Item 1; SWGCA, January 2007 Report (January 2007—ICC-ASP/5/SWGCA/1), reprinted in Princeton (2009), pp. 131–2, paras. 6 ff.; SWGCA, June 2007 Report (June 2007—ICC-ASP/6/SWGCA/INF.1), reprinted in Princeton (2009), pp. 109–10, paras. 5 ff.; SWGCA, December 2007 Report (December 2007—ICC-ASP/6/SWGCA/1), paras. 6–11, reprinted in Princeton (2009), p. 100. For a summary of the discussion see Barriga, ‘Against the Odds’, in Princeton (2009), p. 7; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 20–2; Clark, ‘Aggression’, in Stahn and Sluiter, Emerging Practice (2009), p. 719; Kemp, Aggression (2010), pp. 212 ff.; Weisbord, HarvILJ, 49 (2008), 191 ff.

147  See also Barriga, ‘Against the Odds’, in Princeton (2009), p. 8 and Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), p. 21 (responsibility of leader’s personal assistant).

148  Also critical, see Drumbl, CWRJIL, 41 (2009), 314 stating that the combined effect of Article 8bis (1) and 25 (3bis) ‘bestows collective innocence on all involved in aggressive war below the levels of the state political and military elite’.

149  A number of delegations certainly wanted to restrict participation in the crime of aggression as much as possible, see for example SWGCA, June 2007 Report (June 2007—ICC-ASP/6/SWGCA/INF.1), reprinted in Princeton (2009), p. 110, para. 11, where it is stated that the unreserved application of Article 25 (3) could ‘undermine’ the leadership character of the crime; see also Barriga, ‘Against the Odds’, in Princeton (2009), pp. 7–8; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 20–2.

150  The combination of the differentiated solution with the transfer of the leadership qualifier to Article 25 (3) was already discussed at the SWGCA June 2004 Meeting, see SWGCA, June 2004 Report (June 2004—ICC-ASP/3/SWGCA/INF.1), paras. 52–3, reprinted in Princeton (2009), pp. 205–6. See also SWGCA, June 2005 Report (June 2005—ICC-ASP/4/32), reprinted in Princeton (2009), pp. 169 ff., paras. 19 ff. and Discussion Paper 1, s. A. I. 2, p. 185.

151  Weber, Wirtschaft und Gesellschaft (1922), 625 ff.; in English, Gerth and Mills, From Max Weber (1946), 196 ff. On these roots, see Weisbord, DukeJComp&IL, 20 (2009), 44 ff. (describing the classical concept of leadership as ‘an individual holding high office or a high top position within a complex bureaucracy, exercising formal and effective control over the political or military action of a state’).

152  See note 125 and main text.

153  Critical, Weisbord, DukeJComp&IL, 20 (2009), 46 ff. (stating that the Nuremberg leadership concept ‘is not a sociologically accurate description of leadership within Al Qaeda and the vast number of aggressive organizations emerging today’ and that the effective control concept ‘does not go far enough to capture the leaders of post-bureaucratic organizations’). See also Drumbl, CWRJIL, 41 (2009), 316, arguing that ‘the decentralized and fragmented groups that pose major security threats today do not proceed in the highly organized and hierarchical lines of the Wehrmacht or Imperial Army and, accordingly, an absolute leadership requirement may not square so cleanly with fighters whose call to arms is not animated by a strict sense of national obligation but, rather, in some cases by a more independent assertion of agency’.

154  See Weisbord, DukeJComp&IL, 20 (2009), 47 ff.

155  cf. SWGCA, June 2004 Report (June 2004—ICC-ASP/3/SWGCA/INF.1), para. 52, reprinted in Princeton (2009), p. 205; SWGCA, June 2005 Report (June 2005—ICC-ASP/4/32), paras. 19 ff., reprinted in Princeton (2009), pp. 169 ff.; SWGCA, January 2007 Report (January 2007—ICC-ASP/5/SWGCA/1), reprinted in Princeton (2009), p. 132, para. 6; SWGCA, June 2007 Report (June 2007—ICC-ASP/6/SWGCA/INF.1), reprinted in Princeton (2009), p. 110, paras. 6 ff.; SWGCA, December 2007 Report (December 2007—ICC-ASP/6/SWGCA/1), para. 9, reprinted in Princeton (2009), p. 100; SWGCA, June 2008 Report (June 2008—ICC-ASP/6/20/Add.1, Annex II), reprinted in Princeton (2009), p. 87, para. 62; SWGCA, February 2009 Report (February 2009—ICC-ASP/7/20/Add.1, Annex II), reprinted in Princeton (2009), p. 54, para. 25. See also Corredor C., Agresión (2012), p. 82.

156  In this regard the SWGCA states the obvious when it says that ‘more than one person may be in a leadership position’, see SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), reprinted in Princeton (2009), pp. 25, 40, para. 15 and Appendix II No. 15; see also Amendments to the Elements of Crimes, Resolution No. RC/Res.6, advance version, 16 June 2010, Annex II.

157  cf. Volume I of this treatise, pp. 235–6.

158  SWGCA, June 2004 Report (June 2004—ICC-ASP/3/SWGCA/INF.1), para. 54, reprinted in Princeton (2009), p. 206; SWGCA, June 2005 Report (June 2005—ICC-ASP/4/32), paras. 47 ff., reprinted in Princeton (2009), p. 173; SWGCA, June 2007 Report (June 2007—ICC-ASP/6/SWGCA/INF.1), reprinted in Princeton (2009), p. 111, para. 13; SWGCA, June 2008 Report (June 2008—ICC-ASP/6/20/Add.1, Annex II), paras. 63 ff., reprinted in Princeton (2009), p. 87.

159  See also Weisbord, DukeJComp&IL, 20 (2009), 57 (‘nonsensical’); Clark, ‘Aggression’, in Stahn and Sluiter, Emerging Practice (2009), pp. 720–1; for the same result, see Corredor C., Agresión (2012), p. 83.

160  For a detailed analysis of the conceptual roots and problems of the conduct verbs, see Weisbord, DukeJComp&IL, 20 (2009), 49 ff.

161  Note 28.

162  For definitions, see note 29.

163  cf. Volume I of this treatise, pp. 60–5, 93–5.

164  This is a core question of criminal law theory which has been extensively treated in academic writings. See, for example, for a civil law approach, Puschke, ‘Grund und Grenzen des Gefährdungsstrafrechts’, in Hefendehl, Grenzenlose Vorverlagerung (2010), pp. 23–4, calling for a strictly limited criminalization of preparatory acts with a view to their potential to violate Rechtsgüter; see, for a common law approach, Alexander and Kessler, Crime and Culpability (2009), pp. 289–90, criticizing overcriminalization, that is, punishing ‘conduct that does not risk harm to any interest the criminal law might wish to protect’ in the form of too early intervention of criminal law (‘only […] attenuated connection to legally protected interests’) or its ‘overinclusiveness’. For the same twofold approach, see ‘Resolution of the XVIII AIDP International Congress of Penal Law (Istanbul, 20–27 September 2009)’, reprinted in ZStW, 122 (2010), 474, calling for strict conditions to consider the punishment of preparatory offences and autonomous acts of participation as legitimate; see on the discussions of the respective section I (General Part), Müller, ZStW, 122 (2010), 453 ff.

165  cf. Werle, Principles (2009), mn. 1341; Werle, Völkerstrafrecht (2012), mn. 1449; see also Ambos, ‘Strafrecht und Krieg’, in Arnold et al., FS Eser (2005), 675 with references in n. 38.

166  The inclusion of a ‘threat’ of aggression has been discussed in connection with attempt, see SWGCA, June 2005 Report (June 2005—ICC-ASP/4/32), reprinted in Princeton (2009), p. 172; SWGCA, June 2006 Report (June 2006—ICC-ASP/5/SWGCA/INF.1), paras. 47 ff., reprinted in Princeton (2009), p. 147); however, this was finally abandoned, see Clark, EJIL, 20 (2009), 1109. See also Murphy, EJIL, 20 (2009), 1150, 1152 (critical); Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), p. 320; on the different forms of threats, see May, Aggression (2008), p. 14; Corredor C., Agresión (2012), pp. 73–4, 103; on ‘attempted aggression’, see Volume I of this treatise, pp. 263–4.

167  Amendments to the Elements of Crimes, Resolution No. RC/Res.6, advance version, 16 June 2010, Annex II, Element 3; see also Anggadi, French, and Potter, ‘Negotiating the Elements’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 69, 80.

168  On the difficult distinction between planning and preparation in the case law, see Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), p. 320.

169  Note 146 and main text.

170  The SWGCA’s debate on the relationship between attempt and the preparatory acts indicates some confusion; see for example SWGCA, June 2006 Report (June 2006—ICC-ASP/5/SWGCA/INF.1), paras. 45–6, reprinted in Princeton (2009), p. 147.

171  In favour of the ‘criminalization of the early stages of preparation’, Cassese et al., ICL (2013), p. 145.

172  See note 163 and main text.

173  Also critical, Glennon, YaleJIL, 35 (2010), 98–9 arguing that responsibility for ‘planning’ and ‘preparation’ is far too broad.

174  SWGCA, June 2007 Report (June 2007—ICC-ASP/6/SWGCA/INF.1), reprinted in Princeton (2009), p. 111, para. 13; SWGCA, June 2005 Report (June 2005—ICC-ASP/4/32), Discussion Paper 1, reprinted in Princeton (2009), p. 191, sec. B. II. 1b (‘rather theoretical in nature’ but giving two examples, see note 179). See also Clark, EJIL, 20 (2009), 1109 (‘bizarre case’).

175  cf. Volume I of this treatise, pp. 235–6.

176  cf. Ambos, Der Allgemeine Teil (2002/2004), pp. 101–2 (Nuremberg), 136 ff. (Tokyo).

177  See Clark, EJIL, 20 (2009), 1109; critical of conspiracy, see May, Aggression (2008), pp. 198 ff., 254 ff.; in favour, see Cassese et al., ICL (2013), p. 145.

178  See also Weisbord, HarvILJ, 49 (2008), 190, pointing to the evidentiary challenge of proving attempted aggression.

179  See SWGCA, June 2005 Report (June 2005—ICC-ASP/4/32), Discussion Paper 1, reprinted in Princeton (2009), p. 191, sec. B. II. 1 b, admitting that ‘cases of attempt remain rather theoretical in nature’ but giving the example of the high-ranking state official who has commenced participation in the preparation of the collective act of aggression but is then prevented from taking part in the actual decision making, and the example of a high-ranking military leader who was about to give an important order in the course of the state use of force but is then prevented from completing his act of ordering; see also Discussion Paper 3, p. 197, No. 6 (‘whether attempt of aggression is conceivable’).

180  See notes 87 ff. and main text.

181  SWGCA, June 2004 Report (June 2004—ICC-ASP/3/SWGCA/INF.1), para. 55, reprinted in Princeton (2009), p. 206; SWGCA, June 2005 Report (June 2005—ICC-ASP/4/32), para. 51, reprinted in Princeton (2009), p. 174; SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), para. 13, reprinted in Princeton (2009), p. 25. See also Clark, EJIL, 20 (2009), 1109; Solera, Aggression (2007), pp. 420–1. Generally on the importance of the mental element in the crime of aggression, see May, Aggression (2008), pp. 180–1, 184, 198 ff., 202, 250 ff., 267. On the subjective requirements of international crimes cf. also Volume I of this treatise, pp. 266 ff.

182  See also SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), Appendix II Nos. 9–10, reprinted in Princeton (2009), p. 39.

183  SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), pp. 25, 40 para. 14 and Appendix II No. 14.

184  cf. Volume I of this treatise, pp. 278 ff.

185  See also May, Aggression (2008), pp. 234 ff. (238–9) considering the state aggression as an ‘overarching’ circumstance (referring to the concept of a ‘contextual circumstance’ discussed in the ICC negotiations).

186  See Amendments to the Elements of Crimes, Resolution No. RC/Res. 6, advance version, 16 June 2010, Annex II, Elements 4 and 6; see also Anggadi, French, and Potter, ‘Negotiating the Elements’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 71–7.

187  See Elements of Crimes, UN Doc. PCNICC/2000/1/Add.2 (2000), general introduction No. 4 and the respective elements to the crimes; see insofar Ambos, ‘Reflections on the mens rea Requirements’, in Vohrah et al., Inhumanity (2003), pp. 15–16. The general introduction also applies to the elements for aggression; see SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), reprinted in Princeton (2009), p. 24, para. 8; see also Anggadi, French, and Potter, ‘Negotiating the Elements’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 77–8.

188  Amendments to the Elements of Crimes, Resolution No. RC/Res. 6, advance version, 16 June 2010, Annex II, Introduction No. 2 and 4 and Elements 4 and 6. See also SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), pp. 26, 38, 41, para. 17 and Appendix II No. 6, 19; Corredor C., Agresión (2012), pp. 79–80.

189  SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), p. 26, para. 19; less clear, Appendix II No. 22.

190  SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), Appendix II No. 20, p. 41.

191  See also SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), Appendix II No. 21, p. 41.

192  cf. Ambos, Der Allgemeine Teil (2002/2004), pp. 811 ff.; see also Clark, ‘Aggression’, in Stahn and Sluiter, Emerging Practice (2009), pp. 716–17; Clark, ‘Alleged Aggression in Utopia’, in Schabas et al., Research Companion ICL (2013), pp. 67–8. For availability ‘[p]resumably … in certain circumstances’, see also Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), p. 328.

193  For a thorough analysis, see McDougall, ICLR, 7 (2007), 281 ff., 307, concluding ‘that granting the ICC the jurisdiction to determine independently the existence or occurrence of an act of aggression for the purpose of assessing the State act element of the crime of aggression would not contravene the Charter’. See also Bassiouni, Introduction to ICL (2013), pp. 674–8 (‘symbiotic relationship’); Politi, JICJ, 10 (2012), 277 ff.; Schaeffer, ICLR, 9 (2009), 414, correctly arguing that ‘the only exclusivity for the Security Council lies with its power to make binding enforcement measures under Chapter VII’. For the same result, see Blokker and Kreß, LJIL, 23 (2010), 894 (‘rejection of a Security Council monopoly […] is beyond serious argument’); Reddi, ICLR, 8 (2008), 663–4; Clark, GoJIL, 2 (2010), 699–700; Reisinger-Coracini, GoJIL, 2 (2010), 783; Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), pp. 329–30; Gomaa, ‘The Definition of the Crime of Aggression’, in Politi and Nesi, The ICC and Aggression (2004), pp. 75–6; Yengejeh, ‘Reflections’, in Politi and Nesi, The ICC and Aggression (2004), pp. 125, 127 ff. (good discussion); Escarameia, ‘The ICC and the Security Council on Aggression’, in Politi and Nesi, The ICC and Aggression (2004), pp. 133, 139 ff.; Corredor C., Agresión (2012), pp. 198 and passim. Contra Meron, Suffolk Transnat’lLR, 25 (2001–2002), 14 and Glennon, YaleJIL, 35 (2010), 104 ff., 107–8, both arguing, albeit mainly for policy reasons, for an exclusive (plenary) power of the Security Council.

194  See note 45 and main text.

195  See Coordinator’s Discussion paper, Official Records ICC-ASP/2/10, section I.

196  Clark, EJIL, 20 (2009), 1113; Clark, GoJIL, 2 (2010), 700.

197  This is a quite generalized view among scholars, independent of their principled position towards the crime of aggression; see on the one hand, Paulus, EJIL, 20 (2009), 1124 ff., and on the other, Kreß, EJIL, 20 (2009), 1143–4; Clark, GoJIL, 2 (2010), 700. See also Werle, Principles (2009), mn. 1351; May, Aggression (2008), pp. 227; Reddi, ICLR, 8 (2008), 665 ff.; Corredor C., Agresión (2012), pp. 182 ff. (generally critical of the Security Council’s role); critical, also see Bassiouni, Introduction to ICL (2013), pp. 638–42 (arguing that the Security Council can be ‘an indefinite guarantee of immunity for future aggressors’); in a similar vein, see Gaja, ‘Respective Roles’, in Politi and Nesi, The ICC and Aggression (2004), p. 124, arguing that exclusive dependence on Security Council determination would deprive the provision of aggression ‘of almost all its meaning’; discussing the policy arguments in favour and against Security Council determination McDougall, ICLR, 7 (2007), 307 ff. Critical of the politicization argument invoked against any autonomous determination of the ICC, see Lehto, ‘The ICC and the Security Council’, in Politi and Nesi, The ICC and Aggression (2004), pp. 145 ff.

198  Barriga, ‘Against the Odds’, in Princeton (2009), p. 12; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 31–2; SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), reprinted in Princeton (2009), p. 29, para. 30. Obviously, the triggers refer to a crime, not a mere act of aggression (cf. Article 15bis/ter (1) ICC Statute). Thus, contrary to Scheffer’s assertions (Scheffer, LJIL, 23 (2010), 900–1), the respective situations of crimes, not acts of aggressions, are referred to. Apart from that, the existence of a threshold is not unique to the crime of aggression; it also exists, one way or the other, in the case of the other ICC crimes in the form of their context elements.

199  Barriga, ‘Against the Odds’, in Princeton (2009), p. 12; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), p. 32; SWGCA June 2009 Report (June 2009—ICC-ASP/8/INF.2), para. 30, reprinted in Princeton (2009), p. 29.

200  Reisinger-Coracini, GoJIL, 2 (2010), 787; Stahn, LJIL, 23 (2010), 877 (‘undoubtedly a victory for the independence of the ICC’); Manson, CLF, 21 (2010), 419 (‘concession’ of veto powers); Corredor C., Agresión (2012), p. 216.

201  Clark, GoJIL, 2 (2010), 703; similarly Reisinger-Coracini, GoJIL, 2 (2010), 749.

202  Explicitly welcoming this possibility, Corredor C., Agresión (2012), pp. 169 ff.

203  Reisinger-Coracini, GoJIL, 2 (2010), 783 with references in n. 193. For Blokker and Kreß, LJIL, 23 (2010), 893–4, this ‘specific institutional device complements’ the substantive threshold clause.

204  Kaul, GoJIL, 2 (2010), 665 sees here a challenge for the organization of the Court; critical with regard to quorum etc also Reisinger-Coracini, GoJIL, 2 (2010), 783–4; welcoming a judicial instead of an external control Corredor C., Agresión (2012), pp. 177 ff.

205  And which also has been recognized by alternative (academic) proposals, see for example McDougall, ICLR, 7 (2007), 328, 331; see also Corredor C., Agresión (2012), p. 195.

206  But only to exclude non-States Parties from the ICC’s jurisdiction, see Security Council Resolution 1422 (2002) 12 July 2002, UN Doc. S/RES/1422 (2002), Security Council Resolution 1487 (2003) 12 June 2003, UN Doc. S/RES/1487 (2003) and Security Council Resolution 1497 (2003) 1 August 2003, UN Doc. S/RES/1497 (2003); see also Schmalenbach, JZ, 65 (2010), 751 right column.

207  For the same result, see Scheffer, LJIL, 23 (2010), 902; for a good critical analysis, see Corredor C., Agresión (2012), pp. 203 ff.

208  In the same vein, see Corredor C., Agresión (2012), pp. 192 ff. (199). For a critical view, see Scheffer, LJIL, 23 (2010), 902 (‘yawning gap’), but his own proposal does not explicitly address a negative determination either.

209  Kaul, GoJIL, 2 (2010), 664.

210  See Reisinger-Coracini, GoJIL, 2 (2010), 787 arguing that the achieved limitation of the Security Council’s power and the maintenance of the Court’s independence ‘clearly exceeds the expectations’; in a similar vein for a qualified role of the Security Council, see Kemp, Aggression (2010), pp. 236, 254.

211  Compare, for example, the proposal by McDougall, ICLR, 7 (2007), 328 ff., which correctly acknowledges that ‘realpolitik may prevent the adoption or successful operation of any model that allows for ICC determination independent of any special role for the Council’. In a similar vein, see Schaeffer, ICLR, 9 (2009), 419 ff., emphasizing the need for compromise and giving the Security Council a veto power which could only be overturned by the GA (see his proposal at 421–2). According to Schmalenbach, JZ, 65 (2010), 749 right column, the consensual adoption of Article 15bis came as a surprise to many.

212  See, for example, Paulus, EJIL, 20 (2009), 1124–6 warning of dependence on the Security Council and further politicization; on the fears of human rights organizations in this regard, see also von Braun and Micus, JICJ, 10 (2012), 120 ff., 128 ff.

213  See Understandings 1 and 3 Resolution No. RC/Res.6, advance version, 16 June 2010, Annex III; see also Kreß, Barriga, Grover, and von Holtzendorff, ‘Negotiating the Understandings’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 83–9.

214  See note 227.

215  Even this is not uncontroversial; see Reisinger-Coracini, GoJIL, 2 (2010), 771.

216  Kaul, GoJIL, 2 (2010), 666, considers this as ‘quite likely’. Critical of para. 3 (‘carece de honestidad’) and the other conditions, see Corredor C., Agresión (2012), pp. 150 ff. (153). For a presentation of the ICC’s jurisdiction by way of tables, see Milanovic, JICJ, 10 (2012), 182.

217  In fact, Article 15bis/ter (3) establishes a ‘delayed activation’ of the Court’s jurisdiction, see Wenaweser, LJIL, 23 (2010), 887; Manson, CLF, 21 (2010), 433–4.

218  See also Kaul, GoJIL, 2 (2010), 665 (‘it will take quite some time …’); Corredor C., Agresión (2012), pp. 154 ff., 218; more optimistic apparently Blokker and Kreß, LJIL, 23 (2010), 892 (‘taken not too long after 1 January 2017’).

219  See also Blokker and Kreß, LJIL, 23 (2010), 893 (‘generally expected that it is the wish of the overwhelming majority of the State Parties to activate this jurisdiction …’); on the ‘open issues’, see also Trahan, ICLR, 11 (2011), 64 ff.

220  Liechtenstein (8 May 2012), Samoa (25 September 2012), Trinidad and Tobago (13 November 2012), Luxembourg (15 January 2013), Estonia (27 March 2013), Germany (3 June 2013), Botswana (4 June 2013). On the concrete progress on the ratification and implementation process of the Kampala amendments, see Crime of Aggression, ‘Status of Ratification and Implementation’ <http://crimeofaggression.info/the-role-of-states/status-of-ratification-and-implementation> accessed 19 August 2013. On the problems that the domestic prosecution of the crime may cause, see van Schaack, JICJ, 10 (2012), 134 ff.

221  See Section B. (2)(c).

222  See on this point, Schmalenbach, JZ, 65 (2010), 752 arguing that there is a contradiction between Article 15bis (2) and (3) and these Understandings. Generally on the controversial legal nature of the Understandings Heinsch, GoJIL, 2 (2010), 729–30; see also Kreß, Barriga, Grover, and von Holtzendorff, ‘Negotiating the Understandings’, in Barriga and Kreß, Travaux Préparatoires (2012), p. 83.

223  On its ‘ambiguous’ wording, see McDougall, ICLR, 7 (2007), 280.

224  See also Blokker and Kreß, LJIL, 23 (2010) (‘fraught with very considerable ambiguity’).

225  See also the preamble of Resolution No. RC/Res. 6, advance version, 16 June 2010, ‘recalling’ Arts. 5(2) and 12(1) ICC Statute.

226  See for discussion Clark, CWRJIL, 41 (2009), 416 ff.; Clark, EJIL, 20 (2009), 1114–15; Clark, ‘Alleged Aggression in Utopia’, in Schabas et al., Research Companion ICL (2013), pp. 72 ff.; Reisinger-Coracini, GoJIL, 2 (2010), 764–5; see also SWGCA, June 2005 Report (June 2005—ICC-ASP/4/32), reprinted in Princeton (2009), paras. 5 ff., pp. 167 ff.; SWGCA, June 2004 Report (June 2004—ICC-ASP/3/SWGCA/INF.1), paras. 10–19, reprinted in Princeton (2009), pp. 199–201; SWGCA, February 2009 Report (February 2009—ICC-ASP/7/20/Add.1, Annex II), reprinted in Princeton (2009), pp. 50–1, paras. 6 ff. In any case, the issue is debatable and the automatic adoption argument can be made for the reasons mentioned in the text with note 204, see also SWGCA, February 2009 Report, reprinted in Princeton (2009), pp. 55–6, para. 29; Clark, CWRJIL, 41 (2009), 418.

227  Clark, GoJIL, 2 (2010), 702; Reisinger-Coracini, GoJIL, 2 (2010), 770–1; Schmalenbach, JZ, 65 (2010), 752 left column; Manson, CLF, 21 (2010), 434.

228  For Heinsch, GoJIL, 2 (2010), 736 this is ‘a clear statement in favor of the Art. 121 (5) procedure’.

229  Concurring, see Manson, CLF, 21 (2010), 422.

230  See Barriga, ‘Against the Odds’, in Princeton (2009), pp. 15–16; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 37–8; see also Reisinger-Coracini, GoJIL, 2 (2010), 766–7; Clark, CWRJIL, 41 (2009), 418 ff.; Heinsch, GoJIL, 2 (2010), 735–6; Kreß and von Holtzendorff, JICJ, 8 (2010), 1196 ff.; Manson, CLF, 21 (2010), 435 ff. (with an alternative proposal).

231  For the difference between Article 121(4) and (5), see also Clark, CWRJIL, 41 (2009), 418–19; Clark, ‘Alleged Aggression in Utopia’, in Schabas et al., Research Companion ICL (2013), pp. 73 ff.; Murphy, EJIL, 20 (2009), 1149; Manson, CLF, 21 (2010), 420–1.

232  See also Schmalenbach, JZ, 65 (2010), 750 left column; critical, Scheffer, LJIL, 23 (2010), 903, for whom the delegates’ ‘radical tinkering with amendment procedures arguably merits an Art. 121 (4) amendment of the Rome Statute’s amendment procedures’.

233  According to the ‘positive’ understanding, hardly compatible with the wording, the territoriality principle of Article 12 (2)(a) would fully apply and extend jurisdiction also to an aggressor State Party that has not accepted the amendment, see SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), Annex III, Non-paper by the Chairman on the Conditions for the Exercise of Jurisdiction, reprinted in Princeton (2009), pp. 44–5, para. 9; see also SWGCA, February 2009 Report (February 2009—ICC-ASP/7/20/Add.1, Annex II), reprinted in Princeton (2009), pp. 56–7, paras. 31 ff; Reisinger-Coracini, GoJIL, 2 (2010), 767–8.

234  cf. Barriga, ‘Against the Odds’, in Princeton (2009), p. 16; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 39 ff.; for the need of an acceptance of the amendment, see also Manson, CLF, 21 (2010), 423 ff.

235  Critical also SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), reprinted in Princeton (2009), p. 30, para. 36. See also Clark, CWRJIL, 41 (2009), 419 with n. 29.

236  See also Barriga, ‘Against the Odds’, in Princeton (2009), p. 16; Barriga, ‘Negotiating the Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), pp. 40–1; SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), reprinted in Princeton (2009), pp. 29–30, para. 33; critical, see also Wilmshurst, ‘Aggression’, in Cryer et al., Introduction ICL (2010), p. 328.

237  ‘… when committed by that State Party’s nationals or on its territory’.

238  See on the opt-out or opt-in declarations Non-paper (note 233), paras. 11–12; SWGCA, June 2009 Report (June 2009—ICC-ASP/8/INF.2), reprinted in Princeton (2009), pp. 31–2, paras. 38 ff. See also Kreß and von Holtzendorff, JICJ, 8 (2010), 1213; critical of the differentiation between State and non-States Parties and the resulting scenarios, see Corredor C., Agresión (2012), pp. 157 ff.

239  cf. Reisinger-Coracini, GoJIL, 2 (2010), 776 (for para. 4).

240  cf. Schmalenbach, JZ, 65 (2010), 750 left column affirming the compatibility with international treaty law. See notes 225 and 226 with main text.

241  For a discussion see Reisinger-Coracini, GoJIL, 2 (2010), 773 ff.; critical (only) as to the procedure Trahan, ICLR, 11 (2011), 90–1; critical as to the substance Corredor C., Agresión (2012), p. 163–4, 217 (‘brecha de impunidad’, interpreting this as a reservation prohibited according to Article 120 ICC Statute).

242  See also Reisinger-Coracini, GoJIL, 2 (2010), 777; Schmalenbach, JZ, 65 (2010), 750 left column.

243  One tricky issue is whether the Article 121(5)(2) sentence entails that an opt-out declaration is only effective if the respective State Party has accepted the amendment, against this view, see Schmalenbach, JZ, 65 (2010), 750 left column; for further problems see Reisinger-Coracini, GoJIL, 2 (2010), 768–9; see also Zimmermann, JICJ, 10 (2012), 220 ff.

244  Also critical, see Clark, GoJIL, 2 (2010), 704–5: ‘It would take some nerve to help make up the thirty and then opt out, but one should never underestimate the acrobatic ability of the diplomatic mind in construing the national interest!’; Clark, ‘Alleged Aggression in Utopia’, in Schabas et al., Research Companion ICL (2013), p. 76; Manson, CLF, 21 (2010), 426 ff.

245  In more concrete terms, to invoke it as a victim of aggression but to exclude it as an aggressor state itself, see critical Manson, CLF, 21 (2010), 431.

246  On these questions see also Heinsch, GoJIL, 2 (2010), 739.

247  Also critical, see Clark, GoJIL, 2 (2010), 705 (‘another example of a small but powerful minority protecting its own position in a consensus negotiation’); Reisinger-Coracini, GoJIL, 2 (2010), 788 (‘a rule unprecedented in the Rome Statute’); in favour, see Heinsch, GoJIL, 2 (2010), 739–40.

248  For this view, see Schmalenbach, JZ, 65 (2010), 749 right column; Reisinger-Coracini, GoJIL, 2 (2010), 779–81 who, however, on the other hand, considers para. 5 ‘to some extent’ as ‘symbolic’; Trahan, ICLR, 11 (2011), 91–2 (‘intended to facilitate coalition building’).

249  An ‘Understanding 4’ allowing for the application of Article 12(3) has finally been deleted (Manson, CLF, 21 (2010), 438 ff.) but the question remains as to how this possibility can be reconciled with Article 15bis(5) (see Stahn, LJIL, 23 (2010), 880).

250  Clark, GoJIL, 2 (2010), 702–3; see also Reisinger-Coracini, GoJIL, 2 (2010), 785–6; Schmalenbach, JZ, 65 (2010), 751–2.

251  See also Blokker and Kreß, LJIL, 23 (2010), 894.

252  See Heinsch, GoJIL, 2 (2010), 737, 739; Reisinger-Coracini, GoJIL, 2 (2010), 770.

253  Similarly Reisinger-Coracini, GoJIL, 2 (2010), 770.

254  Scheffer, LJIL, 23 (2010), 904; concurring, Stahn, LJIL, 23 (2010), 879 (‘highly fragmented’); Corredor C., Agresión (2012), p. 162 (referring to the different possible scenarios of ratification and non-ratification).

255  See also the chart on ‘Jurisdictional scenarios’ in SWGCA, February 2009 Report (February 2009—ICC-ASP/7/20/Add.1, Annex II), Appendix II, Non-paper on other substantive issues on aggression to be addressed by the Review Conference, reprinted in Princeton (2009), p. 65, para. 8.

256  See Heinsch, GoJIL, 2 (2010), 737; Blokker and Kreß, LJIL, 23 (2010), 892 (‘ample time to prepare’).

257  Also critical, see Reisinger-Coracini, GoJIL, 2 (2010), 787–8 (‘highly regrettable and questionable’); Scheffer, LJIL, 23 (2010), 904 (‘slap at the equality of states, or at least the theory of equality’); Corredor C., Agresión (2012), pp. 150 ff., 217 (speaking at p. 156 of a ‘revés jurídico’, i.e., a setback with a view to the activation of jurisdiction and, consequently, the crime of aggression); Milanovic, JICJ, 10 (2012), 181 (‘short-lived’); less critical, Kaul, GoJIL, 2 (2010), 666 (‘[t]he significance of these limitations should not be overestimated’).

258  See, for example, Zimmermann, ‘Article 5’, in Triffterer, Commentary (2008), mn. 39 (‘quite unlikely that the Parties to the Statute will be able during the upcoming Review Conference to include the crime within the list of crimes’). For a different view, see May, Aggression (2008), pp. 228 (‘defining aggression … is a manageable task and certainly should not cause the international community to shy away from prosecuting this important crime’).

259  In the same vein, see Blokker and Kreß, LJIL, 23 (2010), 889 (‘historic achievement’); Kreß and von Holtzendorff, JICJ, 8 (2010), 1216 (‘exceeds the expectations that one could have reasonably entertained’); Kreß, GA, 158 (2011), 94; Schabas, Introduction (2011), p. 146 (‘singular achievement’); Schmalenbach, JZ, 65 (2010), 745 (‘Wunder von Kampala’ [miracle of Kampala]); 752 right column (‘Meilenstein’ [milestone]); Scheffer, ASIL Insight, 14 (2010), (‘historic milestone’), <http://www.asil.org/files/insight100622pdf.pdf> accessed 1 April 2013; Kaul, GoJIL, 2 (2010), 666 (‘a giant step forward’), but see also 665 (‘the result is not revolutionary’); Reisinger-Coracini, GoJIL, 2 (2010), 748, 787 (‘important step for international criminal justice’, ‘success’); Wenaweser, LJIL, 23 (2010), 887; Stahn, LJIL, 23 (2010), 880; Trahan, ICLR, 11 (2011), 93 ff. (‘historic,’ ‘solid achievement’); Satzger, Internationales Strafrecht (2013), § 16 mn. 87 (‘Erfolg’ [success]); Satzger, ICL (2012), §14 mn. 87 (‘success’, ‘successful compromise’); Gless, Internationales Strafrecht (2011), mn. 851 (‘Erfolg’ [success]); Barriga, ‘Amendments’, in Barriga and Kreß, Travaux Préparatoires (2012), p. 3 (‘historic achievement’); Weigend, JICJ, 10 (2012), 57 (‘breakthrough’, ‘giant step towards fulfilling the long dormant promise of Nuremberg’); O’Connel and Niyazmatov, JICJ, 10 (2012), 191 (‘best political outcome under the circumstances’); Mancini, NordJIL, 81 (2012), 247 (‘remarkable step forward’); Haumer and Marschner, HuV-I, 23 (2010), 196 (‘nicht zu erwartenden Erfolg’). For a more critical view, see Scheffer, LJIL, 23 (2010), 903–4, especially regarding the fragmented liability landscape for aggression, resulting from the jurisdiction provisions (‘patchy coverage’); Ferencz, LJIL, 23 (2010), 907 (‘akin to a doctor putting a patient in a medically induced coma in order to save its life’); Manson, CLF, 21 (2010), 434 with additional criticism 442–3; Clark, ‘Alleged Aggression in Utopia’, in Schabas et al., Research Companion ICL (2013), p. 77 (‘no agreement on what it [the amendments] means’); Corredor C., Agresión (2012), pp. 97 ff., 215 ff. (summarizing).

260  See Corredor C., Agresión (2012), p. 123 (‘definición del crimen … más importante que el contenido …’).

261  In this sense, see Corredor C., Agresión (2012), p. 99–100; for hypothetical scenarios see Trahan, ICLR, 11 (2011), 88–9; generally on deterrence in ICL, see Volume I of this treatise, pp. 69–70.

262  Kaul, GoJIL, 2 (2010), 657 continuing: ‘I might be proven wrong, but at the present stage I am convinced that the judges at our Court will be able to assess whether a crime against peace has been committed or not, just as the judges at Nuremberg have been in 1946.’