An Introduction To The International Criminal Court - Institute for ...

crimes prosecuted by the court 33
is based on political considerations. The Security Council is not acting as a
court. 22
Early in the sessions of the Preparatory Commission, a working group on
aggression was set up, and it met throughout the life of the Commission in an
effort to make progress on the matter. The result was a palette of half a dozen
options, submitted in mid-2002. One of the proposals gives the Security
Council the initiative in determining the existence of an act of aggression,
after which jurisdiction over prosecution passes to the Court. But if the
Security Council fails to act within a given period of time, another option
allows the Court to proceed without Security Council authorisation, while
yet another does not permit the Court to proceed at all. Still another option
sees the determination of aggression passing to the General Assembly in cases
where the Security Council does not act. Failing General Assembly action,
the Court may proceed. There is also a proposal to involve the International
Court of Justice, which would be requested to provide an advisory opinion
on the existence of an act of aggression in specific cases. 23
As for the definition of the crime, one proposal limits aggression to ‘the
use of armed force to attack the territorial integrity or political independence
of another State in violation of the Charter of the United Nations’.
There is debate about whether there should be a list of acts of aggression,
much like the lists for the other three crimes in the Statute, and whether
or not the list should be exhaustive or merely indicative. Discussions also
include suggestions to confine prosecution for the crime of aggression to
persons who ‘exercise control over or direct the political or military action
of a State’. This would have the consequence of excluding accomplices, for
example powerful allies of a small State that might encourage it to attack
another country in what could be little more than a proxy war. For example,
the occupation of East Timor by Indonesia in 1974 might readily meet
the proposed definition of aggression. It is widely believed to have been
22 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits,
[1986] ICJ Reports 14 at 290.
23 ‘Discussion Paper Proposed by the Coordinator’, UN Doc. PCNICC/2002/WGCA/RT.1/Rev.2
(see Annex III). See generally J. Hogan-Doran and B. T. Van Ginkel, ‘Aggression as a Crime under
International Law and the Prosecution of Individuals by the Proposed International Criminal
Court’, (1996) 43 Netherlands International Law Review 321; A. Carroll Carpenter, ‘The International
Criminal Court and the Crime of Aggression’, (1995) 64 Nordic Journal of International
Law 237; Matthias Schuster, ‘The Rome Statute and the Crime of Aggression: A Gordian Knot
in Search of a Sword’, (2003) 14 Criminal Law Forum 1; Sylvia A. de Gurmundi Fernandez, ‘The
Working Group on Aggression at the Preparatory Commission for the International Criminal
Court’, (2002) 25 Fordham International Law Journal 589.