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the case of starting an investigation,
the Prosecutor has to check first if
the Security Council was aware of
that situation and if it took some
action. If the answer is negative, the
Prosecutor has to inform the SC
which has to make a decision in a
limited time from 6 to 12 months. If
no action is taken, there are more
proposals: the Prosecutor may proceed
with the case, 17
shall dismiss
the case 18
or ask for a General
Assembly recommendation. If there
is no recommendation, the Court
may proceed with the case 19 . There
are some other proposals, too. The
GA or the SC, with the vote of nine
members can seek an advisory opinion
from the ICJ and in case of ICJ
finds that an act of aggression
occurred, the Court may proceed, 20
or in case of ICJ gives a judgment in
concordance with Chapter II of its
Statute and find a state guilty of an
act of aggression, than ICC Prosecutor
can start the investigation. 21
A new proposal concerning the
crime of aggression was made by the
Chairman of the SWGCA with the
occasion of the resumed fifth session
of the Assembly of States Parties. 22
The Chairman’s proposal revises only
the first part of the Coordinator’s
paper, namely the one regarding the
definition of aggression and the conditions
of exercising the jurisdiction.
The elements of crime remained the
ones from the part II of the
Coordinator’s document. Regarding
the condition of exercising the ICC
jurisdiction, there are a few differences
between the paper from 2002
and the one from 2007. Thus, the new
proposal doesn’t foresee the Security
Council’s option of asking an advisory
opinion from ICJ. 23
Practically, the Chairman’s proposal
follows the same format as the
Coordinator’s paper but it contains
some changes which reflect the
progress made by the SWGCA. The
specialists are seeking for proper
solutions to be able to provide a definition
for the supreme crime by
2009, when amendments to the
Rome Statute are accepted.
During the meetings of the
SWGCA the question of what kind
of definition is appropriate has been
raised: the generic or the specific
one? The generic definition is the one
which does not include a list of acts
of aggression, while a specific one
contains such a list. A generic definition
is preferred as it can not be
imagined all the ways the act of
aggression would occur. 24 The specific
definition will be more consistent
with the definitions of the other
crimes in the statute, but this argument
does not stand necessarily for a
better definition. A third variant,
which I believe it would be more
appropriate is to combine the two
approaches, providing a general chapeau
and a non exhaustive list of
specific acts. 25
Unlike the other three categories
of crimes within the jurisdiction of
ICC, which can be put under investigation
without any predetermination
of another organ, the crime
of aggression is special in this regard.
There is a ‘sine qua non’ condition
which requires that an act of aggression
has been committed. Who is the
organ that has the right to make such
a determination is still a subject of
debate in international law: the
Security Council? The General
Assembly? ICJ? ICC itself?
ICC deals with crimes committed
by individuals, not with acts
committed by states. This is the reason
it can not establish that an act of
aggression occurred. If we analyze
the problem from this point of view,
logically will be for the ICJ to deal
with this aspect. ICJ has jurisdiction
over the states’ acts, it should be the
proper organ to pronounce a decision
in this regard. It was said that
even if it seemed a good solution,
waiting for ICJ to pronounce a decision
would take too much time,
would be expansive and the victims
wouldn’t have the time and
the power to wait for an answer
from ICJ. 26 Besides, ICJ did not often
determined, that an aggressive
state act occurred, though it was
seized with such matters a couple
of times.
Another organ which might predetermine
the existence of aggression
is the United Nations Security
Council. This is the most controversial
proposal since the SC is a political
organ, not a judicial one. The
question is if the politics is more
powerful than the judiciary when it
comes to international peace and
security. Back in 1946 the states
invested the SC with ‘primary
responsibility for the maintenance of
international peace and security’. 27
Article 39 of the Charter clearly foresees
that ‘the Security Council shall
determine the existence of any threat
to the peace, breach of the peace, or
act of aggression’. But what happens
if the UNSC fails to establish that an
act of aggression occurred? A solution
could be for the General
Assembly to act in this regard, but as
Prof. Benjamin Ferencz noted ‘the
General Assembly is not a judicial
body and may be even more politically
oriented than the Security
Council. There is not much advantage
in jumping from the frying pan
into the fire.’ 28
The debate on which organ is
more appropriate to predetermine
the existence of an act of aggression
should not block ICC from making
justice for victims. Some alternatives
17 See PCNICC/2002/WGCA/RT.1/Rev.2 par. 4 option 1.
18 Ibid option 2.
19 Ibid option 3.
20 Ibid option 4.
21 Ibid option 5.
22 Which took place in New York, 29 January – 1 February 2007.
23 See id 20 variant (b).
24 See also I.K. Müller-Schieke, Defining the Crime of Aggression under the Statute of the International Criminal Court in 14 LJIL 409–430 (2001).
25 See ICC-ASP/5/SWGCA/Inf. 1 at 5 par. 10.
26 See B. Ferencz, id 7 at 10.
27 See UN Charter, article 24 par. 1.
28 Id 26 at 9-10.
29 Ibid at 10.
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