Murphy: The Crime of Aggression at the ICC

Sean D. Murphy (George Washington Univ. - Law) has posted The Crime of Aggression at the ICC (in Oxford Handbook on the Use of Force, Marc Weller ed., forthcoming). Here's the abstract:

In May 2012, Liechtenstein became the first State to ratify amendments to the Rome Statute of the International Criminal Court (ICC) that seek to activate the Court’s jurisdiction over the crime of aggression. The amendments, which were adopted by consensus at the ICC Review Conference that met in Kampala, Uganda, in 2010, establish definitions for “act of aggression” and “crime of aggression,” and provide the Court with jurisdiction even in the absence of a referral from the Security Council. At the same time, the States Parties decided that the ICC’s jurisdiction over this crime will not become operative until at least thirty States ratify the amendments and until there is a further decision by the States Parties sometime after January 1, 2017. Even then, the ICC’s jurisdiction will be limited over this crime: there are exceptions available for States Parties who wish to avoid exposure to the Court’s jurisdiction and the jurisdiction will not extend to States that are not Parties to the Rome Statute.

Despite the progress at Kampala, considerable uncertainties and ambiguities exist concerning the process for activating the jurisdiction, the manner in which the jurisdiction operates once it is activated, its institutional effects on the Security Council and the ICC itself, and its long-term implications for the jus ad bellum. As such, those interested in the effective functioning of the ICC’s jurisdiction over the crime of aggression, and in the efficacy of international norms on the use of force generally, should not view Kampala as the final word on the crime of aggression, but as an opportunity to continue to grapple with the very real and very challenging issues that still remain.