The Domestic Prosecution of the Crime of Aggression after the International Criminal Court Review Conference: Possibilities and Alternatives

During the International Criminal Court Review Conference in Kampala, the issue of complementarity and aggression was not given the proper attention it deserved. In principle, the application of art 17 has remained intact for all crimes of the Rome Statute of the International Criminal Court (‘Rome Statute’) — including aggression — but it is unclear how complementarity will interplay with other principles of international law when it is applied to aggression. Despite this uncertainty, this article claims that if certain conditions are fulfilled there exist ‘solutions’ that will allow domestic courts to exercise jurisdiction over this ‘supreme crime’. It argues that because states have incorporated the crime of aggression — which in turn has incorporated the act of aggression — into the Rome Statute without amending the complementarity mechanism, they have not closed the door to allowing domestic courts to look into the crime under the complementarity mechanism, albeit under the jurisdictional limitations adopted in Kampala. Even the adopted understanding in Kampala on domestic prosecution, which may be viewed by some as a weakening factor for this article’s claims, should not be overestimated; as a non-ratified annex it cannot be given more weight than the Rome Statute’s pivotal art 17 or the amendments adopted. Finally, several uncontroversial and uncontested options for domestic prosecutions still remain. The first is when the beneficiary state decides to explicitly waive its right. The second is when national courts have primary responsibility under the complementarity mechanism to prosecute crimes of aggression committed by their own nationals. Furthermore, domestic courts will be able to prosecute non-nationals for the crime of aggression after the International Criminal Court or the United Nations Security Council has determined that an act of aggression has been committed. While there is no doubt that the issue of domestic prosecution of the crime of aggression remains contentious, the possibility of its domestic prosecution remains open — albeit requiring some creative interpretations of the amendments of the Rome Statute.

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