Statement regarding the draft resolution on the crime of aggression at the Review Conference of the Rome Statute of the International Criminal Court
The Review Conference of the Rome
Statute of the International Criminal Court (ICC) will convene in Kampala,
Uganda from May 31 to June 11, 2010. The Conference is the first meeting of ICC
state parties to consider amendments to the Rome Statue since the Statue
entered into force in 2002.
Human Rights Now (HRN), an international human
rights NGO based in Tokyo, requests all the governments to take advantage of
this occasion and work harder on the reinforcement of the ICC and the
realization of the rule of law in the world.
Jurisdiction over the crime of aggression should be granted to the ICC through
the amendments to the Rome Statute.
One of the biggest points of contention at the
Conference is the amendment of the Rome Statute, regarding the crime of
However, we have seen situations where acts of
aggression were committed and innocent civilians were killed since the Statute
took effect in 2002. It is time to adopt amendments to the Statute and enable
the ICC to exercise its jurisdiction over the crime of aggression. It is of
decisive importance in establishing a solid consensus on the crime of
aggression as one of the most serious crimes in international law in order to
prevent further aggressions, and implementing a purpose of the Charter of the
United Nations which outlaws the use of force in principle.
2. Conditions for the exercise of
jurisdiction over the crime of aggression
HRN supports the definitions of the crime of
aggression proposed by the Special Working Group on the Crime of Aggression.
This is in accordance with the UN General Assembly resolution 3314 (1974). The
conditions under which the ICC shall exercise jurisdiction with respect to the
crime are still largely in dispute among the States Parties.
The points of contention raised regarding the
conditions for the exercise of the jurisdiction over the crime of aggression
are whether the ICC Prosecutor can initiate an investigation when the Security
Council has not made a determination that an act of aggression, as well as what
the conditions to begin its investigation are, if the Prosecutor is able to do
HRN does not support the position that the ICC
Prosecutor has no authority to initiate its investigation, when the Security
Council has not determined that there has been an act of aggression.
The Security Council is the UN body to take
responsible action for peace and security, and the Council also bears the
primary responsibility to determine an act of aggression. However, the Council
should not have exclusive authority on making determinations on crimes of
aggression. If we look at the Council’s history, there have been a number of
cases where the Security Council has failed to take responsibility for the
illegal use of force. Granting exclusive authority to the Council involves the
risk of the exercise of veto by its permanent members not to determine an
explicit act of aggression. If the ICC is denied its jurisdiction over such
cases, the independence of the Court will be gravely undermined.
Article 13 of the Rome Statue stipulates that
the exercise of jurisdiction by the ICC may be triggered by the Security
Council, a State Party, or the Prosecutor acting proprio motu and, in the third case, a decision of the Prosecutor
to conduct an investigation proprio muto
must be approved by the Pre-Trial Division of the ICC.
It is appropriate to allow the Prosecutor to
exercise its jurisdiction over the crime of aggression on the same conditions
as other crimes
referred in the Statute, since there is no reasonable
justification for setting stricter conditions only on the crime of aggression.
In the case of the State Party referral, a referral by a victim state should
suffice to satisfy the conditions to authorize the Court to exercise its
HRN requests all State Parties of the ICC to support:
– the amendments regarding the crime of
– the amendments
which do not require stricter conditions to exercise jurisdiction of the
ICC, including the Security
HRN also requests all State Parties to
contribute to the establishment of the rule of law in the world through the