Crime of aggression

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Definition[edit | edit source]

Crime of aggression
Pursuant to Article 8bis of the Rome Statute, the crime of aggression is committed if the following elements are present: (a) there is an act of aggression by a State; (b) the act constitutes a “manifest” violation of the Charter of the United Nations; (c) the perpetrator planned, prepared, initiated or executed the act; (d) the perpetrator is a person “in a position effectively to exercise control over or to direct the political or military action of a State;” and (e) the perpetrator acted with the required mens rea.

The first requirement is that an “act of aggression” has occurred. Act of aggression is defined in Article 8bis, paragraph 2, as the use of armed force by a State[1] “against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”[2] Article 8bis, paragraph 2, further provides a list of acts that qualify as acts of aggression based on United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974.[3] While cyber operations are not specifically mentioned in the list, cyber operations could involve a “use of force against the territorial integrity or political independence of” a State,[4] as cyber operations could constitute use of armed force (see use of force). Cyber operations could also play a role in several of the listed acts of aggression, or could potentially constitute the fully completed act.[5] In any event, the list is not exhaustive,[6] so it is possible that other comparable acts could be encompassed.

The second requirement, under Article 8bis, paragraph 1, is that the act of aggression “by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”[7] This threshold clause “appropriately limit[s] the Court’s jurisdiction to the most serious acts of aggression under customary international law, thus excluding cases of insufficient gravity and falling within a grey area.”[8] The components of character, gravity and scale must be sufficient to justify a “manifest” determination.[9] The Elements of Crimes further state that “[t]he term ‘manifest’ is an objective qualification,”[10] meaning it is not dependent on the subjective belief of the actors involved.[11] The words “‘gravity’ and ‘scale’ were intended to exclude border skirmishes and the like.”[12] As to “character,” it is here that “genuinely legally controversial cases” are excluded;[13] thus, there must be “an incontrovertible breach of Article 2(4).”[14]

A third requirement under Article 8bis, paragraph 1, is that the individual accused must have been involved in the “planning, preparation, initiation or execution” of the act of aggression,[15] which describes the perpetrator’s contribution to the State’s act of aggression. The individual conduct is additionally subject to the modes of responsibility listed in Article 25, and superior responsibility as stipulated in Article 28.[16]

A fourth requirement found in Article 8bis, paragraph 1, is that the perpetrator is a person “in a position effectively to exercise control over or to direct the political or military action of a State”[17]—referred to as the “leadership clause.” From the face of the language, what matters is the leader’s effective control, and the leader could be either a political or military leader. The “leadership clause” is intended to cover a fairly narrow group of senior leadership, most certainly excluding ordinary soldiers.[18]

Finally, the crime of aggression requires no specific intent (in contrast to the crime of genocide), and therefore the general mens rea elements of intent and knowledge are required pursuant to Article 30 of the Rome Statute.[19]

Appendixes[edit | edit source]

See also[edit | edit source]


Notes and references[edit | edit source]

  1. ↑ The acts of non-state actors may sometimes be attributable to a State. See Tallinn Manual 2.0 Rule 17 (“Cyber operations conducted by a non-State actor are attributable to a State when: (a) engaged in pursuant to its instructions or under its direction or control; or (b) the State acknowledge and adopts the operations as its own.”).
  2. ↑ Rome Statute art 8bis, para 2.
  3. ↑ Ibid. Specifically, the list includes: "(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein." Ibid.
  4. ↑ Tallinn Manual 2.0 Rule 68 (“A cyber operation that constitutes a threat or use of force against the territorial integrity or political independence of any State, or that is in any other manner inconsistent with the purposes of the United Nations, is unlawful.”).
  5. ↑ See list of acts qualifying as aggression from Rome Statute art 8bis, para 2. “[M]any of the acts in the list can be interpreted to apply to cyber operations . . . .” Permanent Mission of Liechtenstein to the United Nations, “The Council of Advisers’ Report on the Application of the Rome Statute of the International Criminal Court to Cyberwarfare” (Aug 2021) [hereinafter, “Council of Advisers’ Report”] 10, para 3; see also ibid, 10–11, paras 3–5 (envisioning acts in subparagraphs (b), (c), (d), (f), and (g) committed through cyber operations).
  6. ↑ Ibid, 10, para 3 (“the list is not exhaustive”). The list is open-ended (eg, illustrative) but “closed” by the need to meet the requirements in Article 8bis, paragraph 1—including that the act of aggression rise to the level of a “manifest” violation of the UN Charter. See Rome Statute art 8bis, para 1.
  7. ↑ Rome Statute art 8bis, para 1. Implicit in the definition is that an act of aggression has occurred. While “attempt” is encompassed within Rome Statute Article 25(3)(f), it should be thought of as covering attempts to plan, prepare, initiate or execute the crime. But if there is no manifest UN Charter violation, there is no crime.
  8. ↑ “Report of the Special Working Group on the Crime of Aggression,” ICC-ASP/6/20/Add.1 (June 2008) Annex II, para 68. The negotiations in the Special Working Group on the Crime of Aggression (“SWGCA”) fed into the finalization of the crime of aggression, so constitute negotiating history.
  9. ↑ International Criminal Court, Assembly of States Parties, Review Conference, ICC Doc. RC/Res.6. The Crime of Aggression (11 June 2010) Annex III, Understanding 7 [hereinafter, “Kampala Amendments”].
  10. ↑ “ICC Elements of Crimes, Article 8bis, Crime of Aggression,” 43, Introductory Note 3 <ElementsOfCrimesEng.pdf (icc-cpi.int)>.
  11. ↑ See Robert Heinsch, “The Crime of Aggression after Kampala: Success or Burden for the Future” (2010) 2 Gӧttingen J Intl L 713, 727 (“This [Introductory Note] tries to illustrate that the interpretation of the term is independent from subjective opinions and not dependent on the opinion of the actors involved.”).
  12. ↑ Claus Kreß, “Time for Decision: Some Thoughts on the Immediate Future of the Crime of Aggression: A Reply to Andreas Paulus” (2009) 20 EJIL 1129, 1138.
  13. ↑ Ibid.
  14. ↑ Carrie McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court (2nd edn, CUP 2021) 158. Understanding 6 agreed on at the 2010 Review Conference provides: "It is understood that aggression is the most serious and dangerous form of the illegal use of force; and that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations." International Criminal Court, Assembly of States Parties, Review Conference, ICC Doc. RC/Res.6.  The Crime of Aggression (11 June 2010) Annex III, Understanding 6. Understanding 7 further states that “the three components of character, gravity and scale must be sufficient to justify a ‘manifest’ determination. No one component can be significant enough to satisfy the manifest standard by itself.” Ibid, Understanding 7. This leaves it open to interpretation whether all three terms must collectively satisfy the threshold, or whether two may suffice. Robert Heinsch, “The Crime of Aggression after Kampala: Success or Burden for the Future” (2010) 2 Gӧttingen J Intl L 728, 729.
  15. ↑ Rome Statute art 8bis, para 1.
  16. ↑ Ibid, arts 25, 28. One can think of it that Rome Statute Articles 25 (individual criminal responsibility) and 28 (superior responsibility) broaden the field of who may be accused (eg, to those who aid in the planning, for example) but the requirement of involvement in “planning, preparation, initiation or execution” (contained in the definition of the crime) must be met for any accused.
  17. ↑ Ibid, art 8bis, para 1; art 25, para 3bis.
  18. ↑ See Carrie McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court (2nd edn, CUP 2021) 257 (“The definition applies to de facto ‘leaders’ who are in a position to have a decisive say over, govern, instruct, or command the deeds of the political or military establishments of a State aimed at achieving particular objectives.” Also arguing “that this definition excludes business and religious leaders (unless they otherwise meet the leadership definition),” resulting in a “narrowing of the class of potential perpetrators.”). For further discussion of the “leadership clause,” see Astrid Reisinger Coracini and Pål Wrange in Claus Kreβ and Stefan Barriga (eds), The Crime of Aggression: A Commentary (CUP 2017) 309–12; Roger Clark, in Kreβ and Barriga, 583 et seq.
  19. ↑ See Rome Statute art 30.

Bibliography and further reading[edit | edit source]

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