State sovereignty and criminal protection by the International Criminal Court

By Beya Keshi Robin

At the end of the First World War, war was no longer seen as a lawful means of settling disputes between states. It is, moreover, the desire to exclude war and its consequences that led to the creation of the League of Nations and then to the organization of the United Nations in order to maintain international peace and security through a system of collective security. Peace thus became a fundamental value of international society. In order to preserve it, States started by condemning aggression as war unleashed against a State, before banning it outright.

The creation of the International Criminal Court is today a major component of the strategy of the international community in the search for peace and security, both in relations between States and within States themselves. This is the case with the umbilical cord of this permanent international criminal jurisdiction with the United Nations (UN), which appeared very clearly from the preamble to the Rome Statute of 1998, in Sections 2 13 b (Referral to the Court by the Security Council) and other practical arrangements, and so on. 

From this angle, we can then consider this jurisdiction as one of the noteworthy advances in contemporary international law, as well as a rational means of punishing the perpetrators of crimes against humanity on legal and objective bases. 

In the opinion of Luc Côté, the last decade has allowed us to witness the overwhelming development of international criminal law, both on a normative and institutional level. Since the creation of the ad hoc International Criminal Tribunals for the Former Yugoslavia (ICTY-1993) and of Rwanda (ICTR-1994), passing by the surprising adoption in Rome of the Statute of the International Criminal Court (ICC-1998) until the most recent experience of the Special Court for Sierra Leone (SCSL-2002), international criminal justice institutions have forever changed the landscape of international criminal law. 

In broad outline, this development is positive, although it continues to pose difficult legal and political problems, very imperfectly resolved on time.

The treaty establishing the International Criminal Court assigns its jurisdiction over crimes that have been narrowly defined. According to Section 5 of the Rome Statute, the International Criminal Court may establish its jurisdiction over the most heinous crimes of concern to the international community as a whole, once the respective conditions for such crimes have been met. These crimes include “the crime of genocide, crimes against humanity, war crimes and the crime of aggression.” 

While the crimes of genocide, war and crime against humanity were defined from the earliest hours of the adoption of the Rome Statute, the crime of aggression has escaped this reality. As a result of time, the 2010 Conference of States Parties to the Kampala Rome Statute gave hope to this notion because the ICC has jurisdiction over this crime

However, thought should already be given to the effective punishment of this crime by the International Criminal Court. From our reading, a few high-calibre clashes are erected and already make this repression impossible. Suddenly, we are already pouring between advance and regression.

In essence, what is the scope of the crime of aggression? What are the conditions for the punishment of this crime within the meaning of the Rome Statute?

Scope of the concept of aggression within the meaning of the Rome statute

As defined by the Assembly of States Parties meeting in Kampala between 31 May and 11 June 2010 at the Review Conference of the Rome Statute, the crime of aggression contains several constituent elements. From the analysis of these elements, the crime is defined as the planning, preparation, initiation or commission of an act consisting in the use of armed force by one State against the sovereignty, territorial integrity or political independence of another.

In this context, acts of aggression include invasion, military occupation or annexation by the use of force and blockade of ports or coastlines, if by their character, gravity and scale these acts are considered violations of the Charter of the United Nations. 

Conditions for the exercise of the jurisdiction of the court and criminal responsibility

The Statute creating the Court sets out certain conditions for its jurisdiction. From this perspective, the jurisdiction of the ICC may be established in the event of the crime of aggression constituted by a state, unless that state party has previously declared that it does not recognize its jurisdiction. 

Reading this provision, the risk of taking the action of the Court hostage is plausible. In practice, it is hardly permissible for a State to readily accept the jurisdiction of an international body. Besides this dilemma, the jurisdiction of the Court remains limited in the event of the commission of a crime of aggression by a State not party to its Statute. 

However, this obstacle is not absolute, because the mechanism of the referral of the Security Council can be activated, but also a State not party to the Statute may consent to the jurisdiction of the Court. But if, by surprise, one of the permanent members of the Security Council were to raise its veto and the non-State Party did not recognize the jurisdiction of the Court, what would happen to the victims of this crime? At this level, the Statute does not decide. In our view, this is one of the weaknesses not renewed by this text.

In addition, the opening of the investigation of the crime of aggression is still subject to the recognition of this crime by the Security Council. Failing this finding within six months of the date of the Prosecutor’s opinion to the Secretary-General of the United Nations, the Prosecutor may proceed with an investigation in respect of a crime of aggression, provided that the Pre-Trial Division of the Court has authorized the commencement of an investigation in respect of the crime in accordance with the procedure set forth in Section 15 and the Security Council has not decided otherwise in accordance with Section 16 of the Statute. On our reading, all of these developments conspire against the action of the Court.

Regarding the question of responsibility, the Rome Statute establishes two types of responsibility. The individual criminal responsibility, and the international responsibility of the State.

In view of this previous development, the action of the International Criminal Court may, in one way or another, be hampered by certain constraints. In this case, recognition of the jurisdiction of the ICC in the event of the commission of the crime of aggression by a State, the limits of the Court’s jurisdiction in the commission of a crime committed by a State not party to the Rome Statute, the veto held by the five permanent members of the Security Council, the stay of investigation or prosecution held by the Security Council. These obstacles risk contributing to the failure of the criminal proceedings of the Court and jeopardize both the rights of the victims of this crime. 

It is in this context that the interest of this reflection is found to be justified by the contribution of certain perspectives, many of which, one may mention, the political will of States in recognizing the jurisdiction of the Criminal Court. international in the event of the crime of aggression and the relativity of exercise of the right of the veto by the five permanent members of the Security Council at the time of the presentation of the situation of a State not party to the Rome Statute by the Prosecutor or of the finding of an act of aggression committed by a person or by a State.

Conclusion

In sum, the present study examines not only the crime of aggression and the mode of punishment, but also how international criminal law interferes in the political field to protect a key political variable of the state, its sovereignty. Moreover, the merit of the study will be not only to provide an analysis of international criminal law in relation to the study of the offence and the punishment of the crime of aggression, but also to analyse the issues, challenges and constraints related to the criminal protection of State sovereignty by the ICC. (