Study Of Issues Concerning The ICC's Exercise Of Jurisdiction Over The Crime Of Aggression

Although the 1998 Rome Statute lists the crime of aggression over which the International Criminal Court(ICC)has jurisdiction,aggression amendments containing specific provisions were adopted until the first Review Conference in 2010.Along with defining the crime of aggression,the amendments provide special provisions for the ICC to exercise jurisdiction over the crime of aggression.This thesis studies systematically the relevant regimes on the ICC's exercise of jurisdiction over the crime of aggression,which includes not only those applies specially to the crime of aggression,i.e.special provisions contained in the aggression amendments,entry into force of the aggression amendments,but also those Statute regimes universally applicable to the ICC's exercise of jurisdiction.This thesis is divided into five Chapters:Chapter I is an overview of aggression and the crime of aggression.This Chapter summarizes the outlawry history of the aggressive war,and discusses how the responsibility of aggression had evolved from pure state responsibility into individual criminal responsibility.Against this background,the definition of the crime of aggression has gone through a development process from Charters of post-war international military tribunals to the 1974 Definition of Aggression to the Rome Statute.The definition of the crime of aggression provided by Article 8bis of the Statute embodies three features of this crime: the crime of aggression is based onstate act;the crime of aggression is necessarily of transnational character;the crime of aggression is a “leadership crime”.These features make exercising jurisdiction over the crime of aggression a much more complicated issue.Chapter II investigates entry into force of the aggression amendments for state parties.Entry into force of the aggression amendments forms a fundamental requirement for the ICC's exercise jurisdiction over the crime of aggression.Two provisions regulating entry into force of the amendment exist in the Rome Statute,containing respectively different application scope,application threshold and legal consequences.During the negotiation,there are four kinds of view on entry into force of the aggression amendments.Upon analysis,this thesis considers that: first of all,entry into force of the aggression amendments shall not steer clear of the procedure stipulated by the Statute;second,entry into force of the aggression amendments cannot commonly be applied both paragraph 4 and 5 of Article 121;third,upon the literal interpretation,teleological interpretation and the verification of subsequent practice,Article 121,paragraph 5 of the Statute shall apply to the entry into force of the aggression amendments,which means that its effectiveness can only lie in every states that have ratified or accepted the amendments,and shall not become effective to the states that have not done so.Chapter III discusses specific restrictions to the ICC's exercise of jurisdiction by the Rome Statute.Three Articles specifically restrict the ICC's exercise of jurisdiction over the crime of aggression,among which the legal basis for Article 15 bis,paragraph 4 of the Statute is quite controversial.This thesis argues that launching an opt-out declaration has real impact on the legal status of the state parties that have acceded to the amendments,while alters nothing to the legal status of the state parties that have not acceded to the amendments.However,no matter whether acceding or not,state parties all have the motivations for launching such a declaration.In the cases of State referral and proprio motu,the simultaneous application of paragraph 4,paragraph 5 of Article 15 bis and the second sentence of paragraph 5 of Article 121 will nullify the original rules in the Statute for exercise of jurisdiction.Fortunately,restrictions ofthese three provisions to the ICC's exercise of jurisdiction nevertheless apply to the Security Council(SC)referral,so the reliance on the SC actions would be taken as one of the important facets of the ICC's exercise of jurisdiction over the crime of aggression.Chapter IV focuses on the determination of act of aggression by the SC and the exercise of jurisdiction over the crime of aggression by the ICC.The determination power of act of aggression stems from the UN Charter with a long practice,despite the question that how many resolutions in this practice can be considered as determination of act of aggression.This power,held by the SC,is not exclusive,which leaves rooms for the ICC to have the same power.Of course,the SC's determination power has priority in terms of timing and effectiveness.In fact,among three positions in determining act of aggression,only the determination of nonexistence of act of aggression could obstruct the ICC's effective exercise of jurisdiction over the crime of aggression;neither the determination of existence nor omission of determination can interfere with the independence of the ICC.Of course,one shall not ignore the authorization of Article 16 of the Statute that the SC can always defer the ICC's investigation or prosecution for 12 months no matter which position it has taken,and can extend such deference without limit.Chapter V analyses the application of the principle of complementarity in the ICC's exercise of jurisdiction over the crime of aggression.Pursuant to the principle of complementarity,the ICC shall inspect the prosecution of core crimes by domestic courts of State Parties in the first place.However,owing to various haunting issues such as state jurisdictional immunity,immunity of state leaders,lack of universal jurisdiction over the crime of aggression and strong political factors,domestic prosecution of the crime of aggression is actually hard to be carried out.Against this background,the principle of complementarity's role of good nexus linking international and domestic jurisdiction is hard to sustain,as it will render the ICC either to ceaselessly test whether part of aggression cases are in conformity with the conditions for its exercise of jurisdiction,or to look on the other part of aggression cases short of independence and impartiality with folded arms.However,since theaggression amendments do not alter the applicability of the principle of complementarity to the crime of aggression at all,for now though,the ICC's exercise of jurisdiction over the crime of aggression is still subject to the regulation of the principle of complementarity.This thesis draws a conclusion at last,compares different conditions for the ICC to exercise jurisdiction over the crime of aggression under different initiating modes of jurisdiction,and makes comments on this practice of which the ICC is on the threshold.