6 - The Court’s Jurisdiction Over the Crime of Aggression

Summary

Chapter 6 undertakes a detailed study of the jurisdictional provisions that govern the crime of aggression (Articles 15bis and 15ter). In contrast to the ICC’s ordinary jurisdictional regime, the provisions allow States Parties to shield their nationals, and entirely insulate the nationals of non-States Parties, from prosecution, except in the case of Security Council referral. The chapter considers the legality of this regime. It then examines the different interpretations of the jurisdictional provisions offered by States and commentators, and the effect of the resolution under which the ICC Assembly of States Parties (ASP) activated the Court’s jurisdiction in 2017. Based on a detailed examination of the jurisdictional provisions, relevant ICC ASP resolutions, and the governing amendment provision, the chapter sets out exactly who is subject to the ICC’s jurisdiction. It also examines the requirements of opt-out declarations, the role of Security Council determinations as to the existence of an act of aggression, the expected operation of the Pre-Trial Division filter, and the effect of a Security Council referral.