The International Criminal Court: new crimes and a new Prosecutor

An agreement to incorporate a definition of the crime of aggression into the ICC’s Rome Statute was the main outcome of the ICC’s first review conference, in 2010. To some surprise, provisions requiring the Security Council to act as a ‘filter’ for prosecutions were not adopted, even though the crime requires there to have been an illegal use of armed force by a state.

But the issue was so controversial that states parties also agreed that the ICC will be only able to exercise its jurisdiction over the crime of aggression subject to a decision to be taken after 1 January 2017. In other words, there is now a definition of the crime of aggression, but no means (yet) of prosecution for it at the ICC.

The crime of aggression was not the only issue at the review conference. There was an amendment expanding the situations in which certain weapons are illegal, and a ‘stocktaking’ segment, assessing and reflecting on the progress of the ICC. Other issues raised recently include whether states parties should continue to be able to suspend the jurisdiction of the ICC temporarily for war crimes committed on their territory or by their nationals, and whether the General Assembly, in addition to the Security Council, should be allowed to defer proceedings before the ICC. The apparently increasing involvement of the US in the ICC is another notable development, although it still seems unlikely to join the ICC.

In the coming year, the ICC’s member states will elect a new chief Prosecutor to replace the controversial Argentinian Luis Moreno-Ocampo, whose term comes to an end in June 2012. This could significantly change the approach of the ICC and the way it is perceived.