Since the Rome Conference in 1998, the States have worked to make a provision on the crime of aggression in the Preparatory Commission, Assembly of States Parties to the Rome Statute of the Internatrional Criminal Court (ASP) and Special Working Group on the Crime of Aggression (SWGCA). As a reslut of more than 10 years of negotiations, the Special Working on the Crime of Aggression adopted "Draft Report of the Special Working Group on the Crime of Aggression" on February 13, 2009. This article is to present a brief review on the discussions concerning the crime of aggression from the Rome Conference to the Special Working Group.
At the Rome Conference, there were three major issues concerning the crime of aggression. First, there were debates on whether the crime of aggression should be included in the Statute as a crime within the jurisdiction of the ICC. Second, there were disagreements among the delegations as to how to define the crime of aggression. Third, there were disagreements on what the role of the Security Council should play in relation to the crime of aggression.
At the Rome Conference, the delegations could not reach agreement on a generally acceptable definition of the crime of aggression and Article 5 of the Statute came into existence in the present form as a final package deal. Article 5 of the Statute includes the crime of aggression by providing paragraph 1 (d). But, the ICC cannot exercise its jurisdiction over the crime of aggression until the definition of the crime of aggression and conditions for the ICC to exercise its jurisdiction are adopted according to Article 5 (2) of the Statute.
The Draft Report contained various discussions between delegations and a provision on aggression. First, the definition of the crime of aggression is suggested to be inserted as Article 8 bis in the ICC Statute. Article 8 bis seems to combine "enumerative approach" and "generic approach" in the previous discussions. Article 8 bis provides a general provision on the definition of the crime of aggression and enumerates all acts of aggression under Article 3 of the UN General Assembly resolution 3314. Article 8 bis received wide support from the delegations to the Special Working Group.
Second, with respect to the condition for the ICC to exercise jurisdiction over the crime of aggression, Special Working Group proposed to include Article 15 bis. Article 15 bis relates to the Security Council's decision on the act of aggression. Article 15 bis has two Alternatives. Alternative 1 provides that in the absence of Security Council decision, the Prosecutor of the ICC may not proceed with the investigation in respect of a crime of aggression. Alternative 2 permits the ICC Prosecutor to proceed with the investigation in respect of a crime of aggression where the Security Council determination on the aggression is not made within 6 months after the date of notification by the Prosecutor subject to conditions in the options. States could not agree on choosing Alternatives at the Special Working Group. This issue should be considered further at the future meetings such as an intersessional meeting scheduled for 8 to 10 June 2009, Assembly of States Parties in November 2009 and the Review Conference in 2010.
Third, other provisions contained in the Draft Report such as Article 25 (3) bis, amendments to Article 9 (1) and Article 20 (3) were generally supported by the delegations.
Fourth, there remains the issue on the entry into force of the crime of aggression provision.
In conclusion, I hope the Republic of Korea, as a strong proponent of the ICC, may continue to contribute to making the ICC a powerful weapon to fight against the crime of aggression and impunity.