On July 13, 2024, the Court of the Citizens of the World held an Expert Confirmation Summit on ICC arrest warrant applications against Israeli and Hamas leadership. Among the topics discussed were the challenges of applying the crime of aggression as outlined in Article 5 of the Rome Statute, along with the crimes of genocide, crimes against humanity, and war crimes. In this post, I will present some of the key issues analysed by the panel of experts [1].

After briefly outlining the historical background of the crime of aggression and its evolution to its current configuration, we focused on analysing the concept of the crime of aggression as set out in Article 8 bis of the Rome Statute [2] and further elaborated in the Elements of Crimes [3]. As with any offence or crime, it is essential to establish its purpose and the legally protected interest it seeks to protect to clearly delineate its scope. The primary objective of the crime of aggression, as outlined in the Kampala Amendment to the Rome Statute [4], is to maintain international peace and security, prevent armed conflicts, and promote the peaceful resolution of disputes by holding individuals in leadership positions accountable. The legally protected interest is the sovereignty and territorial integrity of States. The panel of experts concurred that the crime of aggression constitutes the most severe and dangerous form of unlawful use of force, often serving as the context for the commission of the other crimes listed in Article 5 of the Rome Statute.

There was also a consensus that the material and procedural framework of the crime of aggression presents several challenges and limitations. These include, but are not limited to, dependency on the Security Council, jurisdictional constraints, procedural complexity, and ambiguity in the crime's definition. I will now address some of these issues, beginning with the material limitations inherent in the concept of the crime of aggression and the complexities related to establishing authorship.

In examining the elements of the crime of aggression—the objective element (actus reus), the subjective element (intent and knowledge), and the concept of authorship—we concluded that both their formulation and terminology require significant refinement and expansion. Refinement is essential to eliminate ambiguity and simplify the complex legal terminology. For instance, the vagueness of terms like "manifest violation" and "use of armed force" could obstruct consistent legal interpretation and lead to divergent rulings. Expansion is equally important to include actions and individuals who, while not traditionally covered, have the capacity to exercise control or direction over political or military actions like that of States or their leaders, with the intention of infringing on another State’s sovereignty and territorial integrity. The current provisions of Article 8 bis, paragraph 2, which enumerate specific acts of aggression, limit the ability to address emerging methods that might equally or more effectively threaten the protected legal interests. Moreover, the restriction that only political or military leaders with effective control over State actions can be held accountable for the crime of aggression excludes non-state actors and other influential figures who, despite their significant power, do not meet the strict leadership criteria. This limitation narrows the ICC’s capacity to hold all individuals responsible for acts of aggression, thereby restricting the scope of accountability and justice.

From a procedural standpoint, it was observed that the crime of aggression is governed by distinct rules compared to the other offences enumerated in Article 5 of the Statute. The exercise of jurisdiction over this crime is subject to more stringent conditions as outlined in Articles 15 bis and 15terof the Rome Statute. Unlike the other crimes, the ICC’s jurisdiction over the crime of aggression is contingent upon the commission of the offence by nationals of State Parties or on the territory of a State Party, or by nationals of non-State Parties that have expressly accepted the Court’s jurisdiction. This limitation creates a disparity in the enforcement of international criminal law, allowing non-member States to evade liability for the commission of the crime of aggression. It was further highlighted that certain powerful States, such as the United States, Russia, and China, have strategically opted not to accede to the Rome Statute to safeguard themselves from potential prosecution for aggression.

An investigation may be initiated by the Prosecutor either proprio motu, upon referral by a State Party, or by the Security Council. However, in the case of the first two scenarios, any investigation or proceedings relating to the crime of aggression require a prior determination by the Security Council as to its existence. This requirement may be impeded by the politicisation of the process and the potential exercise of veto power by the permanent members of the Council (China, France, Russia, the United Kingdom, and the United States). For instance, political considerations may prevent action against certain States, particularly where they are protected by their allies within the Security Council. Moreover, the politicisation of such determinations may erode the perceived impartiality and fairness of the ICC. Additionally, where the Security Council fails to make a determination regarding the existence of the crime of aggression, the authorisation of a two-thirds majority of the judges of the Pre-Trial Chamber is required to proceed with the investigation or prosecution, provided that the Council does not suspend the proceedings.
Examples were cited, including the invasion of Kuwait by Iraq in 1990, which, despite being a relatively clear instance of a crime of aggression, saw responsibility narrowly confined to Iraq's political and military leaders. This approach excluded other key actors who may have played a significant role in facilitating the invasion, such as financiers, arms suppliers, or foreign governments providing tacit support. The limitation of accountability to only the most visible figures overlook the broader network of individuals and entities that may contribute to the commission of such crimes, thereby creating gaps in the pursuit of comprehensive justice. This example underscores the need for a more expansive approach to prosecuting crimes of aggression, one that considers the full spectrum of contributors and enablers, not just those at the highest levels of decision-making.

To address the limitations identified in the preceding sections, the Rome Statute and the Elements of Crimes must be amended. Some members of the panel believe that the current historical context provides a favourable opportunity to advocate for these reforms. Despite the challenges involved, the international community should endeavour to reach a new consensus that would broaden the definition of the crime of aggression and extend the ICC’s jurisdiction. Proposals for amending the concept of the crime of aggression can be submitted under Article 9(2) of the Rome Statute, which permits any State Party, most of the judges, or the Prosecutor to propose amendments to the Elements of Crimes. Any modifications to the procedural aspects would need to be carried out in accordance with Articles 121 and 122 of the Rome Statute.

The panel of experts emphasised that the crime of aggression, as currently defined in Article 8 bis of the Rome Statute and the Elements of Crimes, primarily focuses on conventional acts of aggression, such as military invasions and bombings. However, technological advancements and the evolution of modern conflicts have led to new forms of aggression that are not fully addressed by the existing definition. These forms include, at a minimum, cyber warfare, the use of advanced technologies to destabilise States, large-scale economic manipulation, sabotage of critical infrastructure, and the widespread dissemination of disinformation. While a broad interpretation of the Rome Statute, the Elements of Crimes, and UN General Assembly Resolution 3314 (XXIX) of 14 December 1974 [5], could potentially encompass these acts as crimes of aggression, the panel suggested that to avoid disparate interpretations and to ensure greater legal certainty, it would be advisable to explicitly include these new forms of aggression in the text of the Elements of Crimes. Additionally, incorporating a clause similar to that in Article 4 of the Resolution [6] could clarify that the acts listed in Article 8 bis (2) are not exhaustive. Reforms to the ICC's jurisdiction and competence must also be addressed. Currently, the ICC exercises jurisdiction over crimes committed on the territory of States Parties or by nationals of States Parties to the Rome Statute. However, many times, acts of aggression against the sovereignty of other States have been committed by non-state actors or by nationals of non-Party States, leaving States Parties and their nationals in a situation of helplessness.

With respect to individual responsibility, it is desirable to extend liability to the leaders of non-state groups, given their capacity to impact state sovereignty and international peace and security. Indeed, the leaders of terrorist organisations and other non-state armed groups have demonstrated the ability to plan and execute large-scale attacks that violate the sovereignty and territorial integrity of States, thereby causing significant regional and international instability. To avoid interpretative challenges, it is advisable to include non-state actors with a clear command structure who engage in actions equivalent to those of a State within the Elements of Crimes. By broadening the definition to encompass these actors, the ICC would be able to exercise its jurisdiction over the leaders of these groups, ensuring that they are held accountable for their actions. To enhance legal certainty, clear criteria should be established to determine when a non-state group can be considered equivalent to a State in terms of command and control capacity. For instance, factors to be considered might include the group's ability to effectively control territory, maintain a hierarchical command structure, conduct organised military operations, execute coordinated attacks against critical infrastructure, occupy territories through armed force, engage in large-scale economic manipulation, sabotage essential infrastructure, and disseminate disinformation on a massive scale. These criteria would ensure that only groups with an organisation and capacity comparable to those of a State are held accountable for the crime of aggression, thereby excluding minor or disorganised actors who do not pose a significant threat to state sovereignty.

Reforms to the jurisdiction and competence of the ICC must also be addressed. Currently, the ICC exercises jurisdiction over crimes committed within the territory of State Parties or by nationals of State Parties to the Rome Statute. However, acts of aggression against the sovereignty of other States have often been perpetrated by non-state actors or nationals of non-State Parties, leaving State Parties and their nationals in a vulnerable position. To address this, it would be advisable to base the ICC’s jurisdiction on the principle of territoriality. This would allow the inclusion of acts of aggression committed within the territories of State Parties by non-state actors and nationals of non-State Parties. In this context, the Statute should specify that the ICC has jurisdiction over crimes of aggression committed within the territory of State Parties, regardless of the nationality of the perpetrator, like the approach taken with other crimes listed under Article 5 of the Rome Statute. Such a reform would enable the ICC to investigate and prosecute crimes of aggression committed within State Parties, ensuring that all perpetrators, irrespective of their nationality or affiliation, can be held accountable for their actions.

Another important aspect, as I have previously mentioned, is the dependence on the Security Council. To limit its intervention, Article 15 bis of the Rome Statute should be reformed to align the Council's powers with those it has in relation to the other crimes enumerated in Article 5 of the Rome Statute. This would include removing the Council's ability to exercise a veto to block investigations. Additionally, the ICC Prosecutor should be granted the authority to initiate investigations into the crime of aggression without the need for prior approval from the Security Council. This would empower the Prosecutor to act independently, enhance the autonomy of the ICC, and reduce political influence over its decisions. Ultimately, the implementation of these strategies would not only enhance the ICC's ability to address crimes of aggression but also contribute to the prevention of future conflicts and the promotion of international justice.

In conclusion, the panel of experts examined the possibility of applying the crime of aggression to various leaders of Israel and Hamas. This consideration was made in attention of the ICC Prosecutor’s issuance, on 20 May 2024, of an arrest warrant against several leaders of Israel and Hamas for the commission of certain crimes outlined in Article 5 of the Rome Statute. The warrant accuses Hamas leaders Yahya Sinwar and Ismail Haniyeh of war crimes and crimes against humanity. The charges against the Hamas leaders include planning and executing indiscriminate attacks against Israeli civilians on 7 October 2023, kidnapping and taking hostages, using civilians as bargaining chips in negotiations, and other acts of violence that resulted in a high number of civilian casualties and created a state of terror among the Israeli population. Israeli leaders Benjamin Netanyahu and Yoav Gallant are accused of war crimes, including the use of starvation as a method of warfare, intentional attacks against civilians in Gaza, and crimes against humanity, including extermination, murder, and other inhumane acts. They are also held responsible for actions that caused significant suffering and serious injury to the Palestinian civilian population. These warrants do not include the crime of aggression, which justified the panel’s analysis of the possibility of extending the arrest warrants to encompass this crime.

Conceptually, the actions of the Israeli leaders could fall within the scope of Article 8 bis of the Rome Statute and the Elements of Crimes. However, issues of jurisdiction and competence complicate or prevent its application, as Israel is not a State Party to the Rome Statute. Regarding the leaders of Hamas, although the State of Palestine is a party to the Rome Statute, complications arise in the classification of Hamas as either a terrorist organisation or as the governing body of the Gaza Strip, which is part of the State of Palestine. If Hamas is classified as a terrorist organisation, the current definition of the crime of aggression, which requires that the perpetrators be leaders of a State, would preclude its application. Conversely, if Hamas is recognised as the legitimate government of the Gaza Strip, having been democratically elected in the 2006 legislative elections, there would be fewer obstacles to extending an arrest warrant against its leaders.

Ultimately, the current material and conceptual framework of the crime of aggression prevents state political leaders or those with similar capacities from being prosecuted for acts committed against the sovereignty and territorial integrity of a State Party. A reform of the Rome Statute and the Elements of Crimes, as proposed, would allow the actions of the leaders of Israel and Hamas to be examined under the crime of aggression.

According to the latest news published by the BBC on July 31, 2024 (https://www.bbc.com/news/articles/ck7g0g4mk4zo) on Wednesday, the Israeli government’s press office briefly posted a photo of Haniyeh on social media with the caption "eliminated," before removing it. Hamas stated that Haniyeh was in Tehran to participate in the inauguration of Iran’s new President, Masoud Pezeshkian, who was sworn in on Tuesday. His death is likely to hinder efforts to establish a ceasefire in Gaza, as he was a key figure in the negotiations led by Qatar, the US, and Egypt. This incident followed Israel’s claim of killing Hezbollah’s top military commander, Fuad Shukr, in an airstrike—a retaliation for a recent rocket attack in the Israeli-occupied Golan Heights. Although Hezbollah has not confirmed Shukr's death, they acknowledged that he was in a building targeted by the Israeli attack in Beirut on Tuesday.

These recent killings, reportedly ordered by Benjamin Netanyahu, should prompt the International Community to reflect on the urgent need to reform the Rome Statute, particularly to extend its jurisdiction to non-State Parties, among other matters. If such reforms are not pursued with the cooperation and involvement of all States, especially those on the UN Security Council, it will be impossible to maintain international peace and security, prevent armed conflicts, and promote the peaceful resolution of disputes by holding individuals in positions of leadership accountable.