Case Western Reserve Journal of International Law

The International Criminal Court has jurisdiction over the crime of aggression, but the Rome Statute fails to define the crime. A Special Working Group on the Crime of Aggression, however, has made considerable progress in developing a definition. The consensus that has emerged favors a narrow definition. Three characteristics animate this consensus: (1) that state action is central to the crime; (2) that acts of aggression involve interstate armed conflict; and (3) that criminal responsibility attaches only to very top political or military leaders. This Article normatively challenges this consensus. I argue that expanding the scope of the crime of aggression in terms of both the impugned acts as well as who can be prosecuted could carry considerable expressive value. Such an expansion also would better reflect the diversity of contemporary threats to stability, security, sovereignty, and human rights interests.

Introduction
Article 5(1) of the Rome Statute provides the International Criminal Court (ICC) with jurisdiction over the crime of aggression. In accordance with general principles of criminal law, however, the ICC is unable to prosecute anyone for aggression until the crime is precisely defined. The 1998 Rome Diplomatic Conference failed to reach agreement on a definition of aggression for the ICC's purposes. It also failed to reach agreement on conditions for the exercise of ICC jurisdiction over the crime. Assuredly, aggression is taken to be a crime under customary international law to which individual criminal responsibility attaches. However, until the Rome Statute itself defines the crime, the ICC cannot prosecute it.

The Rome Statute charts a way forward by permitting an amendment that would define the crime . . .

41 CASE W. RES. J. INT’L L. 291 (2009).

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