Abstract

The 2010 Kampala definition of the Crime of Aggression represents an historic milestone
in the attempt by the international community, beginning at Nuremberg, to define, enable
prosecution of and eradicate the ‘supreme international crime’ of aggression.⃰ The
jurisdiction of the International Criminal Court was finally activated as of 17 July 2018,
some 20 years after its inclusion as an undefined crime in the Rome Statute 1998.
This thesis critically evaluates the challenges the International Criminal Court faces in
exercising its new jurisdiction over this ‘supreme’ crime, in light of the near debilitating
limitations placed on that jurisdiction. These challenges arise, in the first instance, from
the highly restrictive definition itself, raising problems of a very high gravity threshold,
limitation of prosecution to political and military leaders only, restriction to state-on-state
aggression and a finite list of state acts, which are potentially outdated. Modern types of
warfare, including cyberwarfare and aggression committed by non-state actors are
currently not included.
The second area of difficulty for the Court is posed by the extraordinarily restrictive
jurisdictional conditions. Thus, the Court is subject to intense Security Council scrutiny,
as well as a significantly reinforced requirement of consent by individual States to jurisdiction, even if they are signatories to the Rome Statute. The examination involves a
critical assessment of these features and considers whether, in light of the restrictions
placed on the Court’s determination powers, effective prosecution and jurisdiction over
the crime is possible. It will also suggest alternative approaches and potential solutions
as to how the Court’s reach over the crime of aggression could be widened. These range
from judicial extension by close analogy and a re-write of the definition to a re�interpretation of States’ right to consent as a duty, as well as the exercise of universal
jurisdiction. It is contended that, without extension of jurisdiction through these means,
the criminalisation and prosecution of aggression is in danger of irrelevance from the
outset, allowing for elective impunity. Extending jurisdiction of the Court through the
suggested means, on the other hand, would strengthen the prohibition of the use of force
and contribute to the eradication of one of the most serious international crimes,
furthering the aims of the Rome Statute and the UN Charter itself.