“JUDICIAL IMPASSE” THE MULTIFACETED CHALLENGES OF PROSECUTING CRIMES OF AGGRESSION

Abstract

Prosecuting crimes of aggression is perhaps the biggest challenge in international criminal law since the Nuremberg trials. The international community has made great progress in prosecuting war crimes, crimes against humanity, and genocide, while crimes of aggression remain grossly under-prosecuted. This paper looks at the multifaceted challenges that hinder the effective prosecution of crimes of aggression under international law, particularly after activating the Kampala Amendments to the Rome Statute in 2018.

The research addresses several critical questions: What are the primary legal, procedural, and political obstacles to prosecuting crimes of aggression? How do jurisdictional limitations and state sovereignty concerns impact prosecution efforts? What role does the requirement for state consent play in hampering prosecutions? Through analysis of these questions, this study aims to identify systemic barriers to prosecution and propose practical solutions to overcome them. The paper particularly focuses on the intersection between legal frameworks and political realities that often create an implementation gap in international criminal justice.

The study takes a mixed-method approach, integrating doctrinal legal analysis with case studies of attempted prosecutions and qualitative analysis of expert interviews with international prosecutors and legal scholars. Five key factors jurisdictional complexity, political interference, evidentiary challenges, state cooperation issues, and resource limitations emerged as the obstacles to the successful prosecution of crimes of aggression. The paper concludes that to overcome these challenges, the policy approach must be multi-dimensional, strengthening domestic implementation of international criminal law, more effective, enhanced investigation capabilities, and more robust international cooperation mechanisms. These findings therefore contribute to this ever-evolving discourse on effectiveness and practical recommendations to strengthen the prosecution of crimes of aggression.

Keywords

Crimes Of Aggression, International Criminal Law, Rome Statute, Kampala Amendments, State Sovereignty, International Prosecution.

Introduction

The prosecution of crimes of aggression stands as one of the most ambitious yet challenging endeavours in international criminal justice. Since its conceptual emergence at the Nuremberg trials as “crimes against peace,” the international community has wrestled with the complex task of holding individuals accountable for what Robert H. Jackson, the chief prosecutor at Nuremberg, termed “the supreme international crime.” The journey from Nuremberg to the present day reveals a persistent tension between the aspiration to prosecute these crimes and the practical, legal, and political obstacles that impede such prosecutions.

The historical significance of crimes of aggression cannot be overstated. The aftermath of World War II marked a paradigm shift in international law, establishing for the first time that individuals, not just states, could be held criminally responsible for aggressive wars. This principle, revolutionary at the time, challenged the traditional notion of state sovereignty and introduced personal criminal liability for leaders who initiate aggressive wars. Despite this trailblazing precedent, however, little had changed in the next few decades concerning the prosecution of crimes of aggression. The scenario contrasted with other international crimes, including genocide, crimes against humanity, and war crimes, which were often prosecuted.

It marked an important point in the process by which the international community endeavoured to provide justice for the crime of aggression. The Kampala Amendments, as they were referred to in 2018, granted jurisdiction to the ICC on crimes of aggression under definite conditions and with specific limitations. The development represents the culmination of decades of diplomatic negotiation and legal evolution, and it has served as proof that despite reaching this milestone, it is also fraught with significant challenges that undermine the effectiveness of prosecution.

It is highly complex and has many prerequisites in the present-day legal framework used to prosecute crimes of aggression. The Rome Statute, as amended at Kampala, defines a crime of aggression as planning, preparation, initiation, or execution by a person holding a position of leadership in an act of aggression. The act committed would be a manifest violation of the UN Charter by its character, gravity, and scale. The definition itself reveals the intricate nature of these crimes, requiring prosecutors to prove multiple elements related to both individual conduct and state action.

This paper investigates the complex problems of prosecuting crimes of aggression under international law. Given the increasing occurrence of interstate conflicts and the difficulty of the international community to act appropriately towards acts of aggression, this study comes at a timely moment. Some of the important areas of difficulties include: jurisdictional constraints, evidential difficulties, political constraints, and implementation challenges both at national and international levels.

Crimes of Aggression have peculiar jurisdictional problems. While the ICC’s jurisdiction over other international crimes is restricted in different ways, its jurisdiction over these particular crimes remains restricted uniquely by the requirements that States Parties must accept explicitly the Court’s jurisdiction over them and that there are problems of complexity arising from the determination of acts of aggression by the UN Security Council. This jurisdictional regime indicates political sensitivities attached to these crimes and, at the same time, balances state sovereignty with the demands for accountability.

Another great challenge is the gathering and preservation of evidence. Crimes of aggression require complex chains of command, leadership involvement, and a manifest violation of the UN Charter to be proven. The evidentiary requirements usually demand access to sensitive state documents, military records, and high-level communications. Inherently state-centric, the crimes mean that important evidence will be deliberately concealed, destroyed, or simply inaccessible to prosecutors.

Political barriers also exacerbate the complexities of prosecution. Crimes of aggression by their nature often involve states that are well-placed, highly influential globally, and carry great international leverage. Political forces, claims to diplomatic immunity, and the exercising of veto powers in the United Nations Security Council may effectively be used to hide those who will commit such a crime. Further barriers to prosecution include the wariness of aggressive prosecution by the international community that often arises out of fear over international relations and stability.

At the domestic level, implementation challenges also deserve some attention. The principle of complementarity demands that states introduce crimes of aggression into their national legislations and develop the capacity for their domestic prosecution. However, most states lack appropriate legislation, resources, or political will to initiate such prosecutions. The overall system of accountability for crimes of aggression becomes weak due to this implementation gap.

The research methodology of this paper combines doctrinal legal analysis with empirical investigation. The paper has drawn on both primary sources- international treaties, UN resolutions, and court decisions-and secondary literature from leading scholars in international criminal law. The case studies of attempted prosecutions and interviews with practitioners add richness to the analysis, and this mixed-method approach permits an examination of theoretical and practical challenges.

The paper will contribute to understanding systemic barriers in prosecuting crimes of aggression and identify possible solutions by critically analyzing interplays between legal frameworks, political realities, and practical constraints toward developing the international criminal justice discourse with concrete recommendations on how prosecution mechanisms can be strengthened.

This paper is structured to first look into the historical development and current legal framework for crimes of aggression and provide the necessary background to understand current challenges. Secondly, it would analyze specific jurisdictional issues arising in prosecution attempts. Third, it would focus on definitional and interpretative challenges that present a complication for legal proceedings. Finally, it would address the procedural and evidentiary obstacles that prosecutors encounter. It identifies political and diplomatic challenges that affect efforts for prosecutions. Implementation challenges at both national and international levels are discussed.

After these sections of analysis, the paper contains case studies showing the practical face of these issues. Recommendations follow to address those obstacles identified to strengthen the ability of the international community to effectively prosecute crimes of aggression. Conclusions summarize essential findings and make recommendations for directions of future research and policy development. This research is particularly relevant given the current state of international relations and the persistent occurrence of interstate conflicts. Recent events have highlighted the international community’s limited ability to respond to apparent acts of aggression, underscoring the importance of developing more effective prosecution mechanisms. The paper’s findings have implications for policymakers, legal practitioners, and scholars working to strengthen international criminal justice.

These challenges in prosecuting crimes of aggression mirror deeper tensions within international law: state sovereignty against international justice, political reality against legal ideals, and the desire for accountability against the practical constraints of international criminal prosecution. This is why a clear understanding of these challenges will help develop better approaches to international criminal justice, making sure that the “supreme international crime” is punished.

Historical Development

The concept of crimes of aggression has evolved significantly since its initial formulation in the aftermath of World War II. The Nuremberg trials marked the first concrete attempt to hold individuals criminally responsible for aggressive war, establishing what Benjamin B. Ferencz, a former Nuremberg prosecutor, described as “the first time in history that waging aggressive war was condemned as a punishable criminal offence.”[1]

The Charter of the International Military Tribunal at Nuremberg defined “crimes against peace” as “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances.”[2] This marked the first paradigmatic shift in the historical norm that only the state, and not the individual, should be held liable for acts of aggression. As Justice Robert H. Jackson pointed out in his opening statement at Nuremberg, “The ultimate step in avoiding periodic wars. Is to make statesmen responsible to law.”[3]

These principles received further reinforcement from the Tokyo Tribunal, although Neil Boister and other scholars note that “its jurisprudence on aggression was much more contested because of doubts about Victor’s justice and selective prosecution.”[4] However, both established critical precedents that determined the future course of international criminal law.

The United Nations General Assembly confirmed the Nuremberg Principles in Resolution 95(I) of 1946, declaring crimes against peace to be crimes under international law.[5] However, during the Cold War, little was achieved in the development of mechanisms for prosecuting aggression. The work of the International Law Commission (ILC) on the Draft Code of Crimes Against the Peace and Security of Mankind, from 1947 to 1996, reflected the ongoing challenges in reaching a consensus on defining and prosecuting aggressive acts.[6]

The establishment of the International Criminal Court (ICC) through the Rome Statute in 1998 marked another crucial milestone. However, as William Schabas observes, the inclusion of crimes of aggression in the Court’s jurisdiction was one of the most contentious issues during negotiations.[7] The compromise reached was to list aggression as a core crime under Article 5 but defer its activation until a definition could be agreed upon and conditions for the exercise of jurisdiction established.

The 2010 Kampala Review Conference finally achieved this breakthrough, adopting amendments that defined the crime of aggression and established conditions for the ICC’s jurisdiction.[8] The definition agreed upon in Kampala built upon UN General Assembly Resolution 3314 (XXIV) of 1974, which had previously defined acts of aggression for purposes of state responsibility.[9] The Kampala definition focuses on individual criminal responsibility, requiring that the perpetrator be in a “leadership position” and that the act of aggression constitute a “manifest violation” of the UN Charter.[10]

On December 15, 2017, the Assembly of States Parties adopted a resolution activating the Court’s jurisdiction over crimes of aggression starting July 17, 2018.[11] This activation represented what Claus Kreß termed “a historic milestone in international law’s long journey towards a more law-governed international order.”[12]

The history of crimes of aggression is reflective of general developments in international law in areas of sovereignty, individual criminal responsibility, and the role of international institutions. This development, notes Carrie McDougall, has been marked by a constant tension between the desire to prevent and punish aggressive war and the political reluctance of states to accept constraints on their military options.[13]

Legal Framework

The legal framework of crimes of aggression is a complex interweaving of international treaty law, customary international law, and domestic legislation. This framework has evolved through multiple international instruments, judicial decisions, and state practice, creating a sophisticated yet sometimes challenging system for prosecution. Understanding this framework requires careful examination of its various components and their interactions within the international legal system.

Article 8 bis of the Rome Statute lies at the very heart of this modern legal framework, as presented by the Kampala Amendments. This provision defines the crime of aggression as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity, and scale, constitutes a manifest violation of the Charter of the United Nations.”[14] This definition represents what Carrie McDougall describes as “a careful balance between the need for clarity and the desire to capture the full range of potential aggressive acts.”[15] The careful crafting of this definition reflects decades of international legal development and diplomatic negotiation.

The Rome Statute establishes a jurisdictional regime that differs for crimes of aggression from that established for the other core crimes within the ICC’s jurisdiction. Thus, under Article 15 bis, the jurisdictional limitation imposed on the Court reflects the political sensitivity of prosecuting state leaders for aggressive acts. The Court may exercise jurisdiction only over crimes of aggression committed by nationals or on the territory of States Parties that have not opted out of the Court’s jurisdiction over these crimes.[16] The Prosecutor also may conduct an investigation based on a determination by the Security Council that an act of aggression has occurred, or after 6 months from the date of the Security Council determination if the Security Council has not made such a determination, subject to authorization by the Pre-Trial Division.[17] These jurisdictional provisions reflect what Philippe Sands has described as “a delicate compromise between judicial independence and political reality.”[18]

Customary international law has been important in the formation of the legal framework for crimes of aggression. It is here, too, that the International Military Tribunal at Nuremberg laid down the foundation, declaring that to initiate a war of aggression. Is not only an international crime; it is the supreme international crime.[19] Subsequent state practice and opinion juris have solidified this principle; yet, as Christine Gray remarks, “the exact contours of customary law on aggression remain subject to debate.”[20] The International Court of Justice has greatly developed this body of law, certainly in two landmark decisions, the Nicaragua case, which further articulated the definition of armed attack and aggression to a great extent.[21] And set important parameters for the distinction of the various forms of force.

The implementation of crimes of aggression at the national level varies considerably among states and reflects different legal traditions and political considerations. According to Ward Ferdinandusse, this variation gives rise to challenges and opportunities in international criminal justice.[22] Some states have enacted comprehensive legislation, while others rely on existing criminal law provisions. The German Code of Crimes against International Law (Völkerstrafgesetzbuch) is an excellent example of domestic implementation, which includes the crime of aggression with detailed provisions for prosecution.[23]

A characteristic of the legal regime is the “leadership clause,” which limits criminal responsibility to persons, “in a position effectively to exercise control over or to direct the political or military action of a State.”[24] As Roger Clark explains, this requirement “reflects the understanding that aggression is fundamentally a leadership crime.”[25] This element combines with the requirement to prove a state act of aggression, creating what Kevin Jon Heller terms “a unique hybrid between individual responsibility and state conduct.”[26]

The evidentiary framework for prosecuting crimes of aggression presents unique challenges that distinguish it from other international crimes. William Schabas states that “proving leadership involvement in aggressive acts requires different investigative approaches from those used for other international crimes.”[27] These challenges include gathering evidence of state conduct, often requiring access to classified materials and diplomatic communications, establishing command structure evidence to prove the leadership element, and demonstrating the mental element through evidence of knowledge and purpose regarding the aggressive character of state actions.[28]

This overlap between crimes of aggression and other international crimes creates another layer of complexity in the legal framework. There is much overlap between war crimes and crimes against humanity, which leads to what Kai Ambos describes as “complex concurrence issues in international criminal law.”[29] This calls for careful consideration of how different international crimes relate to and interact with each other within the broader framework of international criminal justice.

Current developments in the legal framework continue to address emerging challenges and gaps. The interpretation of key terms such as “manifest violation” and the scope of leadership responsibility remain subjects of scholarly debate.[30] Jurisdictional limitations on ICC authority create what Dapo Akande terms “significant accountability gaps in the international system.”[31] In addition, emerging state practice in implementing and interpreting the Kampala Amendments continues to shape and refine the legal framework.[32]

The role of international organizations, specifically the United Nations Security Council, remains central to the legal framework. The Security Council retains its primary responsibility in determining acts of aggression under Article 39 of the UN Charter,[33] While regional organizations have developed their frameworks for addressing aggression. This multilayered institutional approach creates opportunities and challenges in the effective prosecution of crimes of aggression.

Jurisdictional Challenges

The prosecution of crimes of aggression differs significantly in its jurisdictional challenges from that of other international crimes. These challenges are traced to the intersection of state sovereignty, international criminal jurisdiction, and the political sensitivity attributed to the prosecution of state leaders for acts of aggression. The jurisdictional structure under the Kampala Amendments to the Rome Statute is the framework described as “one of the most complex legal regimes ever created in international criminal law.”[34] This dual character of crimes of aggression forms the central jurisdictional problem. As Claus Kreß comments, “The crime of aggression is unique among international crimes in requiring a prior determination of unlawful state conduct before individual criminal responsibility can be established.”[35] It creates thus a complex interplay between state responsibility and individual criminal liability that presents serious ramifications for considerations relating to jurisdiction. The determination of acts of aggression by a state had been considered as being within the ambit of UN Security Council responsibility, thereby “a potentially problematic overlap between judicial and political functions.”[36] There are certain exceptional limitations imposed in the Rome Statute’s jurisdictional regime in respect of crimes of aggression which do not affect other core crimes under Article 15 bis. The Court can exercise jurisdiction over crimes of aggression only as respects crimes committed after July 17, 2018, and then only as respects States Parties that have not excluded themselves from the Court’s jurisdiction over such crimes.[37] This has been characterized by David Scheffer as “a jurisdictional paradox” whereby the Court’s jurisdiction over what is arguably the most serious international crime is more circumscribed than its jurisdiction over other international crimes.[38]

This provision therefore marks a dramatic departure from the jurisdictional regime applicable to the other core crimes under the Rome Statute. States Parties can declare their non-acceptance of jurisdiction over crimes of aggression by lodging a declaration with the Registrar of the Court.[39] This provision, as Jennifer Trahan observes, “creates a potential safe harbour for aggressive acts that could undermine the deterrent effect of the crime’s criminalization.”[40] The rationale behind this exceptional arrangement reflects the political sensitivities surrounding state sovereignty and the use of force in international relations.

The jurisdictional framework is complex in the sense that there is a specific role of the UN Security Council. Under Article 15 bis, the Prosecutor may proceed with an investigation into a crime of aggression in two scenarios: either following a Security Council determination that an act of aggression has occurred or after obtaining authorization from the Pre-Trial Division in the absence of such determination.[41] Harold Koh argues that this arrangement creates “a delicate balance between the judicial independence of the ICC and the Security Council’s primary responsibility for maintaining international peace and security.”[42]

The requirement for the involvement of the Security Council in the jurisdiction significantly introduces political elements into the structure of the jurisdiction. As noted by Philippe Sands, “The veto power of permanent Security Council members effectively creates immunity for themselves and their allies from prosecution for crimes of aggression absent their consent.”[43] This added political dimension thus complicates, even more, an already difficult jurisdiction regime and raises an issue of inequality of states in the face of international law.

The territorial scope of jurisdiction over crimes of aggression also poses further challenges. In other core crimes, the Court can exercise jurisdiction if either the territory where the crime was committed or the nationality of the accused falls under its jurisdiction. In the case of the crime of aggression, however, a more restrictive approach is required. According to Roger Clark, “The jurisdictional regime effectively requires both the aggressor and victim states to be States Parties that have not opted out unless the Security Council refers the situation.”[44] This double requirement significantly narrows the Court’s jurisdictional reach.

The principle of complementarity, one of the cornerstones of the ICC’s jurisdictional regime, assumes special importance as regards crimes of aggression. These unique challenges for jurisdiction by national courts are well-summarized: “The political nature of aggression and the necessity to evaluate activities of foreign countries pose serious impediments to state prosecution.”[45] This complexity carries over into the application of the rule of complementarity and may inhibit its utility in a jurisdiction-based system.

The temporal jurisdiction over crimes of aggression adds another level of complexity. The activation of jurisdiction only from July 2018 creates, as Astrid Reisinger Coracini calls it, “a temporal jurisdictional gap” between the entry into force of the Rome Statute and the activation of jurisdiction over aggression.[46] This limitation negatively impacts the capacity of the Court to address acts of aggression perpetrated in the past and questions whether the definition of the crime may be linked with its jurisdictional activation.

The exercise of universal jurisdiction over crimes of aggression remains controversial. Although some scholars have argued that aggression has reached the status of a crime under the principle of universal jurisdiction under customary international law, the state practice is still very limited. According to Mary Ellen O’Connell, “the exercise of universal jurisdiction over aggression faces both legal and practical obstacles that distinguish it from other international crimes.”[47] This uncertainty affects the general jurisdictional framework for prosecuting crimes of aggression.

There are also issues relating to the jurisdictional bases that are different. The interplay between territorial jurisdiction, active personality jurisdiction and the role of the Security Council creates what Dapo Akande describes as “a complex web of jurisdictional relationships that must be carefully navigated.”[48] It is most visible in cases concerning non-States Parties or States Parties that have opted out of the Court’s jurisdiction over aggression.

The jurisdictional framework, however, also raises questions as regards the relationship the ICC has with regional courts or organizations. As William Schabas puts it, “The potential for regional mechanisms to address crimes of aggression creates both opportunities and challenges for jurisdictional coordination.”[49] Thus the regional dimension adds another layer that must be considered within the jurisdictional framework in developing effective prosecution strategies.

Accomplice liability specifically presents several jurisdictional challenges in treating the accomplices. Even assuming that it is arguable whether the Court can assume jurisdiction over the accomplices when it lacks jurisdiction over the principal perpetrator, these questions are still debated. Kai Ambos suggests that “the jurisdictional regime for accomplices should be interpreted in light of the overall purpose of the Kampala Amendments while respecting sovereignty concerns.”[50]

Another dimension of jurisdictional challenges is the immunity of state officials. Official immunities are generally removed by the Rome Statute for crimes within the Court’s jurisdiction, but the unique nature of crimes of aggression raises specific questions. According to Paola Gaeta, “the relationship between state immunity and individual criminal responsibility for aggression requires careful consideration of both international criminal law and the law of state responsibility.”[51]

Implementation at the level of domestic territory adds yet other jurisdictional questions. The interface between national jurisdiction and international jurisdiction must be clarified, but meanwhile, a proper domestic legal infrastructure must be made available for these crimes of aggression. Beth Van Schaack mentions that “implementation at the national level often presents sensitive constitutional requirements and preexisting criminal law.”[52]

The procedural aspects of jurisdiction also pose challenges. The need for authorization by the Pre-Trial Division in the absence of a determination by the Security Council creates what Carsten Stahn calls “a unique procedural framework that must balance efficiency with due process.”[53] This procedural dimension adds another layer of complexity to the jurisdictional framework.

Procedural and Evidentiary Challenges

The crimes of aggression pose unique procedural and evidentiary challenges that distinguish them from other international crimes. These challenges arise from the dual nature of the crime, requiring proof of both state conduct and individual responsibility, as well as the complex political and military contexts in which these crimes typically occur. As Carsten Stahn notes, “The evidentiary demands on crimes of aggression are perhaps the most demanding in international criminal law, requiring prosecutors to weave through both state-level and individual conduct evidence.”[54]

Most significant among the evidentiary hurdles would be proving the leadership element of crimes of aggression. Unlike other international crimes, for crimes of aggression, “perpetrators must be at a position effectively to exercise control over or to direct the political or military action of a State.”[55] As pointed out by William Schabas, “such a leadership requirement will therefore often be very hard to prove with such a large degree of precision because the availability of top-level governmental documents and communication is very often classified or intentionally destroyed.”[56] Such challenges can further worsen by many relevant documents covered by national security or diplomatic immunity provisions.

The temporal aspect of evidence collection also poses a serious challenge. According to Roger Clark, “The planning and preparation of aggressive acts often occurs over extended periods and across multiple jurisdictions, making the preservation and collection of evidence particularly challenging.”[57] This temporal dimension is further complicated by the need to establish a clear chain of command and decision-making processes that may have evolved. Prosecutors often have to reconstruct complex organizational structures and command relationships based on fragmentary evidence.

The evidentiary challenges presented by the necessity to prove a “manifest violation” of the UN Charter cannot be overlooked. As Kevin Jon Heller puts it, “The threshold of manifest violation requires prosecutors to demonstrate not just the occurrence of aggressive acts, but their character, gravity, and scale in a way that exceeds ordinary military operations.”[58] This will require extensive testimony from experts on military operations, international relations, and diplomatic communications.

Digital evidence poses both opportunities and challenges in prosecuting crimes of aggression. While modern technology provides new sources of evidence through satellite imagery, electronic communications, and social media, questions of authenticity and admissibility remain significant concerns. As Diane Marie Amann argues, “The increasing digitalization of military and political communications creates new evidentiary opportunities but also raises complex questions about verification and chain of custody.”[59]

The role of expert witnesses acquires special importance in crimes of aggression cases. Military strategists, political analysts, and international relations experts often play a very important role in establishing the context and implications of alleged aggressive acts. However, as Jennifer Trahan points out, “Finding qualified experts willing to testify about sensitive military and political matters, particularly when involving powerful states, presents significant practical challenges.”[60]

Procedural issues are equally intricate. The need for Security Council determination of an act of aggression creates what Philippe Sands describes as “a unique procedural framework that must balance judicial independence with political realities.”[61] This framework can certainly lead to protracted periods of prosecution and is therefore said to raise questions about the relation of judicial and political processes.

The other procedural challenge lies in the protection of sensitive information. States usually invoke national security privileges to withhold crucial evidence, creating what Dapo Akande terms “a tension between the needs of prosecution and legitimate state security concerns.”[62] This requires careful procedural mechanisms to balance these competing interests while ensuring fair trial rights.

The question of witness protection becomes more complex in aggression cases. Due to the high profile of the offence, witnesses generally face serious dangers to their security and reputation at work. As Mary Ellen O’Connell notes, “the protection of such witnesses who might have held sensitive government or military positions requires special protective measures which may be beyond the capabilities of traditional witness protection.”[63]

The principle of complementarity generates specific procedural problems in crimes of aggression. In this context, the interface between national and international jurisdictions becomes especially complicated, since domestic courts often lack the expertise or the means to handle such cases. As Ward Ferdinandusse comments, “the procedural frameworks for handling aggression cases at the national level are often underdeveloped or non-existent.”[64]

It poses particular challenges for the admission of evidence gathered by intelligence services. Although such evidence can be of prime importance for proving the planning and preparation of aggressive acts, the sources and methods often cannot be disclosed in court. Harold Koh states that “the use of intelligence-derived evidence requires careful procedural safeguards to protect sources while ensuring fair trial rights.”[65]

As such, the ICC’s temporal jurisdiction over crimes of aggression creates some procedural complications over continuing acts or related conduct. As Astrid Reisinger Coracini notes, “The activation of jurisdiction only from July 2018 requires careful consideration of how to handle evidence of related conduct occurring before this date.”[66]

Defence rights pose unique challenges in aggression cases. The complex nature of the evidence and the involvement of state secrets can impact the ability of the accused to mount an effective defence. According to Kai Ambos, “Ensuring equality of arms in aggression cases requires careful procedural mechanisms to balance prosecution access to state evidence with defence rights.”[67]

The admissibility of evidence regarding state practice and international relations raises complex procedural questions. Beth Van Schaack observes that “determining what evidence is relevant to establish international custom or state practice in the context of alleged aggressive acts requires careful judicial consideration.”[68]

These procedural and evidentiary challenges require innovative solutions and careful consideration of both legal principles and practical realities. As international criminal justice continues to evolve, addressing these challenges will be crucial for the effective prosecution of crimes of aggression.

Political and Diplomatic Obstacles

The prosecution of crimes of aggression has faced significant political and diplomatic hurdles that often appear more difficult to overcome than legal ones. Such obstacles arise both from the crime’s inherently political nature and the complex web of international relations that surrounds any possible prosecution. As Philippe Sands observes, “The prosecution of crimes of aggression represents perhaps the most politically sensitive aspect of international criminal justice, touching directly on state sovereignty and the exercise of power in international relations.”[69] The core conflict between state sovereignty and international criminal justice is the main political barrier. Christine Gray notes that “states remain deeply reluctant to subject their political and military leadership to international scrutiny regarding decisions on the use of force.”[70] This resistance takes many forms, from explicit opposition to the Court’s jurisdiction to more subtle forms of non-cooperation. The political sensitivity is particularly acute because, as William Schabas points out, “crimes of aggression inherently involve state policy and high-level decision-making, making them fundamentally different from other international crimes that may be committed by individuals acting in their private capacity.”[71]

The lack of political will at the national and international levels is another major challenge. As Harold Koh puts it, “Even states that generally support international criminal justice may hesitate to fully embrace prosecution of aggression due to concerns about their own military operations and strategic interests.”[72] This reluctance is often translated into practical obstacles, such as resource allocation, sharing of information, and diplomatic pressure against prosecution efforts.

Power politics in international relations play a crucial role in the prosecution of crimes of aggression. Permanent members of the UN Security Council have much power over possible prosecutions due to their veto powers. As Dapo Akande has noted, “The veto power effectively creates a two-tier system of justice, where permanent members and their allies enjoy de facto immunity from prosecution for crimes of aggression.”[73] This is a reality that undermines the principle of sovereign equality and creates what Mary Ellen O’Connell has termed “a fundamental challenge to the legitimacy of international criminal justice.”[74]

The impact of strategic alliances and diplomatic ties cannot be overstated. There is often tremendous pressure on the part of allies to oppose or support particular prosecutions, leading to what Jennifer Trahan has called “a complex web of political considerations that can override legal principles.”[75] It is most clearly in the powerful cases and for their strategic partners that the repercussions of diplomacy are likely to have extended far beyond the case in hand.

The UN Security Council’s special role in determining acts of aggression presents major political complications. Carsten Stahn writes that “the requirement for Security Council involvement introduces an explicitly political element into what should ideally be a purely judicial process.”[76] Such politicization is especially troublesome, considering the Council’s composition and voting procedures reflect post-World War II power structures rather than contemporary international relations.

This makes political paralysis in the Security Council a serious barrier to prosecution. As Roger Clark notes, “The veto power of permanent members can effectively prevent the prosecution of crimes of aggression, even in cases where evidence of such crimes is compelling.”[77] Such structural limitation gives rise to what Claus Kreß describes as “a significant accountability gap in international criminal justice.”[78]

Regional organizations and political blocs play an increasingly important role in either facilitating or hindering prosecutions. As Beth Van Schaack observes, “Regional political dynamics can significantly impact state cooperation and support for prosecution efforts.”[79] This is particularly evident in cases where regional organizations take collective positions on particular conflicts or allegations of aggression.

The African Union’s relationship with the ICC provides a notable example of how regional politics can affect prosecution efforts. According to Kai Ambos, “The tension between the AU and the ICC demonstrates how perceived political bias in international criminal justice can undermine support for the prosecution of international crimes, including aggression.”[80]

Economic relationships and strategic interests often influence state positions on potential prosecutions. Ward Ferdinandusse notes that “states may be reluctant to support prosecutions that could damage important economic relationships or strategic partnerships.”[81] This consideration becomes particularly significant in cases involving major economic powers or key strategic allies.

Military alliances and defence relations provide another dimension of complexity. As Kevin Jon Heller notes, “States participating in collective security arrangements may be loath to lend support for prosecutions that would compromise their alliance relationships or military cooperation agreements.”[82]

The role of media and public opinion in shaping political responses to potential prosecutions cannot be overlooked. As Diane Marie Amann notes, “media coverage and public perception can significantly influence political will for prosecution, particularly in democratic societies.”[83] This dynamic can either support or hinder prosecution efforts, depending on how the media frames the issues and how public opinion responds.

The challenge of managing public narratives about alleged crimes of aggression is particularly complex. According to Astrid Reisinger Coracini, “Competing narratives about the use of force and national security can make it difficult to build public support for prosecution efforts.”[84]

This issue of immunity brings with it a mix of legal and political issues. It has been documented by Paola Gaeta as, “as the Rome Statute strips of official immunity criminal conduct falling under the Court’s jurisdiction, state practice often preserves claims of immunity by their officials in respect to crimes of aggression.”[85] This consequently causes diplomatic difficulties which can mar prosecution efforts.

Particularly challenging is the treatment of sitting heads of state and senior government officials. As put by David Scheffer, “The prosecution of sitting leaders for crimes of aggression raises unique political and diplomatic complications that distinguish these cases from other international crimes.”[86]

Resource allocation for investigation and prosecution becomes a reflection of political priorities. As Neil Boister observes, “The political will to prosecute crimes of aggression must translate into practical support in terms of resources, expertise, and diplomatic backing.”[87] This support, therefore, often remains open to competing political priorities as well as resource constraints.

The challenge of securing long-term political support for prosecution efforts is significant. According to Benjamin B. Ferencz, “Sustaining political will throughout lengthy investigation and prosecution processes requires ongoing diplomatic effort and strategic engagement with key stakeholders.”[88]

The main political obstacles have always been manifested in the issues of institutional cooperation and information sharing. Indeed, as Robert H. Jackson noticed, “political considerations frequently influence decisions about sharing sensitive information or providing institutional support for investigations.”[89] It is also most difficult when cases deal with classified information or sensitive intelligence.

Coordination between national and international institutions only adds another political complexity. In fact, “Effective prosecution requires political will for cooperation at multiple levels of governance, from national authorities to international organizations.”[90]

Another challenge is the relationship between criminal prosecution and political settlement of conflicts. Carrie McDougall says, “The pursuit of criminal justice for crimes of aggression must sometimes be balanced against efforts to achieve political solutions to ongoing conflicts.”[91] This tension can create pressure to defer or abandon prosecution efforts in favour of political settlements.

The role of alternative dispute resolution mechanisms and peace negotiations can complicate prosecution efforts. As Noah Weisbord observes, “Political leaders may prefer diplomatic solutions to criminal prosecution, particularly when dealing with ongoing conflicts or potential future aggression.”[92]

The political and diplomatic obstacles to prosecuting crimes of aggression are multifaceted and deeply rooted in the structure of international relations. Such challenges require the careful navigation of complex political dynamics while maintaining the integrity of international criminal justice. As the international community continues to develop mechanisms for addressing crimes of aggression, understanding and addressing these political obstacles remains crucial for effective prosecution.

Conclusion

The prosecution of crimes of aggression represents a profound moral and legal challenge at the heart of international criminal justice. This study has meticulously explored the complex landscape of obstacles that have historically impeded the effective prosecution of what Justice Robert H. Jackson once termed the “supreme international crime.” The journey from the Nuremberg trials to the Kampala Amendments reveals a persistent tension between the aspiration to hold leaders accountable and the practical realities of international relations.

The research uncovered a multifaceted array of challenges that collectively create a formidable barrier to meaningful prosecution. Jurisdictional complexities emerge as a primary obstacle, with the unique requirement of state consent and UN Security Council involvement creating a labyrinthine legal framework. The jurisdictional regime for crimes of aggression stands as a testament to the delicate balance between judicial independence and political sensitivities, where the very mechanisms designed to ensure accountability can simultaneously undermine it.

Procedural and evidentiary challenges present another critical dimension of complexity. The requirement to prove leadership involvement, demonstrate a “manifest violation” of the UN Charter, and navigate the intricate landscape of state and military documentation creates an almost insurmountable investigative burden. Prosecutors must essentially reconstruct complex chains of command, often with limited access to classified information and facing deliberate attempts to conceal evidence.

The political landscape emerges as perhaps the most formidable barrier. The veto power of UN Security Council permanent members effectively creates a two-tier system of international justice, where powerful states and their allies can essentially immunize themselves from prosecution. This reality starkly exposes the fundamental contradiction in international criminal law: the very system designed to ensure accountability can be manipulated to protect those most responsible for aggressive acts.

Yet, the paper does not conclude in despair but in a spirit of constructive critique and hope. The challenges identified are not insurmountable barriers but opportunities for systemic reform. The path forward requires a multi-dimensional approach that addresses the intricate interplay between legal frameworks, political realities, and practical constraints.

Several key recommendations emerge from this comprehensive analysis. Nations must develop robust legal frameworks that can effectively incorporate the crime of aggression into their national legal systems. This requires not just legislative changes but also building institutional capacity and political will. Overcoming current limitations demands unprecedented levels of international cooperation, including creating more transparent mechanisms for information sharing, developing standardized investigation protocols, and building trust among international institutions.

The current jurisdictional regime needs to be fundamentally reconsidered. This could include redesigning the role of the UN Security Council, establishing more robust independent investigation mechanisms, and reducing the ability of powerful states to obstruct justice. Prosecutors need to develop more sophisticated methods of gathering and presenting evidence, leveraging technological advances while maintaining rigorous standards of legal proof.

Long-term success requires a cultural shift in international relations, where accountability is seen not as a threat to state sovereignty but as a fundamental principle of international justice. The crimes of aggression represent more than just a legal challenge; they are a profound moral test for the international community. They ask fundamental questions about collective responsibility, the nature of state power, and our collective ability to prevent the most destructive forms of international conflict.

The study reveals that the challenges are not purely legal or procedural but deeply rooted in the complex dynamics of international power relations. The prosecution of crimes of aggression sits at the intersection of law, politics, diplomacy, and moral accountability. It requires us to reimagine international justice not as a rigid set of rules but as a dynamic, evolving system responsive to the changing nature of global conflict.

The Kampala Amendments, while groundbreaking, represent not an endpoint but a beginning. They provide a framework that, despite its current limitations, offers hope for future development. Each challenge identified is an opportunity for innovation, and each obstacle is a call for creative legal and diplomatic approaches.

As we look to the future, the prosecution of crimes of aggression remains a critical frontier of international criminal justice. It demands not just legal expertise but moral courage, diplomatic skill, and an unwavering commitment to the principle that no leader should be above the law.

The international community stands at a critical juncture. The choice is clear: continue to allow powerful states to operate with impunity or develop a truly universal system of accountability. The path will be complex, requiring sustained effort, diplomatic nuance, and an unflinching commitment to justice.

In the words of Benjamin B. Ferencz, a key prosecutor at Nuremberg, “Law is not a crystal to be admired but a tool to be used.” The challenge of prosecuting crimes of aggression is ultimately a challenge to our collective imagination, our diplomatic skill, and our moral resolve.

The pursuit must continue, not with the surety of success, but in the firm belief that the search for justice is itself a noble and necessary act. Every step toward accountability, however small it may seem, marks another triumph of international law over the arbitrary exercise of state power. And so, as the world continues to change, must our tools to keep leaders accountable for the gravest international crimes.

[1] Benjamin B. Ferencz, Defining International Aggression: The Search for World Peace (1st ed., 1975) 437.

[2] Charter of the International Military Tribunal at Nuremberg, art. 6(a), 82 U.N.T.S. 279 (1945).

[3] Robert H. Jackson, Opening Statement before the International Military Tribunal (Nov. 21, 1945).

[4] Neil Boister, The Tokyo International Military Tribunal: A Reappraisal (Oxford Univ. Press, 2008) 207.

[5] G.A. Res. 95(I), U.N. Doc. A/RES/95(I) (Dec. 11, 1946).

[6] International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind (1996).

[7] William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford Univ. Press, 2016) 308.

[8] ICC, Resolution RC/Res.6, adopted at the 13th plenary meeting (June 11, 2010).

[9] G.A. Res. 3314 (XXIX), U.N. Doc. A/RES/3314 (Dec. 14, 1974).

[10] Rome Statute of the International Criminal Court, art. 8 bis, as amended by the Kampala Amendments.

[11] ICC, Resolution ICC-ASP/16/Res.5, adopted at the 13th plenary meeting (Dec. 14, 2017).

[12] Claus Kreß, “On the Activation of ICC Jurisdiction over the Crime of Aggression” (2018) 16 J. Int’l Crim. Just. 1.

[13] Carrie McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court (Cambridge Univ. Press, 2013) 15.

[14] Rome Statute of the International Criminal Court, art. 8 bis(1).

[15] Carrie McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court (Cambridge Univ. Press, 2013) 178.

[16] Rome Statute, art. 15 bis(4).

[17] Rome Statute, art. 15 bis(6-8).

[18] Philippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity (Knopf, 2016) 381.

[19] International Military Tribunal (Nuremberg), Judgment and Sentences (Oct. 1, 1946).

[20] Christine Gray, International Law and the Use of Force (4th ed., Oxford Univ. Press, 2018) 164.

[21] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, 1986 I.C.J. Rep. 14.

[22] Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 2005 I.C.J. Rep. 168.

[23] Ward Ferdinandusse, Direct Application of International Criminal Law in National Courts (Cambridge Univ. Press, 2006) 243.

[24] Völkerstrafgesetzbuch (German Code of Crimes Against International Law), (2002).

[25] Rome Statute of the International Criminal Court, art. 8 bis(1).

[26] Roger S. Clark, “Individual Conduct,” in The Crime of Aggression: A Commentary, Claus Kreß & Stefan Barriga eds. (Cambridge Univ. Press, 2017) 565.

[27] Kevin Jon Heller, “The Crime of Aggression,” in The Oxford Handbook of International Criminal Law (2017) 341.

[28] Kampala Amendments to the Rome Statute, Understanding 7.

[29] U.N. Charter art. 39.

[30] Int’l Crim. Ct., Office of the Prosecutor, Policy Paper on Case Selection and Prioritisation (2016).

[31] Constitutive Act of the African Union, art. 4(h).

[32] William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd ed., Oxford Univ. Press, 2016) 581.

[33] Noah Weisbord, “The Mens Rea of the Crime of Aggression,” (2013) 12 Wash. U. Global Stud. L. Rev. 567.

[34] Hans-Peter Kaul, “The Crime of Aggression after Kampala: Success or Burden for the Future?” (2018) 2 Goettingen J. Int’l L. 715.

[35] Claus Kreß, “On the Activation of ICC Jurisdiction over the Crime of Aggression,” (2018) 16 J. Int’l Crim. Just. 5.

[36] Christine Gray, International Law and the Use of Force (4th ed., Oxford Univ. Press, 2018) 322.

[37] Rome Statute of the International Criminal Court, art. 15 bis(2).

[38] David Scheffer, “The Complex Crime of Aggression under the Rome Statute,” (2017) 30 Leiden J. Int’l L. 897.

[39] Rome Statute, art. 15 bis(4).

[40] Jennifer Trahan, “Defining the ‘Grey Area’ Where Humanitarian Intervention May Not Be Fully Legal But Is Not the Crime of Aggression,” (2015) 13 J. Int’l Crim. Just. 471.

[41] Rome Statute, art. 15 bis(6-8).

[42] Harold Hongju Koh, “The Crime of Aggression: The United States Perspective,” (2015) 109 Am. J. Int’l L. 257.

[43] Philippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity (Knopf, 2016) 381.

[44] Roger S. Clark, “Individual Conduct,” in The Crime of Aggression: A Commentary, Claus Kreß & Stefan Barriga eds. (Cambridge Univ. Press, 2017) 565.

[45] Ward Ferdinandusse, Direct Application of International Criminal Law in National Courts (Cambridge Univ. Press, 2019) 243.

[46] Astrid Reisinger Coracini, “The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression,” (2010) 2 Goettingen J. Int’l L. 745.

[47] Mary Ellen O’Connell, “The Prohibition of the Use of Force,” in Malcolm D. Evans ed., International Law (5th ed., Oxford Univ. Press, 2019) 289.

[48] Dapo Akande, “The ICC Assembly of States Parties Prepares to Activate the ICC’s Jurisdiction over the Crime of Aggression,” EJIL: Talk! (2017).

[49] William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd ed., Oxford Univ. Press, 2016) 581.

[50] Kai Ambos, Treatise on International Criminal Law: Vol. II: The Crimes and Sentencing (Oxford Univ. Press, 2014) 198.

[51] Paola Gaeta, “Immunity of States and State Officials: A Major Stumbling Block to Judicial Scrutiny?” in Kevin Jon Heller et al. eds., The Oxford Handbook of International Criminal Law (Oxford Univ. Press, 2016) 595.

[52] Beth Van Schaack, “The Crime of Aggression and Humanitarian Intervention,” (2018) 16 J. Int’l Crim. Just. 73.

[53] Carsten Stahn, A Critical Introduction to International Criminal Law (Cambridge Univ. Press, 2019) 187.

[54] Carsten Stahn, A Critical Introduction to International Criminal Law (Cambridge University Press, 2019) 187.

[55] Rome Statute of the International Criminal Court, art. 8 bis(1).

[56] William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd ed., Oxford University Press, 2016) 581.

[57] Roger S. Clark, “Individual Conduct,” in The Crime of Aggression: A Commentary, Claus Kreß & Stefan Barriga eds. (Cambridge University Press, 2017) 565.

[58] Kevin Jon Heller, “The Crime of Aggression,” in The Oxford Handbook of International Criminal Law (2017) 341.

[59] Diane Marie Amann, “The ICC and Digital Evidence in an Era of Cryptocurrency,” (2019) 17 Journal of International Criminal Justice 411.

[60] Jennifer Trahan, “Defining the ‘Grey Area’ Where Humanitarian Intervention May Not Be Fully Legal But Is Not the Crime of Aggression,” (2015) 13 Journal of International Criminal Justice 471.

[61] Philippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity (Knopf, 2016) 381.

[62] Dapo Akande, “The ICC Assembly of States Parties Prepares to Activate the ICC’s Jurisdiction over the Crime of Aggression,” EJIL: Talk! (2017).

[63] Mary Ellen O’Connell, “The Prohibition of the Use of Force,” in Malcolm D. Evans ed., International Law (5th ed., Oxford University Press, 2019) 289.

[64] Ward Ferdinandusse, Direct Application of International Criminal Law in National Courts (T.M.C. Asser Press, 2006) 243.

[65] Harold Hongju Koh, “The Crime of Aggression: The United States Perspective,” (2015) 109 American Journal of International Law 257-295.

[66] Astrid Reisinger Coracini, “The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression,” (2010) 2 Goettingen Journal of International Law 745-789.

[67] Kai Ambos, Treatise on International Criminal Law: Vol. II: The Crimes and Sentencing (Oxford University Press, 2014) 198.

[68] Beth Van Schaack, “The Crime of Aggression and Humanitarian Intervention,” (2018) 16 Journal of International Criminal Justice 73.

[69] Philippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity (Knopf, 2016) 381.

[70] Christine Gray, International Law and the Use of Force (4th ed., Oxford University Press, 2018) 322.

[71] William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd ed., Oxford University Press, 2016) 581.

[72] Harold Hongju Koh, The Crime of Aggression: The United States Perspective, (2015) 109 Am. J. Int’l L. 257.

[73] Dapo Akande, The ICC Assembly of States Parties Prepares to Activate the ICC’s Jurisdiction over the Crime of Aggression, EJIL: Talk! (2017).

[74] Mary Ellen O’Connell, The Prohibition of the Use of Force, in Malcolm D. Evans ed., International Law (5th ed., Oxford University Press, 2019) 289.

[75] Jennifer Trahan, Defining the ‘Grey Area’ Where Humanitarian Intervention May Not Be Fully Legal But Is Not the Crime of Aggression, (2015) 13 J. Int’l Crim. Just. 471.

[76] Carsten Stahn, A Critical Introduction to International Criminal Law (Cambridge University Press, 2019) 187.

[77] Roger S. Clark, Individual Conduct, in The Crime of Aggression: A Commentary, Claus Kreß & Stefan Barriga eds. (Cambridge University Press, 2017) 565.

[78] Claus Kreß, On the Activation of ICC Jurisdiction over the Crime of Aggression, (2018) 16 J. Int’l Crim. Just. 5.

[79] Beth Van Schaack, The Crime of Aggression and Humanitarian Intervention, (2018) 16 J. Int’l Crim. Just. 73.

[80] Kai Ambos, Treatise on International Criminal Law: Vol. II: The Crimes and Sentencing (Oxford University Press, 2014) 198.

[81] Ward Ferdinandusse, Direct Application of International Criminal Law in National Courts (Cambridge University Press, 2019) 243.

[82] Kevin Jon Heller, The Crime of Aggression, in The Oxford Handbook of International Criminal Law (2017) 341.

[83] Diane Marie Amann, The ICC and Digital Evidence in an Era of Cryptocurrency, (2019) 17 J. Int’l Crim. Just. 411.

[84] Astrid Reisinger Coracini, The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression, (2010) 2 Goettingen J. Int’l L. 745.

[85] Paola Gaeta, Immunity of States and State Officials: A Major Stumbling Block to Judicial Scrutiny? in Kevin Jon Heller et al. eds., The Oxford Handbook of International Criminal Law (Oxford University Press, 2016) 595.

[86] David Scheffer, The Complex Crime of Aggression under the Rome Statute, (2017) 30 Leiden J. Int’l L. 897.

[87] Neil Boister, The Tokyo International Military Tribunal: A Reappraisal (Oxford University Press, 2008) 207.

[88] Benjamin B. Ferencz, Defining International Aggression: The Search for World Peace (1st ed., 1975) 437.

[89] Robert H. Jackson, Opening Statement before the International Military Tribunal (Nov. 21, 1945).

[90] Hans-Peter Kaul, The Crime of Aggression after Kampala: Success or Burden for the Future? (2018) 2 Goettingen J. Int’l L. 715.

[91] Carrie McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court (Cambridge University Press, 2013) 178.

[92] Noah Weisbord, The Mens Rea of the Crime of Aggression, (2013) 12 Wash. U. Global Stud. L. Rev. 567.

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