The Kenya Human Rights Commission (KHRC) has released a statement calling on all state parties of the International Criminal Court (ICC) to push for an amendment of how the ICC prosecutes the crime of aggression.
Dated April 9, the statement noted that this call was necessitated by a worrying trend over the past few years, making the reform crucial and overdue.
"We respectfully call on all states parties to take the steps required to amend the International Criminal Court’s jurisdiction over the crime of aggression," part of the statement read.
"What the international community needs is a legal framework that can end impunity and effectively deter state leaderships from waging aggressive wars and other acts of aggression. To work towards these goals, the ICC must be able to prosecute the crime of aggression under the same conditions that exist for the other three core international crimes."
According to the ICC, a crime of aggression refers to the planning, preparation, initiation, or execution of an act of aggression by a person in a position to exercise control over a state's political or military action, which constitutes a manifest violation of the UN Charter.
Although this is one of the crimes prosecutable by the ICC, the statement by KHRC claimed that the legal framework prosecuting the crime is too limited and unclear in comparison to the other three core international crimes.
"The current legal framework for the prosecution of the crime of aggression is too limited and leads to glaring accountability gaps. The crime of aggression is a leadership crime, committed by those ‘in a position effectively to exercise control over or direct the political or military action of a state,’" the statement read.
Even though the ICC is mandated to prosecute the most serious crimes of concern to the international community as a whole, KHRC noted that the crime of aggression was not prosecuted to its full extent as in the other international crimes—genocide, crimes against humanity, and war crimes.
For instance, the ICC is allowed jurisdiction for crimes committed on the territory of or by a national of a state party, or a state lodging an ad hoc acceptance of jurisdiction.
Crimes committed by non-state party nationals on the territory of a state party are also prosecutable by the ICC.
However, for crimes of the crime of aggression, the ICC does not have jurisdiction in the case of non-state party nationals or crimes committed on the territory of non-state parties, unless the Security Council refers the situation to the Court.
The commission cited the case of Russia's war on Ukraine, stating, "The Russian war of aggression against Ukraine illustrates that there is a high risk of deadlock due to the use of the veto power by its permanent members – both to block referrals pertaining to their own state and referrals related to their allies."
Ultimately, the statement concluded by calling on all state parties of the ICC to join in the call for harmonising the jurisdiction of the ICC by seizing the opportunity adopted in 2010 (RC/Res. 6(4)) that mandated a review of the crime of aggression provisions to occur in 2025.
The plea by KHRC is supported by 50 human rights groups across the world, including the Kenyan section of the International Commission of Jurists (ICJ).
