The Crime of Aggression: Should Aggression Be Prosecuted as a Crime in the ICC
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The Crime of Aggression
THE CRIME OF AGGRESSION: SHOULD AGGRESSION
BE PROSECUTED AS A CRIME IN THE ICC?
TAL ZISKOVICH*
I. Introduction
Being a head of State is a hard job, regardless of which state you
lead. But leading a State signatory to the Rome Statute of the
International Criminal Court (ICC)' is all the more difficult, because that
leader can end up being prosecuted as a criminal in the ICC. The ICC
was established in 1998, and was given international jurisdiction over
war crimes and crimes against humanity.2 But recently a troubling
development emerged, and the crime of aggression has been defined and
enacted into the Rome Statute.3
To demonstrate how troubling that development is, consider the
following hypothetical scenario: The head of the Armed Forces of Malta
(AFM) delivers a special intelligence report to the Maltese Prime
Minister (PM), stating that a Libyan ship filled with terrorists from The
Islamic State in Iraq and Syria (ISIS) disguised as tourists is making its
way to the Maltese territorial waters. Once there, the head of the AFM
* Chief Prosecutor of the Northern Command and the Navy, Israel Defense Forces'
(IDF) Military Advocate General Corps. LL.M., 2015, The Judge Advocate General's
Legal Center and School, Charlottesville, Virginia; LL.B., 2009, Bar-Ilan University,
Israel; LL.M, 2013, Tel-Aviv University, Israel. Previous assigmnents include Chief
Prosecutor of the Southern Command and Ground Forces Command, 2012-2013; Deputy
to the Head of Appeals Branch in the Military Prosecution HQ, 2009-2012; Senior
Prosecutor in the Special Military Prosecution for Combat and Combat Training Affairs,
2007-2009; and Prosecutor in the Military Prosecution for the Chief of Staff Command,
2006-2007. This article was submitted in partial completion of the Master of Laws
requirements of the 64th Judge Advocate Officer Graduate Course. The views and
opinions expressed in this article are those of the author only, and do not necessarily
reflect the positions or views of the Ministry of Defence, the Israeli govermnent or any of
its agencies. While the author has served as an officer in the IDF Military Advocate
General's Corps on matters of military criminal justice, the author has not been
responsible for matters pertaining to the international criminal court or international
criminal justice. The author would like to thank Major Sarah Wolf for her helpful
remarks to this article.
1 Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 38544
[hereinafter Rome Statute].
2 Id.
3 Assembly of State Parties Res. RC/Res. 6 (June 11, 2010), http://www.icc-cpi.int/
iccdocs/aspdocs/Resolutions/RC-Res.6-ENG.pdf [hereinafter Kampala Amendments].
2016]
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The Crime of Aggression: Should Aggression Be Prosecuted as a Crime in the ICC
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