The New Crime of Aggression: A Triumph for Powerful States

This article argues that the proposed amendments for the crime of aggression agreed in June 2010 have resulted in the accepted definition of the crime but created an 'opt out' for any state party which amounts to a triumph for powerful states. Any possible referral to the ICC for the crime of aggression by a state party or the prosecutor is practically limited by an 'opt out' that will protect them from future investigations and prosecutions for any possible acts of aggression. This 'opt out' amounts to an escape clause for states. The only exception is a referral by the Security Council, reinforcing the dominance of powerful states. This article analyses the new amendments to the Rome Statute and argues that they are not only severely restricted and practically unenforceable, but that they represent the Westphalian states' fear of the structuralisation of international law. The structuralisation of international law is the development and creation of permanent international organisations that not only have binding legal outputs such as the ICC, but grow in international acceptance and legitimacy until they become difficult for any non-member state to avoid in reality. The structuralisation of international law is a process that contributes to the so-called emerging international legal order.