Ratification and Implementation of the Amendments on the Crime of Aggression under the ICC Statute in Korea

Abstract

It is possible to ratify the Kampala Amendments without actually implementing them, and it is also possible to ratify the amendments now and implement them later. Nevertheless, a large number of countries, when they ratify an international treaty, try to implement it within domestic law. In particular, in relation to the Kampala Amendments, countries have legislated domestic implementation laws at the time of ratification, in order to properly apply the principle of complementarity included in the ICC Statute. When determining domestic implementation methods for the Kampala Amendments, countries may wish to partially adjust the definition of crime of aggression in accordance with the conditions of domestic law. However, when applying the Kampala Amendments to domestic legislation, it is recommended to incorporate the whole phrase that was adopted at the Kampala Conference. This is because if the definition of acts of aggression is narrowed or broadened compared to the Kampala Amendments’ definition, there is a risk of legal validity issues from the perspective of international law. The definition of crime of aggression in the Kampala Amendments can be considered as the product of developments in customary international law to date, and therefore, in particular when the range of this crime is broadened, doubts about international legal validity may arise. Looking at the early actions of countries following the Kampala Conference, domestic implementation of Article 8 bis mostly follows the verbatim definition of crimes of aggression provided by the text of the Kampala Amendments. Of course, if the expanded domestic law applies only to the residents of the ratifying country (the prosecuting country), there will be no issue of legal validity. However, when the country intends to prosecute a resident of another country for actions outside the definition of crime of aggression agreed at Kampala, there may be difficulties in gaining the cooperation of the other country, and, above all, jurisdictional bases under customary international law will not be available. According to the jurisdictional system chosen by Korea, in some cases, Korea’s domestic legal system may even criminalize acts of aggression committed by leaders of other countries. This is particularly true when the acts of aggression are perpetrated against Korea, and Korea asserts its jurisdiction on the basis of the territoriality principle. However, in this case, Korea should be aware that only a very limited number of defendants may be punished due to the nature of crime of aggression as leadership crime, and that state immunity could be applied in relation to the crime of aggression committed by foreign leaders. Therefore, Korea’s domestic criminal jurisdiction for foreign leaders in its domestic courts may not be achievable in certain real cases. If Korea asserts criminal jurisdiction only for crimes of aggression perpetrated by their own people, it is able to avoid the major international political and legal issues accompanying prosecution of foreign leaders.