10 No. 70 JUSTICE probably fair to say that we are still in the early stages of development. Another fundamentally important issue in need of further discussion is how the ICC will handle the crime of aggression. On two separate occasions – one in 2010 in Kampala and again in 2017 in New York – the diplomatic clock had to be stopped in order to approve the Court’s jurisdiction over crimes. The conditions for the Court’s exercise of jurisdiction are far more stringent when it comes to the crime of aggression relative to the other three core crimes handled by the ICC – genocide, crimes against humanity, and war crimes. In the Situation of Ukraine, even though the Prosecutor is taking action in relation to war crimes, crimes against humanity, and genocide, his hands are regrettably tied with respect to the core allegation directed against President Putin: the continuing commission of a crime of aggression. It is a historical irony that this restrictive jurisdictional regime is by no means due only to a desire of the Russian Federation. It is equally or even more so the result of the insistence by France, Great Britain and the United States. This means that all four States have established what Hans Kelsen called the “creative Nuremberg” precedent, which makes the very waging of a war of aggression an international crime. Yet these same States have simultaneously remained opposed to fully embracing this precedent on a practical level. One can only hope that the three major Western powers will reconsider this policy, now that Russia’s war of aggression against Ukraine is shaking what the International Court of Justice has rightly called a cornerstone of the UN Charter: the prohibition of the use of force. As reflected in Prosecutor Khan’s address before the 2022 Assembly of States Parties of the ICC in the Hague, “Now may be a moment in which we may act collectively, in a principled way, to reinvigorate action in relation to the crime of aggression under the Rome Statute.” VII. Signs on the Horizon At the end of my cursory reflections, I wish to highlight a question that is important not only for the ICC, but also for the larger legal community: where are the roots of the jurisdiction that this Court is exercising? Is the Court the mere recipient of a bundle of national jurisdiction titles which States Parties have chosen to delegate for the purpose of their collective exercise? Or is international criminal law stricto sensu, that is, a narrowly defined body of crimes anchored in customary international law? If so, doesn’t this imply the existence of an ius puniendi (“right to punish”) within the international community, which may be exercised by the ICC as one of this community’s fiduciaries? This truly fundamental question has not yet received the direct attention of the ICC’s judiciary. When the day comes for the Court to pronounce a clear vision of the underpinnings of its own existence, it will be imperative that the judges turn their closest attention to Israel’s Supreme Court Judgment in the Eichmann case – a case, by the way, in which Jacob Robinson contributed to its preparation. It is impossible to find a more emphatic and powerful articulation of a truly universal vision of international criminal law and justice than that espoused in one strand of the reasoning of this historic judgment. I sincerely hope that, underneath the surface of the political controversies of today, any future work toward the ICC’s vision for global justice will be guided by such a genuinely cosmopolitan spirit. n Professor Claus Kreß is Professor of Criminal Law and Public International Law and the Director of the Institute of International Peace and Security Law of the University of Cologne.
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