THE ADVOCATE 663
VOL. 80 PART 5 SEPTEMBER 2022
tion and annexation from 1975 until 1999. However, the General Assembly’s
work was the basis toward defining aggression as a crime in the aftermath
of Rwanda and Yugoslavia.
Even when the Rome Statute had been negotiated, with many states
immediately joining it in 1998, there was not yet agreement over acts that
would constitute aggression by individuals involved in the unlawful use of
force against other states. Aggression is not like the long-understood crimes,
even genocide, that make up ICL. On the one hand, the crime of aggression
is concerned with the liability of the highest officials of a state. On the other
hand, it is about acts that initiate unlawful war or result in its perpetuation
through annexation and occupation, in contrast to acts during the course of
hostilities. It is for this reason that an eventual negotiation of the crime for
inclusion in the Rome Statute—reached by ICC member states in 2010 and
which for the ICC came into effect in 2018—would exclude individuals
responsible for simply following such direction, even if the direction had
been obviously unlawful. Moreover, in the negotiation of a definition
among Rome Statute countries, a cautious approach was taken, with state
accession to be by express act (i.e., in addition to any original joining of the
treaty). The result is that only 43 ICC member states to date have acceded
to the crime of aggression, Sweden and Italy being the latest in January
2022. Only when seven-eighths of member states have accepted the crime
will it become binding on all. Until then, the ICC will not have jurisdiction—
unless by specific reference of the UN Security Council—over the nationals
of all other states (both Rome Statute members and states yet to join, including
their territories). Canada is typical among developed Western states and
much of the Global South in not yet expressly acceding to the crime. Thus,
the crime of aggression is far from complete in its implementation. Finally,
consistent with the established principle against retroactivity of newly codified
crimes in the ICC and national legal systems alike, the crime of aggression
does not apply to situations occurring before the crime entered in
effect for the ICC in 2018 or the 43 states that have acceded to it since 2010.
Criminalizing aggression has been politically fraught. A first reason for
this is that criminalizing aggression is meant to preserve the international
order by prohibiting what can be called constitutional violations of the
essential principles of the UN Charter.10 The international order for peace
and security is violated when a state uses armed force unlawfully against
the territorial integrity of other states or the political independence of peoples.
11 Of course, history is replete with instances of this occurring. A head
of state or government (and sometimes other high officials) who directs acts
of aggression—including bombardment, blockade, invasion and occupation—
contrary to the UN Charter will be culpable. Criminalizing aggression