664 THE ADVOCATE
VOL. 80 PART 5 SEPTEMBER 2022
gives form to moral condemnation, deterrence and the prospect of punishment
for something that has long been done. Criminalizing aggression is
also politically contentious because of the similarity of the definition of the
crime to that of state responsibility, in situations where international law
may preferably be directed to wrongful corporate conduct, as in the genocide
examples of Russia and Myanmar (Burma) cited above. Finally, the
crime of aggression can take the pursuit of justice against individual perpetrators
outside the purview of the UN Security Council. This is a democratization
by sometimes wresting away the Security Council’s power to direct
a response—or to remain passive—in cases of international conflict. It is
hardly surprising, therefore, that none of the permanent five veto-wielding
member states of the Security Council show interest in acceding to the
crime of aggression.12 Among the five, only the United Kingdom and France
are otherwise ICC member states.
No state currently engaged in a case of apparent aggression has acceded
to the Rome Statute codification of the crime.13 Contemporary cases of conduct
arguably amounting to aggression are those where the states responsible
have not joined the Rome Statute or, if they are member states, have not
expressly acceded to the crime of aggression. Member states that have
acceded to the 2010 codification of aggression and (as required by the Rome
Statute) have adopted it into their domestic legal regimes can exercise jurisdiction
with respect to the crime by anyone as realized within their territories
and otherwise their nationals extraterritorially.14 What this means is
that Spain has been the only state with jurisdiction over current acts of
aggression, following its 2014 accession to the Rome Statute codification of
the crime. This jurisdiction is the result of Spain’s continuing responsibility
for criminal law, confirmed by domestic appeals cases in 2014 and 2015, for
its former colony of Western Sahara which is unlawfully occupied by
Morocco.15 No other case seems actionable, whether in the ICC or the courts
of aggression-acceding ICC member states, including (to name a few) Russia’s
presence in Georgia, that of Saudi Arabia (and others) in Yemen16 and
perhaps that of the United Kingdom by its overholding colonial possession
of the Chagos Islands.17 In addition, Ukraine has not invoked application of
the crime of aggression to acts committed (and continuing) by all individuals
regardless of nationality within its territory by invoking ICC jurisdiction,
explained below.18
DEFINING AGGRESSION
The definition of “aggression” in the Rome Statute, uniquely because of the
nature of the crime and its implications for international relations, was
done in three parts, namely: (1) as Article 8bis of the Rome Statute; (2) as the