666 THE ADVOCATE
VOL. 80 PART 5 SEPTEMBER 2022
6. The perpetrator was aware of the factual circumstances that established
such a manifest violation of the Charter of the United
Nations.20
Next, the Kampala Understandings are useful in assuring states of the
orderly implementation of the crime. Understandings 1 and 2 provide that
the ICC is to exercise jurisdiction over cases referred to the ICC by the UN
Security Council. Understanding 3 addresses the timing of the ICC’s jurisdiction
over the crime, to begin July 17, 2018.21 (As noted, there can be no
retroactive jurisdiction by either states or the ICC.) Understandings 4 and 5
respond to concerns that the crime should not result in a cause of action in
national courts against the states of alleged perpetrators.22 Understandings
6 and 7 clarify the test of individual responsibility to meet Article 8bis of the
Rome Statute:
6. It is understood that aggression is the most serious and dangerous
form of the illegal use of force; and that a determination whether an
act of aggression has been committed requires consideration of all
the circumstances of each particular case, including the gravity of the
acts concerned and their consequences, in accordance with the Charter
of the United Nations.
7. It is understood that in establishing whether an act of aggression constitutes
a manifest violation of the Charter of the United Nations, the
three components of character, gravity and scale must be sufficient
to justify a “manifest” determination. No one component can be significant
enough to satisfy the manifest standard by itself.
Understanding 6 demands a high degree of culpability at a level of specific
intent mens rea because of the disapproval of the organized international
community for “serious and dangerous ... illegal use of force”.
Understanding 6 further confirms that the “post-aggression” acts of occupation
and annexation must be shown to have involved the use of force.
It follows that four things need to be established in order to prove the
crime of aggression: (1) the personal: the individual who is being prosecuted
must be shown to have “exercised control” over the use of armed force at
the highest levels of state; (2) the mode of wrongful conduct: the use of armed
force must be under the perpetrator’s control; (3) the nature of the violation:
it must be shown that force was used “against the sovereignty, territory or
political independence of another State” or otherwise “inconsistent with”
the UN Charter; and (4) the degree of violation: the character, gravity and
scale of force must be shown to be a manifest violation of the UN Charter.
Where the four requirements are made out, no defence would seem to be
possible. Self-defence under Article 51 of the UN Charter avoids the crime
by making the use of force lawful. Meanwhile, the Kampala Understandings
eliminate de minimis use of force as a qualifying wrongful behaviour. Where