Statement of the Delegation of the Czech Republic on the Definition of the Crime of Aggression,

resumed 5th session of the Assembly of States Parties to the Rome Statute

29 January - 1 February 2007

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Thank you, Mr. Chairman. On behalf of the Czech Republic I would like to take this opportunity to express our appreciation for the considerable work that has been done so far within the Special Working Group on the Crime of Aggression. Although this Group was charged with a very complex and complicated task, we can say today that a substantial progress has been achieved, in particular with regard to the overall legal analysis of the issue. This encourages us to work further and to fulfill our task.
The Czech Republic believes that, at the end of the day, reaching consensus on the definition of the crime of aggression will be a matter of political decision, however, what must not be missing is a comprehensive legal analysis and legal basis for such a decision. At the same time, the Czech Republic is generally of the view that developments of international law hitherto cannot be ignored.
Mr. Chairman, due to limited time available let me now briefly and generally address some aspects of the definition of the crime of aggression.

First, the question whether the definition should be generic or specific. The Czech Republic is of the view that the definition should be a combination of both of them. The reason is to avoid, to the extent possible, the disadvantages that are inherent in both approaches. The definition needs to be reasonably general in order not to omit certain situations, especially in view of the diversified and ever-developing practice, and, at the same time, not to cover situations that should not be covered due to their particular circumstances.
The definition, however, needs to be reasonably specific in order to meet the requirements of the principle of nullum crimen sine lege and to avoid undesirable arbitrariness. For those reasons the Czech Republic favors a definition comprised of carefully drafted general provision supplemented by a specific non-exhaustive list, based on the list contained in the GA Res. 3314 (XXIX).

Second, the question whether there should be a prior determination by a body outside the Court that an act of aggression has occurred. Here, the Czech Republic would favor balanced relationship between the Court and the UN Security Council. We do not support interference of other bodies, such as ICJ or UN General Assembly, for several legal and factual reasons.
Concerning the relationship between the Court and the UN Security Council, we believe that certain system of checks and balances should be incorporated therein and that the rights of the accused must be taken into an account. On one hand, the UN Security Council should not be a sole steersman of the whole process given its political character. On the other hand, today's system of collective security laid down in the UN Charter has been carefully and realistically drafted and is based on (grim) historical experience. Therefore, in this context, the UN Security Council cannot be completely disregarded. Similar reasoning applies analogically to the Court.
Therefore, the Czech Republic would like to find a solution within the borderlines between Article 16 of the Rome Statute system and the so-called "green light" of the UN Security Council system. Nevertheless, a solution, where the UN Security Council alone would decide what an act of aggression is, would not reflect the independent position of the Court as guaranteed by the Rome Statute.

Third, the question how to describe the aggression by a State. The Czech Republic, for legal reasons, supports the notion of an " act of aggression" and consequently the reference to the GA Res. 3314 (XXIX). The Czech Republic, however, does not support the proposals to add a qualifier such as "flagrant" or "manifest," since Article 5 paragraph 1 of the Rome Statute already limits the jurisdiction of the Court to the "most serious crimes." Other notions in question, such as "armed attack", being in this context the narrowest one, or "use of force", being the broadest one, refer, in our view, to different situations and are used by the UN Charter accordingly.

Fourth, speaking about the issue of individual participation in the crime of aggression, the Czech Republic believes that in order to safeguard the integrity of the Rome Statute, its provisions should be applied to the crime of aggression where possible. Therefore, the Czech Republic prefers the "differentiated" approach, i.e., to apply Article 25 paragraphs 3(a) to (d), which distinguish among various forms of participation, to this crime. Such drafting solution reduces the risk of excluding certain group of perpetrators. Furthermore, the leadership qualifier should be included in the definition.

Mr. Chairman, thank you for giving me the floor.