What should be the relationship between the International Criminal Court and the United Nations Security Council in the crime of aggression?

In 2009 a Review Conference will give the countries that brought the International Criminal Court into existence an opportunity to decide upon an issue critical to the future functioning of the Court, namely the relationship between itself and the United Nations Security Council. Discussions about the relationship between the two institutions will focus on Article 5 of the Rome Statute which grants the International Criminal Court jurisdiction over the most serious crimes – genocide, war crimes, crimes against humanity, and the crime of aggression. In particular, the Assembly of States Parties will have to decide whether there is sufficient international consensus to finally achieve agreement on a definition of aggression that can be incorporated into the Rome Statute and, if so, whether a determination of aggression by the Security Council should be a precondition to the Court’s exercise of jurisdiction over this crime. This article examines arguments for and against a prior determination of aggression by the Security Council and other organs of the United Nations as a precondition to the International Criminal Court’s exercise of jurisdiction over this crime.