A Historic Breakthrough on the Crime of Aggression

2011 ◽  
Vol 105 (3) ◽  
pp. 517-533 ◽  
Author(s):  
Stefan Barriga ◽  
Leena Grover
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Use Of Force ◽  
Criminal Court ◽  
State Consent ◽  
Definition Of ◽  
Article 5

At 12:20 in the morning on Saturday, June 12, 2010, the Review Conference of the Rome Statute of the International Criminal Court in Kampala, Uganda, adopted by consensus a comprehensive package of amendments on the crime of aggression. States parties to the Rome Statute thereby delivered on their promise, reflected in Article 5 (2) of the Statute, to define the crime of aggression and to agree on the conditions for the Court’s exercise of jurisdiction over that crime. Despite a thorough and more than decadelong preparatory process, few, if any, had predicted such a substantive outcome on the crime of aggression in light of the serious disagreements on major questions, which persisted until the last days of the conference. The key elements of the final package are a definition of the crime of aggression, which limits criminal responsibility to leaders who are responsible for the most serious forms of the illegal use of force between states, and a complicated set of conditions for exercising jurisdiction. Investigations would be based on either a Security Council referral or state consent.

scholarly journals AGGRESSION AND STATE RESPONSIBILITY AT THE INTERNATIONAL CRIMINAL COURT

2021 ◽  
Vol 70 (4) ◽  
pp. 961-990
Author(s):  
Meagan S. Wong
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
State Responsibility ◽  
Material Element ◽  
Definition Of ◽  
Jus Cogens ◽  
Peremptory Norms

AbstractThe definition of the crime of aggression in Article 8 bis of the Rome Statute of the International Criminal Court (Rome Statute) stipulates that a State act of aggression is a material element of the crime, suggesting an intrinsic link between individual criminal responsibility and State responsibility for aggression. This article argues that the Rome Statute provides a legal basis for the International Criminal Court (ICC) to determine State responsibility for aggression when considering the material elements of the crime of aggression, which has important practical and conceptual implications for the law of international responsibility. Although the content of State responsibility flows automatically from the breach of the obligation, it is argued that a finding of aggression pursuant to Article 8 bis of the Rome Statute may be considered as a form of satisfaction for the purposes of Article 37 of the 2001 ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001 ILC Articles). Furthermore, the material element of the crime in Article 8 bis of the Rome Statute requires the act of aggression by its character, gravity, and scale to constitute a manifest violation of the Charter of the United Nations, in line with the nomenclature used within the 2001 ILC Articles regarding serious breaches of obligations arising from peremptory norms of general international law (jus cogens). The article considers the important role that the ICC may play in relation to serious breaches of the jus cogens obligation to refrain from an act of aggression.

Defining the Crime of Aggression Under the Statute of the International Criminal Court

2001 ◽  
Vol 14 (2) ◽  
pp. 409-430 ◽  
Author(s):  
Irina Kaye Müller-Schieke
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
International Criminal ◽  
International Community ◽  
Criminal Court ◽  
The Past ◽  
Legal Nature ◽  
Decisive Test ◽  
Definition Of ◽  
Article 5

Article 5 of the Statute of the International Criminal Court verifies the four most serious crimes to the international community as a whole upon which the Court shall have jurisdiction. Though it includes the crime of aggression the Statute lacks a definition of that crime. The purpose of the article is to offer a sustainable definition. It discusses the constitutive elements of the crime, focussing on the crucial points in a debate that has been actively engaged in for the past 50 years. Certainly, the crux of the matter lies in the role the Security Council should play in this regard. […] there has been a persistent undercurrent of opinion expressive of the view that there is no fixed limit to the possibilities of judicial settlement; that all conflicts in the sphere of international politics can be reduced to contests of a legal nature; that the only decisive test of justiciability of the dispute is the willingness of the disputants to submit the conflict to the arbitrament of law.H. Lauterpacht

Security Council Referrals to the International Criminal Court as Quasi-Legislative Acts

2016 ◽  
Vol 19 (1) ◽  
pp. 142-175
Author(s):  
Alexandre Skander Galand
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Customary International Law ◽  
Applicable Law ◽  
Definition Of ◽  
Domestic Law ◽  
Principle Of Complementarity

In 1998, the international community decided to establish the first permanent International Criminal Court (ICC) with jurisdiction over persons for the most serious crimes of international concern, as referred to in the Rome Statute. As noted by many observers, some of the specific crimes within the Rome Statute are not grounded on customary international law but are more germane to treaty-based crimes. Thus, the exercise of treaty-based jurisdiction over non-party States would conflict with the principle pacta tertiis nec nocent nec prosunt. While the ICC jurisdiction is limited to crimes committed in the territory or by nationals of its States Parties, the Court may, where a situation is referred by the UN Security Council under Chapter VII of the UN Charter, exercise jurisdiction over crimes committed in the territory and by nationals of States not party to the Statute. Since the Rome Statute may go beyond existing applicable law, the referrals to the ICC are thus normative in their character. They impose new rules to be observed by any actors in the situations referred. This paper argues that this feature of a Security Council referral fits the definition of an international legislative act. The paper also inquires whether the obligation to cooperate fully with the Court arising from the Security Council resolution and the principle of complementarity require the State to modify its domestic law.

Aggression under the Rome Statute of the International Criminal Court

2002 ◽  
Vol 71 (4) ◽  
pp. 497-521 ◽  
Author(s):  
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Peace ◽  
Primary Responsibility ◽  
Peace And Security

AbstractThe Rome Statute for the International Criminal Court includes aggression among the crimes within the Court's jurisdiction. It mandates the Assembly of States Parties to define the crime and to set out the conditions under which the Court shall exercise jurisdiction over it. Both the definition and the conditions must be consistent with the UN Charter provisions. The most pertinent of these provisions is Article 39, which empowers the Security Council to determine ‘the existence of any threat to the peace, breach of the peace, or act of aggression’. Based on the context of this provision the article discusses the envisaged role of the Security Council vis-á-vis the International Criminal Court in the prosecution of aggression. The author acknowledges the Council's primary responsibility in matters relating to the maintenance of international peace and security, but asserts that such responsibility is not exclusive. The author also concedes the Council's prerogative under Article 39 to determine whether a state has committed an act of aggression for purposes of making recommendations or taking enforcement measures against such a state. Nevertheless the author contends that such determination does not preclude the Court from making its own determination for the purpose of assigning criminal responsibility on individuals. The author argues that the Court is an independent, impartial judicial body. It should not be bound by determinations of the Council, a political body that is often guided more by political considerations than by the law and evidence. The author maintains that subjecting the Court's jurisdiction over aggression to Security Council determinations would eviscerate the Court's effectiveness and credibility.

The International Criminal Court and Universal Jurisdiction

2006 ◽  
Vol 6 (3) ◽  
pp. 349-385 ◽  
Author(s):  
Ademola Abass
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Universal Jurisdiction ◽  
Criminal Jurisdiction

AbstractThis article examines whether the International Criminal Court (ICC) can exercise universal jurisdiction. In particular, the author responds to the argument that the ICC can exercise universal jurisdiction on the basis of delegated criminal jurisdiction and the aut dedere aut judicare principle, and challenges the view that the trial of nationals of non-parties by the ICC neither creates obligations for such states nor contravenes the Monetary Gold principle. The author argues that although some Rome Statute crimes have universal character, this does not automatically entitle the ICC to exercise jurisdiction over non-party nationals outside such limited universal jurisdiction as may be conferred on the Court through the Security Council referral.

The Activation of the Crime of Aggression before the International Criminal Court: Some Overlooked Implications Arising for States Parties and Non-States Parties to the Rome Statute

2019 ◽  
Vol 24 (3) ◽  
pp. 567-591
Author(s):  
Talita de Souza Dias
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Common Denominator ◽  
Limited Role ◽  
20Th Anniversary

Abstract On 17 July 2018, in celebration of the 20th anniversary of the Rome Statute of the International Criminal Court (ICC, the Court), the jurisdiction of the Court was finally activated for the crime of aggression, following a decision made by the Assembly of States Parties (ASP) in December 2017. This resulted from a long and painstaking process which not only furthered the divide between states parties and non-parties but also generated controversy within the ASP itself. In an attempt to reach a minimum common denominator, the ASP decided to exclude from the ICC’s jurisdiction situations involving states parties that have not ratified the amendments in respect of that crime (‘the Kampala Amendments’). Moreover, since the adoption of the Amendments in 2010, it has been agreed that the ICC will not exercise its jurisdiction over the crime of aggression if committed by nationals or on the territory of non-states parties, except when there is a Security Council referral. This combination of jurisdictional hurdles has led many to believe that the crime of aggression will have a limited role to play before the ICC. Nonetheless, a closer look at the Activation Decision, the Kampala Amendments and certain key provisions of the ICC Statute reveals that the activation of the crime of aggression might have a series of overlooked implications for non-parties and parties alike, including those that have not ratified the amendments. In particular, this article will argue that, aside from Security Council referrals, there may still be instances where the Court can apply the crime of aggression to situations involving those states.

Current Trends in the Definition of ‘Perpetrator’ by the International Criminal Court: From the Decision on the Confirmation of Charges in the Lubanga case to the Katanga judgment

2015 ◽  
Vol 28 (2) ◽  
pp. 349-371 ◽  
Author(s):  
ALICIA GIL GIL ◽  
ELENA MACULAN
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
Basic Principles ◽  
Critical Elements ◽  
Current Trends ◽  
The One ◽  
Definition Of ◽  
Individual Criminal Responsibility

AbstractThe jurisprudence of the International Criminal Court (ICC) up to the Lubanga judgment showed definite interpretive trends on the modes of principal liability. This article aims first to make a critical assessment of these trends by focusing on methodological and substantive aspects. On the one hand, the practice of having resort to theories derived from Continental legal systems, albeit legitimate, is based on a methodology that raises some concerns as to the selection and (mis)interpretation of such theories. On the other hand, the Court has clearly adopted a wide interpretation of some critical elements in which the different modes of principal liability are grounded. This choice has caused a significant expansion of the scope of principal liability as well as a breach of the principles of legality and of individual criminal responsibility. In our opinion, the underpinning of these interpretations is a flawed understanding of the criteria for distinguishing between principals and accessories.This perspective has been overturned by the Katanga judgment, on which the second part of this article will focus. This judgment correctly argues that the distinction between perpetrators and accomplices is grounded only on the autonomous or vicarious character of their contribution to the offence. Furthermore, it follows a partly different approach as to both the methodology and the interpretation of the constitutive elements of principal liability. In our view, this approach better fits both the relevant statutory provision and the basic principles of criminal law.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.27 Irrelevance of official capacity/Défaut de pertinence de la qualité officielle

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
Customary International Law ◽  
Head Of State

This chapter comments on Article 27 of the Rome Statute of the International Criminal Court. Article 27 consists two paragraphs that are often confounded but fulfil different functions. Paragraph 1 denies a defence of official capacity, i.e. official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall not exempt a person from criminal responsibility under the Statute. Paragraph 2 amounts to a renunciation, by States Parties to the Rome Statute, of the immunity of their own Head of State to which they are entitled by virtue of customary international law. In contrast with paragraph 1, it is without precedent in international criminal law instruments.

Defining “Crimes Against Humanity” at the Rome Conference

1999 ◽  
Vol 93 (1) ◽  
pp. 43-57 ◽  
Author(s):  
Darryl Robinson
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Armed Conflict ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Multilateral Negotiations ◽  
Significant Difference ◽  
The Many

On July 17, 1998, the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome Conference) adopted the Rome Statute of the International Criminal Court (ICC). One of the many significant provisions of the ICC statute is Article 7, which defines “crimes against humanity” for the purpose of the ICC. A significant difference between the definition in the ICC statute and the major precedents on crimes against humanity is that the former definition was not imposed by victors (as were those in the Nuremberg and Tokyo Charters) or by the Security Council (as were those in the Statutes of the Yugoslavia and Rwanda Tribunals). In contrast, Article 7 was developed through multilateral negotiations involving 160 states. For this reason, one could reasonably expect Article 7 to be more detailed than previous definitions, given the interest of participating states in knowing the precise contours of the corresponding obligations they would be undertaking. For the same reason, one might expect the definition to be more restrictive than previous definitions. Fortunately, although the definition in the ICC statute is more detailed than previous definitions, it generally seems to reflect most of the positive developments identified in recent authorities. For example, the definition does not require any nexus to armed conflict, does not require proof of a discriminatory motive, and recognizes the crime of apartheid and enforced disappearance as inhumane acts.

Sign in / Sign up

Export Citation Format

Share Document