Defining the Crime of Aggression: Is There an Answer to the International Criminal Court's Dilemma?
Air Force Law Review, The › Nbr. 65, January 2010
Linked as:
Summary
To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.1 I. INTRODUCTION The Rome Statute established the International Criminal Court (ICC) in 2002.2 The ICC is the culmination of decades of attempts to define aggression and set up an international court with jurisdiction to hold individuals responsible for what the state parties considered the most serious crime - the crime of aggression.3 The Rome Statute confers subject matter jurisdiction with respect to "the most serious crimes of international concern": genocide, crimes against humanity, war crimes and the crime of aggression.4 Although the Rome Statute defined the other three crimes, the definition of aggression led to many heated debates and subsequently, postponement of ICC jurisdiction for it until the state parties could agree on a definition and set out the conditions for jurisdiction.5 In 2002, the Assembly of States Parties established the Special Working Group on the Crime of Aggression (Special Working Group) to propose a definition of aggression and establish the conditions for the exercise of jurisdiction.6 This article begins by examining the history of the doctrine of aggression starting with the ancient concept of jus ad bellum as defined by the Romans and Christian theologians. HISTORY OF THE DOCTRINE OF AGGRESSION A. Jus ad Bellum The concept of jus ad bellum or just war traces back to ancient Rome and the jus fetiale.s The Romans followed fetial law, believing they had to please the gods in order to wage war.9 The fetiales were priests whose duties included determining whether sufficient reasons justified resorting to war.10 According to Cicero, a war was not just unless the aggressor (1) made an official demand for satisfaction with a time allotted for a response; and (2) issued a formal declaration of war.11 Christian doctrine originally took a pacifist view toward war.12 Christians were not even allowed to become soldiers.13 However, this changed in the time of Constantine when he established Christianity as the official religion of the empire.14 Christian theologians decided that good Christians were expected to fight for God; therefore, they needed to change their stance on war.15 In his book, The City of God, St. Augustine formulated the fundamental principle that wars were a lamentable occurrence, but the suffering of victims of aggression necessitated the need for waging just wars.
See the full content of this document
Extract
Defining the Crime of Aggression: Is There an Answer to the International Criminal Court's Dilemma?
War is essentially an evil thing. Its consequences are not confined to the belligerent States alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.1
I. INTRODUCTIONThe Rome Statute established the International Criminal Court (ICC) in 2002.2 The ICC is the culmination of decades of attempts to define aggression and set up an international court with jurisdiction to hold individuals responsible for what the state parties considered the most serious crime - the crime of aggression.3 The Rome Statute confers subject matter jurisdiction with respect to "the most serious crimes of international concern": genocide, crimes against humanity, war crimes and the crime of aggression.4 Although the Rome Statute defined the other three crimes, the definition of aggression led to many heated debates and subsequently, postponement of ICC jurisdiction for it until the state parties could agree on a definition and set out the conditions for jurisdiction.5 In 2002, the Assembly of States Parties established the Special Working Group on the Crime of Aggression (Special Working Group) to propose a definition of aggression and establish the conditions for the exercise of jurisdiction.6This article begins by examining the history of the doctrine of aggression starting with the ancient concept of jus ad bellum as defined by the Romans and Christian theologians. The article will then survey modem concepts of aggression as set forth in the Kellogg-Briand Pact, the Nuremberg Trials, and the Charter of the United Nations. Following this discussion, the article will examine the definition of aggression as set forth in General Assembly Resolution 3314 and the events leading up to the Rome Statute and the creation of the International Criminal Court (ICC). This article will also briefly examine the U.S. position regarding the ICC and the crime of aggression. Section III examines the Special Working Group's proposed jurisdictional conditions and definition of aggression.The Special Working Group needs to resolve two major issues: (1) how is the ICC going to exercise jurisdiction over the crime of aggression; and (2) how to define aggression to satisfy a majority of the state parties.7 Section IV of this article offers recommended changes to the Special Working Group's proposed definition of aggression, to include eliminating a Security Council determination of aggression as a prerequisite for jurisdiction. The ICC must act as an independent arbiter of justice if it is to provide a general deterrent to future crimes against peace and punish those who use armed force with impunity.II. HISTORY OF THE DOCTRINE OF AGGRESSIONA. Jus ad BellumThe concept of jus ad bellum or "ju...See the full content of this document
Sponsored links
