International Criminal Law Seminar 8: Transnational and Other
Posited International Crimes
Reading – Chapter 13 – Aggression
‘Crime against peace’ committed by leader or policy-maker of a state who
participates in an act of aggression carried out by the state. Prevention of
aggression is one of primary purposes of the UN
About unlawful act committed by one state on another – is about protecting state
sovereignty, whilst making leaders directly accountable under international law
Historical Development
Negotiations during the London Charter showed not a widely held view that there
should be a crime of aggression. However Nuremberg IMT had jurisdiction over
‘crimes against peace’ under Article 6(a) of the charter which included ‘planning,
preparation, initiation of waging of a war’ as a crime.
The charter was applying law ex post facto however and Nuremberg was criticised
for this
Newly formed UNGA endorse ‘principles of international law’ recognised by the
London Charter and Nuremberg judgement
1950 – International Law Commission asked to elaborate definition of crime of
aggression by no agreement reached
Definition of aggression reached in 1974 by GA Resolution 3314 and
recommended to the Security Council as guidance. However it itself is not a crime
but simply states that a crime against international peace will give rise to
international responsibility
ICC Court Negotiations – Failure to reach a definition at the Rome Conference
for the crime of aggression. Final compromise in Article 5(1)(d)and(2) which
includes aggression in the jurisdiction of the court but not until parties reached
further agreements to the crime
ICC Statute Review Conference, Kampala 2010 – New elements of crime
adopted. Amendments accompanied by 7 ‘understandings’ incorporating agreed
interpretations. Court cannot exercise jurisdiction until a decision is made after
January 1st 2017 by a 2/3 majority.
Definition in ICC Statute
Defined in what will be Article 8bis of the Statute as: ‘the planning, preparation.
Initiation or execution, by a person in a position effectively to exercise control
over or to direct the political or military action of a State, of an act of aggression
which, by its character, gravity and scale, constitutes a manifest violation of the
Charter of the United Nations’
Act of aggression is defined as: ‘the use of an armed force by a State against the
sovereignty, territorial integrity or political independence of another State, or in
any other manner inconsistent with the Charter of the United Nations. Any of the
following acts, regardless of a declaration of war…. Shall qualify as an act of
aggression [acts then listed out]’
Relationship to other crimes
Aggression often provides an ‘occasion’ for other offences under International
Criminal Law to be committed
Concerns the ius ad bellum (law governing recourse to armed conflict) unlike any
other crime
Can only be committed by an individual in control of a state on behalf of that state
and as part of a state plan or policy.
Material Elements
1. By a perpetrator:
- A ‘leadership crime’ so can only be committed by leaders of high-level-policy-
makers.
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