Victims of the Crime of Aggression

Abstract

At first glance, there is nothing in the text of rule 85(a) that excludes the application of the definition of 'victim' to the crime of aggression. However, everything turns on the concept of 'harm' and the required causal link between such harm and the crime of aggression. The following discussion will explain why rule 85(a) is open enough to sustain doubt about whether the definition of 'victim' applies to the crime of aggression. I. The Notion of 'Harm'Unlike the definition of 'victim' in the Rules of Procedure and Evidence of the International Criminal Tribunals for the former Yugoslavia and Rwanda, 10 the International Criminal Court definition does not require a victim to have been a target of the crime, but is instead based on the notion of harm. 11 The jurisprudence of the Court on the meaning of 'harm' has developed for over ten years since the Court's establishment in relation to the crimes within its existing jurisdiction. As the following discussion will reveal, this jurisprudence is based on victims' rights under international human rights and humanitarian law, and assumes that a protected legal interest of the victim is necessarily affected by the crime in question. But the crime of aggression can be distinguished from the other crimes within the Court's jurisdiction, since individuals have no affected legal interest in respect of violations of the ius ad bellum. This part will argue that this distinction justifies a closer examination of the correct interpretation of 'harm' under rule 85(a) and in particular, whether such harm requires a legal interest to be affected.The victim provisions in the Rome Statute reflect a growing emphasis in international human rights law and international humanitarian law on the role of victims. 12 Victims of violations of human rights law have a right to an effective remedy. 13 Aspects of the right to a remedy include the right to justice, the right to

Charging Aggression as a Crime against Humanity? Revisiting the Proposal after Russia's Invasion of Ukraine

“…64 In contrast, the direct 'victim' of the offence of aggression is another state (as the crime focuses on breaching the territorial integrity and sovereignty of another nation)in other words, it is a 'state-centric' offence, not as directly or immediately concerned with human victims. 65 Thus, Ferencz began thinking that prosecuting the illegal use of force as crimes against humanity was the way forward, whether the plight of victims was the result of an external state's illegal use of force or their own state's internal infliction of violence. 66…”

“…Thus, even if ICC jurisdiction were available to charge the crime of aggression in this case, such a prosecution would not capture the legally protected interests of natural persons being affected and/or targeted. This is so because the key legal interest protected vis-à-vis the crime of aggression is state sovereignty/territorial integrity, 141 and not the security and wellbeing of natural persons, which reflects the 'human rights perspective' that is the central concern of CAH. 142 Similarly, enumerated acts such as murder ((Article 7(1)(a)), extermination (Article 7(1)(b)), torture (Article 7(1)(f)), and rape (Article 7(1)(g)) do not capture the overarching criminal scheme of launching an aggressive war (only fragments of it), which the residual Article 7(1)(k) charge would cover.…”

“…159 However, states, not natural persons, are recognised as victims of aggression under customary international law. 160 Although, in principle, natural persons could qualify as victims under the Rome Statute, it is not clear that the ICC would grant them access to its participation and reparations regimes as 'it was not states' intention to create new rights for individuals suffering harm from the crime of aggression'. 161 Thus, absent Ferencz's proposal, human victims whose lives have been shattered (or otherwise adversely affected) by aggressive war, would have no formal access to the participation and reparations privileges in the Rome Statute that were intended for persons like them, who have suffered directly as the result of the commission of international crimes.…”

Accident and Design: Recognising Victims of Aggression in International Law

“…63 There are no judicial precedents treating natural persons as victims of the crime of aggression, as States have traditionally been viewed as the only relevant victims under international law for this purpose. 64 The International Court of Justice has never 'alluded to the possibility that the unlawful use of force could give rise to international rights of individuals to reparations vis-à-vis the offending state'. 65 Post-Second World War tribunals may have been conscious of the human impact of aggression-hence the apt description at Nuremberg that it 'contains within itself the accumulated evil of the whole' 66 -but States were its victims in a legal sense, and reparations for natural persons for aggression, or indeed any other crimes, were not addressed in the criminal justice context.…”