What is Aggression?: Comparing the Jus ad Bellum and the ICC Statute

Abstract

Under the international law on resort to force, the jus ad bellum, any serious violation of the United Nations Charter prohibition on the use of force amounts to aggression. Despite a close connection for over a century between the prohibition on aggression by states and the crime of aggression for which individuals may be held accountable, delegates to the 2010 International Criminal Court Review Conference in Kampala, Uganda felt compelled to bifurcate the two prohibitions and reach a compromise. Today, the ICC Statute contains a detailed provision on the crime of aggression, but with a byzantine procedure for entry into force of the amendments in place and absent a much narrower standard for mens rea of the crime, the authors doubt the likelihood of successful prosecution. This conclusion underscores that the Kampala compromise does not in fact restate the law against the use of force binding on states; it underlines the importance of supporting and revitalizing the law that has as its purpose protecting the right to life of millions of people.

The crime of aggression and the case of Ukraine

“…If it is an objective qualification, it is not necessary to prove that the perpetrator of the crime complies with the act planned by him and that the violation of the prohibition of resorting to military violence is "manifest" 21 . However, this type of parameter could not be objectively determined in the present case and opens up various interpretations (Paulus, 2010;O'Connell, Niyazmatov, 2012) Frouville, Decaux, 2020;Dupuy, Kerbrat, 2020). Due to the inadequate implementation of the collective security mechanism in many cases the practice has deviated from the principles set out in the Charter (Greppi, 2010;Strapatsas, 2017).…”

How Aggressive Is China?

“…That is, 'at least eighty-four delegations of legal advisors and experts from States Parties to the Rome Statute' agree that this definition of aggression is clear (Trahan 2012, 909). The uniformity with which law journal articles on the subject define 'aggression' and outline the concept's pedigree, as well as the substantial similarities between codified definitions of 'aggression' (See Solera 2010, 803-804), suggests that the definition supplied in the United Nations A/RES/29/3314 is the generally accepted, baseline definition of aggression (O'Connell & Niyazmatov 2010;Stahn 2010;Mancini 2012;Trahan 2012). Stahn (2010) makes reference to A/RES/29/3314, as do Mancini (2012), Koh and Buchwald (2015), and many more.…”

Untitled

“…However, the pessimistic view of some more critical authors like Mary Ellen O'Connell and Mirakmal Niyazmatov who argue that "the substantive provision leaves experts unclear to what the prosecutable crime even is" cannot be corroborated. These authors doubt the feasibility of criminal proceedings and regret that the solution presented is different from the definition of crime of aggression under international law, affirming that this prohibition of aggression must not be undermined by the political compromise reached at Kampala (O'Connell;Niyazmatov 2012: 191, 207).…”