Some thoughts on Aggression: reopening settled debates

One of the pressing questions being considered at the ICC Review Conference in Kampala is the definition of the crime of aggression. In relation to that I wanted to share the article I wrote that was published this year on the topic (you can download it here), under the title “THE SHEEP IN THE BOX: THE DEFINITION OF THE CRIME OF AGGRESSION AT THE ICC”.

For those who can’t be bothered reading it, I basically put forward the idea, which is arguably unrealistic, that the current negotiations have in fact reopened debates that were settled in Rome for the other crimes. For example, the leadership requirement which is debated is for me unnecessary, given that the ICC will in any case exercise jurisdiction over only those deemed most responsible. Another example is the modes of liability, which are already sufficiently dealt with in Article 25. A final example is the role of the Security Council, Article 16 having already been included to alleviate fears of interference of the ICC with the SC’s work in relation to peace and security. I therefore argue that we should apply the Statute as it stands whenever possible.

Why is that the case? At a ASIL webinar I attended last week, David Scheffer defended this approach based on the exceptional complexity of the crime of aggression, especially its political dimensions and interaction with State responsibility. It is certainly true that the crime of aggression is complex… but so are the other crimes within the jurisdiction of the Court, especially genocide and crimes against humanity. Both of these are politically sensitive crimes and imply the evaluation of State policies. Moreover, the Bosnia v. Serbia ICJ case is obvious proof (if based on debatable legal reasoning, but that’s another issue…) that there are potential State responsibility considerations as well. The reasons put forward to single out the crime of aggression can therefore equally be leveled at other crimes and don’t per se justify, legally in any case, the current debates.

I do put forward  one new idea of resuscitating the Nuremberg idea of “criminality of organisations”. Despite its controversial aspect, I do believe that it can more aptly cover the collective nature of the decision making process of such a crime.

As for the “sheep in the box” reference in the title, I invite you to read the whole article if you want to find out…

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