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The Crime of Aggression under the Rome Statute of the International Criminal Court

The Crime of Aggression under the Rome Statute of the International Criminal Court

Author: Dr Carrie McDougall
Publisher: Cambridge University Press
ISBN: 9781107011090
Published In: April 2013
Format: Hardback , 411 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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This guide to the crime of aggression provisions under the Rome Statute of the International Criminal Court (ICC) offers an exhaustive and sophisticated legal analysis of the crime's definition, as well as the jurisdictional provisions governing the ICC's exercise of jurisdiction over the crime. A range of practical issues likely to arise in prosecutions of the crime of aggression before the ICC are canvassed, as is the issue of the domestic prosecution of the crime. It also offers an insight into the geopolitical significance of the crime of aggression and the activation of the ICC's ability to exercise its jurisdiction over the crime. The author's intimate involvement in the crime's negotiations, combined with extensive scholarly reflection on the criminalisation of inter-State uses of armed force, makes this highly relevant to all academics and practitioners interested in the crime of aggression.

• Critical analysis of the amendments goes beyond a description of the operation of the new amendments to consider them with a view to ensuring such criticisms are taken into account in the interpretation and application of the provisions

• Identifies a range of practical issues that will arise in prosecutions of the crime of aggression, opening a discussion on important practical matters that have to date not been discussed by Court actors or State parties

• Explains the political context in which the crime of aggression was adopted and offers a firsthand insight into the negotiation process

• Will help international criminal lawyers understand the thinking behind, and the significance of, the new crime of aggression provisions

Foreword	xix
Preface	xxi
The Crime of Aggression Amendments	xxiii
Abbreviations	xxxi
1. The crime of aggression under the Rome Statute of the International Criminal Court: an introduction	1
A crime of aggression at last	1
The early history of the crime of aggression	2
The lead-up to Rome	6
The Rome Conference	9
The Special Working Group on the Crime of Aggression	13
The Review Conference of the Rome Statute	24
The approach of this book	31
2. Criminalising aggression	34
Misplaced misgivings	34
A prohibition of at least certain forms of inter-State armed violence	34
Desirability versus possibility	39
Beyond an end to impunity: the significance of the crime	49
International politics and the crime of aggression	49
The crime of aggression and the jus ad bellum	54
Conflict over aggression?	56
A chilling effect	59
Conclusion	60
3. An act of aggression: by any other name	62
The distinction between acts and crimes	62
Resolution 3314: a poor precedent	62
New nomenclature: inter-State armed violence under the UN Charter	63
The 3314 Definition: a compromised text	70
Acts of aggression and the jus ad bellum	82
Security Council practice	83
General Assembly practice	87
Decisions of the International Court of Justice	89
Conclusion: the definition of an act of aggression for the purposes of the jus ad bellum	95
Article 8bis (2)	96
Picking and choosing	97
Open or closed	103
In and out	105
Non-State actors	106
Cyber operations	110
Understanding the Understandings	113
The status of the Understandings	113
Understanding an ‘act of aggression’	119
Conclusion: an act of aggression under Article 8bis (2)	122
4. The elevation of acts of aggression to the State act element of the crime of aggression	124
An act of aggression that by its character, gravity and scale constitutes a manifest violation of the Charter of the United Nations	124
Nullum crimen sine lege and the prohibition of analogy	130
The most serious crimes of concern to the international community as a whole	132
Inconsistency with customary international law	137
Making the ICC an arbiter of the grey areas in the jus ad bellum	155
Article 31: grounds for excluding criminal responsibility	163
Conclusion	164
5. The individual conduct elements of the crime	167
Effectively exercising control over or directing the political or military action of a State	168
The ‘leadership’ requirement	168
The relevance of Article 28	183
The perpetrator’s contribution	185
The mental elements	189
Article 32: mistake of fact or mistake of law	196
The relevance of Article 33	197
Modes of participation	198
Third State officials	199
Can you attempt to commit a crime of aggression?	200
Conclusion	202
6. The Court’s jurisdiction over the crime of aggression	205
A regime consistent with international law	206
Does the UN Charter give the Security Council a prerogative to identify acts of aggression?	208
The Council’s pre-emptive right to identify acts of aggression	209
The Council’s right to identify acts of aggression is a primary one	213
Omitting a role for the Council would raise a conflict under Article 103	214
The Council’s prerogative does not extend to international criminal law	214
Other entities have the ability to identify acts of aggression	220
Article 103 is no barrier to independent ICC identification of acts of aggression	229
Policy arguments against a role for the Council in State referrals or proprio motu investigations	230
Conclusion	234
The jurisdictional regime of the ICC	234
Entry into force: the slow burn issue	237
The dilemma: Article 121(4) or Article 121(5)?	237
The second sentence of Article 121(5)	243
The negative interpretation and non-States Parties	247
The exclusions under Article 15bis	249
The Article 5(2) reference	251
The Article 12 reference	252
The rationale of the opt-out declaration	253
A comparison with Article 15bis (5)	256
The absence of an understanding	257
Over whom can the Court exercise jurisdiction?	258
The applicability of Article 12(3)	263
Future States Parties	264
The when and what of Article 15bis (4) declarations	265
Security Council determinations	268
What amounts to a Security Council determination?	268
Does a ‘negative determination’ have any effect?	270
The Pre-Trial Division filter	271
What is the relationship between Article 15bis and Article 15?	273
Article 16	274
Security Council referrals	276
Conclusion	279
7. 2017 and beyond	281
Activating the Court’s jurisdiction	281
The requirements	283
The prospects of an active jurisdiction	286
Prosecuting a crime of aggression before the ICC	289
Judicial elections and staffing the Court	289
Victims of crimes of aggression	292
Cooperation in the investigation and prosecution of crimes of aggression	301
Domestic prosecutions	311
Domestic prosecutions under the aggression amendments	311
Bases of domestic jurisdiction	315
Foreign State immunities	320
Other potential barriers to domestic prosecutions of crimes of aggression	324
Conclusion	326
Review of the amendments	327
Conclusion: a crime in name only?	332
References	336
Index	374