The Actus Reus of Crime of Aggression in Rome Statute of the International Criminal Court considering Amendments of Kampala Review Conference

Document Type : Original Independent Original Article

Author

Assistant Prof. at Law Department , Mashhad Branch, Islamic Azad University, Mashhad, Iran

Abstract

The Rome Statute authorized the International Criminal Court to exercise jurisdiction over crimes of aggression. In the first Review Conference of the Rome Statute in 2010, the crime of aggression and its elements were delineated and identified with the goal of protecting world peace. The present study explored the Actus Reus of the crime of aggression based on the latest amendments to ICC's Statute. The gravity and broadness of the acts of aggression mean that committing such crimes occurs through special arrangements and conditions. The crime of aggression refers to a series of actions called war management. The aggressors are convicted of this crime when specific conditions are met. At first, there is planning and then military supplies and equipment are procured, which leads to a planned attack by the military leaders. Once the act of aggression and territorial occupation is completed, the last step is war management. The Actus Reus of the crime of aggression in ICC's Statute includes the planning, procurement, initiation, and execution of the act of aggression. These are undertaken by political and military leaders in a position effectively to exercise control over or to direct the action of a state The actions must be intended for an act of aggression and are deemed violations of the UN Charter given their nature, intensity, and extent.

Highlights

Introduction

The technological development of war weapons in the first decades of the 20th century and its destructive consequences in WWI increased the proponents of the prohibition and criminalization of war in the international community. Up until the early 20th century, war was internationally considered a legitimate political means (Solis, 2020: 11). Accordingly, during their 3400-year history, humans have lived in general peace for only about 250 years (Ziaee Bigdeli, 2018: 3). The most serious renunciation of war was realized through the Kellogg–Briand Pact, which fell short of criminalizing war in legal terms. A pressing question was whether a war of aggression can be defined by law. Meanwhile, a lack of consensus on the definitions and instances of war of aggression led to a stalemate and the Charter of the United Nations limited itself to only mentioning the term (Article 39 and Article 4.2 of the UN Charter). Therefore, immediately after its establishment, the UN General Assembly sought to define acts of aggression, which was delegated to the International Law Commission and then sub-delegated to a dedicated committee called the Special Committee on the Question of Defining Aggression.  

The efforts of the International Law Commission finally led to the adoption of Resolution 3314 in 1974. However, this definition, which was the groundwork of the Draft Code of Crimes against the Peace and Security of Mankind and Draft Statute for an International Criminal Tribunal Introduction, did not prove effective until the end of the Cold War. Later on, in 1994, there was a change in the agenda and these two documents were merged, through which an act of aggression as an international crime, albeit conditionally, fell under the jurisdiction of the International Criminal Court (Darabi Nia, Morteza; Foroghi Nia, Hossin: 2015, 142). The next problem was a disagreement concerning the definition of an act of aggression that would incriminate legal persons and enable the Court to exercise its powers over it. As a result, the Court's exercise of jurisdiction over crimes of aggression (Article 5.2 of the Statute of the International Criminal Court) became contingent upon both defining such acts and determining the conditions for the Court's jurisdiction, which was addressed in the first Review Conference of the Rome Statute.  

 

Research background

A study entitled "Definition of the crime of aggression considering the resolution of the Review Conference of the International Criminal Court in Kampala" (June 2011) concludes that due to ambiguities in the definitions and specific limitations (e.g., postponement of the Court's exercise of jurisdiction until 2017 and the possibility of intervention by the Security Council in determining acts of aggression), the amendment concerning ICC's jurisdiction over the crime of aggression is not potent enough (Mosazadeh, Foroghi, 2012).

 

Conceptual framework

Article 8 bis of the Statute addresses the Actus Reus of the crime of aggression and defines "crime of aggression" as planning, procurement, initiation, or execution of an act of aggression by a person holding a “position effectively to exercise control over or to direct the political or military action of a State", such that the nature, intensity, and extent of the act of aggression clearly violate the UN Charter.   

This study investigated the Actus Reus of the crime of aggression based on the amendments to the Rome Statute adopted after the 2010 Kampala Conference and the definition of the crime of aggression through Article 8 bis. The Actus Reus of any crime generally consists of physical behavior, conditions/circumstances, and results and also the possibility of attributing them to the perpetrator. This study used these three factors to assess the Actus Reus of the crime of aggression considering the 2010 amendments.

 

History

Review Conference of ICC's Statute (scheduled in Kampala, Uganda, from May 31 to June 11, 2010), was held many years after the initial meetings of the representatives of the member states. In mid-June, the compressed meetings resulted in defining the crime of aggression and the conditions for the jurisdiction of the Court to be in force. In addition, the ICC's Statute concerning the crime of aggression was approved.

      The definition of this crime, the conditions for the Court's jurisdiction, and, in general, the inclusion of this crime in the Statute were invaluable developments. Still, there are ambiguities concerning the presented definitions and limitations (e.g., postponement of the Court's exercise of jurisdiction until 2017 and the possibility of intervention by the Security Council in determining acts of aggression), which have deprived the amendments of adequate force.

 

Conclusion

The horrifying nature of the crime of aggression compelled the international community to create a channel for the legal prosecution of this crime. Meanwhile, its complexity thwarted attempts at defining it. The precedence for the crime of aggression over an act of aggression, as the action of a political member of the international community, set in motion nearly a century of committed work toward this goal. ICC's potential jurisdiction to prosecute the crime of aggression in the late 20th century was a serendipitous achievement in international law, however, the absolute legal base adhered to by the Court given its internal regulations required the legal element of the crime of aggression to be specified in its statute.  Ultimately, the first Review Conference of the Rome Statute in 2010 distinguished between the crime of aggression and the act of aggression. Accordingly, the Actus Reus of the crime of aggression involves participation in the planning process of the act of aggression. As a special feature of the crime of aggression, this aspect stands next to the three elements of the commitment of the crime, that is, the participation of a state in the planning, procurement, initiation, and execution of an act of aggression against another state.

 

 

Keywords

Main Subjects

References

  1. Abdollahi, M. (2011). The concept and definition of international crime in international law, in international criminal law, under the supervision of Nasrin Mehra, Tehran, Mizan. (In Persian)
  2. Agaee Janat Makan, H. (2021). The Trial of Power, Second Edition, Tehran, The Treasure of Knowledge. (In Persian)
  3. Asgari, P., & Khosravi, Y. (2016). Necessity and requirements of peace studies from the perspective of international Law. International Relations Researches, 4(6), 237-266. (In Persian)
  4. Azmayesh, A. (2019). Textbook: A Study of the Basic Principles of International Criminal Law. (In Persian)
  5. Beth, V. (2012). Par in Parem Imperium Non Habet, Journal of International Criminal, Oxford University Press.
  6. Christopher, C. (2019). Analysis of the Principles of Public Criminal Law, translated by Hossein Mir Mohammad Sadeghi. Third Edition, Tehran, Jangal. (In Persian)
  7. Darabi Nia, M., & Foroughinia, H. (2015). The Relationship between the UN Security Council and the International Criminal Court in the Field of the Crime of Trritorial Aggression. Criminal Law Research, 6(1), 141-170. (In Persian)
  8. Gerhard, W. (2007). The Crime of Aggression between International and Domestic Criminal Law, 21 September, XVth International Congress on Social Defence. Humboldt-Universität zu Berlin.
  9. Isdore Ozuo, I. (2019). normative development of the Crime of Aggression: the kampala amendments to the rome statute or the Malabo protocol? , African Journal Of Criminal Law And Jurisprudence
  10. Joachim, G. (2013). Defining Aggression for the International Criminal Court: A Proposal.
  11. Juris, J. (2016). The Crime of Aggression in International Criminal Law. Challenges in jurisprudence and doctrine‏
  12. Kasmati, Z. (2008). Principles of Assignment of Individual Criminal Liability in the Framework of the Statute of the International Criminal Court, PhD Thesis, Allameh Tabatabai University. (In Persian)
  13. Kevin Jon, H. (2011). The Nuremberg Military Tribunals and the Origins of International Criminal law, first published, New York, Oxford University press.
  14. Kurt A. (2004) Black's Law Dictionary (8th ed.).
  15. Larry, M. (2015). Aggression and Crimes against Peace, First published, New York Cambridge University Press.
  16. Ľuboslav, S. (2018). The He Crime of 'Aggression': Does its Narrow Definition and Limited Jurisdiction Affect Criminal Responsibility at the International Level‏. New York Cambridge University Press.
  17. Mir Mohammad Sadeghi, H. (2019). International Criminal Court, Ninth Edition, Tehran, Justice. (In Persian)
  18. Neport, J. (1399) Nuremberg Trials, translated by Mehdi Haghighatkhah. Fifth Edition, Tehran, Phoenix. (In Persian)
  19. Nicholas, T. (2012). The Prohibition of Threats of Force, Research Handbook on International Conflict and Security Law, Nigel White, Christian Henderson, eds, Elgar.
  20. Noah, W. (2010). Conceptualizing Aggression, FIU Legal Studies Research Paper Series, Research Paper No.10-64.
  21. Parszadehm, M, Ostovar, M. (2021). The Military High-Ranking Officials Individual Criminal Responsibility in Cyber Aggressions and ICC Exercise of Jurisdiction over It Proposing Media Approaches 5(2), Serial Number 6.
  22. Robert H. (2010). The Crime of Aggression after Kampala: Success or Burden for the Future? Gottingen Journal of International Law 2.
  23. Sac Kitty Shizari, Kringing,(2017), International Criminal Law, Translated by Behnam Yousefian and Others. Tehran, Jangal. (In Persian)
  24. Sayapin, S. (2014). Elements of an Act of Aggression: An Overview of Modern International Law and Practice. In The Crime of Aggression in International Criminal Law (75–144). T.M.C. Asser Press.
  25. Sean D. M. (2014). The Crime of Aggression at the ICC, The Oxford Handbook of the Use of Force in International Law.
  26. Solis, G. D. (2020). The Law of Armed Conflict: International Humanitarian Law in War, university printing house, Cambridge cb2 8bs, united kingdom
  27. Tom, R. (2010), Armed attack and Article 51 of UN Charter. Cambridge University Press, New York.
  28. Zamani, Q. (2016). Divergence and Convergence of "Individual Criminal Liability and "International Government Liability": A Reflection on Iraq Chemical Warfare against Iran. Public Law Research, 18(51), 9-29. (In Persian)
  29. Ziaee Bigdeli, M. (2018). Law of Armed Conflict, sixth edition, Tehran, Allameh University. (In Persian)

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