International Law Aggression in International Law
by
Constantine Antonopoulos
  • LAST REVIEWED: 20 September 2016
  • LAST MODIFIED: 11 January 2017
  • DOI: 10.1093/obo/9780199796953-0061

Introduction

The crime of aggression, or crime against peace, was first introduced in the constituent instrument establishing the Nuremberg International Military Tribunal (IMT) (the London Charter, 1945) at the end of World War II. It was also included in the Charter of the Tokyo International Military Tribunal for the Far East (IMTFE) and Control Council Law No. 10, 1945. The criminalization of aggression in these instruments constitutes the culmination of a process that started at the end of World War I, with the arraignment of the German emperor Wilhelm II, by virtue of Article 227 of the Peace Treaty of Versailles, “for a supreme offence against international morality and the sanctity of treaties.” The prosecution of the crime of aggression before the Nuremberg and Tokyo IMTs met with strong criticism concerning the breach of the principle of legality (nullum crimen sine lege). However, the United Nations (UN) General Assembly, in G.A. Res. 95(I) (United Nations 1946, cited under General Assembly Resolutions), and the International Law Commission (ILC), in the “Formulation of the Nürnberg Principles” (Yearbook of the International Law Commission 2 1950), endorsed the existence of the crime of aggression in customary law, with no opposition on the part of states. Hence, in the early 21st century it is universally accepted that the crime of aggression exists in customary law, although its precise definition, for the purposes of individual criminal responsibility, has been a matter of contention. There have been no prosecutions for aggression following the Nuremberg and Tokyo trials, and this crime remained in a state of lethargy until the establishment of the International Criminal Court (ICC) in 1998. Article 5, ICC Statute, includes aggression among the crimes within the Court’s jurisdiction. At the same time, Article 5(2) stipulates that the jurisdiction of the Court would not be exercised for aggression until a generally accepted definition of the crime was adopted. This definition was ultimately agreed upon at the first Review Conference of the ICC Statute, in Uganda (Kampala Conference), in June 2010 (new Article 8bis). The crime of aggression is closely connected with the resort to force by a state, unlike war crimes, genocide, and crimes against humanity, in which individual criminal responsibility is independent of the existence of state responsibility. Moreover, perpetrators of aggression, unlike the other three crimes, are exclusively state officials, particularly in the highest echelons of the state. The adoption of a definition of the crime of aggression in the ICC Statute is a major breakthrough that may clear the way for prosecutions of crimes against peace in the future.

Historical Overview

The evolution of the crime of aggression traces the period from the establishment of the Nuremberg International Military Tribunal (IMT) to the adoption of the definition of the crime at the Kampala Conference in 2010. Recitals of this evolution are rather brief (though generally concise) in textbooks on international criminal law and become more detailed in ad hoc monographs on the crime of aggression and books on the use of force by states. In the course of the work of the Special Working Group on the Crime of Aggression, the Secretariat of the UN Preparatory Commission for the International Criminal Court prepared the lengthy and detailed Historical Review of Developments Related to Aggression; this document is the most comprehensive text on the history of the evolution of the crime of aggression. Bantekas 2010 and Cryer, et al. 2014 contain concise historical overviews of the subject. See also the classic monograph Brownlie 1963, Dinstein 2011, and Mc Dougall 2013 as well as Bassiouni and Ferencz 2008, Schabas 2004, and Kress and Holtzendorff 2010.

  • Bantekas, Ilias. International Criminal Law. 4th ed. Oxford and New York: Hart, 2010.

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    Chapter 13 contains a very concise exposition of the development of the law, focusing on the evolution toward the definition of the crime of aggression adopted at the Kampala Conference in 2010.

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  • Bassiouni, M. Cherif, and Benjamin B. Ferencz. “The Crime against Peace and Aggression: From Its Origins to the ICC.” In International Criminal Law. Vol. 1, Sources, Subjects, and Contents. 3d ed. Edited by M. Cherif Bassiouni, 207–242. Leiden, The Netherlands: Martinus Nijhoff, 2008.

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    An extensive and very thorough exposition of the developments regarding the criminalization of aggression under international law.

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  • Brownlie, Ian. International Law and the Use of Force by States. Oxford: Clarendon, 1963.

    DOI: 10.1093/acprof:oso/9780198251583.001.0001Save Citation »Export Citation »E-mail Citation »

    In this classical monograph on the use of force by states, the author recites developments in state practice leading to the attribution of criminal responsibility to individuals for unlawful use of force prior to the Nuremberg trial. A very useful source of reference (see chapter 8, pp. 150–166).

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  • Cryer, Robert, Håkan Friman, Darryl Robinson, and Elizabeth Wilmshurst. An Introduction to International Criminal Law and Procedure. 3d ed. Cambridge, UK, and New York: Cambridge University Press, 2014.

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    Chapter 13 includes a very brief account of the historical evolution of the law. The chapter then discusses the definition of the crime of aggression adopted at Kampala in 2010.

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  • Dinstein, Yoram. War, Aggression, and Self-Defence. 5th ed. Cambridge, UK, and New York: Cambridge University Press, 2011.

    DOI: 10.1017/CBO9780511920622Save Citation »Export Citation »E-mail Citation »

    Recites the developments in the law with regard to the crime of aggression from the end of World War I to the establishment of the International Criminal Court (ICC) and the Kampala Review Conference. A brief but concise presentation of the historical evolution of the crime (see chapter 5, pp. 117–126).

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  • Kress, Claus, and Leonie von Holtzendorff. “The Kampala Compromise on the Crime of Aggression.” Journal of International Criminal Justice 8.5 (2010): 1179–1217.

    DOI: 10.1093/jicj/mqq069Save Citation »Export Citation »E-mail Citation »

    The authors present an insider’s analytical account of the preparatory work leading to the adoption of the definition of the crime of aggression at Kampala. They stress the historical nature of the achievement and forecast the fulfillment of the Nuremberg legacy.

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  • Mc Dougall, Carrie. The Crime of Aggression under the Rome Statute of the International Criminal Court. Cambridge, UK: Cambridge University Press, 2013.

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    This is one of the most recent monographs on aggression in the early 21st century. Contains a brief and concise account of the developments prior to Nuremberg and the Cold War period and a detailed and extensive account of the developments leading to the Rome Conference 1998 and the negotiations culminating in the adoption of the definition of the crime of aggression at Kampala Conference 2010 (chapter 1).

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  • Schabas, William A. “Origins of the Criminalization of Aggression: How Crimes against Peace Became the ‘Supreme International Crime.’” Paper read at an international conference held in Trento, in May 2001. In The International Criminal Court and the Crime of Aggression. Edited by Mauro Politi and Giuseppe Nesi, 17–32. Aldershot, UK, and Burlington, VT: Ashgate, 2004.

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    This is a concise piece reciting the developments toward the stipulation of crimes against peace in the London Charter, 1945, and the Nuremberg judgment—an elucidating commentary on the reasons of inclusion of crimes against peace in the jurisdiction of the IMT despite and against the principle of legality.

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  • United Nations Preparatory Commission for the International Criminal Court, Working Group on the Crime of Aggression. Historical Review of Developments Related to Aggression. UN Doc. PCNICC/2002/WGCA/L.1 (2002).

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    Read with the Annexes, Doc. PCNICC/2002/WGCA/L.1/Add.1, the most detailed historical overview of the crime of aggression. Focuses in great detail on the Nuremberg, Tokyo, and Control Council No. 10 proceedings and deals with each defendant separately. Also refers to post-1945 instances of aggression by states.

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Customary Law

It is generally accepted in the early 21st century that aggression is a crime under customary international law. This acknowledgment has taken place after the Nuremberg trial, through General Assembly resolutions, the adoption of the Nuremberg Principles by the International Law Commission (ILC), the enactment of domestic legislation, and the decisions of municipal courts. On the crime of aggression in customary international law, see United Nations 1946, United Nations 1970, and United Nations 1974 (cited under General Assembly Resolutions); and UN International Law Commission 1950, and UN International Law Commission 1996 (cited under International Law Commission). On the practice of states, see Brownlie 1963, Kemp 2010, Kress 2004, and the United Kingdom House of Lords: R. v. Jones et al. (Conjoined Appeals) (all cited under State Practice).

General Assembly Resolutions

The United Nations (UN) General Assembly has dealt with the crime of aggression in three seminal resolutions. G.A. Res. 95(I) (United Nations 1946) simply affirms individual responsibility for crimes against peace, as enunciated by the Nuremberg and Tokyo International Military Tribunals (IMTs). The other two resolutions, G.A. Res. 2625 (XXV) (United Nations 1970) and G.A. Res. 3314 (XXIX) (United Nations 1974), deal mainly with the use of force by states. In particular, G.A. Res. 3314 (XXIX) introduces a definition of aggression that mainly concerns the use of armed force by states. Both present individual criminal responsibility for a “war of aggression” by a state as the outcome of this eventuality. In addition, G.A. Res. 3314 (XXIX) appears to draw a distinction between a war of aggression, which it characterizes as constituting a crime against peace for which individuals may be prosecuted, and aggression, which gives rise to state responsibility. The implication of this distinction appears to be that individuals may incur criminal responsibility only for a very serious (as to its scale and effects) use of force by a state.

The International Law Commission

The ILC, the UN body entrusted with the codification and progressive development of international law, has dealt with the crime of aggression on two occasions: first, by adopting, in 1950, a set of principles that affirm the provisions of the Nuremberg IMT Charter and the ruling of the Tribunal as part of general international law (see UN International Law Commission 1950); second, by drafting a code (see UN International Law Commission 1996) that introduces individual criminal responsibility for serious violations of international law, among which features the crime of aggression.

State Practice

The practice of states in the field of individual criminal responsibility for the crime of aggression consists of conduct both on the international (e.g., making of treaties, statements, voting in the UN General Assembly) and the domestic (e.g., adoption of special legislation, prosecution before municipal courts) plane. These matters are thoroughly reviewed in Brownlie 1963, Kress 2004, United Kingdom House of Lords: R. v. Jones et al. (Conjoined Appeals), and Kemp 2010.

  • Brownlie, Ian. International Law and the Use of Force by States. Oxford: Clarendon, 1963.

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    This constitutes a thorough review of state and UN practice as evidence of the acceptance of crimes against peace in customary law in the period immediately following the Nuremberg and Tokyo trials (see chapter 9, pp. 175–194).

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  • Kemp, Gerhard. Individual Criminal Liability for the International Crime of Aggression. Series Supranational Criminal Law: Capita Selecta. Antwerp, Belgium, and Portland, OR: Intersentia, 2010.

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    A substantial part of the text concerns the elements of the crime in customary law, and the author expresses the view that this can remedy the absence of domestic legislation when prosecuting aggression in municipal courts. Extensive reference to the practice of South African and UK courts (see Part 4, chapter 5, pp. 127–182).

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  • Kress, Claus. “The German Chief Federal Prosecutor’s Decision Not to Investigate the Alleged Crime of Preparing Aggression against Iraq.” Journal of International Criminal Justice 2.1 (2004): 245–264.

    DOI: 10.1093/jicj/2.1.245Save Citation »Export Citation »E-mail Citation »

    The author comments on the refusal of German prosecutorial authorities to investigate an allegation of commission of aggression with respect to the military action against Iraq in 2003. The article reviews the interpretation and application of the relevant provisions in German law. Available online through purchase.

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  • “United Kingdom House of Lords: R. v. Jones et al. (Conjoined Appeals).” International Legal Materials 45.4 (2006): 992–1014.

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    In this judgment the House of Lords (United Kingdom) ruled unanimously that the crime of aggression was part of customary law. Of importance is the opinion of Lord Bingham of Cornhill.

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Principle of Legality (Nullum Crimen Sine Lege)

The principle of legality precludes the prosecution of a suspect for acts or omissions that were not designated by law as “criminal offenses” at the time of their commission. It is generally accepted that the crime of aggression is part of contemporary international law, though its prosecution before municipal courts or the International Criminal Court (ICC) may raise questions of alleged breach of the principle. The proceedings before the postwar Nuremberg (see International Military Tribunal (Nuremberg) 1947) and Tokyo (see Lauterpacht 1953) International Military Tribunals (IMTs) did raise the question of their compatibility with the principle of legality with respect to the crime of aggression. The judgments at Nuremberg and Tokyo attracted substantial criticism on this matter, while it is generally acknowledged, in the early 21st century, that they have circumvented the principle of legality and applied the law retroactively. The classic works of reference on the principle of legality are the judgments of the Nuremberg and Tokyo IMTs and the works Finch 1947 and Wright 1947. See also Mettraux 2008, Boister and Cryer 2008, Glennon 2010, and Solera 2010.

Perpetrators

It is generally maintained that the perpetrators of the crime of aggression consist of a very narrow class of individuals, namely, the political and military leadership of a state as well as other high-ranking officials. That is, the initiation and waging of a war of aggression does not entail the criminal liability of low-ranking personnel. The Nuremberg and Tokyo International Military Tribunals (IMTs) convicted defendants that were members of the political and military leadership of Nazi Germany and Imperial Japan, whereas the tribunals of Control Council Law, a small number of high-ranking officials of the German Foreign Ministry. Article 8bis(1) of the International Criminal Court (ICC) Statute and Article 8bis of the ICC Elements of Crimes identify as likely perpetrators “any person in a position effectively to exercise control over or to direct the political or military action of a State.” This has given rise to a point of contention, namely, whether non-state actors, such as members of armed groups, may be prosecuted for aggression. The question of perpetrators is dealt with in international criminal law textbooks as well as in articles that appeared prior to and after the Kampala Conference. On the subject of perpetrators, see Cassese 2008; Bantekas 2010; Cryer, et al. 2014; Heller 2007; and Dinstein 2011.

Elements of Crime of Aggression

Both the objective element (actus reus) and the subjective element (mens rea) of the crime of aggression are to be sought in the definition of the crime in treaties and in the case-law of tribunals. The textbooks on international criminal law deal with both elements, whereas the journal articles focus on critical argument with respect to the feasibility, specificity, and completeness of the definition of the crime of aggression as to both of its elements, with the emphasis being on the objective element. The literature on aggression in journals and collective works increased in the two years preceding the International Criminal Court (ICC) Review Conference in Kampala and to a large extent consists of circumspection as to the proposed definition of the crime by the ICC Special Working Group. The emphasis is placed on the “act of aggression” by a state by highlighting the controversies surrounding the prohibition of the use of force by states and its exceptions as well as the interplay (or not) between state responsibility and individual criminal responsibility for aggression. Moreover, there are recommendations by some authors on what they perceive to be an acceptable definition of the crime. The literature following the Kampala Conference is only now emerging in the early 21st century and such as it already exists presents the background to the adoption of the definition of the crime of aggression at the Conference; discussion of the terms of the definition is not extensive but is linked to the exercise of jurisdiction by the ICC.

The Objective Element (Actus Reus)

Article 6(a) of the London Charter of the Nuremberg International Military Tribunal (IMT) defines the crime of aggression or crime against peace as the “planning, preparation initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.” This definition was adopted by the Tokyo IMT, whereas Article II, (1)(a) of Control Council Law No. 10, 1945, added to it “invasions of other countries.” When the ICC Statute was adopted in Rome in 1998, it contained no definition of the crime of aggression, and it specifically stipulated in Article 5(2) that it would not exercise its jurisdiction until such a definition were agreed upon. The definition of the crime of aggression under the ICC Statute was finally adopted at the Kampala Conference in 2010 and inserted in new Article 8bis. Moreover, the elements of the crime have been inserted in Article 8bis of the ICC Elements of Crimes. Article 8bis(1) provides that “crime of aggression” is the “planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a state, of an act of aggression, which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” Furthermore, Article 8bis(2) defines an “act of aggression” by relying on G.A. Res. 3314 (XXIX) (United Nations 1974, cited under General Assembly Resolutions), specifically Article 3 of this resolution, which enumerates certain acts of use of force by a state that may qualify as aggression. Therefore, the crime of aggression consists of the acts enumerated in paragraph 1 and in the resort to an act of aggression by a state. This means that, unlike the other international crimes, state responsibility and individual criminal responsibility are inextricably linked. The linkage of the crime of aggression with the use of force by states (jus ad bellum) is expected to rekindle the debate surrounding this very controversial area of international law. The implication is that if the use of force by a state does not constitute an act of aggression, namely, an unlawful use of force, then individual criminal responsibility does not arise. That is, the debate is likely to focus on the instances of lawful use of force that fall under the exceptions to the rule of the prohibition in Article 2(4) of the United Nations (UN) Charter (notably, the right of self-defense and Security Council authorization) as well as other exceptions asserted in state practice (notably, humanitarian intervention). This focus will usher in all the controversies with respect to the extent of the prohibition of the use of force and the scope of its exceptions with respect to the propriety of prosecution for the crime of aggression. On actus reus of aggression, a classic work is Brownlie 1963. See also Antonopoulos 2001; Cassese 2008; Bantekas 2010; Cryer, et al. 2014; Wilmhurst 2004; Glennon 2010; Solera 2010; and Dinstein 2011.

  • Antonopoulos, Constantine. “Whatever Happened to Crimes against Peace?” Journal of Conflict and Security Law 6.1 (2001): 33–62.

    DOI: 10.1093/jcsl/6.1.33Save Citation »Export Citation »E-mail Citation »

    The author upholds the close link between the use of force by a state and individual criminal responsibility. He proposes three criteria for the determination of aggression: (1) unlawfulness of use of force by a state, (2) magnitude of state force, and (3) bad faith manifested by the government of the state. Available online through purchase.

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  • Bantekas, Ilias. International Criminal Law. 4th ed. Oxford and New York: Hart, 2010.

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    The author discusses the objective element under Article 8bis, ICC Statute. He points out the introduction of a threshold of gravity beyond the general provisions of the Statute and rules out the commission of acts of aggression by non-state actors.

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  • Brownlie, Ian. International Law and the Use of Force by States. Oxford: Clarendon, 1963.

    DOI: 10.1093/acprof:oso/9780198251583.001.0001Save Citation »Export Citation »E-mail Citation »

    In chapter 10 the author presents a thorough analysis of the objective elements of the crime against peace on the basis of the Nuremberg and Tokyo IMT judgments and the case law of Control Council Law No. 10 tribunals.

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  • Cassese, Antonio. International Criminal Law. 2d ed. Oxford and New York: Oxford University Press, 2008.

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    The author stresses the seriousness of an act of aggression by a state. However, he maintains that acts of aggression may be committed by non-state entities. Also presents the controversies surrounding the jus ad bellum and makes an emphatic distinction between state and individual criminal responsibility.

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  • Cryer, Robert, Håkan Friman, Darryl Robinson, and Elizabeth Wilmhurst. An Introduction to International Criminal Law and Procedure. 3d ed. Cambridge, UK: Cambridge University Press, 2014.

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    The authors analyze the terms of the objective element in Article 8bis, ICC Statute, and raise some critical remarks on its substantial reliance on the General Assembly definition of aggression (see United Nations 1974, cited under General Assembly Resolutions).

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  • Dinstein, Yoram. War, Aggression and Self-Defence. 5th ed. Cambridge, UK: Cambridge University Press, 2011.

    DOI: 10.1017/CBO9780511920622Save Citation »Export Citation »E-mail Citation »

    The author focuses on the contours of individual responsibility for aggression. His position is that there is no marked difference between Article 6 (a) of the Nuremberg IMT Charter and Article 8bis of the ICC Statute following the Kampala conference.

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  • Glennon, Michael J. “The Blank-Prose Crime of Aggression.” Yale Journal of International Law 35.1 (2010): 71–114.

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    The author focuses on aggression by a state and launches a strong criticism of the proposed definition of the crime of aggression in the ICC Statute for the purposes of individual criminal responsibility. He raises questions of lawfulness of the use of force and questions whether contingency defense planning may incur criminal liability.

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  • Solera, Oscar. “The Definition of the Crime of Aggression: Lessons Not-Learned.” In Special Issue: Somebody’s Watching Me: Surveillance and Privacy in an Age of National Insecurity. Case Western Reserve Journal of International Law 42.3 (2010): 801–823.

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    Special Addendum to Special Issue: Aggression 41.2–3 (2009) for the 2010 Kampala Conference. The author focuses on aggression by states and is critical of the reliance of the proposed definition under the ICC Statute on the General Assembly definition of aggression (see United Nations 1974, cited under General Assembly Resolutions) and the scale/gravity of the use of force requirement.

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  • Wilmhurst, Elizabeth. “Definition of the Crime of Aggression: State Responsibility or Individual Criminal Responsibility?” Paper read at an international conference held in Trento, in May 2001. In The International Criminal Court and the Crime of Aggression. Edited by Mauro Politi and Giuseppe Nesi, 93–96. Aldershot, UK, and Burlington, VT: Ashgate, 2004.

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    The author maintains, on the basis of customary law, that a distinction must be drawn between state responsibility for unlawful use of force and individual criminal responsibility for aggression. The latter arises only in cases of serious and grave use of force by states.

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The Subjective Element (Mens Rea)

The definitions of the crime of aggression in the Nuremberg and Tokyo IMT Charters as well as in Control Council Law No. 10 contain no provision with regard to the subjective element of the crime. That element was exclusively determined in the case law of the Control Council Law No. 10 tribunals. This jurisprudence establishes the intent to commit the acts of planning, preparation, initiating, and waging of a war of aggression with a knowledge of the aggressive nature of the use of force and being in a position to influence policy. Article 8bis of the ICC Elements of Crimes (paragraphs 4 and 6) provides that the perpetrator of aggression must be aware “of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations” and of the “factual circumstances that established a . . . manifest violation of the Charter of the United Nations.” Moreover, there is controversy in the literature on whether an additional special intent of aggression is required that amounts to an intent at territorial conquest or regime change. On mens rea, a classic work of reference is Brownlie 1963. See also Cassese, et al. 2011; Cassese 2008; Bantekas 2010; Cryer, et al. 2010; Solera 2010; Dinstein 2011; Weisbord 2013.

Defenses

The grounds invoked by a defendant in order to be acquitted of the criminal charge of aggression may rest on a twofold basis. They may constitute defenses strictly pertaining to the individual charged (e.g., mistake of fact) or grounds excluding the unlawfulness of the use of force by a state. Thus, if the resort to force by a state is justified on the basis of one of the exceptions to the prohibition of the use of force (e.g., the right of self-defense), then there is no “act of aggression” by the state and no criminal responsibility as a result of “planning, preparation, initiation or execution of an act of aggression.” At the Nuremberg trial certain defendants did raise in their defense the argument of the alleged lawfulness of resort to force by Germany or invoked the principle of tu quoque (literally, “you have done the same”), claiming that the Allies resorted to the same means of warfare. In the literature on aggression, with respect to the adoption of a definition of the crime of aggression under the International Criminal Court (ICC) Statute, there have been concerns lest particular uses of force, notably, humanitarian intervention, are considered as acts of aggression. On defenses, see International Military Tribunal 1947, Leclerc-Gagné and Byers 2009, Dinstein 2011, and Weisbord 2013.

  • Dinstein, Yoram. War, Aggression and Self-Defence. 5th ed. Cambridge, UK: Cambridge University Press, 2011.

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    The author offers a comprehensive account of defenses for the crime of aggression (pp. 147–154), which he links to the lack of the subjective element of the crime. He focuses exclusively on defenses, excluding only individual criminal responsibility and not on grounds excluding state responsibility for unlawful use of force.

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  • International Military Tribunal (Nuremberg). “Judgment and Sentences, October 1, 1946.” American Journal of International 41 (1947): 172–333.

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    The Tribunal rejected the argument that the use of force against Norway was lawful exercise of anticipatory self-defense. Moreover, the defendant Admiral Dönitz was convicted but not sentenced for the charge of unrestricted submarine warfare after invoking tu quoque with respect to the same practice of the Allies during the war.

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  • Leclerc-Gagné, Elise, and Michael Byers. “A Question of Intent: The Crime of Aggression and Unilateral Humanitarian Intervention.” Case Western Reserve Journal of International Law 41 (2009): 379–390.

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    The authors argue in favor of excluding the prosecution of aggression in cases of unilateral military intervention aimed at the suppression of human rights atrocities. The authors’ position is that unilateral humanitarian intervention is not an act of aggression, as an exception to the rule of nonuse of force.

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  • Weisbord, Noah. “The Mens Rea of the Crime of Aggression.” Washington University Global Studies Law Review 12 (2013): 487–506.

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    The author offers a comprehensive and concise account of defenses excluding the mens rea and very adroitly combines them with the exceptions (both universally admitted or constituting a matter of controversy) to the rule of non-use of force (pp. 498–505).

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International Criminal Court Jurisdiction

The jurisdiction of the International Criminal Court (ICC), with respect to the crime of aggression, is exercised in accordance with Articles 15bis and 15ter of its Statute, which were adopted at the Kampala Conference in 2010. Article 15bis concerns referrals to the Court by states parties and the prosecutor and subjects the exercise of the jurisdiction of the Court to considerable qualifications: (1) The Court will exercise its jurisdiction after 1 January 2017, subject to a decision taken by the state parties by way of qualified majority required for Statute amendments. (2) The Court will consider only acts of aggression committed one year after the ratification of the (Kampala) amendment by thirty state parties. (3) State parties have the right to opt out of the jurisdiction of the ICC on the crime of aggression. (4) The Court will not have jurisdiction in relation to acts of aggression committed by nationals or over the territory of states that are not parties to the Statute. (5) The prosecutor may proceed with an investigation of acts of aggression after ascertaining whether the United Nations Security Council has made a determination and after notifying the UN Secretary-General of the situation before the Court. If the Security Council has made such a determination then the prosecutor may proceed; if the Council has remained silent or inactive the prosecutor may proceed with the investigation only after a six-month period has lapsed, after the notification of the situation to the UN. (6) An investigation of acts of aggression may be deferred by way of a decision of the Security Council under Article 16, ICC Statute. Article 15ter deals with referrals by the Security Council subject to the aforementioned conditions (1) and (2). The Security Council, however, may refer any situation of aggression to the Court, irrespective of whether a state party has opted out of the Court’s jurisdiction or the crime has been committed on the territory or by nationals of a state not a party to the ICC Statute. The literature immediately prior to and after the Kampala Conference focuses mainly on the exercise of jurisdiction by the Court and its relationship with the Security Council. On the ICC jurisdiction on the crime of aggression, see Mc Dougall 2013, Blokker 2007, Glennon 2010, Scheffer 2010, Blokker and Kress 2010, and Kress and Webb 2012.

  • Blokker, Niels. “The Crime of Aggression and the United Nations Security Council.” Leiden Journal of International Law 20 (2007): 867–894.

    DOI: 10.1017/S0922156507004505Save Citation »Export Citation »E-mail Citation »

    The author supports the primary but not the exclusive responsibility of the Council to determine the existence of an act of aggression. He advocates the competence of the UN General Assembly and the exercising of advisory jurisdiction by the International Court of Justice (ICJ). He proposes the adoption by the Council of a “Uniting for Aggression” resolution.

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  • Blokker, Niels, and Claus Kress. “A Consensus Agreement on the Crime of Aggression: Impressions from Kampala.” Leiden Journal of International Law 23.4 (2010): 889–895.

    DOI: 10.1017/S0922156510000440Save Citation »Export Citation »E-mail Citation »

    The authors outline the crucial elements of the agreement reached in Kampala on the crime of aggression, focusing on the exercise of the Court’s jurisdiction. They also stress that the rejection of a Security Council monopoly on the determination of aggression in no way deprives it of its extensive powers.

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  • Glennon, Michael J. “The Blank-Prose Crime of Aggression.” Yale Journal of International Law 35.1 (2010): 71–114.

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    The author argues in favor of the exclusive competence of the Security Council to determine the existence of acts of aggression. At the same time, he warns that a Security Council determination is, as a political decision, against the principles of due process and legality in the context of criminal proceedings.

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  • Mc Dougall, Carrie. The Crime of Aggression under the Rome Statute of the International Criminal Court. Cambridge, UK: Cambridge University Press, 2013

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    This is a comprehensive, analytical and argumentative discussion of the crime of aggression under the ICC Statute. The author points out the merits and weaknesses of the definition in Article 8 bis ICC Statute and the final arrangement on the exercise of ICC jurisdiction. The author concludes that in spite of its shortcomings the Kampala outcome is a ground-breaking development and predicts that it would contribute in further limiting the use of force by States.

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  • Kress, Claus, and Philippa Webb, eds. 10th Anniversary Special Issue. Aggression: After Kampala. Journal of International Criminal Justice 10.1 (2012).

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    This is comprehensive exposition of historical, political and legal issues of the final formulation of the crime of aggression in the ICC Statute at Kampala. Part III comprises important contributions on legal issues by eminent authorities (pp. 165–265) and Part IV an assessment of the Kampala Conference and future developments.

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  • Scheffer, David. “The Complex Crime of Aggression under the Rome Statute.” Leiden Journal of International Law 23.4 (2010): 897–904.

    DOI: 10.1017/S0922156510000452Save Citation »Export Citation »E-mail Citation »

    The author proposes a narrow textual interpretation of Article 8bis with regard to the gravity of the use of force and maintains that state party referral may be politicized. He also advocates a central role for the Security Council and highlights the “patchy” exercise of jurisdiction over the crime of aggression.

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