CYIL Vol. 6, 2015

AGGRESSION ȃ THE SUPREME INTERNATIONAL CRIME OR NOT A CRIME AT ALL? similar vein, the German lawyer Carl Schmitt opined that criminalizing war was “not only something new but also something of a new type”. 30 After the break during the Cold War, the criminalization of aggression arose again as an issue in the 1990s, in connection with the drafting of the Rome Statute. Here again, the proposal to include the crime of aggression among the crimes in the jurisdiction of the ICC was not uniformly accepted. In the course of the negotiations several states expressed their reservations in this respect. The United States held that “acts not clearly criminalized under international law should be excluded from the definition. It is, therefore, premature to attempt to define a crime of aggression in terms of individual criminal responsibility”. 31 Israel added that “in view of the dangers of politicization, /it/ was not persuaded that conditions were yet ripe for the inclusion of the crime of aggression in the Statute of the Court”. 32 In Morocco´s view, “to include the crime of aggression would be premature”. 33 Libya went even further speaking about “so- called aggression”. 34 Moreover, many of the states pronouncing in favour of including the crime of aggression in the Rome Statute did it on the condition that the crime itself and the role of the UN Security Council in its determination would be defined. Once this happened in 2010, several states (Israel, the United Kingdom, the US) indicated that the final compromise was from their point of view unsatisfactory. 35 Voices opposing the qualification of aggression as an international crime come from the academic community as well. Bassiouni and Ferencz consider that the “the notion of “crimes against peace” /…/ has simply fallen into desuetude (sic)” and “it is hard to argue that aggression constitutes a crime under international law”. 36 Michael Glennon refers to the overbroad and vague nature of the definition of the crime of aggression, the insufficient role reserved to the UN Security Council, the violation of the principle of legality ( nullum crimen sine lege ) and the dearth of precedents. 37 Marko Milanović expresses uncertainty as to whether the Kampala definition of the crime of aggression and the conditions set for its application meet the principle of legality. 38 Sean 30 Cit. in PRATT, V.: De la criminalisation de la guerre: Carl Schmitt à Nuremberg, Carl Schmitt et Nuremberg, in SUR, S. (ed.): Carl Schmitt. Concepts et usages, Biblis, Paris, 2014, p. 147. 31 UN Doc. A/CONF.183/SR.5, Diplomatic Conference – 5th Plenary Meeting, 17 June 1998, par. 61. 32 UN Doc. A/CONF.183/SR.6, Diplomatic Conference – 6th Plenary Meeting, 17 June 1998, par. 41. 35 See Statements by States Parties (United Kingdom) and non-State Parties (Israel, the US) in explanation of position after the adoption of resolution RC/Res.6, on the crime of aggression, in Review Conference of the Rome Statute of the International Criminal Court, Official Records, 2010, pp. 122-127. 36 BASSIOUNI, M. Ch., FERENCZ, B. B.: The Crime Against Peace and Aggression: From Its Origins to the ICC, in BASSIOUNI, M. Ch. (ed.): International Criminal Law, op. cit., p. 133. 37 GLENNON, M. J.: The Blank-Prose Crime of Aggression, Yale Journal of International Law, 2010, Vol. 35, pp. 71-114. 38 MILANOVIĆ, M.: Aggression and Legality: Custom in Kampala, Journal of International Criminal Justice , 2012, Vol. 10, pp. 165-187. 33 Ibid., par. 106. 34 Ibid., par. 82.

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