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VERONIKA BÍLKOVÁ
CYIL 6 ȍ2015Ȏ
Tribunal which
“refuted the argument of the defence that aggressive war was not an
international crime”
.
9
In 1954 the ILC adopted the text of the
Draft Code of Offences against the Peace
and Security of Mankind
.
10
Article 1 of the Code states that the offences against
peace and security of mankind are
“crimes under international law, for which the
responsible individuals shall be punished”.
The list of the offences, in Article 2, is quite
comprehensive, encompassing not only any act of aggression and any threat to resort
to an act of aggression, but also a host of other acts involving the use or threat of
use of military force. A revised version of the Code (renamed to the
Draft Code of
Crimes against the Peace and Security of Mankind
11
) was adopted by the ILC in 1996.
While confirming that
“crimes against the peace and security of mankind are crimes
under international law”
[Article 1(2)] and that the crimes of aggression is one of
them, it defines this crime in a narrower – and more traditional – way as the act of
“an individual who, as leader or organizer, actively participates in or orders the planning,
preparation, initiation or waging of aggression committed by a State”
(Article 16).
The crime of aggression features among
“the most serious crimes of concern to the
international community as a whole”
12
which fall under the jurisdiction of the International
Criminal Court (hereafter the ICC). During the 1998 Diplomatic Conference, a vast
majority of States spoke in favour of including aggression into the Rome Statute. For
instance, the Czech Republic held that the ICC
“should have inherent jurisdiction over
the four core crimes of genocide, war crimes, crimes against humanity and aggression, which
are regarded as crimes under customary international law”.
13
Lithuania stressed that the
inclusion of aggression was even one of its major objectives, since
“experience showed
that an act of aggression often led to genocide, crimes against humanity and war crimes”.
14
Egypt agreed that
“the crime of aggression, the worst crime against humanity, /…/ should
be punishable under the Statute”.
15
Other states supporting the inclusion of the crime
of aggression were, for instance, Afghanistan, Albania, Austria, Azerbaijan, Germany,
Hungary, Japan, Latvia, Macedonia, Oman, Nigeria, the Philippines, Portugal, the
Republic of Korea, Sierra Leone, Slovakia, Syria, Tajikistan, Vietnam or Zambia.
The original text of the Rome Statute, adopted on 17 July 1998, contained the crime
of aggression, leaving it, however, undefined.
16
The definition, with the conditions of
9
Ibid.,
p. 376.
10
Yearbook of the International Law Commission, 1954
, vol. II, pp. 149-152.
11
Yearbook of the International Law Commission, 1996
, vol. II (Part Two), pp. 17-56.
12
Rome Statute, Article 5.
13
UN Doc. A/CONF.183/SR.3,
Diplomatic Conference – 3rd Plenary Meeting,
16 June 1998, par. 21.
14
Ibid., op. cit.,
par. 50.
15
UN Doc. A/CONF.183/SR.2,
Diplomatic Conference – 2nd Plenary Meeting,
15 June 1998, par. 79.
16
Article 5(2) stipulated:
“The Court shall exercise jurisdiction over the crime of aggression once a provision
is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under
which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with
the relevant provisions of the Charter of the United Nations.”