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9
AGGRESSION ȃ THE SUPREME INTERNATIONAL CRIME OR NOT A CRIME AT ALL?
the exercise of jurisdiction, was added pursuant to the Kampala review conference in
2010. Under the new Article 8
bis
of the Statute, the crime of aggression means
“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”.
The exercise of the jurisdiction over the crime of aggression by
the ICC was, however, postponed at least until 2017, when State Parties to the Rome
Statute shall, by virtue of Article 15
bis,
revisit this question and decide upon it.
17
That aggression qualifies as an international crime giving rise to individual criminal
responsibility gains approval from various
international law scholars
. Already prior to
the establishment of the post-WWII military tribunals, the Czechoslovak legal expert
Bohuslav Ečer declared:
“Aggressive war is a crime, and by its character an international
crime, because it aims against peace and international order. /…/ Not only the aggressor
States as such, but also their rulers and military leaders are personally responsible in the
eyes of the law for the gigantic chain of crimes which compose this war and which are
punishable under the criminal laws of the countries affected.”
18
This view has become
more prominent in the scholarly literature after the end of the Cold War and the
establishment of the ICC.
Thus, Antonio Cassese does not have doubts that aggression meets all the criteria
of a crime under international law.
19
For Cherif M. Bassiouni aggression is one of
the most serious international crimes
“deemed part of jus cogens”.
20
William Schabbas
commends the inclusion of the crime of aggression into the Rome Statute of the
ICC as
“a return to the logic of the Nuremberg trial”.
21
Robert Heinsch states that there
are
“four commonly accepted international crimes: aggression, genocide, crimes against
humanity and war crimes”
22
and that the definition of Article 8
bis
is another step
towards strengthening a core of these crimes. I. I. Karpecz agrees that aggression
“is
recognized as an international crime”
.
23
All this seems to suggest that aggression could
17
See also MCDOUGALL, C.:
The Crime of Aggression Under the Rome Statute of the International
Criminal Court,
Cambridge University Press, Cambridge, 2013.
18
EČER, B.: The Punishment of War Criminals, confidential document dated 10 October 1942
submitted to the London International Assembly, Commission II on the Trial of War Criminals,
reprinted in LANKEVICH, G. J. (ed.):
Archives of the Holocaust,
Vol. 16, Garland, New York and
London, 1990, pp. 1-4.
19
CASSESE, A.: On Some Problematical Aspects of the Crime of Aggression,
Leiden Journal of International
Law,
2007, Vol. 20, No. 4, pp. 841-849.
20
BASSIOUNI, M. Ch.: International Crimes,
op. cit.,
p. 138.
21
SCHABBAS, W. A.:
An Introduction to the International Criminal Court
. Fourth Edition. Cambridge
University Press, Cambridge, 2011, p. 146.
22
HEINSCH, R.: The Crime of Aggression After Kampala: Success or Burden for the Future
?, Goettingen
Journal of International Law,
2010, Vol. 2, No. 2, pp. 713-743.
23
KARPETZ, I. I.: International Criminal Law and International Crimes,
Touro Journal of International
Law,
1988-1990, Vol. 1, pp. 332 (325-334).