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11
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.
33
Ibid.,
par. 106.
34
Ibid.,
par. 82.
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.