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VERONIKA BÍLKOVÁ
CYIL 6 ȍ2015Ȏ
Murphy states that
“there emerged from Kampala considerable uncertainties concerning
procedural and substantive aspects of how the crime of aggression at the ICC will actually
operate”.
39
Whereas some of these comments relate specifically to the Rome Statute of
ICC, the reveal the authors’ doubts as to the legal nature of the crime of aggression.
3. Is Aggression an International Crime? – Considerations
The previous section has demonstrated that both States and scholars are divided
in their view on whether aggression qualifies as an international crime. Whereas a
majority assents to this qualification, a minority – encompassing, however, important
international players such as the United States – has doubts and reservations. This
section gives reasons in support of the former view. Prior to discussing why the crime
of aggression does indeed qualify as an international crime, it is necessary to consider
the very concept of “international crime” or “crime under international law”. While
the two terms are not necessarily synonymous,
40
international legal instruments often
use them interchangeably
41
and the practice is followed in this paper.
3.1 The Concept of International Crime
International instruments and scholarly literature abound in references to
international crimes and crimes under international law. Yet, very few of them are
deem it useful to explain what characteristic such crimes actually have. As Bassiouni
rightly states,
“international crimes have developed to date, without even an agreed-upon
definition of what constitutes an international crime, what are the criteria for international
criminalization, and how international crimes are distinguished”
.
42
He is also right in
pointing out that the concept has evolved through an
ad hoc
and hazardous historical
process from declarative to proscriptive and then to prescriptive, i.e. from an
agreement on certain shared values to the outlawing and criminalization of acts that
violate or threaten such values. In other words, the concept of international crime
is anchored more in history and in morality than in legal theory. We know which
acts individuals have been for some time prosecuted for internationally; we share the
39
MURPHY, S. D.: The Crime of Aggression at the ICC, in WEILER, M. (ed.),
Oxford Handbook on the
Use of Force,
Oxford University Press, Oxford, 2013, p. 559 (533-560).
40
The term
“international crime”
was originally reserved for serious violations of international law
imputable to States. The concept was introduced by the Special Rapporteur on the responsibility
of States for internationally wrongful acts Robert Ago in the 1970s but abandoned by the ILC two
decades later. See UN Doc. A/31/10,
Report of the International Law Commission on the work of its
twenty-eighth session 3 May-23 July 1976,
Official Records of the General Assembly, Thirty-first session,
Supplement No. 10, 1976, pp. 69-122.
41
The same category of serious crimes (crimes against peace/crime of aggression, crimes against humanity,
war crime, and genocide) are labelled as
“crimes under international law”
in the 1950 Nuremberg
Principles and the 1996 Draft Code but as
“international crimes”
in the 1998 Rome Statute.
42
BASSIOUNI, M. Ch.: International Crimes,
op. cit.,
p. 131.