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VERONIKA BÍLKOVÁ
CYIL 6 ȍ2015Ȏ
law at that time and the prosecution for crimes against peace thus violated the
nullum
crimen sine lege
principle.
71
Doubts about the criminalization of aggression at the individual level made
themselves heard again in the debates about the Rome Statute. During the 1998
Diplomatic Conference, Turkey declared that aggression primarily related to the action
of states and not of individuals.
72
The US held that it was premature to attempt to
define a crime of aggression in terms of individual criminal responsibility.
73
This
argument found some support in the scholarly literature.
74
Yet, it did not have a
truly prominent presence in the debates. Most states and scholars seem to have at
least implicitly accepted
75
that, as Brownlie put it,
“whatever the state of the law in
1945, Article 6 of the Nuremberg Charter has since come to represent general international
law”.
76
Or, in the words of the UK House of Lords, while it may be doubtful whether
aggressive wars were recognized in customary international law as an individual
crime at the beginning of the 20
th
century
, “it seems /…/ clear that such a crime was
recognized by the time the century ended”
.
77
The predominant opinion now thus seems
to be that aggression can give rise to individual criminal responsibility.
Yet, this can only occur if the rule criminalizing aggression is specific and
clear enough, i.e. if there is a consensual
definition
of the crime of aggression
under international law. Most of the critical comments relating to the crime of
aggression that were raised with respect to the Rome Statute drew attention to
the uncertainties surrounding the definition of this crime. For some states such as
Israel,
“the lack of consensus regarding an acceptable definition of that crime, together
with the political sensitivity inherent in any attempt to reach such a definition”
,
78
was
a reason to oppose the very inclusion of the crime of aggression into the Statute.
Other states such as the Netherlands or Trinidad and Tobago, while also stressing
the importance of the definition, were more optimistic about the prospects of a
compromise solution in this respect. The division has perpetuated even after the
Kampala conference, as not everyone has found the compromise reached there
truly satisfactory.
79
71
See GLENNON, M. J.: The Blank-Prose Crime of Aggression,
op. cit.,
pp. 75-77.
72
UN Doc. A/CONF.183/SR.7,
Diplomatic Conference – 7th Plenary Meeting,
18 June 1998, par. 8.
73
UN Doc. A/CONF.183/SR.5,
Diplomatic Conference – 5th Plenary Meeting,
17 June 1998, par. 61.
74
GLENNON, M. J.: The Blank-Prose Crime of Aggression,
op. cit
.
75
During the 1998 Diplomatic Conference, Turkey and the United States were the only states to explicitly
raise the issue of individual criminal responsibility. The other states, as we saw above, accepted that
aggression was an international crime entailing individual criminal responsibility on the condition that
it is clearly defined.
76
BROWNLIE, I.:
Principles of Public International Law
. Fifth edition, Clarendon Press, 1998, p. 566.
77
UK House of Lords,
Regina v. Jones,
Judgment, Session 2005-06, [2006] UKHL 16, 29 March 2006,
par. 12.
78
UN Doc. A/CONF.183/SR.6,
Diplomatic Conference – 6th Plenary Meeting,
17 June 1998, par. 41.
79
See Statements by States Parties (United Kingdom) and non-State Parties (Israel) in explanation of