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PAVEL ŠTURMA
CYIL 6 ȍ2015Ȏ
It is a truism to say that the ILC has always had on its programme some important
topics of the international criminal law.
1
However, its role in drafting efforts leading
to the definition of aggression seems to be neglected. Although the Commission was
trusted by the General Assembly to prepare a draft statute of the ICC, in 1989, and
it elaborated the first version of a draft statute for an International Criminal Court
in 1994,
2
it is a well-known fact that the final text of the Rome Statute of the ICC
is a result of work of the Preparatory Committee and the Diplomatic Conference on
the Establishment of an International Criminal Court, adopted in July 1998. In the
same vein, the preparatory works on the definition of the crime of aggression were
done by a working group established by the Preparatory Commission already in
2002 and reporting to the Assembly of States Parties of the ICC (ASP).
3
Nevertheless, the ILC was involved in several attempts to define the crime of
aggression almost from the commencement of its work in 1949. The Commission
was requested by the General Assembly to deal with the issues of a definition of
aggression in the framework of at least three different topics, i.e. the formulation of
the Nuremberg principles, the question of defining aggression, and the draft Code of
offences (crimes) against the peace and security of mankind.
4
Before coming to the drafting history, it should be made clear that this
contribution stems from a nominalist approach which enables one to maintain the
continuity of definitions from “crime against the peace” to “crime of aggression”. In
fact, these are considered as just different denominations for the same legal concept.
The vocabulary of international law is able to develop, from the early attempts, such
as “a supreme offence against international morality and the sanctity of treaties” in
Article 227 of the Treaty of Versailles (1919),
5
through “crime against the peace”
in Nuremberg Charter (1945), up to “crime of aggression”. In substance, however,
all the terms refer to the same crime, which consists in waging aggressive war, in
violation of
jus ad bellum
.
This contribution will try to demonstrate that there is definite continuity between
the early definitions of the crime against the peace and the Kampala definition of the
1
See
The Work of the International Law Commission
. Vol. I, New York: UN, 2004, pp. 30-36.
2
Ibid
., pp. 96-100.
3
The Special Working Group on the Crime of Aggression (SWGCA);
cf
. McDOUGALL, Carrie.
The
Crime of Aggression under the Rome Statute of the International Criminal Court
. Cambridge: CUP, 2015,
p. 13.
4
See
The Work of the International Law Commission
. Vol. I,
op. cit.
, pp. 35-36.
5
The Treaty of Peace Between the Allied and the Associated Powers and Germany (1919); Article 227
provided for the creation of an
ad hoc
international criminal tribunal to prosecute Wilhelm II of
Hohenzollern, formerly the German Kaiser, for initiating the First World War.
Cf.
McGOLDRICK,
Dominic, Criminal Trials Before International Tribunals: Legality and Legitimacy. In: D. McGoldrick,
P. Rowe, E. Donnelly,
The Permanent International Criminal Court
. Oxford: Hart Publishing, 2004, pp.
13-14.