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PAVEL ŠTURMA
CYIL 6 ȍ2015Ȏ
In 1982 the ILC included the item Draft Code in its agenda and appointed
Doudou Thiam as Special Rapporteur for this topic. At its session in 1983 the
Commission proceeded to a general debate on the basis of the first report of the
Special Rapporteur.
20
On the question of the scope of the draft the views of the ILC
were as follows: “The International Law Commission is of the opinion that the draft
code should cover only the most serious international offences. These offences will be
determined by reference to a general criterion and also to the relevant conventions
and declarations pertaining to the subject”.
21
In its report on the work of the 1984 session the Commission expressed its
intention to limit the scope
ratione personae
of the draft code to the criminal
responsibility of individuals.
22
At its forty-third session, in 1991, the ILC adopted on
first reading the draft Code of Crimes against the Peace and Security of Mankind,
which included,
inter alia
, aggression and threat of aggression.
23
At this stage, the ILC still found it important to refer to the definition of the
act of aggression. The position changed during the second reading that took place
in 1994 and 1995. At that time the ILC reported that there was broad agreement
among its members “both as to the character of aggression as the quintessential crime
against the peace and security of mankind and as to the difficulties of elaborating
a sufficiently precise definition of aggression for purposes of individual criminal
responsibility”.
24
The Commission also reported that it was split on the usefulness of
the Definition of aggression in GA resolution 3314.
25
In 1996, the Commission adopted the final text of the draft Code, with
commentaries, consisting of 20 articles divided into two parts, General Provisions and
Crimes against the Peace and Security of Mankind. For the purpose of this contribution,
two articles are of the utmost importance.
First, Article 16 of the 1996 draft Code reversed the position that the ILC
had adopted in its 1991 draft and turned to a purely criminal law, individualized
definition of the crime of aggression:
“An individual who, as leader or organizer, actively participates in or orders the
planning, preparation, initiation or waging of aggression committed by a State shall
be responsible for a crime of aggression.”
26
This is a brief definition, referring to the Nuremberg definition but including
new elements. The commentary to Article 16 made it clear that the question of the
20
See doc. A/CN.4/364 (1983).
21
YILC, 1983, vol. II (Part Two), § 69.
22
YILC, 1984, vol. II (Part Two), § 65.
23
YILC, 1991, vol. II (Part Two), §§ 170-175. It is worth noting that the ILC recommended, in 1987,
amending the title of the topic in English from “Code of Offences” to “Code of Crimes”.
24
YILC, 1995, vol. II (Part Two), p. 20.
25
Cf. McDOUGALL, Carrie,
op. cit
., p. 7.
26
YILC, 1996, vol. II (Part Two), pp. 42-43.