CYIL 2015

BACK TO THE ILC’S LEGISLATIVE HISTORY: CODE OF CRIMES AGAINST THE PEACE …

definition of aggression by a State was beyond the scope of the Code. At the same

time, the ILC observed that “the action of a State entails individual responsibility

for a crime of aggression only if the conduct of the State is a sufficiently serious

violation of the prohibition contained in Article 2, paragraph 4 of the Charter of the

United Nations… The Charter and the Judgment of Nuremberg Tribunal are the

main sources of authority with regard to individual criminal responsibility for acts

of aggression.”

Already the 1996 draft Code thus included certain elements, such as the leadership

clause or the serious violation (later manifest violation) of Article 2 (4) of the UN

Charter, that were eventually incorporated into the Kampala amendments.

Second, Article 8 of the 1996 Code, dealing with the establishment of jurisdiction,

provided an exception from the principle of universal jurisdiction as to the crime

of aggression: “Jurisdiction over the crime set out in article 16 shall rest with

an international criminal court. However, a State referred to in article 16 is not

precluded from trying its nationals for the crime set out in that article.”

This solution was explained in the Commentary to Article 8: “An individual cannot

incur responsibility for this crime in the absence of aggression committed by a State.

Thus a court cannot determine the question of individual criminal responsibility for

this crime without considering as a preliminary matter the question of aggression by

a State. The determination by a national court of one State of the question of whether

another State had committed aggression would be contrary to the fundamental

principle of international law

par in parem imperium non habet

. Moreover, the

exercise of jurisdiction by the national court of a State which entails consideration of

the commission of aggression by another State would have serious implications for

international relations and international peace and security.”

4. The ILC Draft Statute for an International Criminal Court

This implies that the ILC was aware of the fact that, in a sense, the crime of

aggression was a special crime and required a special approach. A similar approach

was taken by the Commission when it worked on the first version of the draft Statute

for an International Criminal Court, completed by 1994.

It is a well-known fact that the ILC adopted the first draft Statute that included,

in Article 20, four core crimes under international law and crimes, established under

or pursuant to the treaty provisions listed in the Annex, which, having regard to

the conduct alleged, constitute exceptionally serious crimes of international concern.

Article 20 also included the crime of aggression.

This draft Statute did not contain

Ibid

., pp. 42-43.

The Work of the International Law Commission

. Vol. I,

op. cit

., p. 269.

YILC, 1996, vol. II (Part Two), p. 30, § 14.

See Art. 20 (b);

The Work of the International Law Commission

. Vol. I,

op. cit

., p. 329.