CYIL 2015

PAVEL ŠTURMA

CYIL 6 ȍ2015Ȏ

its own definition of the crime of aggression, but it stressed the connection to the

UN Security Council.

Article 23, para. 2, of the draft Statute provided that “a complaint of or directly

related to an act of aggression may not be brought under this Statute unless the

Security Council has first determined that a State has committed the act of aggression

which is the subject of the complaint”.

The 1993 report of the ILC’s Working Group on a draft Statute explained that

the Court would only decide consequential issues, principally whether an individual

has “acted on behalf of that State in such a capacity as to have played a part in

planning and waging of the aggression”.

However, not all members of the ILC were

prepared to concede such a significant role to the Security Council.

Although the final text reached in Kampala is different in some aspects, it is

significant that most of the elements of the crime of aggression, in particular the

distinction between the definition of crime and the definition of the State’s act of

aggression, as well as the prominent role of the Security Council, can be traced in the

ILC’s drafting history related both to the draft Code of Crimes and the draft Statute

of the ICC.

5. Conclusion

It is possible to conclude that the definition of the crime of aggression, as

adopted at the Review Conference in Kampala, is a delicate compromise that reflects

long years of debate on this issue. Without prejudice to the important role of the

Special Working Group on the Crime of Aggression (SWGCA), the longest period

of drafting history rests with the ILC.

The history displays a fluctuation between two approaches to the definition. One

can be called a criminal-law approach, stemming from the Nuremberg definition and

focusing on the description of a conduct of individuals, though such persons must

be in a leadership position. The other can be called a State-oriented approach, as it

stresses the importance of the definition of an act of aggression committed by a State.

The long lasting works of the ILC on the draft Code of Crimes against the Peace and

Security of Mankind have shown both approaches.

The solution adopted in the Kampala amendments reflects the understanding

that, due to the special character of aggression, we cannot have one without the

other. Yet the clear distinction, within the single Article 8 bis, of the crime from the

underlying act of aggression seems to be very important. The ICC is a criminal court

which should decide on the guilt and punishments of individual perpetrators. The

determination of the act of aggression is a preliminary question. Therefore the most

The Work of the International Law Commission

. Vol. I,

op. cit

., p. 330.

See UN doc. A/CN.4/L.490 and Add. 1 (1993).

Cf.

McDOUGALL, Carrie,

op. cit

., p. 8.