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JOSEF MRÁZEK
CYIL 5 ȍ2014Ȏ
3.3 Draft Code of Crimes against Crimes Peace and Security of Mankind
On a request of the UNGA the ILC prepared, in 1950, a Draft Code of Offences
against the Peace and Security of Mankind.
37
At the first session of the ILC Jean
Spiropoulos was appointed as the first special rapporteur. In 1954 the ILC adopted
a new Draft Code of Offences against the Peace and Security of Mankind and
submitted it to the UNGA.
38
Considering that the Draft Code raised problems closely
related to the definition of aggression, the UNGA entrusted a special committee with
preparation of a report on the definition of aggression.
In its Res. 33/97 (XXXIII) in 1978 the UNGA invited the states to comment
on the 1954 draft. At that time the U.S. had opposed reconsideration of the Draft
Code as “a useless exercise”, arguing that the 1974 Definition of aggression was
too imprecise to serve as the basis for a criminal indictment.
39
The Draft Code of
1954 was discussed again in the ILC, where sharp controversy arose over individual
and state criminality. The majority members maintained at that time that “criminal
responsibility” of states must be included.
40
After studying opinions of members’
states the ILC revised its previous position and limited criminal responsibility to
individuals only.
41
In 1996 the ILC adopted a new Draft Code where Art. 16 provided
that “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”. Art. 16 also confirmed that the crime of
aggression constitutes a crime under international law. The Draft Code, however,
did not mention the elements of this crime. Working on the Draft Code in the
next years the ILC discussed, along with the commission of an act of aggression by
the state authorities, “human environment and economic aggression” as a part of
offences against the peace and security of mankind.
42
In its Resolution 42/151 of
7 December 1987 the UNGA endorsed the ILA recommendation to replace the
word “offences” in the Draft Code by the word “crimes”, and the topic since then has
been “Draft Code of Crimes against the Peace and Security of Mankind”. The ILC
also considered in the framework of crimes against peace “aggression”, “annexation”,
“the sending of armed bands” or “intervention in the internal or external affairs of
a state”. The Definition of Aggression proposed by the special reporteur in his sixth
report to the ILC was adopted by the UNGA in 1974.
43
3.4 The 1974 Definition of Aggression
After several decades of discussion a definition of aggression was adopted by
consensus of the UNGA in 1974. Art. 1 stipulates: “Aggression is the use of armed
37
YILC 1950, vol. 2, p. 253; YILC 1951, vol. 2, p. 43.
38
See YILC 1954, vol. II, p. 150-152, doc. A2693; YILC 4955, vol. II, Part Two, p. 8.
39
UN Doc. A/35/210/Add. 1, 1980, p. 11.
40
Report of the ILC 1983, p. 23.
41
Report of the ILC 1984, pp. 29-30.
42
YILC 1984, vol. II, Part II, p. 17; YILC 1985, vol. II, part II, pp. 14-18, p. 12.
43
YILC, p. 57.