29. ‘Irrelevance of Offi Cial Capacity’ – Article 27 Rome Statute Undermined by Obligations under International Law or by Agreement (Article 98)?

Abstract

Various armed conflicts across the world, including the legally controversial intervention in Iraq in 2003 and the prolonged conflicts in the Great Lakes region of Africa, have led to discussion of the crime in national and international courts and have given rise to the creation of new treaty law. This chapter discusses customary international law on the crime of aggression, the negotiations for International Criminal Court (ICC) jurisdiction, and other legal developments - including the African concept of aggression - and asks the question whether and how aggression can be prosecuted again, more than sixty years after Nuremberg, in an international court. Although there is no universally agreed definition of aggression for the purposes of international criminal law, aggression is now regarded as a crime under customary international law and there are few commentators who would maintain the contrary. Keywords: African Union; crime of aggression; customary international law; International Court of Justice (ICJ); International Criminal Court (ICC) Statute; international prosecution; national courts