Abstract
AbstractThe definition of the crime of aggression in Article 8 bis of the Rome Statute of the International Criminal Court (Rome Statute) stipulates that a State act of aggression is a material element of the crime, suggesting an intrinsic link between individual criminal responsibility and State responsibility for aggression. This article argues that the Rome Statute provides a legal basis for the International Criminal Court (ICC) to determine State responsibility for aggression when considering the material elements of the crime of aggression, which has important practical and conceptual implications for the law of international responsibility. Although the content of State responsibility flows automatically from the breach of the obligation, it is argued that a finding of aggression pursuant to Article 8 bis of the Rome Statute may be considered as a form of satisfaction for the purposes of Article 37 of the 2001 ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001 ILC Articles). Furthermore, the material element of the crime in Article 8 bis of the Rome Statute requires the act of aggression by its character, gravity, and scale to constitute a manifest violation of the Charter of the United Nations, in line with the nomenclature used within the 2001 ILC Articles regarding serious breaches of obligations arising from peremptory norms of general international law (jus cogens). The article considers the important role that the ICC may play in relation to serious breaches of the jus cogens obligation to refrain from an act of aggression.
Highlights
On 17 July 2018, two decades after the adoption of the Rome Statute of the International Criminal Court (Rome Statute), the International Criminal Court [ICLQ vol 70, October 2021 pp 961–990]doi:10.1017/S0020589321000373Downloaded from https://www.cambridge.org/core
4; see Dupuy (n 3). 14 For example, Van Schaack acknowledges the intrinsic link between State and individual conduct for aggression but focuses on the issue of domestic prosecution, B Van Schaack, ‘Par in Parem Imperium Non Habet: Complementarity and the Crime of Aggression’ (2012) 10 JICJ 133, 149; and J Trahan writes that Article 8 bis ‘makes clear that the crime cannot occur without the required state act of aggression’ but does not expand on the State responsibility aspects, J Trahan, ‘The Crime of Aggression and the International Criminal Court’ in LN Sadat, Seeking Accountability for the Unlawful Use of Force (Cambridge University Press 2018) 315
If the International Criminal Court (ICC) determines that there has been an act of aggression (perhaps even one that falls short of the threshold in Article 8 bis(1) of the Rome Statute), it is determining that there has been a serious breach of a peremptory norm and, Peremptory Norms of General International Law (Jus Cogens) on first reading (n 17) Draft
Summary
On 17 July 2018, two decades after the adoption of the Rome Statute of the International Criminal Court (Rome Statute), the International Criminal Court. 14 For example, Van Schaack acknowledges the intrinsic link between State and individual conduct for aggression but focuses on the issue of domestic prosecution, B Van Schaack, ‘Par in Parem Imperium Non Habet: Complementarity and the Crime of Aggression’ (2012) 10 JICJ 133, 149; and J Trahan writes that Article 8 bis ‘makes clear that the crime cannot occur without the required state act of aggression’ but does not expand on the State responsibility aspects, J Trahan, ‘The Crime of Aggression and the International Criminal Court’ in LN Sadat (ed), Seeking Accountability for the Unlawful Use of Force (Cambridge University Press 2018) 315. The ICC can be seen as providing an institutionalised response to a serious breach of a peremptory norm, in line with the progressive development of the rules of State responsibility.[16]
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