Abstract
AbstractTo adjudicate a claim on individual criminal responsibility, the court has to establish objective and subjective links between the individual and the crime. This article studies the material (actus reus/objective) elements of the crime of aggression (conduct, consequence and circumstance) and suggests a reading that solves most of the conceptual and practical issues regarding criminal responsibility for this crime. The main contribution is an ontological distinction between the material act of use of violence and the act of aggression, which are both subsumed under the term ‘state/collective act’. The former is a consequence element and therefore is to be understood in its naturalistic meaning – a perceivable result of one’s action. The latter is a legal-evaluative notion and as such constitutes a circumstance that renders the violation of the prohibitory norm (the union of conduct and consequence) as being wrongful. This distinction is crucial for the system of attribution of criminal responsibility, as different mental (subjective) elements apply to consequences and circumstances.
Highlights
Aggression is a grave and manifestly illegal use of force by a state
Element 1 of the Elements of Crimes for the crime of aggression defines the conduct and reads: ‘The perpetrator planned, prepared, initiated or executed an act of aggression.’. When this provision is read in conjunction with introductory paragraph 2 to Article 8bis of the Elements of Crimes (‘There is no requirement to prove that the perpetrator has made a legal evaluation as to whether the use of armed force was inconsistent with the Charter of the United Nations.’), it leads to the conclusion that the consequence of the crime of aggression can only be the use of armed force
According to the required mens rea standard in Article 30 of the Rome Statute, intent of the accused covers the material act of use of violence and not the act of aggression, and there is no need for the prosecution to prove that she made any prior legal evaluation
Summary
The conduct element of the crime of aggression was defined in the 2002 paper as follows (see italics): For the purpose of the present Statute, a person commits a “crime of aggression” when, being in a position effectively to exercise control over or to direct the political or military action of a State, that person intentionally and knowingly orders or participates actively in the planning, preparation, initiation or execution of an act of aggression which, by its character, gravity and scale, constitutes a flagrant violation of the Charter of the United Nations.. Unlike the other core crimes, the consequence is the same for all of the conduct verbs.59 Another way to look at planning, preparation, initiation or execution is through a prism of stages prior to collective action. For the crime of aggression, conduct is a contribution of a certain degree (that still remains to be determined) to one of the stages prior to the collective action
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