Abstract
This essay, stimulated by themes discussed by Harold Koh and Todd Buchwald, examines the International Criminal Court (ICC) and the amendment to the 1998 Rome Statute to include the crime of aggression within the ICC’s jurisdiction. The definition adopted in Kampala in 2010 is too long to quote in full but merits careful examination. For example, it states that the “‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” It then adopts large swaths of UN General Assembly Resolution 3314 (XXIX) of 1974—the definition of aggression—as its own. Commentators recognized problems with the 1974 definition at the time. The post-Kampala Rome Statute purports to achieve objectivity with respect to aggression through removal of everything having to do with context and the totality of the circumstances. These matters surely should be—and must be—of central importance not only to nonparties but also to the parties to the Rome Statute. The fact that they are absent forms the raison d’être of this essay. Because the ICC is a permanent body, able to take jurisdiction of ongoing problems, its actions may have significant implications for world public order.
Highlights
This essay, stimulated by themes discussed by Harold Koh and Todd Buchwald, examines the International Criminal Court (ICC) and the amendment to the 1998 Rome Statute to include the crime of aggression within the ICC’s jurisdiction
The post-Kampala Rome Statute purports to achieve objectivity with respect to aggression through removal of everything having to do with context and the totality of the circumstances
My conclusion is easy to state: the ICC is too significant an institution and the issues its very existence raises are too important to be left to lawyers and law professors.[13]
Summary
This essay, stimulated by themes discussed by Harold Koh and Todd Buchwald, examines the International Criminal Court (ICC) and the amendment to the 1998 Rome Statute to include the crime of aggression within the ICC’s jurisdiction. It states that the “‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”[1] It adopts large swaths of UN General Assembly Resolution 3314 (XXIX) of 1974—the definition of aggression—as its own.[2] Commentators recognized problems with the 1974 definition at the time.[3] The post-Kampala Rome Statute purports to achieve objectivity with respect to aggression through removal of everything having to do with context and the totality of the circumstances These matters surely should be—and must be—of central importance to nonparties and to the parties to the Rome Statute. Because the ICC is a permanent body, able to take jurisdiction of ongoing problems, its actions may have significant implications for world public order
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