The Crime of Aggression in International Criminal Law: Historical Development, Comparative Analysis and Present State

The Crime of Aggression in International Criminal Law: Historical Development, Comparative Analysis and Present State

Sergey Sayapin

Language: English

Pages: 352

ISBN: 2:00265559

Format: PDF / Kindle (mobi) / ePub


Since after the Second World War, the crime of aggression is – along with genocide, crimes against humanity and war crimes – a "core crime" under international law. However, despite a formal recognition of aggression as a matter of international criminal law and the reinforcement of the international legal regulation of the use of force by States, numerous international armed conflicts occurred but no one was ever prosecuted for aggression since 1949. This book comprehensively analyses the historical development of the criminalisation of aggression, scrutinises in a detailed manner the relevant jurisprudence of the Nuremberg and Tokyo Tribunals as well as of the Nuremberg follow-up trials, and makes proposals for a more successful prosecution for aggression in the future. In identifying customary international law on the subject, the volume draws upon a wealth of applicable sources of national criminal law and puts forward a useful classification of States´ legislative approaches towards the criminalisation of aggression at the national level. It also offers a detailed analysis of the current international legal regulation of the use of force and of the Rome Statute´s substantive and procedural provisions pertaining to the exercise of the International Criminal Court´s jurisdiction with respect to the crime of aggression, after 1 January 2017.

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General Assembly in resolution 174 (II) of 21 November 1947, as amended by resolutions 485 (V) of 12 December 1950, 984 (X) of 3 December 1955, 985 (X) of 3 December 1955 and 36/39 of 18 November 1981, Article 1. The Statute is available at the official ILC website: http://untreaty.un.org/ilc/texts/ instruments/english/statute/statute_e.pdf (last accessed 13 November 2012). 316  1.2  Evolution of the Concept of Aggression After World War II 55 other areas.318 Some of the key substantive and

Statute. 6. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5. Article 15 ter Exercise of jurisdiction over the crime of aggression (Security Council referral) 1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13 (b), subject to the provisions of this article. 2. Where the Prosecutor concludes that there is a reasonable basis to proceed with an

indeed warranted in the light of its required operational flexibility as an international organ primarily charged with the maintenance of international peace and security (see supra note 143). Yet, the legal qualification of uses of force as acts of aggression, in order for them to necessitate specific consequences for States and individuals under applicable international law (see supra 2.2.1.2), should involve more strictly defined assessment criteria and a less politicized procedure than the

Under Article 10 of the Charter,233 the General Assembly is authorized to discuss any questions or matters within the competence of the United Nations—and thus also matters of maintaining international peace and security, although they are under the “primary responsibility” of the Security Council.234 In Article 11(2),235 three types of possible reactions by the General Assembly with respect to such matters are distinguished: (1) a mere discussion of a question, (2) the adoption of a

putting into action, promptly and effectively (cf. the first sentence of Article 24(1) of the UN Charter), the legitimate collective ambitions of all nations represented in the General Assembly—might not ignore the Assembly’s recommendations made under resolution 377 (V). 2.4.2.2 The Use of Force in Pursuance of Peoples’ Right to Self-Determination The question whether national liberation movements might use force in pursuit of peoples’ right to self-determination239—and whether like-minded

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