Abstract

http://ssrn.com/abstract=1925724
 


 



Aggression and Legality: Custom in Kampala


Marko Milanovic


University of Nottingham School of Law

September 11, 2011

Journal of International Criminal Justice, Vol. 10, 2012

Abstract:     
This article tests the Kampala compromise on the aggression amendments to the Rome Statute of the International Criminal Court against the principle of legality, nullum crimen sine lege, requiring criminal law to be reasonably clear and prohibiting its retrospective application. It outlines three possible legality-based challenges to incriminating aggression: the supposed indeterminacy of the jus ad bellum and the lack of an incrimination under customary international law; the vagueness of the definition of the crime of aggression introduced in Article 8 bis; and the uncertainty regarding the application of this definition to situations in which the ICC’s jurisdiction over a particular individual arises only ex post facto. The article argues that it is the last of these three challenges, based on retroactivity rather than vagueness, that is the most serious one.

A fundamental ambiguity about the legal nature of the Rome Statute has direct bearing on this issue: it is either substantive in nature, directly creating the crimes it defines, or jurisdictional in nature, in that it merely sets out the subject-matter jurisdiction of the Court over offenses which are substantively defined elsewhere, in customary international law. The main practical consequence of this distinction is in the further question whether defendants charged before the Court have the right to challenge the legality of the charges against them on the basis that they do not comport with customary law. The article argues that this ambiguity about the nature of the Rome Statute was if anything only exacerbated in Kampala, discusses the substantive scope of application of Article 8 bis as well as the intricate jurisdictional regime introduced by the aggression amendments, and finally briefly turns to the question whether the definition of aggression adopted in Kampala departed from custom.

Number of Pages in PDF File: 24

Keywords: aggression, legality, nullum crimen, ICC, Rome Statute, Kampala

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Date posted: September 12, 2011 ; Last revised: October 20, 2011

Suggested Citation

Milanovic, Marko, Aggression and Legality: Custom in Kampala (September 11, 2011). Journal of International Criminal Justice, Vol. 10, 2012. Available at SSRN: http://ssrn.com/abstract=1925724

Contact Information

Marko Milanovic (Contact Author)
University of Nottingham School of Law ( email )
Law and Social Sciences Building
University Park
Nottingham, NG7 2RD
United Kingdom
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