The International Criminal Court and Crimes of Aggression: Beyond the Kampala Convention
58 Pages Posted: 26 Jun 2012
Date Written: June 15, 2012
This paper addresses the definition of the Crime of Aggression. In doing so, the perspective given by an historical background is discussed, as well as the new definition approved in the 2010 Kampala Conference. The paper provides a critical evaluation of the agreed definition with a special emphasis on the importance of this definition for the present century. Also addressed are limitations in the definitions with respect to issues that relate to intervention based on some perceived necessity, acts against non-state actors, crimes committed by non-state actors, and interventions inspired by humanitarian impulses. The definition adopted by consensus at Kampala failed to address possible aggression by or against non-state actors and any other non-traditional form of aggression such as cyber crime or crimes committed by organized groups. Contradictions and lack of clarity in the definition of aggression are other areas addressed in the paper. The paper also suggests a new definition that can address the issues discussed.
A series of international conferences and agreements, launched under the auspices of the United Nations, had tried to define “aggression,” differentiating it from the forceful actions taken in self- defense (i.e., unjust war rather than justifiable force) and, at least by implication, to define legitimate uses of force. A variety of legal and definitional issues were encountered along the way. In effect, they helped to define the jurisdictional boundaries of the International Criminal Court. Contextual variables such as character, scale, and gravity of force were all taken into account during deliberations to form a consensus on aggression and those responsible for such. The Kampala Conference and the adoption of the definition of the Crime of Aggression before the ICC is yet another landmark in the history of international law.
However, as contemporary conditions have produced conflicts different from those of the twentieth century, at least in degree and character, the concepts of aggression and the culpability for aggression have undergone corresponding changes. The role of non-state actors, for instance, has come to the fore. No longer does aggression apply only to actions taken by some state or states against others. To be sure, precedents for the minatory role of non-state actors can be found at least as early as the fourth decade of the twentieth century, as in the case of organizations affiliated with the Comintern or the Fifth Columns activated by the Nazi party. But as the tangled political territory of the Islamic world indicates, and as the horrifying events of 9/11 revealed, non-state actors have assumed an importance even greater than they had in the past. Moreover, today, when considering definitional issues, one must also confront novel forms of aggression, such as the clandestine release of devastating bacteria and cyber-warfare.
Keywords: ICC, International Criminal Court, Crime, Crime of aggression, Crimes of aggression, Jurisdicction, Definition, Kampala, Kampala Convention, Cyber Crime, Nonstate Actors, Necessity, Terrorism,Humanitarian intervention
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