The Fog of War: Prosecuting Illegal Uses of Force as Crimes Against Humanity

(2013) 12(3) Washington University Global Studies Law Review 523-538

18 Pages Posted: 24 Jan 2013 Last revised: 25 Dec 2013

See all articles by Manuel J. Ventura

Manuel J. Ventura

The Peace and Justice Initiative; Hague Conference on Private International Law; The Hague University of Applied Sciences - International Law; Western Sydney University, School of Law

Matthew Gillett

Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia

Date Written: January 1, 2013

Abstract

This article considers the possibility of the prosecution of aggression as a crime against humanity before the International Criminal Court (‘ICC’). First, it explores and compares the constitutive elements of crimes against humanity to those of the crime of aggression. In doing so, it identifies a number of areas where aggression will assist in establishing critical elements required to sustain a conviction for crimes against humanity. Second, it presents a legal strategy whereby aggression can be adjudicated as an element of co-perpetration as a mode of liability in a crimes against humanity prosecution. In this manner, a factual finding that aggression has been committed can be made without entering a conviction per se for the crime. Such a finding can then be considered at sentencing either as an aggravating factor or as indicative of the gravity of the crimes, and ultimately could result in the imposition of a longer custodial sentence. Thus, whilst the ICC may not currently possess jurisdiction ratione materiae over aggression, this should not limit the ability of ICC prosecutors to substantively invoke the crime where crimes against humanity are committed as a result of the illegal use of armed force.

Keywords: International Criminal Court, aggression, crimes against humanity, use of force, co-perpetration, sentencing

JEL Classification: K14, K33, K42

Suggested Citation

Ventura, Manuel J. and Gillett, Matthew, The Fog of War: Prosecuting Illegal Uses of Force as Crimes Against Humanity (January 1, 2013). (2013) 12(3) Washington University Global Studies Law Review 523-538. Available at SSRN: https://ssrn.com/abstract=2206660

Manuel J. Ventura (Contact Author)

The Peace and Justice Initiative ( email )

The Hague
Netherlands

Hague Conference on Private International Law ( email )

6 Scheveningseweg
The Hague, 2517KT
Netherlands

The Hague University of Applied Sciences - International Law

Stamkartplein 40
The Hague
Netherlands

Western Sydney University, School of Law ( email )

Locked Bag 1797
Penrith, NSW 2751
Australia

HOME PAGE: http://www.westernsydney.edu.au/staff_profiles/uws_profiles/mr_manuel_ventura

Matthew Gillett

Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia ( email )

UN-ICTY
P.O. Box 13888
The Hague, Zuid-Holland 2501 EW
Netherlands

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