Criminalizing Aggression: How the Future of the Law on the Use of Force Rests in the Hands of the ICC
European Journal of International Law (Forthcoming)
27 Pages Posted: 8 May 2017
Date Written: March 6, 2017
As the activation of Articles 8bis, 15bis and 15ter of the ICC Rome Statute (RS) is drawing ever nearer, the debate over the prosecution of the crime of aggression has taken off again with renewed vigour. While various flaws and imperfections of the Kampala resolution have attracted scholarly attention, the present paper focuses on one particular source for concern, viz. the implications which the activation of the Court’s jurisdiction may have for the legal regime governing the use of force between States. It is assumed at the outset that, even if investigations into alleged crimes of aggression may not occur on a frequent basis, sooner or later the ICC will inevitably be called upon to apply Article 8bis RS. Indeed, even if the majority of situations dealt with by the Court pertain to non-international armed conflicts, there have also been a number of situations involving an international/inter-State element. In essence, each such situation potentially raises jus contra bellum concerns, and may accordingly lead to allegations that the crime of aggression has been committed. Even if the lion’s share of these allegations is unlikely to make it past the preliminary examination or investigation phases, the way in which the ICC Prosecutor and the Pre-Trial Chambers play their role as gatekeepers with regard to the crime of aggression is bound to have strong repercussions for the interpretation and compliance pull of the law on the use of force.
The present paper first addresses the possible impact of the ICC’s jurisdiction over the crime of aggression on the recourse to, and acceptance of, unilateral humanitarian intervention (Section 2), before addressing other ways in which it may influence the international legal framework governing the use of force (Section 3). Section 4 concludes.
Keywords: aggression, international criminal court, use of force, humanitarian intervention
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