The Actus Reus of the Crime of Aggression

Leiden Journal of International Law, Forthcoming

Faculty of Law, Stockholm University Research Paper Forthcoming

29 Pages Posted: 11 Nov 2020

See all articles by Nikola R. Hajdin

Nikola R. Hajdin

Stockholm University, Faculty of Law

Date Written: November 10, 2020

Abstract

To adjudicate a claim on individual criminal responsibility, the court has to establish objective and subjective links between the individual and the crime. This article studies the material (actus reus/objective) elements of the crime of aggression (conduct, consequence and circumstance) and suggests a reading that solves most of the conceptual and practical issues regarding criminal responsibility for this crime. The main contribution is an ontological distinction between the material act of use of violence and the act of aggression, which are both subsumed under the term ‘state/collective act’. The former is a consequence element and therefore is to be understood in its naturalistic meaning—a perceivable result of one’s action. The latter is a legal-evaluative notion and as such constitutes a circumstance that renders the violation of the prohibitory norm (the union of conduct and consequence) as being wrongful. This distinction is crucial for the system of attribution of criminal responsibility, as different mental (subjective) elements apply to consequences and circumstances.

Keywords: crime of aggression, actus reus, material elements, Rome Statute, ICC

Suggested Citation

Hajdin, Nikola R., The Actus Reus of the Crime of Aggression (November 10, 2020). Leiden Journal of International Law, Forthcoming, Faculty of Law, Stockholm University Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3727821

Nikola R. Hajdin (Contact Author)

Stockholm University, Faculty of Law ( email )

Stockholm
Sweden
+46 (0)8 16 13 73 (Phone)

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