CYIL Vol. 5, 2014

JOSEF MRÁZEK CYIL 5 ȍ2014Ȏ the Statue defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. The negotiations of the crime of aggression have a nine decade history, which has been extensively discussed in legal literature. The Preparatory commission for the ICC was held from 1999 until 2002, the Special Working Group (SWGCA) was working on the definition of the crime of aggression from 2003 until 2009, and final agreement was reached by consensus at following meetings in 2009-2010. The adoption of the ICC Statute proved that it was, first of all, impossible to agree on a definition of the crime of aggression. States were also divided with regard to the role of the UNSC in the proceedings for the crime before the Court. Art. 5 (1d) of the Statute stipulated that the jurisdiction should be limited to the “the most serious crimes of concern to the international community as a whole”. 74 Art. 5 (2) provided that the ICC should exercise jurisdiction over the crime of aggression “once a provision is adopted”. At the Kampala Review Conference the “crime of aggression” was described in Art. 8 bis (1) as: ,,the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” The “act of aggression” was then defined in Art. 8 bis (2) as: “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”. 75 The delegates in Kampala were able to elaborate amendments to the ICC Statute. The compromise was reached between two opposed positions with regard to the inclusion of the crime of aggression to the ICC Statute. The definition of the crime is rather narrow if compared with notion of aggression in the jus ad bellum of the 1974 Definition and customary international law. Art. 8 bis (2) refers to the 1974 Definition of Aggression. Probably we have here today, in some way, two competing definitions of aggression. In M.E. O’Connell’s view, the reference to Resolution 3314 in the aggression amendments should help to preserve for jus ad bellum the understanding that aggression is “any serious violation of the UN Charter irrespective of the ICC Statute’s definition of the crime”. 76 Adoption of the definition of the crime of aggression in Kampala draws the serious attention of the world legal community to the prohibition of aggression in international law. Art. 8 bis (1) stipulates that an “act of aggression” as a “crime of aggression” presupposes by “its character, gravity and scale” “a manifest violation” of 74 To the work on the definition of the Crime of aggression, see e.g. Kress, C., Holtzendorf, The Kampala Compromise in the Crime of Aggression, Journal of International Criminal Justice, 2010, N8, p. 1182; Trahan, J., Rome Statute’s Amendment on the Crime of aggression: Negotiations at the Kampala Review Conference, International Criminal Law Review , 2011, No. 11, pp. 49-104. 75 Handbook Ratification and implementation of the Kampala amendments to the Rome Statute of the ICC Crime of aggression, war crimes, New Jersey, available at : http://www.crimeofaggression.info/ documents/1/handbook.pdf. 76 O’Connell, M. E. C., supra note 49, p. 200.

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