CYIL Vol. 5, 2014

JOSEF MRÁZEK CYIL 5 ȍ2014Ȏ 3.3 Draft Code of Crimes against Crimes Peace and Security of Mankind On a request of the UNGA the ILC prepared, in 1950, a Draft Code of Offences against the Peace and Security of Mankind. 37 At the first session of the ILC Jean Spiropoulos was appointed as the first special rapporteur. In 1954 the ILC adopted a new Draft Code of Offences against the Peace and Security of Mankind and submitted it to the UNGA. 38 Considering that the Draft Code raised problems closely related to the definition of aggression, the UNGA entrusted a special committee with preparation of a report on the definition of aggression. In its Res. 33/97 (XXXIII) in 1978 the UNGA invited the states to comment on the 1954 draft. At that time the U.S. had opposed reconsideration of the Draft Code as “a useless exercise”, arguing that the 1974 Definition of aggression was too imprecise to serve as the basis for a criminal indictment. 39 The Draft Code of 1954 was discussed again in the ILC, where sharp controversy arose over individual and state criminality. The majority members maintained at that time that “criminal responsibility” of states must be included. 40 After studying opinions of members’ states the ILC revised its previous position and limited criminal responsibility to individuals only. 41 In 1996 the ILC adopted a new Draft Code where Art. 16 provided that “an individual, who as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a state, shall be responsible for a crime of aggression”. Art. 16 also confirmed that the crime of aggression constitutes a crime under international law. The Draft Code, however, did not mention the elements of this crime. Working on the Draft Code in the next years the ILC discussed, along with the commission of an act of aggression by the state authorities, “human environment and economic aggression” as a part of offences against the peace and security of mankind. 42 In its Resolution 42/151 of 7 December 1987 the UNGA endorsed the ILA recommendation to replace the word “offences” in the Draft Code by the word “crimes”, and the topic since then has been “Draft Code of Crimes against the Peace and Security of Mankind”. The ILC also considered in the framework of crimes against peace “aggression”, “annexation”, “the sending of armed bands” or “intervention in the internal or external affairs of a state”. The Definition of Aggression proposed by the special reporteur in his sixth report to the ILC was adopted by the UNGA in 1974. 43 3.4 The 1974 Definition of Aggression After several decades of discussion a definition of aggression was adopted by consensus of the UNGA in 1974. Art. 1 stipulates: “Aggression is the use of armed 37 YILC 1950, vol. 2, p. 253; YILC 1951, vol. 2, p. 43. 38 See YILC 1954, vol. II, p. 150-152, doc. A2693; YILC 4955, vol. II, Part Two, p. 8. 39 UN Doc. A/35/210/Add. 1, 1980, p. 11. 40 Report of the ILC 1983, p. 23. 41 Report of the ILC 1984, pp. 29-30. 42 YILC 1984, vol. II, Part II, p. 17; YILC 1985, vol. II, part II, pp. 14-18, p. 12. 43 YILC, p. 57.

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