CYIL 2015

VERONIKA BÍLKOVÁ CYIL 6 ȍ2015Ȏ Murphy states that “there emerged from Kampala considerable uncertainties concerning procedural and substantive aspects of how the crime of aggression at the ICC will actually operate”. 39 Whereas some of these comments relate specifically to the Rome Statute of ICC, the reveal the authors’ doubts as to the legal nature of the crime of aggression. 3. Is Aggression an International Crime? – Considerations The previous section has demonstrated that both States and scholars are divided in their view on whether aggression qualifies as an international crime. Whereas a majority assents to this qualification, a minority – encompassing, however, important international players such as the United States – has doubts and reservations. This section gives reasons in support of the former view. Prior to discussing why the crime of aggression does indeed qualify as an international crime, it is necessary to consider the very concept of “international crime” or “crime under international law”. While the two terms are not necessarily synonymous, 40 international legal instruments often use them interchangeably 41 and the practice is followed in this paper. 3.1 The Concept of International Crime International instruments and scholarly literature abound in references to international crimes and crimes under international law. Yet, very few of them are deem it useful to explain what characteristic such crimes actually have. As Bassiouni rightly states, “international crimes have developed to date, without even an agreed-upon definition of what constitutes an international crime, what are the criteria for international criminalization, and how international crimes are distinguished” . 42 He is also right in pointing out that the concept has evolved through an ad hoc and hazardous historical process from declarative to proscriptive and then to prescriptive, i.e. from an agreement on certain shared values to the outlawing and criminalization of acts that violate or threaten such values. In other words, the concept of international crime is anchored more in history and in morality than in legal theory. We know which acts individuals have been for some time prosecuted for internationally; we share the 39 MURPHY, S. D.: The Crime of Aggression at the ICC, in WEILER, M. (ed.), Oxford Handbook on the Use of Force, Oxford University Press, Oxford, 2013, p. 559 (533-560). 40 The term “international crime” was originally reserved for serious violations of international law imputable to States. The concept was introduced by the Special Rapporteur on the responsibility of States for internationally wrongful acts Robert Ago in the 1970s but abandoned by the ILC two decades later. See UN Doc. A/31/10, Report of the International Law Commission on the work of its twenty-eighth session 3 May-23 July 1976, Official Records of the General Assembly, Thirty-first session, Supplement No. 10, 1976, pp. 69-122. 41 The same category of serious crimes (crimes against peace/crime of aggression, crimes against humanity, war crime, and genocide) are labelled as “crimes under international law” in the 1950 Nuremberg Principles and the 1996 Draft Code but as “international crimes” in the 1998 Rome Statute. 42 BASSIOUNI, M. Ch.: International Crimes, op. cit., p. 131.

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