CYIL 2015

BACK TO THE ILC’S LEGISLATIVE HISTORY: CODE OF CRIMES AGAINST THE PEACE … definition of aggression by a State was beyond the scope of the Code. At the same time, the ILC observed that “the action of a State entails individual responsibility for a crime of aggression only if the conduct of the State is a sufficiently serious violation of the prohibition contained in Article 2, paragraph 4 of the Charter of the United Nations… The Charter and the Judgment of Nuremberg Tribunal are the main sources of authority with regard to individual criminal responsibility for acts of aggression.” 27 Already the 1996 draft Code thus included certain elements, such as the leadership clause or the serious violation (later manifest violation) of Article 2 (4) of the UN Charter, that were eventually incorporated into the Kampala amendments. Second, Article 8 of the 1996 Code, dealing with the establishment of jurisdiction, provided an exception from the principle of universal jurisdiction as to the crime of aggression: “Jurisdiction over the crime set out in article 16 shall rest with an international criminal court. However, a State referred to in article 16 is not precluded from trying its nationals for the crime set out in that article.” 28 This solution was explained in the Commentary to Article 8: “An individual cannot incur responsibility for this crime in the absence of aggression committed by a State. Thus a court cannot determine the question of individual criminal responsibility for this crime without considering as a preliminary matter the question of aggression by a State. The determination by a national court of one State of the question of whether another State had committed aggression would be contrary to the fundamental principle of international law par in parem imperium non habet . Moreover, the exercise of jurisdiction by the national court of a State which entails consideration of the commission of aggression by another State would have serious implications for international relations and international peace and security.” 29 4. The ILC Draft Statute for an International Criminal Court This implies that the ILC was aware of the fact that, in a sense, the crime of aggression was a special crime and required a special approach. A similar approach was taken by the Commission when it worked on the first version of the draft Statute for an International Criminal Court, completed by 1994. It is a well-known fact that the ILC adopted the first draft Statute that included, in Article 20, four core crimes under international law and crimes, established under or pursuant to the treaty provisions listed in the Annex, which, having regard to the conduct alleged, constitute exceptionally serious crimes of international concern. Article 20 also included the crime of aggression. 30 This draft Statute did not contain 27 Ibid ., pp. 42-43. 28 The Work of the International Law Commission . Vol. I, op. cit ., p. 269. 29 YILC, 1996, vol. II (Part Two), p. 30, § 14. 30 See Art. 20 (b); The Work of the International Law Commission . Vol. I, op. cit ., p. 329.

43