CYIL 2015

PAVEL ŠTURMA CYIL 6 ȍ2015Ȏ its own definition of the crime of aggression, but it stressed the connection to the UN Security Council. Article 23, para. 2, of the draft Statute provided that “a complaint of or directly related to an act of aggression may not be brought under this Statute unless the Security Council has first determined that a State has committed the act of aggression which is the subject of the complaint”. 31 The 1993 report of the ILC’s Working Group on a draft Statute explained that the Court would only decide consequential issues, principally whether an individual has “acted on behalf of that State in such a capacity as to have played a part in planning and waging of the aggression”. 32 However, not all members of the ILC were prepared to concede such a significant role to the Security Council. 33 Although the final text reached in Kampala is different in some aspects, it is significant that most of the elements of the crime of aggression, in particular the distinction between the definition of crime and the definition of the State’s act of aggression, as well as the prominent role of the Security Council, can be traced in the ILC’s drafting history related both to the draft Code of Crimes and the draft Statute of the ICC. 5. Conclusion It is possible to conclude that the definition of the crime of aggression, as adopted at the Review Conference in Kampala, is a delicate compromise that reflects long years of debate on this issue. Without prejudice to the important role of the Special Working Group on the Crime of Aggression (SWGCA), the longest period of drafting history rests with the ILC. The history displays a fluctuation between two approaches to the definition. One can be called a criminal-law approach, stemming from the Nuremberg definition and focusing on the description of a conduct of individuals, though such persons must be in a leadership position. The other can be called a State-oriented approach, as it stresses the importance of the definition of an act of aggression committed by a State. The long lasting works of the ILC on the draft Code of Crimes against the Peace and Security of Mankind have shown both approaches. The solution adopted in the Kampala amendments reflects the understanding that, due to the special character of aggression, we cannot have one without the other. Yet the clear distinction, within the single Article 8 bis, of the crime from the underlying act of aggression seems to be very important. The ICC is a criminal court which should decide on the guilt and punishments of individual perpetrators. The determination of the act of aggression is a preliminary question. Therefore the most 31 The Work of the International Law Commission . Vol. I, op. cit ., p. 330. 32 See UN doc. A/CN.4/L.490 and Add. 1 (1993). 33 Cf. McDOUGALL, Carrie, op. cit ., p. 8.

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