CYIL 2015

AGGRESSION ȃ THE SUPREME INTERNATIONAL CRIME OR NOT A CRIME AT ALL? the exercise of jurisdiction, was added pursuant to the Kampala review conference in 2010. Under the new Article 8 bis of the Statute, the crime of aggression means “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 exercise of the jurisdiction over the crime of aggression by the ICC was, however, postponed at least until 2017, when State Parties to the Rome Statute shall, by virtue of Article 15 bis, revisit this question and decide upon it. 17 That aggression qualifies as an international crime giving rise to individual criminal responsibility gains approval from various international law scholars . Already prior to the establishment of the post-WWII military tribunals, the Czechoslovak legal expert Bohuslav Ečer declared: “Aggressive war is a crime, and by its character an international crime, because it aims against peace and international order. /…/ Not only the aggressor States as such, but also their rulers and military leaders are personally responsible in the eyes of the law for the gigantic chain of crimes which compose this war and which are punishable under the criminal laws of the countries affected.” 18 This view has become more prominent in the scholarly literature after the end of the Cold War and the establishment of the ICC. Thus, Antonio Cassese does not have doubts that aggression meets all the criteria of a crime under international law. 19 For Cherif M. Bassiouni aggression is one of the most serious international crimes “deemed part of jus cogens”. 20 William Schabbas commends the inclusion of the crime of aggression into the Rome Statute of the ICC as “a return to the logic of the Nuremberg trial”. 21 Robert Heinsch states that there are “four commonly accepted international crimes: aggression, genocide, crimes against humanity and war crimes” 22 and that the definition of Article 8 bis is another step towards strengthening a core of these crimes. I. I. Karpecz agrees that aggression “is recognized as an international crime” . 23 All this seems to suggest that aggression could 18 EČER, B.: The Punishment of War Criminals, confidential document dated 10 October 1942 submitted to the London International Assembly, Commission II on the Trial of War Criminals, reprinted in LANKEVICH, G. J. (ed.): Archives of the Holocaust, Vol. 16, Garland, New York and London, 1990, pp. 1-4. 19 CASSESE, A.: On Some Problematical Aspects of the Crime of Aggression, Leiden Journal of International Law, 2007, Vol. 20, No. 4, pp. 841-849. 20 BASSIOUNI, M. Ch.: International Crimes, op. cit., p. 138. 21 SCHABBAS, W. A.: An Introduction to the International Criminal Court . Fourth Edition. Cambridge University Press, Cambridge, 2011, p. 146. 22 HEINSCH, R.: The Crime of Aggression After Kampala: Success or Burden for the Future ?, Goettingen Journal of International Law, 2010, Vol. 2, No. 2, pp. 713-743. 23 KARPETZ, I. I.: International Criminal Law and International Crimes, Touro Journal of International Law, 1988-1990, Vol. 1, pp. 332 (325-334). 17 See also MCDOUGALL, C.: The Crime of Aggression Under the Rome Statute of the International Criminal Court, Cambridge University Press, Cambridge, 2013.

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