Nicolaos Strapatsas

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The Crime of Aggression

The International Criminal Court has jurisdiction over the most serious crimes of concern to the international community as a whole, namely genocide, crimes against humanity, war crimes and the crime of aggression. Yet States at the Rome Diplomatic Conference in 1998 could not reach consensus as to the scope and definition of the crime of aggression. Presently, the ICC Statute does not define the crime of aggression. However, it indicates that:

"The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations."

Essentially the crime of aggression is the attribution of criminal responsibility to an individual for an act of aggression, which is committed by a State. In order to properly define the crime of aggression, it is essential to define the act of aggression, which is on of the constituent elements of this crime. However, States have systematically avoided adopting a binding definition of the act of aggression since the creation of the United Nations. Although the UN Charter states that the Security Council shall determine the existence of a threat to the peace, a breach of the peace or an act of aggression and shall make recommendations or decide what measures shall be taken to maintain or restore international peace and security, it does not define ’act of aggression'. In 1974, the General Assembly adopted Resolution 3314, which defines aggression. The ICC Preparatory Commission has relied on Resolution 3314 as its starting point for defining the crime of aggression, however this Resolution is not without its shortcomings.

Both the definition of the crime of aggression and its elements must be defined. Also, the conditions under which the ICC will exercise jurisdiction in relation to this crime must be determined, which must be "in accordance with the relevant provisions of the Charter of the United Nations." This raises the issue as to whether the ICC depends on the Security Council's prior determination of an act of aggression in order for it to exercise jurisdiction over the ensuing crime. Also, it is not clear whether any other organs of the UN such as the General Assembly or the International Court of Justice can play a role if any in the determination of an act of aggression, in situations where the Security Council is blocked by the veto of a permanent member.

In addition to these topics that will be addressed, the thesis will examine other related issues such as the human rights implications of the crime of aggression for the accused and for the victims of said crime, the issue of complementarity of the jurisdiction of the ICC as well as State responsibility. 

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