The Crime of Aggression under the Rome Statute of the International Criminal Court

Cover
Half-title page
Series page
Title page
Copyright page
Contents
Foreword
Preface to the Second Edition
Preface to the First Edition
The Crime of Aggression Amendments
List of
Abbreviations
1 The Crime of Aggression under the Rome Statute of the International Criminal Court: An Introduction
	A Crime of Aggression at Last
		The Early History of the Crime of Aggression
		The Lead-Up to Rome
		The Rome Conference
		The Special Working Group on the Crime of Aggression
		The Review Conference of the Rome Statute
		The Activation of the ICC’s Jurisdiction over the Crime of Aggression
	The Approach of This Book
2 Criminalising Aggression
	Misplaced Misgivings
		A Prohibition of at Least Certain Forms of Inter-State Armed Violence
		Desirability versus Possibility
	Beyond an End to Impunity: the Significance of the Crime
		International Politics and the Crime of Aggression
		The Crime of Aggression and the jus ad bellum
		Conflict over Aggression?
		A Chilling Effect
	Conclusion
3 An Act of Aggression: By Any Other Name
	The Distinction between Acts and Crimes
	Resolution 3314: a Poor Precedent
		New Nomenclature: Inter-State Armed Violence under the UN Charter
		The 3314 Definition: a Compromised Text
	Acts of Aggression and the jus ad bellum
		Security Council Practice
		General Assembly Practice
		Decisions of the International Court of Justice
		Conclusion: the Definition of an Act of Aggression for the Purposes of the jus ad bellum
	Article 8bis (2)
		Picking and Choosing
	Open or Closed
	In and Out
		Non-State Actors
		Cyber Operations and Emerging Weapons Technologies
	Understanding the Understandings
		The Status of the Understandings
		Understanding an ‘Act of Aggression’
	Conclusion: Act of Aggression under Article 8bis (2)
4 The Elevation of Acts of Aggression to the State Act Element of the Crime of Aggression
	An Act of Aggression that by its Character, Gravity and Scale Constitutes a Manifest Violation of the Charter of the United Nations
	Nullum crimen sine lege and the Prohibition of Analogy
	The Most Serious Crimes of Concern to the International Community as a Whole
	Inconsistency with Customary International Law
	Making the ICC an Arbiter of the Grey Areas in the jus ad bellum
	Article 31: Grounds for Excluding Criminal Responsibility
	Conclusion
5 The Individual Conduct Elements of the Crime
	Effectively Exercising Control Over or Directing the Political or Military Action of a State
		The ‘Leadership’ Requirement
		The Relevance of Article 28
	The Perpetrator’s Contribution
	The Mental Elements
		Article 32: Mistake of Fact or Mistake of Law
		The Relevance of Article 33
	Modes of Participation
		Third State Officials
		Can You Attempt to Commit a Crime of Aggression?
	Conclusion
6 The Court’s Jurisdiction Over the Crime of Aggression
	A Regime Consistent with International Law1
		Does the UN Charter Give the Security Council a Prerogative to Identify Acts of Aggression?
		The Council’s Pre-emptive Right to Identify Acts of Aggression
		The Council’s Right to Identify Acts of Aggression is a Primary One
		Omitting a Role for the Council Would Raise a Conflict under Article 103
		The Council’s Prerogative Does Not Extend to International Criminal Law
		Other Entities Have the Ability to Identify Acts of Aggression
		Article 103 is No Barrier to Independent ICC Identification of Acts of Aggression
		Policy Arguments Against a Role for the Council in State Referrals or proprio motu Investigations
		Conclusion
	The Jurisdictional Regime of the ICC
	Entry into Force: the Slow Burn Issue
		The Dilemma: Article 121(4) or Article 121(5)?
		The Second Sentence of Article 121(5)
		The Negative Interpretation and Non-States Parties
	The Exclusions under Article 15bis
		The Article 5(2) Reference
		The Article 12 Reference
		The Rationale of the Opt-Out Declaration
		A Comparison with Article 15bis (5)
		The Absence of an Understanding
		A Comparison with the Assembly’s Approach to Article 121(5) in the Context of Other Amendments
		Article 15bis: an Interpretation
	The Effect of the Activation Resolution
	The Applicability of Article 12(3)
	The When and What of Art. 15bis (4) Declarations
	Security Council Determinations
		What Amounts to a Security Council Determination?
		Does a ‘Negative Determination’ Have Any Effect?
	The Pre-Trial Division Filter
		What is the Relationship between Article 15bis and Article 15?
		Article 16
	Security Council Referrals
	Conclusion
7 Prosecuting Crimes of Aggression
	Prosecuting a Crime of Aggression before the ICC
		Judicial Elections and Staffing the Court
		Victims of Crimes of Aggression
		Cooperation in the Investigation and Prosecution of Crimes of Aggression
	Domestic Prosecutions
		Domestic Prosecutions under the Aggression Amendments
		Bases of Domestic Jurisdiction
		Immunities
		Other Potential Barriers to Domestic Prosecutions of Crimes of Aggression
		Conclusion
	Review of the Amendments
	Conclusion: a Crime in Name Only?
References
Index