Aggression and Legality

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I’ve just posted on SSRN a pre-print draft of my article Aggression and Legality: Custom in Kampala, forthcoming in a special issue on aggression of the Journal of International Criminal Justice. It is more or less a follow-up to my earlier JICJ piece on whether the Rome Statute is binding on individuals. The abstract is below, and as always comments are most welcome.

This article tests the Kampala compromise on the aggression amendments to the Rome Statute of the International Criminal Court against the principle of legality, nullum crimen sine lege, requiring criminal law to be reasonably clear and prohibiting its retrospective application. It outlines three possible legality-based challenges to incriminating aggression: the supposed indeterminacy of the jus ad bellum and the lack of an incrimination under customary international law; the vagueness of the definition of the crime of aggression introduced in Article 8 bis; and the uncertainty regarding the application of this definition to situations in which the ICC’s jurisdiction over a particular individual arises only ex post facto. The article argues that it is the last of these three challenges, based on retroactivity rather than vagueness, that is the most serious one.

A fundamental ambiguity about the legal nature of the Rome Statute has direct bearing on this issue: it is either substantive in nature, directly creating the crimes it defines, or jurisdictional in nature, in that it merely sets out the subject-matter jurisdiction of the Court over offenses which are substantively defined elsewhere, in customary international law. The main practical consequence of this distinction is in the further question whether defendants charged before the Court have the right to challenge the legality of the charges against them on the basis that they do not comport with customary law. The article argues that this ambiguity about the nature of the Rome Statute was if anything only exacerbated in Kampala, discusses the substantive scope of application of Article 8 bis as well as the intricate jurisdictional regime introduced by the aggression amendments, and finally briefly turns to the question whether the definition of aggression adopted in Kampala departed from custom.

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jpaust says

September 13, 2011

Interesting. The preamble and arts. 1 and 5(1) of the Rome Statute would indicate that the crimes are already crimes under customary international law and that an article providing a definition, which can be more limiting than the customary prohibitions (e.g., as with respect to crimes against humanity and war crimes -- because not all of them are listed or fit), defines the jurisdiciton of the ICC. Yet with respect to aggression, art. 5(2) expressly mentions a provision "defining the crime" as well as the conditions regarding ICC jurisdiction. Presumably the new provision will "define" the crime.
Certainly article 22, paras. 1 and 2 must be addressed as well; but see art. 22, para. 3 re: customary international law's "definition" of aggression.
Add to all of this the fact that Article 8 bis starts off with "For the purpose of this Statute," so presumably not for any other purpose and not as the end-all definition under customary international law.
Looking forward to reading your draft.