Negotiating Provisions Defining the Crime of Aggression, its Elements and the Conditions for ICC Exercise of Jurisdiction Over It

• Autores: Roger S. Clark
• Localización: European journal of international law = Journal europeen de droit international, ISSN 0938-5428, Vol. 20, Nº 4, 2009, págs. 1103-1115
• Idioma: inglés
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• Resumen

  • In February 2009, the International Criminal Court's Special Working Group on the Crime of Aggression concluded its efforts to draft the �provision� called for in Article 5(2) of the Rome Statute �defining the crime [of aggression] and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime�. It produced two draft Articles: Article 8bis, the �definition�, and Article 15bis, the �conditions�. There was substantial agreement on the definition (and on �Elements� of the crime produced in June 2009); there was much disagreement concerning the conditions. The author examines the most significant drafting issues. For the definition, these include: applying General Assembly Resolution 3314 to individual responsibility; articulating the �leadership� nature of this crime; the threshold requirement that the violation of the United Nations Charter be �manifest�; and consistency with provisions in the Statute, especially those in the �general part�. In respect of conditions, the difficult issue surrounds the role of the Security Council and the many variations on that theme in draft Article 15bis. The contribution concludes with a fundamental procedural question: can the amendment be applied erga omnes or does it apply only to those states specifically accepting it?