Activation of ICC’s Jurisdiction over the Crime of Aggression: Fusion and Fission of Jus in Bello and Jus Ad Bellum

Abstract

The jurisdiction of the International Criminal Court over the crime of aggression got activated on 17th July 2018. While there are critical issues pertaining to its scope and application, the significant feature of the crime of aggression lies in its very nature of combining, jus in bello (international humanitarian law) and jus ad bellum (law in warfare), which have been kept separate in other crimes enlisted in the Rome Statute. The paper gives an understanding of how the crime of aggression merges the two diverging segments of law from definitional, jurisdictional and conceptual perspectives. The paper also observes how the requirement of manifest violation creates similar concerns. With reference to the war on terror and just war concept, there is a further fuelling of the idea that jus ad bellum should impact jus in bello. Previous international judicial decisions, particularly those of the International Criminal Court, The Special Court for Sierra Leone and the International Criminal Tribunal for Yugoslavia have consistently articulated the two fields as distinct. Thus, the actual consequences of allowing a single court to adjudicate on the crime of aggression-a crime that merges jus in bello and jus ad bellum under its fold- requires deeper analysis and further study. Thus, the paper explores the basic contours of the relationship between the jus ad bellum and the jus in bello with reference to the crime of aggression.