Crime of Aggression: Demystifying the Rough Edges from Kampala to Rome

Abstract

On 17th July, 2018 when International Criminal Court assumes and activates its jurisdiction over the crime of aggression and with this the controversy over the meaning and interpretation of the definition will again come to debate. While the real impact will be visible with courts decision-making exercise, a theoretical and critical analysis on the subject is of urgent importance. With the new definition making it state centric crime, it has already excluded the non-state actors and it floats in political waters with General Assembly Resolution 3314 and Nuremberg Charter as its predecessor. It has also departed from the core idea of international criminal law based on individ criminal responsibility. The paper will critically analyse all the limbs of this consensus-born definition including the acts of commission: planning, preparation, initiation or execution; the issue of aggression as a leadership crime and the trigger pertaining to the character, gravity and scale as the qualifiers to manifest violation of the United Nations Charter. The paper also discusses the effect of the opt-in and opt-out conditions on the amendment. With the chaotic list of acts amounting to aggression coupled with the excessive power granted to the Security Council, the definition has already lost its viable legal value of neutrality. Further, since it merges the idea of jus in bello and jus ad bellum the interpretation and decision-making process of the court would replicate a complex politicized agenda. It is proposed that crime of aggression in its present form presupposes certain inherent limitations for the exercise of jurisdiction by the ICC.