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4622 results in Criminal Law

Page 120 of 232

  • Chapter I - Aggression in the Context of Collective Security

  • from PART II - COLLECTIVE SECURITY AND THE JUS CONTRA BELLUM
  • Gerhard Kemp
  • Book:
    Individual Criminal Liability for the International Crime of Aggression
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015, pp 17-46

  • Summary

    ‘World history is largely a history of wars. All have been fought in a world without governance – where national “defence”, regional military alliances, balance of power and hegemonic imperialism have been the prevailing regimes. There is a manifest need for a system under universal auspices for maintaining global peace and security.’

    COLLECTIVE SECURITY AS A MEANS TO PROMOTE AND SUSTAIN NTERNATIONAL PEACE AND SECURITY

    The prohibition of aggression under international (criminal) law must be considered against the background of the collective security system. This system is primarily concerned with the maintenance of international peace and security. The criminalisation of aggression is analysed in terms of the international peace and security regime which developed during the twentieth century in the wake of two devastating world wars. While the focus of this book is the question of individual criminal liability as a response to (and possible deterrent for) international aggression, this must be seen contextually. Indeed, it will be shown that the criminal justice response to international aggression is ultimately not only intertwined with, but also to a considerable degree dependent upon, the key institutions of the system of collective security.

    At present, the primary embodiment of the international collective security regime is the United Nations (UN). The UN Charter (1945) provides for three pillars of the system of collective security:

  • (a) pacific behaviour by states: Article 2(3) of the Charter provides that member states ‘shall settle their international disputes by peaceful means’. Furthermore, Article 2(4) provides that states ‘shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state’;

  • (b) collective responses and mechanisms aimed at the settling of disputes (notably in terms of Chapter VI of the Charter), and Chapter VII powers and mechanisms to deal with threats to or breaches of the peace and with aggression;

  • (c) international co-operation to deal with socio-economic development, decolonisation, and the advancement of human rights, as means to prevent international conflict.

  • Chapter IV - The ‘Legacy of Nuremberg’: Establishing Individual Criminal Liability for the Crime of Aggression

  • from PART III - THE CRIMINALISATION OF AGGRESSION
  • Gerhard Kemp
  • Book:
    Individual Criminal Liability for the International Crime of Aggression
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015, pp 101-122

  • Summary

    INTRODUCTION

    In Chapter III above it was observed that to a certain extent the trials at Nuremberg and Tokyo were remarkable historical events (and, to an important extent, exercises in history writing). It was also noted that these trials represent the concretisation of the ideal to end impunity for international crimes. However, as far as individual criminal liability for aggression is concerned, the sometimes awkward jurisprudential positions concerning questions of legality (nullum crimen, nulla poena sine lege), the scope and ambit of the concept of aggression, the issue of conspiracy, and other factors impacting on the aggression debate were not definitively solved at Nuremberg and Tokyo. As William Schabas observed:

    ‘[It] is certainly striking to observe that the uncertainty about the role of aggression within the overall system of international criminal law is not only characteristic of the debate that immediately preceded Nuremberg, but it is also manifested in the approach to the issue in the decades that were to follow the landmark trial. The failure of the United Nations War Crimes Commission to even take a position on whether or not aggressive war should be a crime seems remarkably like the hesitations at the Rome Conference [on the International Criminal Court], more than half a century later.’

    Indeed, after Nuremberg, Tokyo and the subsequent trials under Control Council Law No 10 in Germany, no serious attempts were made to prosecute individuals for the crime of aggression in the post-Second World War era. The aim of this chapter is to analyse the reasons for this state of affairs. First, the efforts of the United Nations to consolidate and preserve the legal legacy of Nuremberg will be examined. Second, this ‘Legacy of Nuremberg’ will be analysed contextually, with reference to some of the key developments in international criminal law in the post-Second World War period. Finally, some preliminary conclusions regarding the impact of the legacy of Nuremberg on the establishment of the permanent International Criminal Court will be identified.

  • Chapter III - From Jus Contra Bellum to the Criminalisation of Aggression

  • from PART III - THE CRIMINALISATION OF AGGRESSION
  • Gerhard Kemp
  • Book:
    Individual Criminal Liability for the International Crime of Aggression
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015, pp 73-100

  • Summary

    INTRODUCTION

    This chapter charts the historical development of the criminalisation of aggression as a crime under international law. It also traces the development in international criminal law towards the acceptance of individual (as opposed to state) criminal liability for aggression.

    In the previous chapters it was explained how the use of force by states became outlawed. The use of force is no longer acceptable as an instrument of foreign policy. The jus ad bellum became the jus contra bellum.

    The liberal ideal of collective security manifested in the twin reactions to the use of force by states: The essentially political response, where the Security Council of the UN determines when a situation is regarded as a threat to or breach of peace, or an act of aggression; and the legal response where the International Court of Justice (ICJ) has a prominent role to play to determine whether the use of force violates the relevant provisions of the UN Charter, notably the prohibition of the use of force provided for in Article 2(4). The Security Council, which is the most important body to maintain international peace and security under the UN-dominated collective security system, may also create international criminal tribunals as a response to threats to peace and security, as it did in reaction to the conflict in the Former Yugoslavia in the early 1990s and with the genocide in Rwanda in 1994. Thus it can be said that the Security Council has set precedents in terms of Chapter VII of the UN Charter whereby international peace and security can be maintained by various methods like the use of armed force (for example during the Korea conflict in the 1950s), economic sanctions (for instance against apartheid South Africa), and also the creation of international criminal tribunals to try individuals responsible for serious crimes under international law (the aforementioned creation of the ad hoc tribunals for Rwanda and the former Yugoslavia).

    The shift from jus ad bellum to jus contra bellum has been an important historical development in international law. Another important development in international law has been the acceptance of individual criminal liability for certain serious crimes under international law.

  • Chapter VII - The Crime of Aggression under the Rome Statute of the ICC

  • from PART IV - THE INTERNATIONAL CRIMINAL COURT AND THE CRIME OF AGGRESSION
  • Gerhard Kemp
  • Book:
    Individual Criminal Liability for the International Crime of Aggression
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015, pp 177-188

  • Summary

    THE KAMPALA REVIEW CONFERENCE

    The first review Conference of the Rome Statute of the International Criminal Court took place in Kampala, Uganda, between 31 May and 11 June 2010. A number of proposals were discussed, ranging from proposals to include the crimes of terrorism and drug trafficking within the jurisdiction of the ICC, to the criminalisation of the use of nuclear weapons. The most prominent proposal – on the definition of the crime of aggression and the concomitant proposal on the conditions for the exercise of ICC jurisdiction over the crime of aggression – was eventually also one of the two successful substantive proposals. The other substantive proposal concerned the extension of the prohibition of certain types of weapons (including poisonous weapons) in the context of non-international armed conflicts as war crimes.

    Observers at the Kampala Conference noted the fact that the eventual decision on the crime of aggression was made by consensus. Big powers gave serious input. Even the United States, a non-party participant but not part of the final decision, also made a serious substantive contribution. The drafting and diplomacy of the preceding decade thus culminated in an historic agreement.

    THE DEFINITION OF AGGRESSION

    Article 8bis, containing the definition of the crime of aggression under the Rome Statute, is the result of the work done by the Special Working Group. The main aspects of the proposals and draft texts were discussed in Chapter VI.

    The unlawful behaviour is criminalised in the first part of Article 8bis. The second part of Article 8bis contains the acts of aggression that are unlawful use of force by a state in violation of international law (essentially, but with some modification, the jus contra bellum discussed in Chapter II).

    THE STATE ACT OF AGGRESSION

    In order to understand the scope of criminal acts that are criminalised under Article 8bis, the starting point of the analysis is the list of acts provided for in the second part of Article 8bis. The criminal scope of these acts are determined by (a) the content of the state acts as unlawful use of armed force in violation of the UN Charter, and (b) the threshold provided for in the first part of Article 8bis.

Individual Criminal Liability for the International Crime of Aggression
  • 2nd edition
  • Gerhard Kemp
  • Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015
  • The chequered history of the criminalisation of aggression as a crime under international law has reached an important milestone with the adoption of the Kampala Resolution on the Crime of Aggression (2010). This resolution provides for the definition of the crime of aggression to be included in the Rome Statute of the International Criminal Court, as well as for conditions for the exercise of ICC jurisdiction over the crime. The second edition of this volume contains an overview and discussion of the historical and normative processes (legal and political) that culminated in the adoption of the Kampala Resolution. The different components of the resolution are critically assessed against the background of the various political and legal responses to aggression, while taking into account contemporary developments in the field of international criminal law. The volume is primarily but not exclusively concerned with the crime of aggression under the Rome Statute. It also includes a chapter on national and regional criminal justice responses to aggression, notably developments concerning the amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, which also provides for the criminalisation of aggression.About the first edition'A successful attempt to provide a working definition of the crime of aggression and the conditions for the exercise of jurisdiction by the ICC thereon. At the same time, it purports to trace the historical development of the norm of aggression and analyse the problematic issues concerning its definition. Using accessible style and language, the author correctly grasps the need for a two-sided approach to aggression, from the point of view of states, as well as of individual criminal responsibility, and touches upon the critical issue of the connection between maintenance of international peace and security and international criminal justice. [...]the book provides a thorough and concise analysis of the elements of aggression, one of the most controversial crimes in international criminal law and pinpoints its place in the complex scheme of interplay between collective security and international criminal justice. [...] the value of the present title lies in its contribution to the ongoing debate on the interrelation between state and individual responsibility for international crimes - a debate that seems far from being settled.'Irena Giorgou in 2012 JICJ 712

  • Annex III - Understandings regarding the Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression

  • from PART VI - ANNEXES
  • Gerhard Kemp
  • Book:
    Individual Criminal Liability for the International Crime of Aggression
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015, pp 265-266

  • Summary

    Referrals by the Security Council

  • It is understood that the Court may exercise jurisdiction on the basis of a Security Council referral in accordance with article 13, paragraph (b), of the Statute only with respect to crimes of aggression committed after a decision in accordance with article 15 ter, paragraph 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later.

  • It is understood that the Court shall exercise jurisdiction over the crime of aggression on the basis of a Security Council referral in accordance with article 13, paragraph (b), of the Statute irrespective of whether the State concerned has accepted the Court's jurisdiction in this regard.

    • Jurisdiction ratione temporis

  • It is understood that in case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction only with respect to crimes of aggression committed after a decision in accordance with article 15 bis, paragraph 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later.

    • Domestic jurisdiction over the crime of aggression

  • It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.

  • It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State. Other understandings

  • It is understood that aggression is the most serious and dangerous form of the illegal use of force; and that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences in accordance with the Charter of the United Nations.

  • It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination.

  • Chapter V - The Inclusion of Aggression in the Rome Statute of the International Criminal Court

  • from PART IV - THE INTERNATIONAL CRIMINAL COURT AND THE CRIME OF AGGRESSION
  • Gerhard Kemp
  • Book:
    Individual Criminal Liability for the International Crime of Aggression
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015, pp 125-146

  • Summary

    INTRODUCTION: THE INTERNATIONAL CRIMINAL COURT

    The aim of this chapter is twofold. First, the process that led to the adoption of the Rome Statute of the ICC is described. Particular attention is given to the (unsuccessful) process to define aggression and the difficult task to draft a suitable definition in conformity with Articles 5(2), 121 and 123 of the Rome Statute of the ICC. Second, the process to define aggression is discussed contextually with reference to the relationship between the Security Council of the UN and the ICC. This contextual background serves as an introduction to Chapter VI, where the various definitional options for the crime of aggression will be critically analysed.

    In Chapter VIII a number of factors relevant to the application of international criminal law at the national and regional levels are identified. It is pointed out that these concerns pose particular problems for prosecuting individuals in national and regional courts for the crime of aggression. It is concluded that, although the notion of universal jurisdiction and the possibility of so-called ‘direct application of international criminal law’ are today important features of the developing system of international criminal law, the peculiar nature of the crime of aggression leaves little scope for the prosecution of individuals in national courts for this crime. Regional courts may be better options, but there are significant limitations as well, as is pointed out in Chapter VIII.

    Aggression is arguably the international crime par excellence. It is therefore ironic that the first permanent International Criminal Court (ICC) is, more than a decade after the entry into force of the Rome Statute, still not in a position to hear cases of aggression. This may change soon after 2017, as will be explained in subsequent chapters. Indeed, the adoption at the Kampala Review Conference in 2010 of a definition of aggression as well as conditions for the exercise of ICC jurisdiction over the crime is a significant development.

    The historic first permanent ICC has jurisdiction over the most serious crimes under international law – genocide, crimes against humanity, war crimes and aggression.

  • Introduction

  • from PART I - INTRODUCTION AND FRAMEWORK OF ANALYSIS
  • Gerhard Kemp
  • Book:
    Individual Criminal Liability for the International Crime of Aggression
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015, pp 3-14

  • Summary

    RESEARCH PROBLEM, RATIONALE, AND DEMARCATION

    RESEARCH PROBLEM AND RATIONALE

    This book critically assesses the most important components of the framework for individual criminal liability for the crime of aggression. Aggression is regarded as one of the core crimes under customary international law. The definition of aggression and the conditions for the exercise of International Criminal Court jurisdiction over the crime of aggression as adopted at the Kampala Review Conference on the Rome Statute of the International Criminal Court are yet to enter into force. National and regional legislative frameworks for the criminalisation of aggression complete the legal landscape.

    It is argued that the creation of the ICC provides the international community with an historic opportunity to establish effective jurisdiction over the crime of aggression. This criminal justice response to aggression has implications for the collective security system (embodied by the UN).1 Consequently, the latter aspect forms the first substantive part of the book, where some of the implications of aggression for the collective security system are highlighted and examined.

    This book provides an historical account of the development of the notion of aggression. It identifies the important debates affecting the attempts to define the crime of aggression; puts the legal debates in normative and international political context; and examines the conditions necessary for the prosecution of the crime of aggression at national, regional and international level.

    Special consideration is given to the different elements of the crime of aggression as adopted at the Kampala Review Conference. The reason for this is that the ‘Kampala definition’ constitutes arguably the most realistic and legally sound basis for the eventual prosecution of the crime of aggression before the ICC. An important regional instrument on individual criminal liability for the crime of aggression – the Malabo Protocol of 2014 – provides for a definition of aggression adapted to the relevant regional collective security regime. Domestic incorporation of the crime of aggression takes on different forms. In this book special attention is given to the possibility to prosecute the crime of aggression under customary international law before domestic courts.

  • Annex II - Amendments to the Elements of Crimes, Rome Statute of the International Criminal Court

  • from PART VI - ANNEXES
  • Gerhard Kemp
  • Book:
    Individual Criminal Liability for the International Crime of Aggression
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015, pp 263-264

  • Summary

    Article 8 bis

    Crime of aggression

    Introduction

  • It is understood that any of the acts referred to in article 8 bis, paragraph 2, qualify as an act of aggression.

  • There is no requirement to prove that the perpetrator has made a legal evaluation as to whether the use of armed force was inconsistent with the Charter of the United Nations.

  • The term “manifest” is an objective qualification.

  • There is no requirement to prove that the perpetrator has made a legal evaluation as to the “manifest” nature of the violation of the Charter of the United Nations.

    • Elements

  • The perpetrator planned, prepared, initiated or executed an act of aggression.

  • The perpetrator was a person1 in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression.

  • The act of aggression – the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations – was committed.

  • The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations.

  • The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations.

  • The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations.

  • Chapter VIII - National and Regional Prosecution of the Crime of Aggression

  • from PART V - NATIONAL AND REGIONAL CRIMINALISATION AND PROSECUTION OF THE CRIME OF AGGRESSION
  • Gerhard Kemp
  • Book:
    Individual Criminal Liability for the International Crime of Aggression
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015, pp 191-256

  • Summary

    THE CRIME OF AGGRESSION AND THE COMPLEMENTARITY IMPERATIVE

    The foundation of the international criminal justice system dominated by the International Criminal Court is the notion that states, and not the ICC, should take on the primary responsibility to investigate and prosecute cases of genocide, crimes against humanity and war crimes. The ICC should in principle only step in when states are unwilling or unable to deal with the matter at hand. This is known as the principle of complementarity. Needless to say, not all states are party to the ICC. However, other enforcement regimes beyond the Rome Statute of the ICC, for instance the UN Torture Convention, the Genocide Convention and the Geneva Conventions provide for an enforcement regime based on the domestication of crimes under international law and the concomitant possibility to enforce international criminal law at the national level.

    The Kampala Resolution on the Crime of Aggression adopted by the Assembly of States Parties expresses the sentiment that the crime of aggression, unlike the other core crimes, should rather not be prosecuted at the national level. There is no prohibition of national prosecutions. But there is a strong hint that there should not be any progressive domestication of the crime of aggression. Understandings 4 and 5 regarding the amendments to the Rome Statute on the crime of aggression provide that the amendments to the Rome Statute are adopted for purposes of the Rome Statute only, and not to be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than the Rome Statute.

    It is further understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another state. The latter Understanding is actually superfluous. The Rome Statute does not create a duty on the part of states parties to criminalise the core crimes under their domestic law. Of course, there is a duty on states parties to cooperate with the ICC, but there is no duty with respect to the implementation at national level of substantive international criminal law, safe for the modification of crimes against the administration of justice, thus including the ICC administration of justice as duly protected under domestic law as well.

  • Annex I - Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression

  • from PART VI - ANNEXES
  • Gerhard Kemp
  • Book:
    Individual Criminal Liability for the International Crime of Aggression
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    27 November 2015, pp 259-262

  • Summary

    1. Article 5, paragraph 2, of the Statute is deleted.

    2. The following text is inserted after article 8 of the Statute:

    Article 8 bis

    Crime of aggression

    1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

    2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:

    a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

    b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

    c) The blockade of the ports or coasts of a State by the armed forces of another State;

    d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

    e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

    f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

Page 120 of 232