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When Law and Reality Clash–The Imperative of Compromise in the Context of the Accumulated Evil of the Whole: Conditions for the Exercise of the International Criminal Court's Jurisdiction over the Crime of Aggression

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This article assesses the legal and policy arguments for and against determination by the Security Council of the occurrence of a State act of aggression for the purpose of the prosecution of a crime of aggression before the International Criminal Court, investigating several issues largely neglected by commentators and States Parties to date. It concludes that legal and policy arguments overwhelmingly favour independent determination by the ICC, but nonetheless recognises that the constraints of international politics mean it is unlikely the Assembly of States Parties will be able to reach agreement on provisions that allow for such independent determination. As such, the article assesses the merits of existing compromise proposals, before concluding by offering an alternative compromise provision for the conditions under which the ICC can exercise its jurisdiction over the crime of aggression.

Affiliations: 1: Barrister and Solicitor of the Supreme Court of Victoria and the High Court of Australia; University of Melbourne,Australia


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