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Aggression under the Rome Statute of the International Criminal Court

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The Rome Statute for the International Criminal Court includes aggression among the crimes within the Court's jurisdiction. It mandates the Assembly of States Parties to define the crime and to set out the conditions under which the Court shall exercise jurisdiction over it. Both the definition and the conditions must be consistent with the UN Charter provisions. The most pertinent of these provisions is Article 39, which empowers the Security Council to determine ‘the existence of any threat to the peace, breach of the peace, or act of aggression’. Based on the context of this provision the article discusses the envisaged role of the Security Council vis-á-vis the International Criminal Court in the prosecution of aggression. The author acknowledges the Council's primary responsibility in matters relating to the maintenance of international peace and security, but asserts that such responsibility is not exclusive. The author also concedes the Council's prerogative under Article 39 to determine whether a state has committed an act of aggression for purposes of making recommendations or taking enforcement measures against such a state. Nevertheless the author contends that such determination does not preclude the Court from making its own determination for the purpose of assigning criminal responsibility on individuals. The author argues that the Court is an independent, impartial judicial body. It should not be bound by determinations of the Council, a political body that is often guided more by political considerations than by the law and evidence. The author maintains that subjecting the Court's jurisdiction over aggression to Security Council determinations would eviscerate the Court's effectiveness and credibility.

Affiliations: 1: Professor of Law, University of Botswana, Gaborone, Botswana


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