The Crime of Aggression and the United Nations Security Council

Leiden Journal of International Law

Volumn 20, Issue 4, 2007, Pages 867-894

  Blokker, Niels ^a  

^a LEIDEN UNIVERSITY   (Netherlands)

Author keywords

crime of aggression; First Review Conference on the Statute of the International Criminal Court; International Criminal Court; international criminal law; international law of the use of force; UN Security Council; veto power of the permanent members of the UN Security Council

Indexed keywords

EID: 85032070384     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156507004505     Document Type: Article

References (28)

1. Nuremberg Judgment, p. 186,
2. as quoted in UN, Historical Review of Developments Relating to Aggression (2003), at 8.
3. 37 ILM 1002 (1998);
4. 2187 UNTS 90 (hereinafter ICC Statute), preambular para. 4 and Art. 5(1).
5. G. Gaja, ‘The Long Journey towards Repressing Aggression’, in A. Cassese, P. Gaeta, and J. R.W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. 1 (2002), 427, in particular at 427-30.
6. See R. E. Fife, ‘Criminalizing Individuals for Acts of Aggression Committed by States’, in M. Bergsmo (ed.), Human Rights and Criminal Justice for the Downtrodden - Essays in Honour of Asbjørn Eide (2003), 54, at 71: ‘When underlying assessments of international legality of use of armed force are still all too often politicised or perceived as such, establishing institutional mechanisms for attributing individual criminal responsibility in such cases is not obvious.’
7. See inmore detail J. Crawford, ‘The Work of the International Law Commission’, in Cassese et al.
8. For the text of the draft Code and the ILC commentary, see 1996 Yearbook of the International Law Commission, Vol. II (Part 2), at 17–56. 57-60.
9. See 1991 Yearbook of the International Law Commission, Vol. II (Part 2), at 95–6.
10. See 1988 Yearbook of the International Law Commission, Vol. II (Part 2), at 73.
11. As stated in para. 4 of the commentary, ‘[i]ndividual responsibility for such a crime is intrinsically and inextricably linked to the commission of aggression by a State’, and ‘“aggression by a State” is a sine qua non condition for the possible attribution to an individual of responsibility for a crime of aggression’. 1996 Yearbook of the International Law Commission, Vol. II (Part 2), at 43.
12. 1994 Yearbook of the International Law Commission, Vol. I, at 4.
13. See for an analysis of the crime of aggression negotiations during the Rome Conference H. von Hebel and D. Robinson, ‘Crimeswithin the Jurisdiction of the Court’, in R. S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (1999), 79, in particular at 81-5.
14. A. Zimmermann, ‘Article 5’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999), 97 at 105.
15. See S.A. Fernández de Gurmendi, ‘The Working Group on Aggression at the Preparatory Commission for the International Criminal Court’, (2002) 25 Fordham International Law Journal 589, at 599.
16. See UN Doc. PCNICC/2002/2/Add.2, at 3-5. See for an excellent analysis R. S. Clark, ‘Rethinking Aggression as a Crime and Formulating Its Elements: The Final Work-Product of the Preparatory Commission for the International Criminal Court’, (2002) 15 LJIL 859; and
17. Clark, ‘The Crime of Aggression and the International Criminal Court’, in J. Doria, H.-P. Gasser, and M. Cherif Bassiouni (eds.), The Legal Regime of the International Criminal Court: Essays in Honor of Professor Igor Pavlovich Blishchenko (forthcoming).
18. See further G. H. Oosthuizen, ‘Some Preliminary Remarks on the Relationship between the Envisaged International Criminal Court and the UN Security Council’, (1999) 46 Netherlands International Law Review 313;
19. L. Yee, ‘The International Criminal Court and the Security Council: Articles 13(b) and 16’, in Lee,
20. L. Condorelli and S. Villalpando, ‘Referral and Deferral by the Security Council’, in Cassese et al.
21. The first referral was made in UN Doc. S/RES/1593 (the situation in Darfur). The Security Council has twice adopted resolutions (UN Docs. S/RES/1422 and S/RES/1487) that it did not explicitly consider to be invocations of Art. 16 of the Statute, but that it explicitly found to be ‘consistent with the provisions of Article 16 of the Rome Statute’ (operational para. 1 of these resolutions). The adoption by the Security Council of these two resolutions has been severely criticized. See for an analysis Z. Deen-Racsmány, ‘The ICC, Peacekeepers and Resolution 1422:Will the Court Defer to the Council?’, (2002) 49 Netherlands International Law Review 353.
22. R. Higgins, ‘The Place of International Law in the Settlement of Disputes by the Security Council’, (1970) 64 AJIL 1, at 16.
23. See also the analysis by J. Delbrü ck, ‘Art. 24’, in B. Simma (ed.), The Charter of the United Nations (2002), 447.
24. Legal doctrine: see in particular E. Lauterpacht, ‘The Development of the Law of International Organization by the Decisions of International Tribunals’, (1976) 152 RCADI 379, at 460.
25. See for further discussion and references N. M. Blokker, ‘Beyond “Dili”: On the Powers and Practice of International Organizations’, in G. Kreijen (ed.), State, Sovereignty, and International Governance (2002), 299.
26. In its judgment the Court refers to the ‘carefully balanced’ resolutions adopted by the Council in this dispute, and recalls that the Security Council ‘determined the conflict to constitute a threat to the peace, security and stability in the region’ (not an act of aggression). Judgment, paras. 150-2. As Gray has observed, in such cases it is possible for the Court to make its own finding and conclude that aggression has been committed, but ‘in cases involving ongoing armed conflict it is conceivable that such a determination by the Court would be unhelpful to the political settlement process being pursued by the Security Council’. Gray also notes that in the inverse situation, ‘the Court would almost certainly accept as authoritative a determination of aggression by the Security Council, even if it is less likely expressly to acknowledge that the Security Council's power is exclusive’. C. Gray, ‘The Use and Abuse of the International Court of Justice: Cases Concerning the Use of Force after Nicaragua’, (2003) 14 EJIL 867, at 898-9.
27. See P. van Walsum, ‘The Security Council and the Use of Force: The Cases of Kosovo, East Timor and Iraq’, in N. Blokker and N. Schrijver (eds.), The Security Council and the Use of Force: Theory and Reality - A Need for Change? (2005), 65.
28. C. Kress, ‘Versailles - Nuremberg - The Hague: Germany and International Criminal Law’, (2006) 40 The International Lawyer 15, at 38.