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1 Nat'l Sec. & Armed Conflict L. Rev. 1 (2010-2011)

handle is hein.journals/nsarmc1 and id is 1 raw text is: Prosecuting the Crime of Aggression in the International Criminal Court Johan D. van der Vyver* ABSTRACT The crime of aggression was included in the subject-matter jurisdiction of the International Criminal Court (ICC) (Article 5(1)(d) of the ICC Statute), but the competence of the ICC to prosecute aggression was made subject to the adoption of a definition of the crime and of the circumstances under which the ICC could exercise jurisdiction (Article 5(2)). Following years of intensive deliberations, the matter was finally settled by a Review Conference of the International Criminal Court that was held in Kampala, Uganda on May 31 through June 11, 2010. The crime of aggression committed by an individual is based on an act of aggression committed by a State. The definition of an act of aggression approved by general agreement in Kampala simply repeats the provisions of General Assembly Resolution 3314 (XXIX) of December 14, 1974, that was initially designed as a guide for the Security Council when exercising its Chapter VII powers to counteract a threat to the peace, a breach of the peace, or an act of aggression. The crime of aggression was defined in Kampala, again by general agreement, as 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 which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. The crime of aggression thus came to be defined as (a) a leadership crime; (b) flowing forth from an act of aggression; and (c) subject to U.N. Charter constraints. The definition furthermore followed the differentiated approach whereby the means of perpetration and the element of mens rea are not included in the definition but are dealt with separately in other sections of the ICC Statute (Articles 25(3) and 30, respectively). In virtue of the fact that aggression is a leadership crime, perpetration as an accessory (Article 25(3)(c)), attempt to commit the crime (Article 25(3)(d)), and vicarious liability for a crime committed by others (Article 28), will not be feasible in cases of aggression. * I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law; Extraordinary Professor in the Department of Private Law, University of Pretoria.

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