55 Va. J. Int'l L. 791 (2014-2015)
Exempting Humanitarian Intervention from the ICC's Definition of the Crime of Aggression: Ten Procedural Options for 2017

handle is hein.journals/vajint55 and id is 805 raw text is: 









                             I       NOTE            ]



    Exempting Humanitarian Intervention from
          the ICC's Definition of the Crime of

  Aggression: Ten Procedural Options for 2017


                                 Leslie Esbrook*

   At the ICC's first review conference in Kampala in June, 2010, states parties and
 observer nations made significant strides to codify a final piece of the Rome Statute:
 incoiporating the crime of aggression into the Court's jurisdiction. By consensus, the
 delegations passed the Kampala Outcome Document, which provides a definition of the
 crime of aggression, and the delegations agreed to vote on the crime's entry into force after
 Januagy 1, 2017. This paper will detail why the current definition of aggression is
 untenable and why it is in the interest of all nations to consider strategies for limiting the
 definition adopted by the Kampala Outcome Document. The paper focuses on the
 definition's strict interpretation of aggression that does not recognize the possibility for an
 emerging exception to the UN Charter's Article 2(4) prohibition on the use of force
 without Security Council authorization. Part I will describe the historical development of
 the crime of aggression and outline what was agreed upon at the Kampala conference.
 Part II will lay out the most preferred policy option for limiting the definition - a
partial opt-out declaration under Article 15bis(4) - and will respond to concerns that
an opt-out 1) is a reservation prohibited under Article 120, 2) will promote militay
options over diplomatic avenues, and 3) will fracture the Kampala consensus. Part III
will outline nine other procedural strategies for limiting the definition of aggression,
ranking them by their ability to legally bind the Court to a more narrow application of
the crime, as well as their political achievability. The Conclusion suggests that all
nations will be affected by the 2017 decision and advocates for a direct strategy of
deliberation in order to approach 2017 with sufficient preparedness.





   * Many thanks go to Professors Harold Hongju Koh and Oona Hathaway for their help and
support on previous drafts, to TAs Julia Brower and Michael Shih, and to everyone at the
Department of State Office of the Legal Adviser and Department of Justice Office of International
Affairs for their encouragement and background on the crime of aggression.

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