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*
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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