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The Crime of Aggression in the Rome Statute of the International Criminal Court

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The Crime of Aggression in International Criminal Law

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Abstract

Articles 8 bis, 15 bis and 15 ter are novelties in the Rome Statute, and the Statute lays down a special regime for their prospective entry into force and application, after 1 January 2017. This chapter offers a detailed examination of the new substantive and procedural provisions, in the context of the general part of international criminal law, identifies consequential lacunae—especially, in Article 8 bis, and suggests that the effective power of the International Criminal Court to prosecute individuals for the crime of aggression might be significantly limited by realities of international politics. Although the Kampala amendments on the crime of aggression do have an appreciable potential for having a far-reaching impact upon the maintenance of international peace and security, this potential might, in fact, be limited by the Security Council’s authority to defer an investigation or prosecution. The principle of complementarity—and, hence, a more effective criminalisation of aggression within national legal systems (for details, see Chap. 4)—should remain increasingly relevant.

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Notes

  1. 1.

    See ICC Statute, Articles 8 bis, 15 bis and 15 ter.

  2. 2.

    On the legal significance of relevant preceding developments, see supra 1.2. See also Kemp 2010, pp. 73–101, 103–124; Petty 2008, pp. 1–24; Walzer 2007, pp. 635–643.

  3. 3.

    See Amann and Sellers 2002, pp. 381–404; Bolton 2001, pp. 167–180; Brown 1999, pp. 855–891; Edlin 2006, pp. 1–22; Ferencz 2003, pp. 223–246; Fletcher and Ohlin 2006, pp. 428–433; Frank and Yuhan 2003, pp. 519–558; Latore 2002, pp. 159–176; Lietzau 2001, pp. 119–140; Mathias 2005, pp. 173–188; McNerney 2001, pp. 181–191; Schabas 2004, pp. 701–720; Scheffer 1999, pp. 12–22; Wegdwood 2001, pp. 193–214; Zolo 2007, pp. 799–807; Zwanenburg 1999, pp. 124–143.

  4. 4.

    ICC Statute, Article 5(2): “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations”.

  5. 5.

    See Sayapin 2008, at 335. See also Kemp 2010, pp. 189–190.

  6. 6.

    See Safferling 2012, p. 83.

  7. 7.

    Cf. document RC/Res. 6, Annex I, para 2.

  8. 8.

    See, for example, Ferencz 2009, at 281, where the author asserted that the crime had been “adequately defined”.

  9. 9.

    Thus, Matthias Schuster insists that the crime of aggression should be deleted from the Rome Statute, because a “legally sound” definition is impossible. See Schuster 2003, at 1, 2.

  10. 10.

    See Glennon 2010, at 71, 74.

  11. 11.

    Ambos 2010, at 481.

  12. 12.

    For an analysis of the relationship between collective and individual manifestations of aggression, respectively, at the “macro” and “micro” levels, see Ambos 2005, at 671–672; O’Connell and Niyazmatov 2012, pp. 189–207.

  13. 13.

    See Ambos 2010, p. 482. In the context of the quoted passage, the existence of an act of aggression should presumably be determined in accordance with procedures established for the purpose of the ICC Statute.

  14. 14.

    Ibid., p. 483.

  15. 15.

    See Lukashuk 2004, pp. 632–633.

  16. 16.

    See Ambos 2010, p. 469.

  17. 17.

    Cf. document RC/Res. 6, Annex III: “4. It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.

    5. It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State”. On the legal value of the understandings on the crime of aggression, see Kreß et al. 2012, pp. 81–97. See also Heller 2012, pp. 229–248.

  18. 18.

    See Barriga 2012, at 22–23; Kemp 2010, pp. 236–237.

  19. 19.

    For a critical view, see Anderson 2010, pp. 411–451.

  20. 20.

    Cf. ICC Statute, 9th preambular paragraph: “Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole”.

  21. 21.

    See Barriga 2012, at 28–30; Kemp 2010, p. 234; Schüller 2008, pp. 73–81; Petty 2009, pp. 105–150; Werle 2009b, at 414.

  22. 22.

    Cf. document RC/Res. 6, Annex III: “6. It is understood that aggression is the most serious and dangerous form of the illegal use of force; and that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations.

    7. It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself”.

  23. 23.

    Keith A. Petty pointed out, though, that the Special Working Group’s opinion on this matter had not been unanimous, as some delegates had maintained that “any act of aggression [would] inherently [be] a manifest violation of the U.N. Charter”, see Petty 2009, at 110. In the opinion of the “manifest standard” test’s opponents, “[r]equiring an analysis of the magnitude of aggression [would add] an additional and unnecessary layer to the pre-trial determination—not to mention the elements that must be proven at trial. As such, the Prosecutor should consider only whether the listed acts of aggression contained in Article 3 of General Assembly Resolution 3314 […] have occurred”, see idem (footnotes omitted).

  24. 24.

    See Barriga 2012, at 29.

  25. 25.

    Cf. supra note 20.

  26. 26.

    On the nature of modern warfare, see Smith 2005, pp. 267–370.

  27. 27.

    Cf. also Petty 2009, at 108, confirming that “in order for criminal responsibility to attach, the State act in question must be more than a casual violation of the U.N. Charter”.

  28. 28.

    See Elshtain 2001, pp. 1–25; Leclerc-Gagné and Byers 2009, pp. 379–390.

  29. 29.

    See Petty 2009, at 111 (footnotes omitted).

  30. 30.

    See Barriga 2012, at 29–30, Petty 2009, at 108–109.

  31. 31.

    See 2002 Coordinator’s Paper (July), reprinted at Barriga and Kreß 2012, at 412 (Option 1).

  32. 32.

    On implications of differences in the wording of Article 8 bis (2) of the ICC Statute and Article 1 of the 1974 Definition of Aggression, see Barriga 2012, at 25–28. See also Kemp 2010, pp. 218–222; Werle 2009b, at 413–414.

  33. 33.

    See Sayapin 2008, p. 349.

  34. 34.

    Article 2(1) common to all Geneva Conventions of 1949 reads: “[…] the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them” (emphasis added).

  35. 35.

    According to the Commentary to the First Geneva Convention of 1949, “[a]ny difference arising between two States and leading to the intervention of armed forces is an armed conflict […] even if one of the Parties denies the existence of a state of war […]”. See Pictet 1952, p. 32.

  36. 36.

    See Sayapin 2008, pp. 346–347.

  37. 37.

    See document ICC-ASP/6/SWGCA/INF.1 (25 July 2007), para 46.

  38. 38.

    See ibid.

  39. 39.

    Cf. Link 1998, p. 120; Chauprade 2003, p. 767.

  40. 40.

    Cf. Kemp 2010, pp. 235–236.

  41. 41.

    Cf. Article 42 of the 1907 Hague Regulations.

  42. 42.

    On the principle, see Lukashuk 2008, pp. 314–316; Kolosov and Kuznetsov 1998, pp. 38–39.

  43. 43.

    Additional Protocol I, Article 49 (“Definition of attacks and scope of application”): “1. “Attacks” means acts of violence against the adversary, whether in offence or in defence.

    2. The provisions of this Protocol with respect to attacks apply to all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict but under the control of an adverse Party.

    3. The provisions of this section apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air.

    4. The provisions of this section are additional to the rules concerning humanitarian protection contained in the Fourth Convention, particularly in part II thereof, and in other international agreements binding upon the High Contracting Parties, as well as to other rules of international law relating to the protection of civilians and civilian objects on land, at sea or in the air against the effects of hostilities”.

  44. 44.

    Ibid., Article 43 (“Armed forces”): “1. The armed forces of a Party to a conflict consist of all organised armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

    2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

    3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict”.

  45. 45.

    See David 2011, pp. 268–350.

  46. 46.

    Ibid., pp. 352–429.

  47. 47.

    See Lukashuk 2008, p. 25.

  48. 48.

    Cf. the 1982 United Nations Convention on the Law of the Sea, Article 11 (“Ports”): “For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system are regarded as forming part of the coast. Off-shore installations and artificial islands shall not be considered as permanent harbour works”.

  49. 49.

    Cf. ibid., Article 2 (“Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil”): “1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.

    2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.

    3. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law”.

  50. 50.

    Cf. ibid., Article 8(1) (“Internal waters”): “Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State”.

  51. 51.

    See Lukashuk 2008, p. 405.

  52. 52.

    See UN Charter, Article 2(2): “All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter”. The 1970 Friendly Relations Declaration elaborates upon this provision as follows: “Every State has the duty to fulfil in good faith the obligations assumed by it in accordance with the Charter of the United Nations.

    Every State has the duty to fulfil in good faith its obligations under the generally recognized principles and rules of international law.

    Every State has the duty to fulfil in good faith its obligations under international agreements valid under the generally recognized principles and rules of international law.

    Where obligations arising under international agreements are in conflict with the obligations of Members of the United Nations under the Charter of the United Nations, the obligations under the Charter shall prevail”.

  53. 53.

    See, for example, Svinarev 2000, at 194.

  54. 54.

    Ibid., pp. 195–196.

  55. 55.

    Ibid., pp. 204–206.

  56. 56.

    See Cameron 2006, pp. 573–598; Cockayne 2006, pp. 459–490; Cottier 2006, pp. 637–663; Gillard 2006, pp. 525–572; Mongelard 2006, pp. 665–691; Perrin 2006, pp. 613–635.

  57. 57.

    Cf. Additional Protocol I, Article 47 (“Mercenaries”), and Article 1 of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, of 4 December 1989. It appears that the complex and cumulative character of these definitions would not allow to qualify almost anyone as a mercenary, cf. Best 1994, p. 350. See also Fallah 2006, pp. 599–611.

  58. 58.

    The so-called “Montreux Document”—jointly initiated by the Swiss Government and the ICRC—is devoted to promoting respect for IHL and human rights law in situations where private military and security companies operate in situations of armed conflicts. It deals, inter alia, with some aspects of such companies’ legal status under applicable international law. For text, see: http://www.icrc.org/eng/resources/documents/publication/p0996.htm (last accessed 15 November 2012).

  59. 59.

    Cf. 2001 Articles on Responsibility of States for Internationally Wrongful Acts, Article 5 (“Conduct of persons or entities exercising elements of governmental authority”): “The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance”.

  60. 60.

    Ibid., Article 7 (“Excess of authority or contravention of instructions”): “The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions”.

  61. 61.

    Ibid., Article 8 (“Conduct directed or controlled by a State”): “The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct”.

  62. 62.

    See Draft articles on Responsibility of States for Internationally Wrongful Acts with commentaries 2001, p. 42.

  63. 63.

    Ibid., p. 43.

  64. 64.

    Ibid. It is known that private military and security companies are treated jointly for the purpose of the “Montreux process”.

  65. 65.

    Ibid.

  66. 66.

    On the “open”, “closed” or “in-between” character of the list contained in Article 8 bis (2), see Barriga 2012, at 28, including relevant footnotes.

  67. 67.

    See Creegan 2012, pp. 59–82; Leclerc-Gagné and Byers 2009, pp. 379–390.

  68. 68.

    See Adhami 2007, pp. 857–878; Lovely 2011, pp. 155–161; Schmitt 2002, pp. 365–399.

  69. 69.

    For a critical view, see Drumbl 2009, pp. 291–319.

  70. 70.

    Cf. document RC/Res. 6, 6th preambular paragraph.

  71. 71.

    Ibid., para 1. See also Clark 2009, pp. 413–427.

  72. 72.

    Cf. Barriga 2012, at 39–41.

  73. 73.

    Cf. ICC Statute, Articles 15 bis (2), 15 ter (2).

  74. 74.

    See UNTC, Chapter XVIII (“Penal matters”, section 10.b (“Amendments on the crime of aggression to the Rome Statute of the International Criminal Court”), available at: http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-b&chapter=18&lang=en (last accessed 26 September 2013).

  75. 75.

    Cf. ICC Statute, Article 126(1).

  76. 76.

    ICC Statute, Article 15 bis (4).

  77. 77.

    C. Safferling singled out six general purposes of international criminal prosecutions, which, it appears, would also be relevant in the context of trials with respect to alleged crimes of aggression: unfolding the truth about the crimes; identifying and punishing the persons responsible for these crimes; preventing future crimes; reinstating the dignity of victims; rehabilitating and compensating the victims; promoting reconciliation. See Safferling 2012, p. 77.

  78. 78.

    See generally Ambos 2006, pp. 660–673; Bogush 2009, pp. 78–94.

  79. 79.

    See ICCPR, Article 15(1), first sentence: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed”; ECHR, Article 7(1): “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed”; ACHR, Article 9, first sentence: “No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed”; ACHPR, Article 7(2), first sentence: “No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed”.

  80. 80.

    See Hauck 2008, pp. 58–65; Kibalnik 2003, pp. 91–110; Kielsgard 2012, pp. 119–136; Lamb 2002, at 733–734; Milanovic 2012, pp. 165–187; Safferling 2012, p. 83; Von Feuerbach 2007, pp. 1005–1008.

  81. 81.

    See Lamb 2002, at 734.

  82. 82.

    Ibid., at 740.

  83. 83.

    See ICCPR, Article 15(1), second and third sentences: “Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby”; ECHR, Article 7(1), second sentence: “Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”; ACHR, Article 9, second and third sentences: “A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom”; ACHPR, Article 7(2), second sentence: “No penalty may be inflicted for an offence for which no provision was made at the time it was committed”.

  84. 84.

    See ICCPR, Article 4(2); ECHR, Article 15(2); ACHR, Article 27(2). The African Charter on Human and Peoples’ Rights does not contain any provisions with respect to derogation.

  85. 85.

    See Lamb 2002, at 756. See also Schabas 2000, pp. 521–539.

  86. 86.

    See ICC Statute, Article 80 (“Non-prejudice to national application of penalties and national laws”): “Nothing in this Part affects the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part”. See also Carcano 2002, pp. 583–609; Henham 2003, pp. 81–114; Rosenfeld 2012, pp. 249–265.

  87. 87.

    See ICC Rules of Procedure and Evidence, document ICC-ASP/1/3, Rule 146 (“Imposition of fines under article 77”): “1. In determining whether to order a fine under article 77, paragraph 2 (a), and in fixing the amount of the fine, the Court shall determine whether imprisonment is a sufficient penalty. The Court shall give due consideration to the financial capacity of the convicted person, including any orders for forfeiture in accordance with article 77, paragraph 2 (b), and, as appropriate, any orders for reparation in accordance with article 75. The Court shall take into account, in addition to the factors referred to in rule 145, whether and to what degree the crime was motivated by personal financial gain.

    2. A fine imposed under article 77, paragraph 2 (a), shall be set at an appropriate level. To this end, the Court shall, in addition to the factors referred to above, in particular take into consideration the damage and injuries caused as well as the proportionate gains derived from the crime by the perpetrator. Under no

    circumstances may the total amount exceed 75 per cent of the value of the convicted person’s identifiable assets, liquid or realizable, and property, after deduction of an appropriate amount that would satisfy the financial needs of the convicted person and his or her dependants.

    3. In imposing a fine, the Court shall allow the convicted person a reasonable period in which to pay the fine. The Court may provide for payment of a lump sum or by way of instalments during that period.

    4. In imposing a fine, the Court may, as an option, calculate it according to a system of daily fines. In such cases, the minimum duration shall be 30 days and the maximum duration five years. The Court shall decide the total amount in accordance with sub-rules 1 and 2. It shall determine the amount of daily payment in the light of the individual circumstances of the convicted person, including the financial needs of his or her dependants.

    5. If the convicted person does not pay the fine imposed in accordance with the conditions set above, appropriate measures may be taken by the Court pursuant to rules 217–222 and in accordance with article 109. Where, in cases of continued wilful non-payment, the Presidency, on its own motion or at the request of the Prosecutor, is satisfied that all available enforcement measures have been exhausted, it may as a last resort extend the term of imprisonment for a period not to exceed a quarter of such term or five years, whichever is less. In the determination of such period of extension, the Presidency shall take into account the amount of the fine, imposed and paid. Any such extension shall not apply in the case of life imprisonment. The extension may not lead to a total period of imprisonment in excess of 30 years.

    6. In order to determine whether to order an extension and the period involved, the Presidency shall sit in camera for the purpose of obtaining the views of the sentenced person and the Prosecutor. The sentenced person shall have the right to be assisted by counsel.

    7. In imposing a fine, the Court shall warn the convicted person that failure to pay the fine in accordance with the conditions set out above may result in an extension of the period of imprisonment as described in this rule”.

  88. 88.

    Ibid., Rule 223 (“Criteria for review concerning reduction of sentence”): “In reviewing the question of reduction of sentence pursuant to article 110, paragraphs 3 and 5, the three judges of the Appeals Chamber shall take into account the criteria listed in article 110, paragraph 4 (a) and (b), and the following criteria:

    (a) The conduct of the sentenced person while in detention, which shows a genuine dissociation from his or her crime;

    (b) The prospect of the resocialization and successful resettlement of the sentenced person;

    (c) Whether the early release of the sentenced person would give rise to significant social instability;

    (d) Any significant action taken by the sentenced person for the benefit of the victims as well as any impact on the victims and their families as a result of the early release;

    (e) Individual circumstances of the sentenced person, including a worsening state of physical or mental health or advanced age”.

  89. 89.

    Notably, defendants Schacht and Von Papen who had been charged by the Nuremberg Tribunal with crimes against peace but not also with other crimes within the Tribunal’s jurisdiction were acquitted. See International Military Tribunal (Nuremberg), Judgment of 1 October 1946, pp. 504–507 and 517–519.

  90. 90.

    See also Degan 2005, pp. 45–83; Zimmermann 2012, pp. 209–227.

  91. 91.

    See Juratowitch 2005, pp. 337–362; Kibalnik 2003, pp. 135–151; Safferling 2012, pp. 83–84; Zelinskaya and Dryomina-Volok 2010, pp. 189–209.

  92. 92.

    See Cryer 2001, pp. 3–31; Eser 2002, at 768; Kibalnik 2003, pp. 65–91; Posner and Sykes 2007, pp. 1–63; Spinedi 2002, pp. 895–899; Werle 2007, pp. 953–975; Wilmshurst 2004, pp. 93–96.

  93. 93.

    Cf. the ICTY Statute, Article 6 (“Personal jurisdiction”): “The International Tribunal shall have jurisdiction over natural persons pursuant to the provisions of the present Statute”, and Article 7 (“Individual criminal responsibility”): “1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

    2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

    3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

    4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires”.

  94. 94.

    Cf. the ICTR Statute, Article 5 (“Personal jurisdiction”): “The International Tribunal for Rwanda shall have jurisdiction over natural persons pursuant to the provisions of the present Statute”, and Article 6 (“Individual Criminal Responsibility”): “1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible for the crime.

    2. The official position of any accused person, whether as Head of state or government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

    3. The fact that any of the acts referred to in Articles 2–4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

    4. The fact that an accused person acted pursuant to an order of a government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal for Rwanda determines that justice so requires”.

  95. 95.

    See Werle 2009a, pp. 165–185.

  96. 96.

    See Eser 2002, at 769–770.

  97. 97.

    See Chouliaras 2010, pp. 191–214; Engelhart 2010, pp. 175–190; Van den Herik 2010, pp. 155–173.

  98. 98.

    See Ambos 2007, pp. 159–183; Ohlin 2007, Van der Wilt 2007, pp. 91–108; Werle 2009a, pp. 174–175.

  99. 99.

    Cf. Article 19 of the Charter of the Nuremberg Tribunal: “The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to be of probative value”, and Article 13(a) of the Charter of the Tokyo Tribunal: “[…] The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which it deems to have probative value. All purported admissions or statements of the accused are admissible”.

  100. 100.

    On individual criminal responsibility, see, for example, Militello 2007, pp. 941–952.

  101. 101.

    Cf. ICC Statute, Article 25(3): “3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

    (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

    (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

    (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

    (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

    (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

    (ii) Be made in the knowledge of the intention of the group to commit the crime […]”.

  102. 102.

    See Barriga 2012, at 20–22; Burghardt 2010, pp. 81–94; Cassese 2008, pp. 214–232; Eser 2002, pp. 781–807; Werle 2009a, pp. 176–185.

  103. 103.

    Cf. ICC Statute, Article 25(3) bis: “In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State”, see document RC/Res.6, Annex I, para 5.

  104. 104.

    See Anggadi et al. 2012, at 67. See also footnote 178 below.

  105. 105.

    See Anggadi et al. 2012, at 67.

  106. 106.

    It is understood accordingly that individuals who would initiate or execute a crime of aggression would almost certainly also be responsible for its planning or preparation; however, not all individuals participating at the planning and preparation stages would also be involved in the initiation or execution of the crime. See supra 4.3.

  107. 107.

    On attempt, see Ambos 1999, at 488–489; Werle 2009a, pp. 230–231 (including bibliographical references).

  108. 108.

    On individual attempt specifically in the context of the crime of aggression, see Barriga 2012, at 23–24.

  109. 109.

    See Safferling 2012, p. 84.

  110. 110.

    See the UN Convention on the Rights of the Child, Article 1: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”.

  111. 111.

    The reservation “relatively irrelevant” relates to Article 98(1) of the ICC Statute (“Cooperation with respect to waiver of immunity and consent to surrender”) limiting the field of application of Article 27, which otherwise would have been quite absolute for the purpose of the Statute: “The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity” (emphasis added).

  112. 112.

    See David 2009, p. 676.

  113. 113.

    On the criminal responsibility of commanders and other superiors, see Arnold 2002, pp. 191–231; Bantekas 1999, pp. 573–595; Bing 2004, pp. 1–42; Bonafé 2007, pp. 599–618; Martinez 2007, pp. 638–664; Meloni 2007, pp. 619–637; Nerlich 2007, pp. 665–682; Weigend 2010, pp. 67–80.

  114. 114.

    On the criminal responsibility of commanders and other superiors specifically in the context of the crime of aggression, see Barriga 2012, at 19–20.

  115. 115.

    See ICC Statute, Article 28: “In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

    (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

    (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

    (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

    (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

    (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

    (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and

    (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution”.

  116. 116.

    See generally Kok 2007. See also Miller 1971, pp. 476–501.

  117. 117.

    Notably, quite many national criminal laws contain provisions on the non-applicability of statutes of limitation to the crime of aggression, which might be evident of the existence of a customary rule of international law to the effect. See, for example, the Criminal Codes of Armenia (Article 75(6)), Azerbaijan (Article 80(4)), Bosnia and Herzegovina (Article 20), Georgia (Article 76(4)), Kazakhstan (Article 69(6)), Macedonia (Article 112), Mongolia (Article 70(6)), Romania (Article 146(2)), the Russian Federation (Article 78(5)), Tajikistan (Article 75(6)), Turkey (Article 66(7)), Ukraine (Article 49(5)), and Uzbekistan (Article 64(7)).

  118. 118.

    See ICC Statute, Article 12(2) (“Preconditions to the exercise of jurisdiction”): “In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

    (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

    (b) The State of which the person accused of the crime is a national”.

  119. 119.

    On the mental element, see Kemp 2010, p. 235; Piragoff 1999, pp. 527–535; Werle 2009a, pp. 146–165 (including bibliographical references).

  120. 120.

    See ICC Statute, Article 31: “1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct:

    (a) The person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law;

    (b) The person is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court;

    (c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph;

    (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be:

    (i) Made by other persons; or

    (ii) Constituted by other circumstances beyond that person’s control.

    2. The Court shall determine the applicability of the grounds for excluding criminal responsibility provided for in this Statute to the case before it.

    3. At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21. The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence”. See Creegan 2012, pp. 59–82; O’Donovan 2007, pp. 507–530.

  121. 121.

    On mental disease or defect, see Krug 2000, pp. 317–335.

  122. 122.

    In this context, the words “another person” may be taken to denote the civilian population of a State defending itself against an “imminent and unlawful” armed attack by another State (cf. supra 2.4.1.1). See also DeNicola 2008, pp. 641–689.

  123. 123.

    On self-defence or defence of others, see Eser 1999, at 548–550; Werle 2009a, pp. 199–203 (including bibliographical references).

  124. 124.

    On duress, see Eser 1999, at 550–552; Werle 2009a, pp. 203–209 (including bibliographical references).

  125. 125.

    On intoxication, see Eser 1999, at 546–548; Werle 2009a, pp. 221–224 (including bibliographical references).

  126. 126.

    On other grounds for excluding criminal responsibility, see Eser 1999, at 553–554; Inogamova-Hegay 2003, pp. 160–165; Werle 2009a, pp. 224–227 (including bibliographical references); Yee 2004, pp. 87–134.

  127. 127.

    ICC Rules of Procedure and Evidence, supra note 87, see in particular Rules 121(9) (“Proceedings before the confirmation hearing”) and 145(2)(a)(i) (“Determination of sentence“).

  128. 128.

    On mistakes of fact and law, see Werle 2009a, pp. 209–213 (including bibliographical references).

  129. 129.

    Ibid., p. 211.

  130. 130.

    Ibid., p. 212 (footnotes omitted).

  131. 131.

    On superior orders and prescription of law, see Gaeta 1999, pp. 172–191; generally Green 1976.

  132. 132.

    On superior orders and prescription of law specifically in the context of the crime of aggression see Barriga 2012, at 19–20.

  133. 133.

    It is understood that the actual investigations and prosecutions as well as the enforcement of sentences should be carried out in accordance with relevant provisions of the Rome Statute, see especially Parts V–X of the Statute.

  134. 134.

    On the principle of complementarity, see Kemp 2010, pp. 187–188; Lijun 2005, pp. 121–132; Safferling 2012, pp. 95–108; Van Schaak 2012, pp. 133–164.

  135. 135.

    Cf. ICC Statute, Article 1 (“The Court”): “An International Criminal Court (‘the Court’) is hereby established. It […] shall be complementary to national criminal jurisdictions […]”.

  136. 136.

    See document Resolution RC/Res.1 (8 June 2010).

  137. 137.

    Cf. ICC Statute, Article 17 (“Issues of admissibility”): “1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

    (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

    (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

    (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

    (d) The case is not of sufficient gravity to justify further action by the Court.

    2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:

    (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;

    (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

    (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

    3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings”.

  138. 138.

    Cf. supra note 116.

  139. 139.

    On mechanisms triggering the ICC jurisdiction with respect to the crime of aggression, see Barriga 2012, at 31–32. Specifically on the role of the ICC Prosecutor, see generally Safferling 2012, pp. 147–157, 251–285, 350–357.

  140. 140.

    ICC Statute, Article 13 (“Exercise of jurisdiction”): “The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:

    (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;

    […] or

    (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15”.

  141. 141.

    Ibid., Article 14 (“Referral of a situation by a State Party”): “1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

    2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation”. On Article 14, see Kirsch and Robynson 2002a, b, pp. 619–625.

  142. 142.

    ICC Statute, Article 15 (“Prosecutor”): “1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.

    2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.

    3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.

    4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorise the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

    5. The refusal of the Pre-Trial Chamber to authorise the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation.

    6. If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence”. On Article 15, see Kirsch and Robinson 2002b, pp. 657–664.

  143. 143.

    On the general rules for triggering the ICC jurisdiction, see Safferling 2012, pp. 86–91.

  144. 144.

    Cf. document RC/Res. 6, Annex III: “3. It is understood that in case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction only with respect to crimes of aggression committed after a decision in accordance with article 15 bis, para 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later” (emphasis added).

  145. 145.

    In accordance with para 1 of Resolution 6 adopted by the First Review Conference, the States Parties to the Rome Statute are meant to ratify or accept the amendments to the Rome Statute contained in Articles 8 bis, 15 bis and 15 ter as a package (cf. supra note 71). The material (Article 8 bis) and procedural (Articles 15 bis and 15 ter) amendments to the Statute would thus become binding upon such State Parties simultaneously.

  146. 146.

    This rule would not apply to Security Council referrals in accordance with Article 13 (b) and subject to the provisions of Article 15 ter of the Statute. See infra 5.3.3. See Akande 2003, pp. 618–650.

  147. 147.

    See UNTC, Chapter XVIII (“Penal matters”, section 10.b (“Amendments on the crime of aggression to the Rome Statute of the International Criminal Court”), available at: http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-b&chapter=18&lang=en (last accessed 26 September 2013).

  148. 148.

    ICC Statute, Article 121(3) (“Amendments”): “The adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties”. On Article 121(3), see Clark 1999, at 1268.

  149. 149.

    Cf. Safferling 2012, p. 91.

  150. 150.

    Ibid., Article 124 (“Transitional provision”): “Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1”. On Article 124, see Zimmermann 1999, pp. 1281–1285.

  151. 151.

    The First Review Conference decided “to retain article 124 in its current form”. See paragraph 6 of document RC/Res. 4 (10 June 2010). This decision is provisional and should, in accordance with paragraph 7 of the same Resolution, be revised at the fourteenth session of the Assembly of States Parties to the Rome Statute.

  152. 152.

    This would not apply to Security Council referrals in accordance with Article 13 (b) and subject to the provisions of Article 15 ter of the Statute. See infra 5.3.3.

  153. 153.

    ICC Statute, Article 12 (“Preconditions to the exercise of jurisdiction”): “1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.

    2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

    (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

    (b) The State of which the person accused of the crime is a national.

    3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9”.

  154. 154.

    Cf. Safferling 2012, p. 92.

  155. 155.

    See generally Akande 2003, pp. 618–650; Deen-Racsmany 2001, Van Syumey 2009, pp. 511–521.

  156. 156.

    See Danner 2003, pp. 510–552; Safferling 2012, pp. 219–228.

  157. 157.

    Cf. Safferling 2012, p. 92.

  158. 158.

    On the role of the Pre-Trial Chamber, see Safferling 2012, pp. 137–142, 236–239.

  159. 159.

    See Barriga 2012, at 32–33; Blokker 2007, pp. 867–894; Escarameia 2004, pp. 133–143; Gaja 2004, pp. 121–124; Kemp 2010, pp. 225–227; Lehto 2004, pp. 145–149; Stein 2005, pp. 1–36; Yengejeh 2004, pp. 125–132.

  160. 160.

    Cf. Safferling 2012, p. 92.

  161. 161.

    It is supposed that relevant details are to be found in Article 53 (“Initiation of an investigation”) of the Rome Statute: “1. The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

    (a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

    (b) The case is or would be admissible under article 17; and

    (c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

    If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.

    2. If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because:

    (a) There is not a sufficient legal or factual basis to seek a warrant or summons under article 58;

    (b) The case is inadmissible under article 17; or

    (c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime; the Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under article 14 or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion.

    3. (a) At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.

    (b) In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

    4. The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information”. On Article 53, see Bergsmo and Kruger 1999, pp. 701–714.

  162. 162.

    Cf. Safferling 2012, p. 92. See also Kemp 2010, pp. 227–231.

  163. 163.

    See Barriga 2012, at 30–31. However, as was discussed above at 5.3.2.6–5.3.2.8, the Security Council is capable of exercising both direct and indirect influence upon the ICC proceedings relating to the crime of aggression, and hence the ICC’s autonomy must be regarded as relative.

  164. 164.

    See Barriga 2012, at 33.

  165. 165.

    Cf. supra note 145 for a note on the entry of Article 15 ter into force.

  166. 166.

    See ICC Statute, Article 13 (“Exercise of jurisdiction”): “The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: […](b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; […]” On Article 13(b), see Safferling 2012, pp. 88–90; Williams 1999, at 350.

  167. 167.

    On this “less complicated procedure“ of triggering the ICC jurisdiction with respect to the crime of aggression, cf. Safferling 2012, p. 92.

  168. 168.

    Cf. document RC/Res. 6, Annex III: “2. It is understood that the Court shall exercise jurisdiction over the crime of aggression on the basis of a Security Council referral in accordance with article 13, paragraph (b), of the Statute irrespective of whether the State concerned has accepted the Court’s jurisdiction in this regard”.

  169. 169.

    Cf. Article 24(1) of the UN Charter: “In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf” (emphasis added).

  170. 170.

    On the Elements of the crime of aggression, see Anggadi et al. 2012, pp. 58–80. Since it was theoretically possible that the ICC jurisdiction with respect to the crime of aggression might have been activated right after the adoption of relevant amendments to the Rome Statute, having Elements of the crime of aggression adopted together with those amendments was considered useful. See Anggadi et al. 2012, at 59.

  171. 171.

    ICC Statute, Article 9 (“Elements of crimes”), as amended by para 6 of Resolution 6 of the First Review Conference: “1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7, 8 and 8 bis. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.

    2. Amendments to the Elements of Crimes may be proposed by:

    (a) Any State Party;

    (b) The judges acting by an absolute majority;

    (c) The Prosecutor.

    Such amendments shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.

    3. The Elements of Crimes and amendments thereto shall be consistent with this Statute”. On the Elements of crimes, see Pellet 2002, at 1059–1062.

  172. 172.

    The text of the Elements of crimes is available at: http://www.icc-cpi.int/Menus/ICC/Legal+Texts+and+Tools/Official+Journal/Elements+of+Crimes.htm (last accessed 15 November 2012).

  173. 173.

    On the Introduction to the Elements of the crime of aggression, see Anggadi et al. 2012, at 77–79.

  174. 174.

    On the reflection of a State act of aggression in the Elements of a crime of aggression, see Anggadi et al. 2012, at 68–71.

  175. 175.

    On the reflection of individual conduct in the Elements of the crime of aggression, see Anggadi et al. 2012, at 64–66.

  176. 176.

    A footnote to this paragraph reads as follows: “With respect to an act of aggression, more than one person may be in a position that meets these criteria”.

  177. 177.

    On the leadership requirement in the Elements of the crime of aggression, see Anggadi et al. 2012, at 66–68. See also Werle 2009b, at 414.

  178. 178.

    On the reflection of the mental element in the Elements of the crime of aggression, see Anggadi et al. 2012, at 71–75.

  179. 179.

    On the material and mental elements of the threshold requirement, see Anggadi et al. 2012, at 75–77. See also Kemp 2010, p. 237.

  180. 180.

    On the context of organised violence, see Werle 2009a, p. 141.

References

  • Adhami W (2007) The strategic importance of the Internet for armed insurgent groups in modern warfare. IRRC 89:857–878

    Google Scholar 

  • Akande D (2003) The jurisdiction of the International Criminal Court over nationals of non-parties: legal basis and limits. JICJ 1:618–650

    Google Scholar 

  • Amann DM, Sellers MNS (2002) The United States of America and the International Criminal Court. AJCL 50:381–404

    Google Scholar 

  • Ambos K (1999) Article 25: Individual criminal responsibility. In: Triffterer O (ed.) Commentary on the Rome statute of the International Criminal Court: observers’ notes, article by article, Nomos Verlagsgesellschaft, pp 475–492

    Google Scholar 

  • Ambos K (2005) Strafrecht und Krieg: strafbare Beteiligung der Bundesregierung am Irak-Krieg? In: Arnold J et al. (eds.) Menschengerechtes Strafrecht: Festschrift für Albin Eser, pp 671-690

    Google Scholar 

  • Ambos K (2006) Remarks on the general part of international criminal law. JICJ 4:660–673

    Google Scholar 

  • Ambos K (2007) Joint criminal enterprise and command responsibility. JICJ 5:159–183

    Google Scholar 

  • Ambos K (2010) The crime of aggression after Kampala. German YIL 53:463–509

    Google Scholar 

  • Anderson M (2010) Reconceptualizing aggression. Duke LJ 60:411–451

    Google Scholar 

  • Anggadi F, French G, Potter J (2012) Negotiating the elements of the crime of aggression. In: Barriga S, Kreß C (eds.) The travaux préparatoires of the crime of aggression, Cambridge University Press, Cambridge, pp 58–80

    Google Scholar 

  • Arnold R (2002) Command responsibility: a case study of alleged violations of the laws of war at Khiam detention centre. JCSL 7:191–231

    Google Scholar 

  • Bantekas I (1999) The contemporary law of superior responsibility. AJIL 93:573–595

    Google Scholar 

  • Barriga S (2012) Negotiating the amendments on the crime of aggression. In: Barriga S, Kreß C (eds.) The travaux préparatoires of the crime of aggression, Cambridge University Press, Cambridge, pp 3–80

    Google Scholar 

  • Bergsmo M, Kruger P (1999) Article 53: Initiation of an investigation. In: Triffterer O (ed.) Commentary on the Rome Statute of the International Criminal Court: observers’ Notes, Article by Article, Nomos Verlagsgesellschaft, pp 701–714

    Google Scholar 

  • Best G (1994) War and law since 1945. Clarendon Press, Oxford

    Google Scholar 

  • Bing JB (2004) The doctrine of command responsibility revisited. Chinese JIL 3:1–42

    Google Scholar 

  • Blokker N (2007) The crime of aggression and the United Nations Security council. Leiden JIL 20:867–894

    Google Scholar 

  • Bogush GI (2009) Obshchie printsipy ugolovnogo prava v Rimskom statute Mejdunarodnogo ugolovnogo suda. [“The General Principles of Criminal Law in the Rome Statute of the International Criminal Court”]. In: Bogush GI, Trikoz EN (eds.) Mejdunarodnoe ugolovnoe pravosudie: sovremennye problemy [International Criminal Justice: Contemporary Issues], Moscow, pp 78–94

    Google Scholar 

  • Bolton JR (2001) The risks and weaknesses of the International Criminal Court from America’s perspective. LCP 64:167–180

    Google Scholar 

  • Bonafé BE (2007) Finding a proper role for command responsibility. JICJ 5:599–618

    Google Scholar 

  • Brown BS (1999) U.S. objections to the statute of the International Criminal Court: a brief response. ILP 31:855–891

    Google Scholar 

  • Burghardt B (2010) Modes of participation and their role in a general concept of crimes under international law. In: Burchard C, Triffterer O, Vogel J (eds.) The review conference and the future of the International Criminal Court: proceedings of the First AIDP symposium for young penalists in Tübingen, Germany, co-organized by the AIDP YP Committee, Wolters Kluwer Law & Business, Carl Heymanns Verlag, pp 81–94

    Google Scholar 

  • Cameron L (2006) Private military companies: their status under international humanitarian law and its impact on their regulation. IRRC 88:573–598

    Google Scholar 

  • Carcano A (2002) Sentencing and the gravity of the offence in international criminal law. ICLQ 51:583–609

    Google Scholar 

  • Cassese A (2008) International criminal law, 2nd edn. Oxford University Press, Oxford

    Google Scholar 

  • Chauprade A (2003) Géopolitique: constantes et changements dans l’histoire. Ellipses, Paris

    Google Scholar 

  • Chouliaras A (2010) State Crime and individual criminal responsibility: theoretical inquiries and practical consequences. In: Burchard C, Triffterer O, Vogel J (eds.) The review conference and the future of the International Criminal Court: proceedings of the First AIDP symposium for young penalists in Tübingen, Germany, co-organized by the AIDP YP Committee, Wolters Kluwer Law & Business, Carl Heymanns Verlag, pp 191–214

    Google Scholar 

  • Clark RS (1999) “Article 121: Amendments”. In: Triffterer O (ed.) Commentary on the Rome Statute of the International Criminal Court: observers’ notes, article by article, Nomos Verlagsgesellschaft, pp 1265–1271

    Google Scholar 

  • Clark RS (2009) Ambiguities in articles 5(2), 121 and 123 of the Rome Statute. Case Western Res JIL 41:413–427

    Google Scholar 

  • Cockayne J (2006) The global reorganization of legitimate violence: military entrepreneurs and the private face of international humanitarian law. IRRC 88:459–490

    Google Scholar 

  • Cottier M (2006) Elements for contracting and regulating private security and military companies. IRRC 88:637–663

    Google Scholar 

  • Creegan E (2012) Justified uses of force and the crime of aggression. JICJ 10:59–82

    Google Scholar 

  • Cryer R (2001) The boundaries of liability in international criminal law, or ‘selectivity by stealth’. JCSL 6:3–31

    Google Scholar 

  • Danner AM (2003) Enhancing the legitimacy and accountability of prosecutorial discretion at the International Criminal Court. AJIL 97:510–552

    Google Scholar 

  • David É (2009) Éléments de droit pénal international et européen. Bruylant

    Google Scholar 

  • David E (2011) Printsipy prava voorujennyh konfliktov [Principles of the Law of Armed Conflicts], 2nd edn. Moscow, ICRC

    Google Scholar 

  • Degan VD (2005) On the sources of international criminal law. Chinese JIL 4:45–83

    Google Scholar 

  • Deen-Racsmany Z (2001) The nationality of the offender and the jurisdiction of the International Criminal Court. AJIL 9:606–623

    Google Scholar 

  • DeNicola CP (2008) A shield for the “Knights of Humanity”: the ICC should adopt a humanitarian necessity defence to the crime of aggression. UPJIL 30:641–689

    Google Scholar 

  • Draft articles on Responsibility of States for Internationally Wrongful Acts with commentaries (2001) Yearbook of the International Law Commission, vol II (Part Two)

    Google Scholar 

  • Drumbl MA (2009) A push to criminalize aggression: something lost amid the gains? Case Western Reserve JIL 41:291–319

    Google Scholar 

  • Edlin DE (2006) The anxiety of sovereignty: Britain, the United States and the International Criminal Court. BCICLR 29:1–22

    Google Scholar 

  • Elshtain JB (2001) The third annual Grotius lecture: just war and humanitarian intervention. Am Univ Int Law Rev 17:1–25

    Google Scholar 

  • Engelhart M (2010) International criminal responsibility of corporations. In: Burchard C, Triffterer O, Vogel J (eds.) The review conference and the future of the International Criminal Court: Proceedings of the First AIDP symposium for young penalists in Tübingen, Germany, co-organized by the AIDP YP Committee, Wolters Kluwer Law & Business, Carl Heymanns Verlag, pp 175–190

    Google Scholar 

  • Escarameia P (2004) The ICC and the Security Council on aggression: overlapping competencies? In: Politi M, Nesi G (eds.) The International Criminal Court and the crime of aggression. Ashgate Publishing Limited, pp 133–143

    Google Scholar 

  • Eser A (1999) Article 31: grounds for excluding criminal responsibility. In: Triffterer O (ed.) Commentary on the Rome statute of the International Criminal Court: Observers’ Notes, article by Article, Nomos Verlagsgesellschaft, pp 537–554

    Google Scholar 

  • Eser A (2002) Individual criminal responsibility. In: Cassese A, Gaeta P, Jones JRWD (eds.) The Rome statute of the International Criminal Court: a commentary. Oxford University Press, Oxford vol I, pp 767–822

    Google Scholar 

  • Fallah K (2006) Corporate actors: the legal status of mercenaries in armed conflict. IRRC 88:599–611

    Google Scholar 

  • Ferencz BB (2003) Misguided fears about the International Criminal Court. Pace ILR 15:223–246

    Google Scholar 

  • Ferencz BB (2009) Ending impunity for the crime of aggression. Case Western Reserve JIL 41:379–390

    Google Scholar 

  • Fletcher GP, Ohlin JD (2006) The ICC—two courts in one? JICJ 4:428–433

    Google Scholar 

  • Frank TM, Yuhan SH (2003) The United States and the International Criminal Court: unilateralism Rampant. ILP 35:519–558

    Google Scholar 

  • Gaeta P (1999) The defence of superior orders: the statute of the International Criminal Court vs customary international law. EJIL 10:172–191

    Google Scholar 

  • Gaja G (2004) The respective roles of the ICC and the Security Council in determining the existence of aggression. In: Politi M, Nesi G (eds.) The International Criminal Court and the crime of aggression, Ashgate Publishing Limited, pp225–227

    Google Scholar 

  • Gillard EC (2006) Business goes to war: private military/security companies and international humanitarian law. IRRC 88:525–572

    Google Scholar 

  • Glennon M (2010) The blank-prose crime of aggression. Yale JIL 35:71–114

    Google Scholar 

  • Green LC (1976) Superior orders in national and international law. A. W. Sijthoff International Publishing Company, Leiden

    Google Scholar 

  • Hauck P (2008) The challenge of customary international crimes to the principle of Nullum Crimen Sine Lege. HuV-I 21:58–65

    Google Scholar 

  • Heller KJ (2012) The uncertain legal status of the aggression understandings. JICJ 10:229–248

    Google Scholar 

  • Henham R (2003) Some issues for sentencing in the International Criminal Court. The ICLQ 52:81–114

    Google Scholar 

  • Inogamova-Hegay LV (2003) Mejdunarodnoe ugolovnoe pravo [International Criminal Law]. Yuridicheskiy Centre, Moscow

    Google Scholar 

  • International Military Tribunal (Nuremberg), Judgment of 1 October 1946. In: The trial of German major war criminals. In: Proceedings of the International Military Tribunal sitting at nuremberg, Germany, Part 22 (22nd August, 1946 to 1st October, 1946)

    Google Scholar 

  • Juratowitch B (2005) Retroactive criminal liability and international human rights law. BYIL 76:337–362

    Google Scholar 

  • Kemp G (2010) Individual criminal liability for the international crime of aggression. Intersentia

    Google Scholar 

  • Kibalnik AG (2003) Sovremennoe mejdunarodnoe ugolovnoe pravo: ponyatie, zadachi i printsipy [The Contemporary International Criminal Law: Notion, Objectives and Principles]. Yuridicheskiy Centre, Moscow

    Google Scholar 

  • Kielsgard MD (2012) The legality principle in sentencing at the ECCC: Making up law as it goes along? Asian JIL 2:119–136

    Google Scholar 

  • Kirsch P, Robynson D (2002a) Referral by States Parties. In: Cassese A, Gaeta P, Jones JRWD (eds.) The Rome Statute of the International Criminal Court: a Commentary. Oxford University Press, Oxford, vol I, pp 619–625

    Google Scholar 

  • Kirsch P, Robynson D (2002b) Initiation of proceedings by the prosecutor. In: Cassese A, Gaeta P, Jones JRWD (eds.) The Rome Statute of the International Criminal Court: a Commentary. Oxford University Press, Oxford, vol I, pp 657–664

    Google Scholar 

  • Kok RA (2007) Statutory limitations in international criminal law. T.M.C Asser Press, The Hague

    Google Scholar 

  • Kolosov YM, Kuzbetsov VI (eds.) (1998) Mejdunarodnoe pravo [International Law]. Moscow

    Google Scholar 

  • Kreß C, Barriga S, Groover L, Von Holtzendorff L (2012) Negotiating the Understandings on the crime of aggression. In: Barriga S, Kreß C (eds.) The travaux préparatoires of the crime of aggression. Cambridge University Press, Cambridge pp 81–97

    Google Scholar 

  • Krug P (2000) The emerging mental incapacity defense in international criminal law: some initial questions of implementation. AJIL 94:317–335

    Google Scholar 

  • Lamb S (2002) Nullum crimen, nulla poena sine lege in international criminal law. In: Cassese A, Gaeta P, Jones JRWD (eds.) The Rome Statute of The International Criminal Court: a commentary. Oxford University Press, Oxford, vol I, pp 733–766

    Google Scholar 

  • Latore RM (2002) Escape out the back door or charge in the front door: U.S. reactions to the International Criminal Court. BCICLR 25:159–176

    Google Scholar 

  • Leclerc-Gagné E, Byers M (2009) A Question of intent: the crime of aggression and unilateral humanitarian intervention. Case Western Res JIL 41:379–390

    Google Scholar 

  • Lehto M (2004) The ICC and the Security Council: about the argument of politicization. In: Politi M, Nesi G (eds.) The International Criminal Court and the crime of aggression, Ashgate Publishing Limited, pp 145–149

    Google Scholar 

  • Lietzau WK (2001) International criminal law after Rome: concerns from a U.S. military perspective. LCP 64:119–140

    Google Scholar 

  • Lijun Y (2005) On the principle of complementarity in the Rome statute of the International Criminal Court. Chinese JIL 4:121–132

    Google Scholar 

  • Link W (1998) Die neuordnung der Weltpolitik an der Schwelle zum 21. Verlag C. H Beck OHG, Jahrhundert

    Google Scholar 

  • Lovely R (2011) Cybercrime. In: Natarajan M (ed.) International crime and justice. Cambridge University Press, Cambridge, pp 155–161

    Google Scholar 

  • Lukashuk II (2004) Sovremennoe pravo mejdunarodnyh dogovorov [The Contemporary Law of Treaties], vol I. Wolters Kluwer

    Google Scholar 

  • Lukashuk II (2008) Mejdunarodnoe pravo: Obshchaya chast [International Law: General Part], 3rd edn. Wolters Kluwer

    Google Scholar 

  • Martinez JS (2007) Understanding mens rea in command responsibility: from Yamashita to Blaškić and beyond. JICJ 5:638–664

    Google Scholar 

  • Mathias S (2005) The United States and the Security Council. In: Blokker N, Schrijver N (eds.) The Security Council and the use of force: theory and reality—a need for change? Martinus Nijhoff Publishers, pp 173–188

    Google Scholar 

  • McNerney P (2001) The International Criminal Court: issues for consideration by the United States senate. LCP 64:181–191

    Google Scholar 

  • Meloni C (2007) Command responsibility: mode of liability for the crimes of subordinates or separate offence of the superior? JICJ 5:619–637

    Google Scholar 

  • Milanovic M (2012) Aggression and legality: custom in Kampala. JICJ 10:165–187

    Google Scholar 

  • Militello V (2007) The personal nature of individual criminal responsibility and the ICC statute. JICJ 5:941–952

    Google Scholar 

  • Miller RH (1971) The Convention on the non-applicability of statutory limitations to war crimes and crimes against humanity. AJIL 65:476–501

    Google Scholar 

  • Mongelard E (2006) Corporate civil liability for violations of international humanitarian law. IRRC 88:665–691

    Google Scholar 

  • Nerlich V (2007) Superior responsibility under Article 28 ICC Statute: For what exactly is the superior held responsible? JICJ 5:665–682

    Google Scholar 

  • O’Connell ME, Niyazmatov M (2012) What is aggression?: comparing the Jus ad Bellum and the ICC Statute. JICJ 10:189–207

    Google Scholar 

  • O’Donovan M (2007) Criminalizing war: towards a justifiable crime of aggression. BCICLR 30:507–530

    Google Scholar 

  • Ohlin JD (2007) Three conceptual problems with the doctrine of joint criminal enterprise. JICJ 5:69–90

    Google Scholar 

  • Pellet A (2002) Applicable Law. In: Cassese A, Gaeta P, Jones JRWD (eds.) The Rome Statute of the International Criminal Court: a commentary, vol II. Oxford University Press, Oxford, pp 1051–1084

    Google Scholar 

  • Perrin B (2006) Promoting compliance of private security and military companies with international humanitarian law. IRRC 88:613–635

    Google Scholar 

  • Petty KA (2008) Sixty years in the making: the definition of aggression for the international criminal court. Hastings ICLR 31:1–24

    Google Scholar 

  • Petty KA (2009) Criminalizing force: resolving the threshold question for the crime of aggression in the context of modern conflict. SULR 33:105–150

    Google Scholar 

  • Pictet JS (1952) Commentary of the first Geneva convention for the amelioration of the condition of the wounded and sick in armed forces in the field. ICRC, Geneva

    Google Scholar 

  • Piragoff DK (1999) Article 30: Mental element. In: Triffterer O (ed.) Commentary on the Rome Statute of the International Criminal Court: observers’ notes, article by article, Nomos Verlagsgesellschaft, pp 527–535

    Google Scholar 

  • Posner EA, Sykes AO (2007) An Economic analysis of state and individual responsibility under international law. ALER 9:1–63

    Google Scholar 

  • Rosenfeld F (2012) Individual civil responsibility for the crime of aggression. JICJ 10:249–265

    Google Scholar 

  • Safferling C (2012) International criminal procedure. Oxford University Press, Oxford

    Google Scholar 

  • Sayapin S (2008) The definition of the crime of aggression for the purpose of the Rome Statute of the International Criminal Court: problems and perspectives. JCSL 13:333–352

    Google Scholar 

  • Schabas WA (2000) Perverse effects of the Nulla Poena principle: national practice and the Ad Hoc Tribunals. EJIL 11:521–539

    Google Scholar 

  • Schabas WA (2004) United States hostility to the International Criminal Court: it’s all about the Security Council. EJIL 15:701–720

    Google Scholar 

  • Scheffer DJ (1999) The United States and the International Criminal Court. AJIL 93:12–22

    Google Scholar 

  • Schmitt MN (2002) Wired warfare: computer network attack and jus in bello. IRRC 84:365–399

    Google Scholar 

  • Schüller A (2008) ‘Gravity’ under the Rome Statute: procedural filter or instrument of shaping criminal policy? HuV-I 21:73–81

    Google Scholar 

  • Schuster M (2003) The Rome Statute of the ICC and the crime of aggression: a gordian knot in search of a sword. CLF 14:1–57

    Google Scholar 

  • Smith R (2005) The utility of force: the art of war in the modern world. Allen Lane, London

    Google Scholar 

  • Spinedi M (2002) State responsibility v. individual responsibility for international crimes: Tertium Non Datur? EJIL 13:895–899

    Google Scholar 

  • Stein MS (2005) The Security Council, the International Criminal Court, and the crime of aggression: how exclusive is the Security Council’s power to determine aggression? Indiana ICLR 16:1–36

    Google Scholar 

  • Svinarev VV (2000) Pravovoe polojenie rossiyskih voennyh baz za rubejom [“The Legal Status of Russian Legal Bases Abroad”]. Moscow J Int Law 40:194–210

    Google Scholar 

  • Van den Herik L (2010) Subjecting corporations to the ICC regime: analyzing the legal counterarguments. In: Burchard C, Triffterer O, Vogel J (eds.) The review conference and the future of the International Criminal Court: proceedings of the First AIDP symposium for young penalists in Tübingen, Germany, co-organized by the AIDP YP Committee, Wolters Kluwer Law & Business, Carl Heymanns Verlag, pp 155–173

    Google Scholar 

  • Van der Wilt H (2007) Joint criminal enterprise: possibilities and limitations. JICJ 5:91–108

    Google Scholar 

  • Van Schaak B (2012) Par in Parem Imperium Non Habet: Complementarity and the crime of aggression. JICJ 10:133–164

    Google Scholar 

  • Van S (2009) O vliyanii yurisdiktsii Mejdunarodnogo ugulovnogo suda na neuchastvuyushie gosudarstva [“On the Impact of the Jurisdiction of the International Criminal Court upon Non-State Parties”]. In: Bogush GI, Trikoz EN (eds.) Mejdunarodnoe ugolovnoe pravosudie: sovremennye problemy [International Criminal Justice: Contemporary Issues], Moscow, pp 511–521

    Google Scholar 

  • Von Feuerbach PJA (2007) The foundations of criminal law and the Nullum Crimen principle. Reprinted in JICJ 5:1005–1008

    Google Scholar 

  • Walzer M (2007) The crime of aggressive war. WUGSLR 6:635–643

    Google Scholar 

  • Wegdwood R (2001) The irresolution of rome. LCP 64:193–214

    Google Scholar 

  • Weigend T (2010) Superior responsibility: complicity, omission or over-extension of the criminal law? In: Burchard C, Triffterer O, Vogel J (eds.) The review conference and the future of the International Criminal Court: proceedings of the first AIDP symposium for young penalists in Tübingen, Germany, co-organized by the AIDP YP Committee, Wolters Kluwer Law & Business, Carl Heymanns Verlag, pp 67–80

    Google Scholar 

  • Werle G (2007) Individual criminal responsibility in Article 25 ICC statute. JICJ 5:953–975

    Google Scholar 

  • Werle G (2009a) Principles of international criminal law, 2nd edn. T. M. C Asser Press, The Hague

    Google Scholar 

  • Werle G (2009b) The crime of aggression between international and domestic criminal law. In: Manacorda S, Nieto A (eds.) Criminal law between war and peace. Cuena, pp 405–421

    Google Scholar 

  • Williams SA (1999) Exercise of jurisdiction. In: Triffterer O (ed.) Commentary on the Rome Statute of the International Criminal Court: observers’ notes, article by article, Nomos Verlagsgesellschaft, pp 343–351

    Google Scholar 

  • Wilmshurst E (2004) Definition of the crime of aggression: state responsibility or individual criminal responsibility? In: Politi M, Nesi G (eds.) The International Criminal Court and the crime of aggression. Ashgate Publishing Limited, pp 93–96

    Google Scholar 

  • Yee S (2004) The Tu Quoque argument as a defence to international crimes, prosecution or punishment. Chinese JIL 3:87–134

    Google Scholar 

  • Yengejeh SM (2004) Reflections on the role of the Security Council in determining an act of aggression. In: Politi M, Nesi G (eds.) The International Criminal Court and the crime of aggression. Ashgate Publishing Limited, pp 125–132

    Google Scholar 

  • Zelinskaya NA, Dryomina-Volok NV (2010) Kontseptsiya prestupleniy po obshchemu mejdunarodnomu pravu v kontekste problemy retroaktivnogo primeneniya norm mejdunarodnogo ugolovnogo prava [“The Concept of Crimes under General International Law in the Context of the Problem of Retroactive Application of Norms of International Criminal Law”]. Almanach Int Law 2:189–209

    Google Scholar 

  • Zimmermann A (1999) Article 124: transitional provision. In: Triffterer O (ed.) Commentary on the Rome Statute of the International Criminal Court: observers’ notes, article by article, Nomos Verlagsgesellschaft, pp 1281–1285

    Google Scholar 

  • Zimmermann A (2012) Amending the amendment provisions of the Rome Statute: the Kampala compromise on the crime of aggression and the law of treaties. JICJ 10:209–227

    Google Scholar 

  • Zolo D (2007) Who is afraid of punishing aggressors? On the double-track approach to international criminal justice. JICJ 5:799–807

    Google Scholar 

  • Zwanenburg M (1999) The statute for an international criminal court and the United States: peacekeepers under fire? EJIL 10:124–143

    Google Scholar 

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    Sergey Sayapin

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Sayapin, S. (2014). The Crime of Aggression in the Rome Statute of the International Criminal Court. In: The Crime of Aggression in International Criminal Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-927-6_5

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