The nature of aggression has always been troublesome to settle as a legal concept, especially as it is "intertwined with political elements" . The concept of aggression as a criminal offence was fuelled by the International Military Tribunal at Nuremberg in the wake of the Second World War, where the Allied Powers were determined to prevent a repeat of the atrocities and assert a unified check on tyranny .
Despite the intentions of Nuremberg, the legal concept of "aggression" as a criminal offence and the ambiguity of its parameters have ignited debate regarding effectiveness and enforceability in practice . Justification for aggression centres on the extreme gravity, international repercussions and accountability however its weakness is rooted in the difficulty of clarifying a sufficiently precise and acceptable definition .
[...] See full statute at www.un.org/icc See United Nations General Assembly Resolution 3314 of 1974 (XXIX) at www.un.org Charter of the International Military Tribunal 8 August 1945 www.un.org/aboutun/charter The International Law Commission's (ILC) Draft Articles on State Responsibility (1996) at www.untreaty.un.org/ilc UN Security Council Documents www.un.org/documents Buhm-Suk Baek, Definition and Jurisdiction of the Crime of Aggression and the International Criminal Court” at http://lsr.nellco.org/cornell/lps/papers/19 Justice Robert M Jackson opened the trial before the International Military Tribunal at Nuremberg in 1945. In Jackson's view, it was time to “make war less attractive to those who held the destiny of peoples in their power” and this formed a foundation for the basis of the crime of aggression as an attempt to protect people from domestic tyranny. [...]
[...] The Lords asserted that the crime of aggression under international law was not a crime under domestic law and that the Lords could not advise on the legality of the war. Lord Bingham further added that it was not the judges to decided what conduct should be treated as lying so far outside the bounds of what is acceptable in our society as to attract criminal penalties”[17]. This begs the question as to how can a crime in international law bring those to account for aggression when domestic law claims it has no jurisdiction. [...]
[...] From a UK perspective, it is also raises the issue as to whether some form of official discussion and move needs to be made towards incorporating a concept of aggression into domestic law to address enforcement issues at a national level. The conditions under which the ICC exercises jurisdiction in relation to this crime must be determined. The current position leaves the ICC not only subject to a veto and suspension by the SC, but it also renders the ICC potentially dependant on the SC's prior determination of an act of aggression in order for it to exercise jurisdiction over the ensuing crime[37]. [...]
[...] Arguably, the Bush administration has used the war on terror at the expense of the rule of law and has attempted to develop new doctrines of self defence that can exploit the deficiencies in the nature of the crime of aggression in order to justify decisions[33]. Worryingly, the uncertainty of the parameters of aggression can be used for nations to increase their power. From the UK perspective, in the face of weak primary justification for invading Iraq and lack of substantive justification, the ambiguity of the definition coupled with the power of the SC and lack of ICC jurisdiction means that dangerous precedents are being set with selective enforcement of aggression[34]. [...]
[...] Christine Gray, “International Law and the Use of Force”, (Oxford University Press, 2000) 196-1999 L. Oppenheim, International Law as quoted in Yoram Dinstein; Aggression and Self Defence”, (Cambridge, 3rd Edition 2001) F. Megret, Legal Semantics and the Move to Violence,” EJIL VOL 13, No 261-399 (2002). Both, Michael, “Terrorism and the Legality of Pre-emptive Force”, Vol 14 No2 EHIL 227 (2003) Andreas L. Paulus, “Peace Through Justice? The Future of the Crime of Aggression in a Time of Crisis,” 50 Wayne L. [...]
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