Original scientific paper
The Responsibility for the Crime of Aggression in all its Aspects
Vladimir Đuro Degan
orcid.org/0000-0001-6884-1189
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Abstract
This paper deals first with the doctrines on just and unjust wars as they have been practiced in the Roman Empire, and later conceived in the Middle Ages by Spanish theologians in quite a different context. The 19th century repudiated all the remnants of natural law, and hence, the waging of wars was recognized as a prerogative for sovereignty in all “civilized” states. As a counterpart, until the outbreak of World War I, first general conventions were concluded with the aim of the humanization of warfare. Within the collective security system established by the Covenant of the League of Nations in 1919, a new division was created between “legitimate” and “illegitimate” wars, which could not eliminate unlawful uses of force in international relations. The Kellogg-Briand Pact, i.e. the General Treaty for the Renunciation of War of 1928, outlawed the war of aggression. Since then, serious attempts have been made to define it. The UN Charter of 1945 extended the legal prohibition of aggression into the “threat or use of force against the territorial integrity and political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations”. By the Nuremberg and Tokyo trials, subsequent to World War II, the International Criminal Law came into existence as a segment of International Law in a broader sense. Further explanation of the responsibility for the crime of aggression is divided into several distinct parts. The first is defining aggression as a crime affecting the responsibility of states as international persons. In this respect, the UN General Assembly adopted the Definition of Aggression in its resolution 3314 (XXIV) of 1974. However, the International Law Commission – in the final text of its Draft Articles on State Responsibility for Internationally Wrongful Acts, as adopted in 2001 – abolished any mention of international crimes, including the crime of aggression.
In the after-war practice of ad hoc international criminal tribunals, the constitutive acts of the Nuremberg and Tokyo Military Tribunals provided “crimes against peace” as separate. They were based on violations of obligations from the Kellogg-Briand Pact of 1928. Unlike them, statutes of the International Criminal Tribunals for Former Yugoslavia and for Rwanda do not include such a provision. Consequently, these bodies are not empowered to indict suspects for this international crime. One of the reasons for this is serious difficulty in determining the aggressive side in non-international armed conflicts. The Rome Statute of the (permanent) International Criminal Court of 1998 prescribed the crime of aggression as to fall within its competence, but its definition and other necessary regulations were provided only in amendments to it, adopted in Kampala (Uganda) in 2010. Nevertheless, a complicated and time-consuming procedure is provided in order for these amendments to enter into force and for this Court to start prosecuting the culprits of aggression. These procedures will be made possible only provided the UN Security Council in each particular case endorses them. Some states, among them Croatia in Article 157 of its 1997 Criminal Code, incriminate aggression as a criminal deed under their national laws. This author holds the view that the domestic courts are not suitable for prosecuting the crime of aggression, either the one committed against their own state or the one committed by their own state. It is almost impossible to respect the principle of legality in any of these situations. For this reason, the willing states should grant their support to the entry into force of amendments to the Rome Statute.
The last part of this paper is dedicated to the determination of aggression in non-international armed conflicts. These conflicts, with enormous sufferings of population and material damages, are now much more frequent than proper inter-state wars. However, all the above-described determinations have in view only the aggression committed in relations between sovereign states. None of them is applicable in proper civil wars without any foreign involvement. It is nevertheless possible for the conflict in former Yugoslavia to determine two aggressive republics. They unlawfully assumed the control over the Federal Army and appropriated most of its arms and ammunition for aggressive purposes against other republics and provinces. Yet, this unique situation does not allow providing for objective criteria for such a determination that could be adopted in future international instruments. In these situations, according to Article 39 of the UN Charter, the Security Council is empowered to determine the existence of any threat to the peace, breach of peace or act of aggression, regardless of the nature of the conflict. On such a basis, it may decide on measures for maintaining or restoring international peace and security, and in this determination, it is not bound by any definition of aggression. Nevertheless, even in cases when it orders severe sanctions against only one party in such a conflict, it often restrains itself to determine it as the aggressor. This is for diplomatic reasons, in order to reach a peaceful solution for the conflict, for which the agreement and cooperation of all its parties is necessary.
Keywords
aggression (definition of); the UN Charter; International Military Tribunals in Nuremberg and Tokyo; International Criminal Tribunals for Former Yugoslavia and for Rwanda; the Rome Statute of the Permanent International Criminal Court; non-international armed conflicts
Hrčak ID:
72680
URI
Publication date:
16.9.2011.
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