Tuesday, February 8, 2011

Aggression Article

An article I co-authored on Africa and the negotiations over the crime of aggression that took place at the ICC Review Conference in Kampala last year is out. The article - titled "Africa and the Codification of Aggression: A Phyrric Victory?" - appears in the African Legal Aid Quarterly. You can mail me for a copy, here is the abstract:



More than sixty years after it was declared ‘the supreme international crime’ by the Nuremberg Tribunal , the crime of ‘aggression’ has been adopted for inclusion in the Rome Statute of the International Criminal Court (ICC) ; with the Court able to exercise jurisdiction over it after the amendment has been ratified by at least 30 State Parties, but not before 2017. This amendment criminalising aggression, and specifically the jurisdictional regime governing it, is both complex and controversial, being the product of one of the most intractable diplomatic negotiations in the history of the ICC.





Notwithstanding recent schisms in its relationship with the Court, Africa played a key role in the final version adopted by the ICC Review Conference in Kampala , as it has throughout the Court’s development. The codification of the crime of aggression – loosely defined as the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations (UN Charter) – is a diplomatic victory for smaller states that are likely to see it as a salvo against the disregard shown for the UN Charter by powerful states. Moreover, the criminalisation of aggression, and attendant placing of such disputes within a legal (and criminal justice) forum, weakens, if not obviates, the claim made by a few powerful states that the United Nations Security Council (UNSC) has the exclusive authority to make such determinations under international law. However, such advances notwithstanding, the ultimate formulation of the crime raises the likelihood of increased dissonance between the Court and Africa, particularly in respect of the question of the role of the UNSC in international criminal justice and the impact of the criminalisation of violations of the UN Charter on Africa’s burgeoning peace and security structure.





This paper briefly discusses the history of the crime of aggression and considers how the stumbling blocks to consensus were addressed at the Review Conference in Kampala. It also considers the ultimate formulation of the crime of aggression and its jurisdictional regime and argues that on the whole the victory for Africa at Kampala may well turn out to be a Pyrrhic one.