Edited by Bartram S. Brown
Chapter 6: The crime of aggression: is it amenable to judicial determination?
Faiza Patel King In the decades since the Nuremberg Tribunal found the German leadership guilty of the crime of waging aggressive war, much ink has been spilled on the ‘supreme’ international crime. This river of ink has become a torrent since the Rome Conference adopted the Statute of the International Criminal Court1 (ICC) and included a provision that brought aggression within the jurisdiction of the Court, but deferred until the First Review Conference of the Assembly of States Parties2 the decision on the definition of the crime and the conditions under which it could be prosecuted. This provision was a compromise between those who believed that the ICC Statute would not be complete unless it included the crime of aggression and those who argued that the determination of aggression was too political an issue to put before a court. This chapter of the Handbook will analyze the various lines of debate about the International Criminal Court and the crime of aggression using, as a functional lens, the issue of whether the crime of aggression is susceptible to judicial determination. In other words, is a court such as the ICC equipped to decide whether a particular use of force constitutes the crime of aggression? To develop criteria regarding how to address this question, the first section of this chapter will look at situations where it has been asserted – in both domestic and international courts – that certain questions are by their nature too political to be judged by a court. As will...
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