SCANT COURSE NOTES ON AGGRESSION:

Criminality of Aggression in Nuremberg.

What was the legal basis. Seem like it was questionable from the beginning.

Agression as a crime is defpendent on the determination (political) that the state is an aggressor. Germany is an aggressive state, then the question is, WHO in Germany was the aggressor

 

An element of the crime of aggression is entirelye determined by a political body.

Or should it be changed o that the court

 

Aggression is  a leadership crime. ONLY those who participated in decision at the policy making level.

Nuremberg: Not much difference between those involved in planning, execution and participation

 

121(5)r vs

121 (4)

Germany and one other country :

Only accepted the Opt In definition of agggreesion

 

Kampala Convention: Definition of Aggression

Article 8, Page 489.

Has to be serious acts of aggression, “manifest UN Charter violation”

Act of Aggression byt its character, gravity and scale, not necessarily war.

Is th ICC statute broader than customary law, or narrower(Kampala)

Article 8 seems broader than customary int’l law.

IF ICC is broader than customary law:

1. It may be evidence of state proactice meaning in the future, there may be a
2. Broader ICC Rule applies to those are signators, and cant be used to displace the place of custom int’l law.

“Manifest violation”

• Can there be a defense that says, Legal advice, for example was given to make it justified, so it is not a manifest violation.
• If a paerty believes the
• Article 8 seems like all three: suffucuent, gravity and manifest violation are cumulative, so a defense against manifest violation prolly doesn’t get anywhere.

AGGRESSION: Nov 26^th

Only crime where courts are forced to acknowledge

Rule of law will be compromised because of the pre-determindness of the political and critical piece to it.

Need to balacae security councils’s role and courts.

Art 15 deals with that attempt to create a balance. Proesecutorial autonomy and oversight.

Page 490

Paragraph 6 and 9.:

Deterination outside the court is without prejudice…therefore not binding

Some argue: If you wait for Sec. Council, you’ll never prosecute.

Others argue, how can you prosecute for aggression if the Sec Council

POTENTIAL ISSUE: What happens when SEC council has said NOT an aggressor, and courts

IF obligations unde the charter overrides

Solutions: S.C. is a political organ. May have been unable to reach a decision. BUT its hard to imagine states proceeding an cooperating against SC decision.