Crimes of aggression : A historical outline and an evaluation of the current state of the law

Abstract

The problem that will be analyzed in this thesis is whether an individual, acting as an agent of a state, illegally using force against another state, can be subject to criminal responsibility for committing a crime of aggression. In order to determine the current state of the law concerning the use of force and individual criminal responsibility, it is necessary first to review the historical background. This thesis is therefore divided into two parts. The first part consists of a historical outline of the regulations on the use of force, starting as far back as the Antiquity. Prior to this period, there were no regulations on resorting to the use of force. States had the right to use force, while individuals did not play any role in the international law.

The developments through centuries have led to the prohibition for states to resort to force. This is now stated in article 2(4) of the Charter of the United Nations. It states that the use of force or the threat of the use of force is illegal for states. However, the UN Charter deals with states only.

The Nuremberg and Tokyo tribunals brought with them important changes of the law relating to the use of force, namely that individuals are punishable under international law for committing crimes of aggression, even though they act on behalf of states. An important part of this thesis is to describe the historical background leading up to this change in the law.

The second part of this thesis is an analysis of the current state of the law relating to individual criminal responsibility for acts of aggression. This will in particular be related to the recent developments with the adoption of the statute of the International Criminal Court (ICC). The ICC can convict individuals for some of the most serious international crimes. War crimes, crimes against humanity, and genocide are all included and defined as crimes within the Court’s jurisdiction.

The crime of aggression is also included; however, it is not defined in the statute. No agreement was reached concerning a definition of aggression, nor the personal competence to determine the existence of aggression, when the ICC statute was adopted at the 1998 Rome conference. It is therefore unclear whether there presently exists criminal responsibility for individuals who commit crimes of aggression.