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Title: The definition and jurisdiction of the crime of aggression under international law
Author: Al-Ma'Awali, Nabahan
Awarding Body: University of Aberdeen
Current Institution: University of Aberdeen
Date of Award: 2010
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The Rome Statute of the International Criminal Court (ICC) was adopted in 1998. The Statute provides that the ICC has jurisdiction over „the most serious crimes of concern to the international community as a whole‟. These crimes are: genocide, crimes against humanity, war crimes and the crime of aggression. The Rome Statute defines the first three of these, but not the last. At the time this Statute was being drafted, the international community could not agree on a definition of the crime of aggression, so it could not be inscribed fully into the Statute. Instead, it was agreed to include aggression within the subject-matter jurisdiction of the Court, but, in accordance with Article 5(2) of the Rome Statute, the ICC cannot not exercise jurisdiction over this crime until a proper definition has been established by states parties and an agreement is reached on the conditions under which the ICC may prosecute the crime. The present researcher believes that the omission of the crime of aggression from the Court‟s jurisdiction is one of the main defects of the Rome Statute. This thesis explores whether it is possible to establish a satisfactory definition of the crime of aggression and, if so, what this might be. It argues that aggression as an international crime can and should be defined. This thesis will examine the history of the crime of aggression in order to determine whether its definition should build upon previous efforts, or whether it would be better to start afresh. It has been found in this thesis that today‟s dilemma over the crime of aggression cannot be separated from its past; its current status is indeed the result of an accumulative process that began long ago. In addressing the question of the definition of aggression, this thesis also examines critically the contemporary law on the use of force by states in order to identify the lawful and unlawful uses of force that might be relevant to the crime of aggression. In particular, the focus will be on some of the most controversial uses of force, such as pre-emptive self-defence, humanitarian intervention and the use of force to secure the right of self-determination. A precise determination of the scope of the lawful use of force should facilitate the establishment of a definition of the crime of aggression. This thesis concludes that the rules of international law concerning aggression are dispersed across various instruments. This has led, in turn, to the existence of a vague legal stance on the matter when applied to specific cases, especially when dealing with concepts of a v controversial nature, such as pre-emptive self-defence and humanitarian intervention. Moreover, these instruments seem to circumvent the question of individual criminal responsibility for committing the crime of aggression. Hence, it is necessary to close this gap in the international system by producing a single document containing a definition of aggression that takes into account all of these aspects. Overall consideration will be given to the various proposed definitions of the crime of aggression that were submitted before, during and after the Rome Conference of 1998. Particular attention, however, will be paid to the latest proposal made by the Special Working Group on the Crime of Aggression. This thesis argues that this proposal, as the result of profound and detailed consideration of various aspects of the crime, should form the basis of any definition to be adopted at the forthcoming ICC Review Conference. However, the study also suggests that certain components of the proposed definition should be amended and, therefore, a new proposal for the definition of the crime will be proffered at the end of this paper. This thesis will also examine the conditions under which the ICC should exercise its jurisdiction over the crime of aggression. Based on the assumption that determining the existence of state‟s act of aggression is a pre-condition for prosecuting an individual for the crime of aggression, the question that needs to be addressed centres on which organ should determine whether or not a state has committed an act of aggression. In short, this thesis maintains that as the Security Council is entrusted with the primary responsibility for the maintenance of international peace and security, it should be consulted in situations relating to the determination of the existence of an act of state aggression. It is also argued, however, that the Council‟s determination on whether a state has committed aggression should not be binding on the Court, which should be able to review the Council‟s determination. It is further argued that if the Security Council fails to make such a determination, then the ICC should go forth to commence its own investigation with respect to the crime.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available
Keywords: Aggression (International law)