13 - The Crime of Aggression and the International Criminal Court

Summary

This Chapter discusses to what extent it is feasible, and desirable, to prosecute aggression through the frameworks of crimes against humanity, war crimes, and genocide. It explores the possibility of taking aggression into account when utilizing the existing legal framework at the International Criminal Court (ICC) as a whole, and in effect, if not formally, de facto prosecute aggression despite lack of explicit and direct de jure jurisdiction to investigate, indict and convict persons with respect to the crime of aggression. The thesis is that by actively and systematically focusing on aggression while prosecuting other international crimes, in particular crimes against humanity, it might be possible for ICC prosecutors to integrate actual crimes of aggression at all stages. Ultimately, aggression could in some cases be taken into account as an aggravating circumstance at sentencing when a military or political leader has been formally convicted of another core crime. Accountability for aggression, in the form of the factual matrix required to satisfy the elements of Article 8bis, is thus possible even without formal jurisdiction over the crime of aggression. It is argued that the prosecutorial strategies suggested are flexible, legitimate, and in compliance with the international legality principle.