The Crime of Aggression in International Criminal Law Historical Development Comparative Analysis and Present State 1st Edition by Sergey Sayapin ISBN 978-90670492699067049269

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Product details: 

ISBN 10: 9067049269

ISBN 13: 978-9067049269

Author: Sergey Sayapin

Since after the Second World War, the crime of aggression is – along with genocide, crimes against humanity and war crimes – a “core crime” under international law. However, despite a formal recognition of aggression as a matter of international criminal law and the reinforcement of the international legal regulation of the use of force by States, numerous international armed conflicts occurred but no one was ever prosecuted for aggression since 1949. This book comprehensively analyses the historical development of the criminalisation of aggression, scrutinises in a detailed manner the relevant jurisprudence of the Nuremberg and Tokyo Tribunals as well as of the Nuremberg follow-up trials, and makes proposals for a more successful prosecution for aggression in the future. In identifying customary international law on the subject, the volume draws upon a wealth of applicable sources of national criminal law and puts forward a useful classification of States´ legislative approaches towards the criminalisation of aggression at the national level. It also offers a detailed analysis of the current international legal regulation of the use of force and of the Rome Statute´s substantive and procedural provisions pertaining to the exercise of the International Criminal Court´s jurisdiction with respect to the crime of aggression, after 1 January 2017.

Table of contents: 

Part I The Internationally Wrongful Act of State
1 Historical Background of the Criminalization of Aggression
1.1 An Overview of the jus ad bellum Before World War II

1.1.1 The Ancient World

1.1.2 The Middle Ages

1.1.3 Impact of the Napoleonic Wars and of the 1814–1815 Vienna Congress

1.1.4 Carl von Clausewitz’s On War

1.1.5 Impact of the 1899 and 1907 Hague Peace Conferences

1.1.6 Evolution of International Legal Attitudes Toward War Under the Aegis of the League of Nations

1.2 Evolution of the Concept of Aggression After World War II

1.2.1 Work Accomplished by the United Nations War Crimes Commission

1.2.2 London Agreement of 8 August 1945 and the Charter of the Nuremberg International Military Tribunal

1.2.3 International Military Tribunal for the Far East

1.2.4 Allied Control Council Law № 10

1.2.5 Attitudes Within the United Nations System

1.2.6 Rome Statute of the International Criminal Court

References

2 Elements of an Act of Aggression: An Overview of Modern International Law and Practice
2.1 Nature of States’ Obligation to Refrain from the Threat or Use of Force in International Relations (Article 2(4) of the UN Charter)

2.1.1 Treaty Obligation Under Article 2(4)

2.1.2 Obligation Under Customary International Law

2.1.3 Legal Obligation

2.2 Aggression as a Serious Breach of a Peremptory Norm of General International Law

2.2.1 Aggression as a Serious Breach of an Obligation Arising Under Article 2(4) of the Charter of the United Nations

2.2.2 Attribution of Aggression to a State Under International Law

2.3 Elements of an Act of Aggression Under the 1974 Definition of Aggression

2.3.1 “Chapeau” of the Definition

2.3.2 Examples of Acts of Aggression

2.3.3 Non-Exhaustive Character of the List

2.3.4 The Problem of the “First Use” of Force

2.3.5 The Discretionary Power of the UN Security Council

2.4 Exceptions to the Prohibition of the Use of Force

2.4.1 Charter-Based Exceptions

2.4.2 Charter-Related Exceptions

2.4.3 Extra-Charter Exceptions

References

Part II The Individual Crime
3 International Legal Foundations of the Individual Criminal Responsibility for the Crime of Aggression
3.1 Individual Criminal Responsibility for Aggression Committed by a State

3.1.1 Nuremberg Judgment

3.1.2 Tokyo Judgment

3.1.3 Trials Under the Control Council Law № 10

3.1.4 Draft Code of Offences Against the Peace and Security of Mankind

3.1.5 Draft Code of Crimes Against the Peace and Security of Mankind

3.1.6 The Crime of Aggression in the Rome Statute of the International Criminal Court

3.1.7 Individual Criminal Responsibility for the Crime of Aggression: Towards the Revival of a Legal Regime?

References

4 The Principal Approaches Towards the Criminalisation of Aggression at the National Level
4.1 Overview of National Criminal Laws Proscribing the Crime of Aggression

4.1.1 The “Nuremberg and Tokyo Model”

4.1.2 The “Territorial Integrity or Political Independence Model”

4.1.3 The “Objective War Model”

4.1.4 The “Treason Model”

4.2 Aggression as a “Leadership Crime”

4.2.1 Exclusion of Lower Ranking State Agents

4.2.2 Role of Political Leaders

4.2.3 Role of Military Leaders

4.2.4 Role of Economic Leaders

4.2.5 Role of Other (Religious, Social) Leaders

4.3 The corpus delicti of the Crime of Aggression Under Customary International Law: Material Elements

4.3.1 The Structure of the corpus delicti of the Crime of Aggression

4.4 The Qualification of “Propaganda for War” as a Separate Crime

4.5 The corpus delicti of the Crime of Aggression Under Customary International Law: Mental Element

4.5.1 Occupation of Another State

4.5.2 Annexation of Another State

4.5.3 Subjugation of Another State

4.5.4 Involving Another State in War

4.5.5 Conspiracy

4.6 Mechanisms of Enforcement

4.6.1 Indirect Enforcement (by National Courts)

4.6.2 Direct Enforcement (by the International Criminal Court)

References

5 The Crime of Aggression in the Rome Statute of the International Criminal Court
5.1 The Definition of the Crime of Aggression for the Purpose of the Rome Statute (Article 8 bis)

5.1.1 Structure of the Rome Statute’s Definition of the Crime of Aggression

5.1.2 Conditions for the Entry into Force of Article 8 bis

5.2 The Crime of Aggression in the Context of the “General Part” of International Criminal Law

5.2.1 No crime without law

5.2.2 No punishment without law

5.2.3 Non-Retroactivity on the basis of the person

5.2.4 Individual Criminal Responsibility

5.2.5 Exclusion of Jurisdiction Over Persons Under Eighteen

5.2.6 Irrelevance of Official Capacity

5.2.7 Responsibility of Commanders and Other Superiors

5.2.8 Non-Applicability of Statute of Limitations

5.2.9 Mental Element

5.2.10 Grounds for Excluding Criminal Responsibility

5.2.11 Mistake of Fact or Mistake of Law

5.2.12 Superior Orders and Prescription of Law

5.3 Exercise of Jurisdiction Over the Crime of Aggression

5.3.1 Continued Relevance of the Principle of Complementarity

5.3.2 State Referral, proprio motu (Article 15 bis)

5.3.3 Security Council Referral (Article 15 ter)

5.4 The Elements of Crimes for the Crime of Aggression

References

6 Conclusion
References

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Tags: Sergey Sayapin, The Crime, Aggression in International, Law Historical