What is Aggression? Comparing the Jus Ad Bellum and the ICC Statute

Abstract

Under the international law on resort to force, the jus ad bellum, any serious violation of the United Nations Charter prohibition on the use of force amounts to aggression. Despite a close connection for over a century between the prohibition on aggression by states and the crime of aggression for which individuals may be held accountable, delegates to the 2010 International Criminal Court Review Conference in Kampala, Uganda felt compelled to bifurcate the two prohibitions and reach a compromise. Today, the ICC Statute contains a detailed provision on the crime of aggression, but with a byzantine procedure for entry into force of the amendments in place and absent a much narrower standard for mens rea of the crime, the authors doubt the likelihood of successful prosecution. This conclusion underscores that the Kampala compromise does not in fact restate the law against the use of force binding on states; it underlines the importance of supporting and revitalizing the law that has as its purpose protecting the right to life of millions of people.

Keywords: jus ad bellum, use of force, International Criminal Court, ICC Statute, Kampala compromise, international law, United Nations Charter prohibition on the use of force