Crimes of aggression

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Crime of aggression ( English Crime of Aggression ) is a criminal offense in international criminal law , in accordance with Article 5, paragraph 1, letter d of the Rome Statute in the jurisdiction of the International Criminal Court (ICC) drops. It is to be equated with the three other criminal offenses which are subject to the jurisdiction of the ICC, genocide , the crime against humanity and the war crime . Through amendments to the Rome Statute by resolution RC / Res.6 of June 11, 2010, the crime of aggression was defined in Article 8 bis of the Statute. The changes apply only to those contracting states that have ratified them. So far, 30 contracting states have accepted or ratified the changes (as of July 2016). In December 2017, the Assembly of States Parties determined the entry into force of the offense for July 2018.

Emergence

The basis for the definition of aggression was laid in the UN General Assembly on December 14, 1974. Article 1 of the resolution passed there states:

"Aggression is the use of armed force by a state which is directed against the sovereignty, territorial integrity or political independence of another state or which is otherwise incompatible with the Charter of the United Nations, as stated in this definition."

In addition to Article 1, Article 3 of this UN resolution has also been taken over verbatim into the Rome Statute. He names actions that are to be assessed as acts of attack in any case.

From 2003 to 2009, and especially in February 2009, the Special Working Group on the Crime of Aggression ( Special Working Group on the Crime of Aggression) did the preparatory work on a definition of the term aggression. At the first revision conference of the Statute of the International Criminal Court in Kampala , which according to Article 123 must take place seven years after the entry into force of the same, this definition was presented and accepted by consensus. The contracting states thus had the opportunity to clarify the question of the crime of aggression that had been discussed for decades. However, two critical points remained open in the course of the negotiations. Since the crime against humanity was subject to a separate regulation in the Rome Statute, it was unclear whether the suspected states would have to give their consent to exercise jurisdiction. The role of the UN Security Council was also unclear : While one group argued that jurisdiction should be allowed without the express consent of the Security Council if it remained inactive for six months, another group argued that the Security Council should be involved in the determination of the Aggression of the suspected state must have contributed.

A compromise was found on both issues. The question of consent was resolved by a proposal that provides that non-contracting states are not subjected to jurisdiction at all and contracting states can opt out of this. The approval of the Security Council was achieved through a strengthening of its competence in the suspension of ongoing proceedings and a compromise in determining the timing of the activation of the judiciary.

Definition in the Rome Statute of the International Criminal Court

text

In the Rome Statute, the German translation of the aggression crime is given the following wording:

“ Article 8 bis - Crimes of Aggression

(1) For the purposes of this Statute, a 'crime of aggression' means the planning, preparation, initiation or execution of an act of aggression which by its nature, gravity and scope constitutes an overt violation of the Charter of the United Nations by a person who actually is able to control or direct the political or military action of a state.

(2) For the purposes of paragraph 1, “act of aggression” means the use of armed force by another state that is directed against the sovereignty, territorial integrity or political independence of a state or is otherwise incompatible with the Charter of the United Nations. Regardless of the existence of a declaration of war, in accordance with resolution 3314 (XXIX) of the United Nations General Assembly of December 14, 1974, any of the following shall be considered an act of aggression:

a) the invasion or attack on the territory of a State by the armed forces of another State or any military occupation, even if temporary, resulting from such invasion or attack, or any violent annexation of the territory of another State or part of it;

b) the bombing or bombardment of the territory of one State by the armed forces of another State or the use of weapons of any kind by one State against the territory of another State;

c) the blockade of the ports or coasts of one state by the armed forces of another state;

d) an attack by the armed forces of one state on the land, sea or air forces or the sea and air fleet of another state;

e) the use of armed forces of a state which is located in its territory with the consent of another state, in violation of the conditions provided for in the corresponding consent or agreement, or any extension of their presence in that territory beyond the expiry of the period of validity of the consent or Agreement beyond;

f) the act of a state whereby it allows its territory, which it has made available to another state, to be used by that other state to commit an act of aggression against a third state;

g) the sending by or on behalf of a State of armed gangs, groups, irregular forces or mercenaries to carry out acts of such gravity against another State by force of arms as to be equivalent to the acts listed above, or its substantial participation in them. "

Leadership crime

Since the crime of aggression is limited to persons who “are actually able to control or direct the political or military action of a state” (paragraph 1), only members of the political or military leadership elite of a state can be prosecuted make (e.g. prime ministers, defense ministers, military commanders in chief). A criminal liability for non-executives is explicitly excluded. This z. B. Ordinary soldiers are not prosecuted for participating in an aggressive crime.

Threshold Clause

In Article 8 to aggression listed in paragraph 2 acts have "their nature, severity and scope of a flagrant violation of the Charter of the United Nations Presenting [s]" (paragraph 1) to the facts of aggression , crime meet. Due to this so-called threshold clause, only a sub-area of ​​the use of force contrary to international law is included in the crime. On the one hand, acts of aggression of low intensity (e.g. minor border skirmishes) are not recorded. On the other hand, it should only be possible to prosecute “clear” cases of the use of force in violation of international law. In particular, this is intended to ensure that actions whose conformity with international law is disputed (the so-called “international gray area”) are not recorded. Humanitarian intervention and preventive self-defense fall into this gray area under international law . How the threshold clause should be concretely interpreted is highly controversial and will probably only be decided by the future legal practice of the International Criminal Court.

Activation of the jurisdiction of the International Criminal Court

According to Article 5, Paragraph 2 of the Rome Statute, the ICC cannot exercise jurisdiction over the crime of aggression until a “provision has been adopted that defines the crime and sets out the conditions for exercising jurisdiction over that crime. “A definition was found at the first Kampala Revision Conference. There was also a consensus on the conditions for exercising jurisdiction. However, two thirds (necessary for status changes) of all contracting states of the Rome Statute had to agree to this exercise of jurisdiction. This activation point was part of a compromise on the competences of the UN Security Council and takes into account those people who at the first revision conference considered exercising jurisdiction over the crime of aggression to be premature. On the basis of this activation clause, it was decided on December 15, 2017 that jurisdiction over the crime of aggression can be exercised from July 17, 2018.

Legal situation in Germany

The offense was taken over into German criminal law in Section 13 of the VStGB , which replaced Section 80 of the Criminal Code , which was no longer applicable on January 1, 2017 - preparation for a war of aggression .

See also

United Nations Charter

literature

Web links

Individual evidence

  1. ↑ ICC resolution RC / Res. 6. (PDF; 135 kB) June 11, 2010, accessed on October 20, 2018 .
  2. ↑ Article 1 of Resolution A / RES / 3314 (XXIX), online at http://www.un.org/depts/german/gv-early/ar3314_neu.pdf
  3. ↑ See Report of the Special Working Group on the Chrime of Aggression ( Memento of the original dated November 8, 2011 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 105 kB) @1@ 2Template: Webachiv / IABot / www.icc-cpi.int
  4. ↑ See Article 5, Paragraph 2 of the Rome Statute in contrast to Article 12, Paragraph 1 and the missing reference in Article 5, Paragraph 2 to one of the two Paragraphs 4 or 5 in Article 121
  5. ↑ See Bundestag printed paper 17/10975, page 13ff. (PDF; 462 kB)
  6. ↑ See Gerhard Werle : Völkerstrafrecht. 3rd edition, Tübingen 2012, Rn. 1460.
  7. ↑ Article 25 Paragraph 3 bis of the Rome Statute; see. Gerhard Werle : international criminal law. 3rd edition, Tübingen 2012, Rn. 1460.
  8. ^ Gerhard Werle : International Criminal Law. 3rd edition, Tübingen 2012, Rn. 1459.
  9. ^ Gerhard Werle : International Criminal Law. 3rd edition, Tübingen 2012, Rn. 1459.
  10. ↑ Article 5, Paragraph 2 of the Rome Statute (PDF; 327 kB).
  11. ↑ See Article 15 bis , paragraph 2 or Article 15 ter , paragraph 2 of the ICC statute amended by Resolution RC / Res.6.
  12. ↑ The criminal court may punish war of aggression . In: Frankfurter Allgemeine Zeitung . December 16, 2017, p. 6 .