Universiteit Leiden

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Dissertation

The Crime of Aggression and Public International Law

This PhD dissertation examines international responsibility for the crime of aggression from a public international law perspective. Under customary international law, as well as the amendments to the Rome Statute of the International Criminal Court adopted in the Review Conference in Kampala in 2010, an act of aggression by a State is a part of the definition of the crime of aggression. This definition plainly encompasses two separate wrongful conducts by two different actors. It is less clear how international responsibility arises for both the aggressor state and the individual, and why responsibility for the latter can be predicated only upon the former.

Author
Meagan S. Wong
Date
14 April 2016

This dissertation analyses the way in which aggression is attributed to the aggressor State and the individual, and how State and individual responsibility are delineated from each other. Delineation of responsibility of these very different subjects provides an analytical perspective for engaging with the legal interests of the aggressed state in the context of the establishment and implementation of individual criminal responsibility against the individual who has committed the crime of aggression. Whether and to what extent the legal interests of the aggressed state are protected under international law is assessed in the light of the available forums under international law for the prosecution of the crime of aggression: the International Criminal Court and domestic courts. Overall, it is suggested that while the contemporary international legal order recognises the importance of legal interests of the aggressed State, it has not yet generated structures and institutions that would be necessary to effectively implement responsibility for conduct affecting these interests.

The argument of the dissertation is presented in three parts. First, it considers the way in which international law prohibits and criminalizes aggression, elaborating international obligations of States and individuals in that regard (Part I). It then analyses the interconnection between obligations of States to refrain from an act of aggression and obligations of individuals to refrain from conduct relating to the crime of aggression (Part II). Finally, the enforcement against the crime of aggression in the International Criminal Court and domestic courts is explored (Part III). The aggressed State has a legal interest in the establishment of individual criminal responsibility for the crime of aggression, and in the implementation of legal consequences by means of criminal sanctions against the perpetrator of the crime.

The recognition of individual responsibility for a crime that is addressed solely at the protection of the aggressed State, and not individuals, may be read to suggest a significant shift in the structure of the international legal order. The proposition that individuals are subjects, and States objects or beneficiaries of rules of international law certainly seems to be a striking departure from the orthodox view that States were exclusive subjects of international law. However, the intrinsic link between individual and State responsibility demonstrated in this thesis ensures that the crime of aggression simultaneously fits within the traditional inter-State model of international law and confirms the shift of the contemporary legal order towards greater legal appreciation of various roles that individuals may play. 

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