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King, Faiza Patel --- "The crime of aggression: is it amenable to judicial determination?" [2011] ELECD 98; in Brown, S. Bartram (ed), "Research Handbook on International Criminal Law" (Edward Elgar Publishing, 2011)

Book Title: Research Handbook on International Criminal Law

Editor(s): Brown, S. Bartram

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847202789

Section: Chapter 6

Section Title: The crime of aggression: is it amenable to judicial determination?

Author(s): King, Faiza Patel

Number of pages: 27

Extract:

6 The crime of aggression: is it amenable to judicial
determination?
Faiza Patel King



In the decades since the Nuremberg Tribunal found the German leadership guilty of the crime
of waging aggressive war, much ink has been spilled on the `supreme' international crime.
This river of ink has become a torrent since the Rome Conference adopted the Statute of the
International Criminal Court1 (ICC) and included a provision that brought aggression within
the jurisdiction of the Court, but deferred until the First Review Conference of the Assembly
of States Parties2 the decision on the definition of the crime and the conditions under which
it could be prosecuted. This provision was a compromise between those who believed that the
ICC Statute would not be complete unless it included the crime of aggression and those who
argued that the determination of aggression was too political an issue to put before a court.
This chapter of the Handbook will analyze the various lines of debate about the
International Criminal Court and the crime of aggression using, as a functional lens, the issue
of whether the crime of aggression is susceptible to judicial determination. In other words, is
a court such as the ICC equipped to decide whether a particular use of force constitutes the
crime of aggression?
To develop criteria regarding how to address this question, the first section of this chap-
ter will look at situations where it has been asserted ­ in both domestic and international
courts ­ that certain questions are by ...


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