Study On The Jurisdiction Of The International Criminal Court To Punish The Crime Of Aggression

The Rome Statute of the International Criminal Court,adopted in 1998,provides for the jurisdiction of the courts for four crimes,including aggression.But it also provides that the premise of the court's jurisdiction over aggression is to define the crime of aggression and the conditions under which the court can have jurisdiction over the crime of aggression.There is no relevant provision in the statute at this time,so the court can't actually exercise jurisdiction.Until 2010,the amendment to the crime of aggression was passed,and people began to pay attention to the issue of the crime of aggression.The first section of the first chapter begins with the formation and establishment of the crime of aggression,and the key features of the definition of the crime of aggression.The international community began to resolve international disputes by legal means from the end of the 19 th century.The 1899 and 1907 Hague Conferences opened the way for the international community to limit the country's right to war.The Peace Act of 1917 stipulated that the war of aggression was sinful,exposing and condemning the purpose of the looting of the warring parties of the First World War and the imperialist nature of the war and the guilt of war.The 1928 Paris Convention on Non-War is the first international legal instrument in the history of humanity to formally declare the abolition of war as a tool for promoting national policy in the form of a universal international convention.The judgment of the Nuremberg Tribunal lays the foundation for the principle of individual criminal responsibility and played a role in further demonstrating the legal effect of the Paris Convention on Non-Japanese War,thus forming the prototype of the crime of aggression.From theNuremberg trial to the Rome Statute,it has undergone a qualitative leap.The 1994 draft statute for the international criminal court specifically criminalized the crime of aggression,but it was not defined.The 1996 draft Code of Crimes against the Peace and Security of Mankind also stated that the crime of aggression violated international law,but the real dawn appeared in 1998.The Rome Statute of the International Criminal Court included the crime of aggression as a serious crime under the jurisdiction of the International Criminal Court.After a series of efforts,the Statute Review Conference adopted Resolution RC/Res.6,confirming the final text of the amendment to the Crime of Aggression.As far as the definition of the crime of aggression concerned,first,most of the provisions in the statute existed before,and there is almost no new concept.Second,the crime of aggression refers to the act of individual crime,while the act of aggression is committed by the state.Third,the crime of aggression is a crime committed by the leader.Fourthly,the seven acts of aggression listed in the second paragraph of Article 8 of the amendment still need to meet the requirements of the obvious violation of the charter to constitute the crime of aggression.Fifth,the seventh act of aggression in the second paragraph of Article 8 of the amendment is not a complete list.Finally,through the analysis of the Nuremberg trial and the Tokyo trial after the Second World War,the author concludes that the premise of the jurisdiction of the International Criminal Court over the crime of aggression is the consent of the state.The second section of the first chapter takes the Nuremberg International Military Tribunal and the Far East International Military Tribunal as examples.It points out that the jurisdiction and trial of country should be based on a premise,that is,the consent of the state.Similarly,the premise of the International Criminal Court's jurisdiction over aggression should also be the State's consent.The third section of the first chapter provides a brief overview of the problems encountered by the International Criminal Court in the conduct of the crime of aggression from within and outside the Rome Statute,which will be detailed from the second and third chapters respectively.The second chapter mainly studies the shortcomings of the Rome Statute on the jurisdiction of aggression.The first section of the second chapter deals with the dilemma of the jurisdiction over the crime of aggression applied to the principle of complementarity.The RomeStatute establishes the complementary principle for the jurisdiction of the International Criminal Court.One question during the negotiations of the Special Working Group on the Crime of Aggression is whether the crime of aggression has different characters from genocide,crimes against humanity and war crimes that are also under the jurisdiction of the International Criminal Court,thus different jurisdictional methods are needed.Finally,the Working Group's approach is to treat the crime of aggression equally.However,although this method can change the structure of the Rome Statute as little as possible,and to some extent avoid the complication of potential problems,the author believes that the jurisdiction over the crime of aggression should not apply the principle of complementarity.Since the consent of the State not only refers to the jurisdiction of the International Criminal Court against the aggressor State,but also the jurisdiction between the States over the crime of aggression.Then under the principle of complementarity,the State may exercise jurisdiction over other States.But the aggressed State Court exercising the jurisdiction against the leaders of the country is easy to have political emotions,so it is not conducive to a fair and just trial.In addition,the author believes that the principle that the national courts take precedence over the system of the International Criminal Court is essentially to respect the sovereignty of the states,letting them deal with the issue of the law within the states.But the issue of the crime of aggression involves at least two countries,so in order to avoid political retaliation and other issues,it is more reasonable that the International Criminal Court have the jurisdiction.In the second section of the second chapter,the author believes that the International Criminal Court does not have jurisdiction over non-parties to the Rome Statute.There are two types with regard to the situation in which the International Criminal Court may have jurisdiction over non-parties: one is that the International Criminal Court exercises universal jurisdiction over non-parties;and the other is that the UN Security Council submits the situation regarding non-parties.With regard to universal jurisdiction,the author believes that,regardless of whether the State can exercise jurisdiction over the crime of aggression in accordance with universal jurisdiction,the International Criminal Court should not have jurisdiction over non-States parties to the Rome Statute.There is no relevant provision in the Rome Statute that provides for the universal jurisdiction of the International Criminal Court,and even if there were,it does not constitute a source of law,which can only bindStates parties.In addition,the subject that exercising universal jurisdiction should be state sovereignty,not the International Criminal Court.In addition,the author used the Sudanese lawsuit as an entry point,criticized the jurisdiction against non-parties under the UN Security Council's submission.Since the Sudan is not a party to the Rome Statute,compliance with the Rome Statute is not an obligation,and it has never agreed to surrender some of its national sovereignty in any express or implied manner,thus the conduct of the International Criminal Court damaged the national sovereignty of Sudan.In addition,the International Criminal Court exercising jurisdiction against in the Sudan case actually implies that the Sudan is an “unwilling” or “unable”country in punishing the crime of aggression.The International Criminal Court needs to exercise jurisdiction when state parties are “unwilling” or “unable”,then it is obviously unfair to exercise jurisdiction against Sudan without relevant measures and information.The third chapter discusses the conflict between the International Criminal Court and the UN Security Council on the issue of punishing aggression.The second paragraph of Article 5 of the 1998 Rome Statute,although not providing for the definition of the crime of aggression,nor providing for the conditions of jurisdiction over the crime of aggression,but explicitly includes the crime of aggression as one of the four most serious crimes under the jurisdiction of the International Criminal Court,which confirms the jurisdiction of the International Criminal Court for the crime of aggression.In the provisions of Article 39 of the Charter of the United Nations,the Member States have also granted the Security Council the right to determine the threat of peace,the destruction of peace or the existence of aggression,and then there is a certain overlap between the two institutions that have jurisdiction over the crime of aggression.Although the International Criminal Court is a permanent institution independent of the United Nations and has an independent legal personality,this does not mean that the Security Council has no connection with the International Criminal Court.There is only one center for maintaining world peace and security,that is the UN Security Council.The author believes that although the Rome Statute recognizes the right of the Security Council to determine the act of aggression,it denies that the Security Council determining that the act of aggression as a prerequisite for the International Court to determine crime of aggression,which is not correct.From the perspective of system and teleology,under Articles 24 and 39 of the UN Charter,the Security Council has the exclusive right to identify acts of aggression,thus reflectingits primary importance in maintaining international peace and security,which is also in line with the provisions of article 5,paragraph 2,of the Rome Statute.In addition,the United Nations having the exclusive right of determining the act of aggression can prevent the International Criminal Court from being involved in complex political issues to a certain extent.Aggression is an act committed by the States,and the International Criminal Court being a judicial body only has the right to determine individual criminal responsibility in accordance with the Rome Statute.In view of this,the author believes that the identification of the crime of aggression by the International Criminal Court should be in line with the Security Council and is complementary.Despite many considerations,such as the nature of the Council and its role in peace and security,the veto of the permanent members has made the Council's resolutions somewhat unequal,but in general it has helped to strengthen international norms,which may encourage more countries to accept the jurisdiction of the International Criminal Court in return.In the fourth chapter,the author discusses how to play the role of the Rome Statute in punishing the crime of aggression,and puts forward some views,believing that the Rome Statute is in line with the purpose of safeguarding human rights and pursuing fairness and justice,and is in line with the purpose of national judicial defense.It can play a role in balancing international hegemony,but there are some irrationalities at the same time.Firstly,the Rome Statute unreasonably stipulates the obligations of non-parties.When the Security Council submits a situation,the jurisdiction of the International Criminal Court over the crime of aggression may involve non-parties.Secondly,the relevant provisions of the Rome Statute are very likely to violate national sovereignty.On the one hand,the right of the prosecutors may be too large.On the other hand,the standards of the International Criminal Court determining whether the national court is “unwilling” or “unable” are not refined so that it is difficult to ensure that the International Criminal Court will not judge inaccurately or even abuse power.Finally,the Rome Statute has not been synchronized with the UN Charter,and the issue of the ownership of punishing aggression between the International Criminal Court and the UN Security Council remains controversial,thus challenging the status of the Security Council to determine the act of aggression exclusively.Therefore,the author proposes to make the Rome Statute cooperate with the UN Charter and incorporate the role of the International Criminal Court into the UN Charter on the base of ensuring the exclusive right of theSecurity Council to determine the act of aggression.Finally,on the basis of recognizing that the Rome Statute cannot be completed overnight,the author analyzes the practice of the State parties and draws inspirations for our country.