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Consequences of Kampala: Assessing the impact of an International Criminal Court finding of aggression.

Abstract

In 2017, the crime of aggression is due to enter into force under the Rome Statute, giving an international tribunal, the International Criminal Court, the capacity to prosecute the crime for the first time since the end of World War II. The definition of the crime agreed upon at the Kampala Conference requires that the ICC first establish that a state has committed an 'act of aggression'. Therefore, the new jurisdiction of the ICC raises unresolved issues as to the interaction between two different systems of international law: the law of state responsibility and international criminal law. This article considers the implications for state responsibility flowing from a finding by the ICC. Specifically, it argues that such a finding would be coextensive with a breach of the prohibition on aggression under customary law and, thus, would be persuasive in a for a determination of state responsibility.

I Introduction

The historic Rome Statute, finalised in the twilight years of a century that confronted witness to heinous and widespread acts of violence, aimed to end the impunity for such acts by codifying individual liability for international crimes and establishing the International Criminal Court ('ICC'). (1) Despite this, the crime of aggression, once described as the 'supreme international crime', (2) was conspicuously absent from the regime. In 2010, however, the Review Conference on the Rome Statute of the International Criminal Court in Kampala, Uganda ('Kampala') finally reached agreement on a definition of this crime. Under this definition no individual will be found guilty of the crime of aggression unless the ICC has first found that a state has committed an 'act of aggression.' (3) Importantly, this element resembles the concept of aggression as a source of state liability. It therefore raises a significant question, which is the subject of this article: whether, and to what extent, a positive finding by the ICC should impact the responsibility of a state for aggression. (4)

Issues of this nature are not unique to the context of aggression: joint criminal enterprise and aiding and abetting also involve fault by third parties. (5) However, as Pellet has observed, 'except for the crime of aggression, the definitions given of the various crimes against the peace and security of humanity do not return necessarily to a crime corresponding to the state.' (6) The new crime of aggression therefore exposes, with particular urgency, the relationship between individual and state responsibility. Described variously as 'unclear and underdeveloped,' (7) of 'undefined parameters,' (8) and a 'shadow area of international law,"' this relationship has not been the focus of significant scholarship.

An ICC finding that a state committed an act of aggression may indeed be persuasive for the same determination by the ICJ. To foreground this conclusion, Part II will illustrate how the historical development of state and individual responsibility for aggression contributed towards their interdependence. Part III will argue that the use of an ICC finding in the ICJ is legally permissible given the coextensive content of aggression under each system, the procedural freedom to do so, and the current attitude of the ICJ towards similar tribunals. Finally, Part IV will develop and qualify this conclusion by a normative analysis, pointing to prevailing theories and institutional concerns.

If adopted, the conclusion presented here could be an important outcome in a practical sense--in a system of law where fragmentation poses issues for the cohesiveness and certainty of law, (10) and where the slow-moving institutional pace can impact perceptions of justice, (11) a finding that could trigger a response for state responsibility would be an important development. However, on a theoretical level it also has the chance to clarify the broader question surrounding how the jurisprudence of these two systems of responsibility relate, if at all. (12)

II The Crime of Aggression

A. Historical Development

The interaction between state and individual responsibility for aggression is closely related to the historical development of both through the 20th century. In particular, state responsibility for aggressive acts can be traced to the early part of last century. While rules on the use of force were present throughout history, (13) it was in the wake of the carnage of World War I that a desire for a formal international prohibition on aggressive acts crystallised. (14) Indeed, until this point, the use of war was generally perceived to be a legitimate exercise of state policy. (15) At the Paris Peace Conference such a prohibition was unanimously desired, (16) and was ultimately incorporated into the Covenant of the League of Nations and The Versailles Treaty. (17) Under the latter, Germany was held liable to pay reparations for violating this prohibition. (18) The international movement towards clarifying and codifying this norm continued in the interwar period through a number of international agreements, (19) despite consensus on the precise scope of aggression remaining illusive. (20) By the end of the World War II the illegality of the basic state act seemed solidified through the establishment of international legal institutions and prosecutions born out of the conflict. (21) However, from here the development of aggression was characterised by the search for a political solution. Given the potential ramifications for the use of force by states, progress on defining aggression (particularly in the context of the Cold War) remained gradual. In the nascent United Nations, a search for the parameters of the norm continued: in prohibiting the use of force, (22) the Charter gave the UNSC the authority to determine an act of aggression, (23) but aggression itself remained undefined. However, after four consecutive committees commissioned by the UN over the proceeding decades, a definition was finally produced in the 1974 UNGA Resolution 3314. (24) Aggression was there defined as giving rise to international responsibility for the use of armed force against the 'political or territorial integrity of another state' (25) and provided was a list of acts qualifying as aggressive. (26)

By comparison, individual responsibility developed from the international agreement to hold natural persons liable for the atrocities of World War II. (27) While the Nuremberg Charter, (28) referred to a 'war of aggression' as a 'crime against peace' the phrase was not elaborated upon. Consequently, military tribunals were immediately faced with the difficulty of convicting defendants for a crime never levelled at an individual by an international body. In response to arguments of a violation of nullum crimen sine lege, (29) (and in an approach which has not gone uncriticised) (30) the Tribunals, such as that in France v Goring, reasoned that as prominent officials aware of the international obligations of Germany, the defendants must have known what they were doing was wrong. (31) Moreover, 'far from it being unjust to punish him, it would be unjust if this wrong were allowed to go unpunished.' (32) Further, in United States v von Leeb, (33) it was concluded that individual liability must follow from state responsibility as a 'logical and inescapable conclusion', (34) particularly given that individuals were already considered subjects of international duties. (35) Thus it was in the context of state action that individual liability was imposed by the post-war courts. Despite criticism, such principles were subsequently approved by the UNGA. (36) Additionally, the ILC, tasked with defining the crime for inclusion in the DCOPSM, (37) included individual liability for aggression in its final draft, provided a state act of aggression could first be identified. (38)

While coloured by a history of uncertainty, two consistent threads running through the development of the concept of aggression can be observed: a prohibition on aggressive acts by states and a requirement of such an act before individual liability can be imposed. It is these threads which came to be woven into the Kampala definition, and give rise the issue of system interaction at hand.

B. The Kampala Definition

Under the Kampala definition of aggression an individual (a natural person) (39) will be guilty of the crime if he or she is found to have been involved in:
'Article 8bis
(1)... the planning, preparation, initiation or execution, by a person
in a position effectively to exercise control over or to direct the
political or military action of a State, of an act of aggression which,
by its character, gravity and scale, constitutes a manifest violation
of the Charter of the United Nations.

(2)... "act of aggression" means the use of armed force by a State
against the sovereignty, territorial integrity or political
independence of another State, or in any other manner inconsistent with
the Charter of the United Nations' (40)


A non-exhaustive list of aggressive acts, mirroring those listed in Article 3 of Resolution 3314 is then included. (41) As Boas argues, although appearing to criminalise an antiquated conception of conflict, the Kampala definition is reflective of the inherent state link established in the norm's historical development. (42)

Despite predictions that another body would have to determine an act of aggression before the ICC could make a finding, (43) and several proposals put forward to this effect, (44) such a process was rejected at Kampala. (45) While the UNSC may make a determination of aggression in order to initiate proceedings, (46) it will not bind the ICC for the purposes of Article 8bis. (47) Conversely, and more importantly for present purposes, the Rome Statute makes clear that its provisions in no way affect state responsibility under general international law in a direct legal sense. (48) The overall result is that the ICC is not bound by, nor may it bind, any other body in its findings of state aggression under Article 8bis.

Article 8bis is somewhat unclear as to whether or not such a finding will be a purely factual, with one (considerations of sovereignty or consistency with the Charter potentially involving legal determinations). Nevertheless, as will be shown below, such distinctions will (generally) (49) be unproblematic for their adoption by a tribunal of state responsibility.

III The Use of an ICC Finding

While the ICC finding of state aggression may not have a direct legal bearing on state responsibility, it might nevertheless act as sufficient evidence that a breach of primary obligation has occurred. (50) Three questions merit consideration in determining if an ICC finding can be used in this way. These include whether the content of the obligations under each system correspond, whether procedural considerations prohibit use of an ICC finding, and the weight a tribunal of state responsibility will afford to such findings. These are addressed separately blow.

A. The Content of Aggression

Although prima facie relevant only for the purposes of individual responsibility, the content of the Kampala definition probably, though not certainly, corresponds to aggression under customary international law. Unlike the crime of genocide, where the Rome Statute definition matches the definition given under the Genocide Convention, (51) which gives rise to state responsibility, (52) aggression is not so defined. Moreover, Article 10 of the Rome Statute holds that definitions of crimes contained therein do not impact customary international law. (53) Thus, there is a risk of inconsistency between the Kampala definition and the content of aggression for the purposes of state responsibility under customary law. While the basic character of aggression (outlined above) has been maintained, (54) the Kampala definition includes a substantial gravity threshold ('manifest violation of the Charter) (55) and enumerates a number of deemed aggressive acts, mirroring those in Resolution 3314. (56) This list in particular raised concerns at the drafting stage (and in commentary) (57) as to whether it was truly reflective of customary international law. (58) Although the codification of customary law had been the aim throughout the drafting of the Rome Statute? (59) whether this in fact resulted at Kampala should be examined.

The precise scope of aggression under customary law is hindered by a lack of conclusive state practice. While UN resolutions (generally) (60) do not create customary law per se, (61) resolutions of UN bodies can nevertheless either evidence or contribute to the development of customary international law in significant ways. (62) The UNSC and the UNGA have on a number of occasions identified acts by states as 'aggressive'; (63) yet the definitional basis of their conclusions has not always been clear or consistent. (64) Problematically, the UNSC has never explicitly referred to the Resolution 3314 in its determinations and the UNGA has done so only twice. (65) As a result, McDougall notes that only Article 3(a) and 3(b) of the Resolution 3314 (invasion, occupation and annexation of territory, and bombardment of another's territory) seem to have garnered consensus as aggressive acts by these UN bodies. (66) Domestic judgments, which too can evidence state practice and opinio juris, (67) also provide little assistance. In R v Jones, for example, (68) the customary law definition was found to be sufficiently certain but its elements were not comprehensively outlined. Moreover, the German Chief Federal Prosecutor's advice on prosecuting aggression in Germany was not based on the customary law definition, but rather domestic legislation. (69)

Crucially, the ICJ has not explicitly addressed the scope of aggression. (70) Although raised by the parties in Armed Activities, (71) as well as in Paramilitary Activities, (72) the Court analysed the claims and drew its conclusions without explicit reference to the concept. However, as Akande and Tzanakopoulos have illustrated, (73) the ICJ's discussion of the use of force in Paramilitary Activities, (74) Armed Activities, (75) and Oil Platforms, (76) establishes 'armed attack' as 'closely related, if not one and the same' with the concept of aggression. (77) Moreover, like definition of aggression in Resolution 3314, (78) the definition of armed attack includes a gravity threshold, (79) which excludes mere violations of Article 2(4) of the Charter, and violations empowering self-defence under Article 51. (80) Supporting their thesis, the authors point to the consistent references to Resolution 3314 in relation to armed attack in the case law. (81) As two concepts that both concern the use of sufficiently extreme force, aggression and armed attack ought to be equated; the mere difference in terminology does not displace the conceptual similarity. (82)

As such, the ICJ can be seen (albeit indirectly) to have affirmed the gravamen underlying the Kampala definition: a grave breach of territorial integrity or political sovereignty. (83) Moreover, this could be seen as an endorsement of some or all of Resolution 3314 (and thus the acts listed in the Kampala definition) as customary law, especially because Resolution is referred to throughout the cases, (84) and Article 3(g) (concerning informal armed groups) is explicitly endorsed. (85) Gommaa suggests that the fact that only Article 3(g) was explicitly endorsed should be taken to imply that the remainder were already presumed to reflect custom by the ICJ. (86) Gommaa proposes that, if the ICJ has accepted the 'most problematic' (87) element of Resolution 3314, there is no logical reason why a breach in another manner should not also reflect customary international law. (88) Indeed that Resolution 3314 has developed customary law on aggression has been assumed by some authors, (89) and even certain judges of the ICJ. (90)

Even if the arguments of Akande, Tzanakopoulos and Gommaa are not accepted, (91) it nevertheless seems anomalous for the customary and treaty definitions to be inconsistent. The travaux preparatories of Kampala show that the drafters exhaustively analysed historical sources in developing their definition. (92) Consistently throughout these documents, the concept of a violation of sovereignty, grave in nature, has been affirmed. (93) The possibility of one of the acts listed in Resolution 3314 (which include bombardment, invasion, sending of mercenaries, attacks with armed forces and blockades) somehow not amounting to a grave breach of sovereignty seems unlikely. Further, the proposal by the United States to insert an understanding that the Kampala definition did not reflect customary law was rejected at the conference. (94) While the possibility remains that the Kampala definition on a given occasion does not meet the customary law definition, noting that the list in Article 8bis(2) is not exhaustive, this nevertheless seems an unlikely result.

B. Procedural Issues

Given its broad jurisdiction and role as primary judicial organ of the UN, though dependent on state consent, the ICJ seems the likely forum for a determination of state responsibility for aggression. (95) As such certain procedural considerations need to be addressed, namely admissibility of an ICC finding as evidence, standard of proof, and the doctrine of res judicata. (96)

1. Admissibility of Evidence

The flexible admissibility rules for the ICJ suggest that the introduction of an ICC finding as evidence will pose no issue. Despite law to be found in some domestic legal systems prohibiting findings by other tribunals to prove the existence of a fact presently in dispute, (97) as a general rule, evidence brought before the ICJ is prima facie admissible and the ICJ has not adopted any such exclusionary rule for other criminal tribunals. (98) The flexible rules are seen as necessary for party equality. (99) Although some discretionary powers of exclusion do exist, they are seldom exercised. (100) This attitude, combined with the fact that the ICC requires a higher standard of admissibility (including a mandatory exclusion for illegally obtained evidence) (101) the ICJ is unlikely to exclude an ICC finding as inadmissible.

2. Standards of Proof

An ICC finding would carry less force if the standard used to prove it was lower than that required by the ICJ, but this is not the case. The Rome Statute requires that the ICC establish guilt beyond reasonable doubt. (102) In Prosecutor v Lunbanga Dyilo, (103) it was clarified that the standard applies to every fact required to be proven as element of the crime, though not each fact introduced. (104) Conversely, the standard applied in the ICJ apparently varies depending upon the gravity of breach alleged, (105) ranging from the 'balance of evidence' (106) to 'conclusive evidence.' (107) In Bosnia and Herzegovina v Serbia and Montenegro, (108) a case of substantial gravity, the ICJ applied a 'fully conclusive evidence' standard. (109) At its highest this standard would not 'differ substantially' (110) from a 'beyond reasonable doubt' standard; (111) as Gattini argues, it will unlikely exceed the criminal standard given the more limited fact-finding ability of the ICJ. (112) Thus, although considering a breach of serious gravity, the ICJ will be weighing conclusions based on facts established beyond reasonable doubt, a standard likely higher than the standard the Court itself would employ.

3. Res Judicata

A further procedural issue to be considered is whether or not a state party to an ICJ proceeding may raise a res judicata argument when faced with a finding from the ICC. Given that the dispositif would include a finding on state action, a party to the ICC may contend the matter is not open to be reconsidered. (113) The ICJ (as well as international criminal tribunals) has expressly recognised the concept of res judicata as a general principle of international law. (114) While the contours of the doctrine differ in domestic systems, (115) Judge Anzilotti gave the authoritative statement of the applicable principles at international law. Interpreting Articles 59 and 60 of the ICJ statute, he concluded that those articles refer to the prohibition on rehearing cases with the same "persona, petitum, [and] causa petendi." (116) Findings at the ICTY follow this dicta, requiring the same parties, object, and cause to be made out before the doctrine applies. (117) Where only the parties differ, the ICTY has utilised the earlier decision as precedent and even taken earlier findings on judicial notice. (118) Thus, without the state party being present at the ICC proceedings, a res judicata arguments seems unlikely to be successful. While a state can 'intervene' (in trial proceedings) (119) in the ICC, this is only to the extent of protecting against the disclosure of evidence prejudicial to national security interests. (120) Moreover, this provision has been construed narrowly to the limited purposes of admissibility of certain documents. (121) Thus, without the same parties being bound to the dispositif section of the judgment by the ICC, a finding by the ICC is unlikely to be prohibited under the doctrine of res judicata.

C. Weight of Evidence

State responsibility has not yet been assessed in light of a finding by the ICC. (122) However, as Hardtke observes generally, findings of criminal tribunals, although non-binding, generally have the potential to 'significantly bolster a claim for state responsibility.' (123) If the concepts of state aggression in individual and state responsibility are coextensive, and no procedural issue bar the process, the appropriate weight of that finding should be examined.

1. Bosnian Genocide Case

UNSC Resolution 827 gave the ICTY a mandate to prosecute individuals responsible for serious breaches of international law. (124) Thus when a claim was also brought against Serbia and Montenegro, two fora (the ICJ and the ICTY) were now empowered to consider the same factual scenarios. By the time of the Bosnian Genocide Case, the ICJ recognised it was in an 'unusual' position of having available to it a significant body of findings on the same facts from the ICTY. (125)

In considering the weight to be given to such findings the ICJ first distinguished their various forms, from the initial indictments through to sentencing decisions. (126) The ICJ concluded that substantial weight should be afforded to findings at the trial and appeal stages, particularly given the extensive critical processes to which the evidence was there subjected. (127)

The Court held that:
'[The Court] should in principle accept as highly persuasive relevant
findings of fact made by the Tribunal at trial... For the same reasons,
any evaluation by the Tribunal based on the facts as so found for
instance about the existence of the required intent [for genocide], is
also entitled to due weight.' (128)


Proceeding to address the claims before it, the ICJ relied heavily (and at times exclusively) on these ICTY factual findings to establish acts of genocide, (129) for the purposes of determining state responsibility. (130)

In particular, both the ICTY and ICJ needed to identify a 'specific intent' (dolus specialis) to "destroy, in whole or in part, a national, ethnic, racial or religious group", (131) beyond the requisite mental elements of participating in the act themselves. (132) Accordingly, the ICJ was able to draw upon ICTY findings that were not only factual in nature, but legal. Where the ICTY had not yet considered allegations under the Genocide Convention the ICJ came to its own conclusion on intent (although often basing these on ICTY factual findings). (133) Where, however, the ICTY made a positive or negative finding of intent by an individual, the ICJ uniformly followed this evaluation. It did so where the ICTY found insufficient evidence of intent for killing members of protected group, (134) destruction of historical, religious and cultural property, (135) and encirclement, shelling and starvation. (136) In the latter finding the Court explicitly followed the conclusion in Prosecutor v Galic on the absence of intent. (137) Whereas Prosecutor v Blagojevic (Blagojevic) and Prosecutor v Krstic (Krstic) had established dolus specialis, (138) the ICJ simply stated: 'The Coutt has no reason to depart from the Tribunal's determination that the necessary specific intent (dolus specialis) was established.' (139) As an alternate argument, it was submitted that intent could be determined from the whole factual pattern across the conflict and from government documentation. (140) On the documentation, the ICJ followed the findings both in Prosecutor v Stakic, (141) and in Prosecutor v Brdanin (142) which refused to characterise the documentation as exhibiting genocidal intent. (143) On the general pattern argument, the Court held that, given only Krstic and Blagojevic, and no other ICTY case, had found genocide had occurred in Srebenica, the general pattern of facts did not establish an intent for genocide. (144)

While the Court was not bound to follow such findings, these statements showed that determinations of legal questions (as well as findings of fact) by the ICTY were sufficient in these circumstances to be adopted for the question of state responsibility. While genocide was established in this case, the ICJ concluded that it was not conducted by, nor attributable to, an organ of Serbia and Montenegro. (145) For present purposes however, of importance was the reliance on ICTY findings to establish a breach of the primary norm, genocide.

2. Second Bosnian Genocide Case

The above attitude to findings of the ICTY was followed in the subsequent ICJ decision of Croatia v Serbia. (146) While both Croatia's claim and Serbia's counterclaim were dismissed, the ICJ nevertheless made a detailed examination of the evidence, relying heavily on ICTY findings. (147) The decision confirmed that trial and appeal stage findings (and evaluations based on those findings) should be considered highly persuasive, (148) given the rigorous evidentiary processes. (149) The Court went further by considering that a decision not to proceed with a charge of genocide in they ICTY should also carry weight. (150) Observing that the accused was not charged with genocide in the ICTY case of Prosecutor v Gotovina, (151) but had otherwise faced serious charges of systemic violence, the Court held the absence of a charge to be a factor of significance. (152)

In the Bosnian Genocide Case, Serbia objected to the use of ICTY findings in determining state responsibility, arguing that such findings cannot be based on findings of individual liability. (153) The ICJ acknowledged that the two systems are separate legal regimes and have different aims (154) Nonetheless, it confirmed its capacity to use ICTY findings when examining the 'constituent elements' (155) of the issue at hand; once the commission of genocide (including questions of intent) was established, international law governing the responsibility of states would be applied. (156) While the Court had no opportunity to adopt findings for the purposes of state responsibility, it nevertheless maintained a deferential attitude towards them.

3. The Prosecutor v Tadic Caveat

In Paramilitary Activities the ICJ had established that in order for a state to be held responsible for the acts a group, there needed to be 'effective control' over that group. (157) The Appeals Chamber in Prosecutor v Tadic took a different view. (158) Deeming the Paramilitary Activities test as relevant to its own question, it noted that the conditions giving rise to state responsibility and those giving rise to individual responsibility by virtue of his or her position as a state organ must necessarily be the same. (159) The Chamber then argued that the test established in Paramilitary Activities was inconsistent with the logic of state responsibility, (160) and international practice, (161) ultimately preferring a test of 'overall control' for both systems. (162)

The ICJ in the Bosnian Genocide Case was highly critical of this approach, pointing out that questions of state responsibility were not necessary for the ICTY to consider. (163) The ICJ held that to go beyond its mandate and conclude on a general position of state responsibility was both unnecessary and unpersuasive. (164) It held that it would lend no weight to findings:
'... which do not lie within the specific purview of its [ICTY's]
jurisdiction and... [are not] necessary for deciding the criminal cases
before it.' (165)


While in the case of aggression the ICC might be seen to be taking similar step beyond its mandated role of individual responsibility, the situation is not analogous to Tadic. In Tadic the ICTY was required only to establish whether or not an armed conflict was international (in determining whether the Geneva Conventions were applicable); (166) not general questions of state responsibility. In the case of aggression, a finding on state action is required for the ICC to exercise its mandate.

4. Causes for Caution

The above establishes that an ICC finding (within its mandate) on state aggression matches its customary law counterpart, faces no procedural bar, and could be afforded significant weight by the ICJ. However, certain distinctions between the ICC and the above evidence need to be addressed. First, the above cases the ICJ considered involved a large measure of agreement between the parties on the facts, absent this and where there is disagreement as to the factual findings of the ICC, the ICJ may not be able to utilise such findings with the same ease as it did in the above cases. However, as noted above, much like the ICTY the ICC adopts exhaustive and thorough evidentiary processes before coming to its conclusions. Further, comparatively the ICJ is less equipped to engage in extensive fact-finding. (167) Thus, a state may wish to contest a factual or legal finding, but once decided its persuasive value will likely remain high.

Secondly, there is an assumption the ICJ will treat the ICC the same way it did the ICTY. The ICC is the product of a treaty with limited membership and with little case law thus far; identical treatment thus cannot be assumed. Indeed, when following ICTY findings, the ICJ often relied on more than one ICTY decisions. Nevertheless, the provisions in each foundational document establish a largely identical structure and evidentiary procedure, (168) which the above cases focus on when determining the persuasive value of the decisions (as well as in other ICJ jurisprudence). (169) As such there seems to be no reason in principle the ICJ would not follow the judicial reasoning of the ICC. However, it may be the case that this is effectively delayed until the ICC develops a more substantial body of case law interpreting the Rome Statute.

Thirdly, the argument that the ICJ will continue its current attitude towards the ICC assumes that the ICJ will be able to treat aggression in the same way as it did genocide. While the Genocide Convention was able to provide identical definitions for both systems of responsibility, aggression does not exist with such clarity. Nevertheless, as raised above, there is a strong argument that the ICJ will draw on customary law, identical in content to the Kampala definition.

IV The Normative Question

A. Theoretical Perspectives

As noted above, the underlying question over a single theory of system interaction remains a contested issue. However, the question has received some academic attention and various schools of thought have developed. If the result of the above is that an ICC finding will carry persuasive weight in the ICJ, the question arises as to whether this fits with any of the current schools of though on system interaction. Although there is not extensive scholarship on system interaction, the work of Bonafe is considered the 'only coherent treatise' (170) on the question. (171) Bonafe extracts two theoretical approaches: one regarding the systems as entirely separate; the other as merely constituent parts of the one system of state responsibility. (172) Starita also identifies this dichotomy, describing the schools as 'dualists' and 'monists'. (173) However Bonafe also posits her own model, a third way which fits comfortably with current international law and supports the envisaged interaction of the two systems on the question of aggression outlined above.

1. The Dualist Approach

Dualists posit that, after Nuremberg, a system of individual responsibility clearly independent of state responsibility was established. (174) In support of their model, these authors point to the separate institutional arrangements, differing content of primary rules, and distinct regime of secondary rules to highlight the separate nature of the systems. (175) Nolkaemper, for example, points out that the conviction of an individual does not affect the possibility of bringing a claim for state responsibility, offering the conviction of the Lockerbie bomber scenario as an example. (176) Without legal linkage between the systems and a fundamental difference in primary norms, a finding by the ICC should carry no weight for state responsibility under this model. As dualists posit, the question being asked in each system is different, and thus 'the forms of responsibility are fully independent from each other from the start.' (177)

This result is unsatisfactory. As Bonafe observes, this model ignores crucial overlaps in the primary obligations in both material and mental elements of international wrongs. (178) For example, Bonafe points to the shared prohibition on reprisals against civilian populations under both systems, (179) as indicated in Prosecutor v Kordic. (180) At a more fundamental level, it would anomalous for the ICJ to ignore evidence introduced by state parties which has been established after thorough testing of evidence on precisely the same facts, when aiming to determine whether a state has acted aggressively--a question whose content, as established above, is likely to be the same.

2. The Monist Approach

The monist approach stems from the traditional conception of states as the only relevant legal entities in international law and argues that punishment of the individual is merely an indirect means of punishing the state. (181) Scholars such as Sperduti and Drost argue that prosecution of individuals simply forms part of a bilateral resolution to conflict. (182) Modern proponents of this view move beyond the traditional bilateral approach and argue that states owe obligations to the international community at large, and individual prosecutions form part of holding that state responsible. (183)

Although the monist model readily accommodates the use of ICC findings by the ICJ, by understanding international law as a cohesive whole, this approach cannot be seen as satisfactory either. First, secondary rules of international law are clearly distinct. A scenario where an individual defence or circumstance precluding wrongfulness can result in differing outcomes on the same facts does not fit well with the monist thesis. This is supported from what has been shown above, where genocide was found to have been committed in the Blagojevic and Krstic decisions, yet not attributable to Serbia in the Bosnian Genocide Case. Secondly, this model ignores the possibility of international crimes committed by private individuals who are not acting as state organs.

3. A Third Way

It is thus the model proffered by Bonafe that seems the most promising explanation for the interaction between the two systems. (184) This approach posits that the two systems of responsibility share the same primary obligations, but maintain their own secondary rules. (185) The result is that the same conduct under each system 'cannot be qualified differently (i.e., as lawful or unlawful)'. (186) This approach overcomes the issues raised with the above alternate models, as the systems maintain separate rules of attribution (which posed problems for the monist argument) and yet can adopt findings of the legal elements of the primary obligation (which posed issues for the dualist argument).

In his critique of Bonafe's theory, Stanley concludes that no new theory is imparted as the conclusion is merely one that two systems cover similar crimes. (187) However, Bonafe does not suggest similarity, but unity. (188) One can cast Bonafe's theory in terms of Kelsen's 'pure theory of law', which postulates a hierarchy of norms that proceed from an ultimate norm and attach legal significance to the norms beneath them. (189) If the higher norm here is the prohibition of aggression, in turn this defines legal responsibility for states and individuals as two subordinate norms within the hierarchy. Under this approach, therefore, both the individual and the state share an obligation not to commit aggression, and an act of aggression 'simultaneously leads to aggravated state responsibility and individual criminal liability under international law.' (190) For the argument at hand therefore, that a ICC finding should evidence a breach of a primary obligation under the system of state responsibility, is supported by Bonafe's model.

The result also avoids continued issues with fragmentation and coherence, where two international tribunals could come to different conclusions on whether aggression has occurred. (191) The recent criticism levelled at the ICTY for its inconsistent outcomes on the existence of a joint criminal enterprise in the cases of Seselj and Karadzic, (192)serves to highlight this point. (193) Particularly problematic would be the scenario of an individual convicted by the ICC seeking to overturn their conviction on the basis of an inconsistent ICJ decision on the existence of aggression, or initiate proceedings in other system to undermine ongoing proceedings. (194)

B. An Institutional Consideration

If a finding of the ICC impacts the determination of state responsibility, the process could face criticism of procedural unfairness (given the absence of the state at proceedings) and could undermine the authority of the treaty-based ICC, reliant on international support. Determining state responsibility is not what the ICC was designed to achieve. As Cassese notes the two systems of responsibility rest on inherently different philosophies. (195) The system of individual responsibility has a focus on moral culpability, punishment of an individual, and protection of societies from egregious crimes. Simultaneously, the severity of its outcome is recognised by due process, (196) along with rules guided by the principle of legality. (197) By contrast, state responsibility eschews typical ideas of culpability. (198) Instead, prominent guidance is given by considerations of sovereignty, (199) as well as principles of pacific settlements to disputes. (200) Punitive aspects have been consciously avoided in the DARSIWA, (201) (even in circumstances of aggravated responsibility) (202) and are generally accepted not to form part of customary law on state responsibility. (203) This distinction was highlighted by the rejection of 'state crimes' in the DARSIWA, (204) seen to evoke the aforementioned moral judgments attached to criminal responsibility. (205) As Cassese concludes, 'the thrust of [state responsibility] is legally to regulate and facilitate a minimum of peaceful intercourse between states', (206) placing higher value on norm-shaping rather than its 'repressive function'. (207)

With the backdrop of this philosophical difference, if the foundation of a finding of state responsibility is shifted from the ICJ to the ICC by the former adopting as sufficient the finding of the latter, the continued growth and success of the ICC risks being jeopardised by criticism exceeding its mandate. Wegner argues that it is only because of the egregious nature of the narrow list of crimes listed in the Rome Statute that traditional notions of Westphalian sovereignty have been able to lapse. (208) As Simpson observes, prosecutions in the ICC risk becoming an adjudication on 'historical truth or political responsibility.' (209) Thus he argues, while it was Nazi officials being prosecuted at Nuremberg, national socialism was also on trial. (210) Given the close link between the state and individual acts of aggression, this risk is only increased. These concerns were raised at the drafting of the Rome Statute, where the potential for the ICC to face questions over historical claims, boundaries, and issues of self-defence was recognised, risking it becoming 'a political forum for discussing the legality of use of force by states,' (211) and a 'lightning rod for enormous political scrutiny.' (212)

While the ICC has been described as 'a judicial organisation operating in the most political of environments', (213) drafters of the Rome Statute have strived to maintain judicial integrity and distance from the question of state responsibility in various ways. First, an explicit article of the Rome Statute holds that findings of the ICC will not impact state responsibility. (214) Secondly, a deference to sovereignty is made via the principle of complementarity, (215) the opt out clause for aggression, (216) and more broadly the consent-based statute. (217) Thirdly, support is given to the independence of the ICC on aggression by the UNSC's role in determining aggression, (218) and the primacy it has in doing so. (219) As Roach observes, the ability for the UNSC to intervene in such a way supports the ICC itself being seen as independent and impartial. (220) Finally, the Office of the Prosecutor, independent of the Court, (221) is confined (through the cumulative effect of various articles) (222) by the requirement of the identification of a 'general state of crisis' as determined by objective criteria, not mere allegations against specific individuals. (223) Finally, for aggression, judicial oversight of initiation processes is increased, (224) while existing judicial review processes for the decision to initiate proceedings remain available under the Rome Statute. (225) Thus, drafters seemed cognisant of the need for the ICC to avoid criticism of its incursions into the political realm.

For the court to continue to develop, political support is crucial. The ICC is a relatively recent organisation in the long history of international law. While over one hundred and twenty states have ratified the Rome Statute, absent is the support of major world powers. (226) Further, to date, the ICC has only recorded three successful convictions. (227) The institution is yet to establish itself as the effective and respected institution the Rome Statute envisages and the ICC's experiences in Uganda, (228) and in Darfur, (229) have illustrated that without cooperation its mandate is impossible.

As Judge of the ICC, Hans-Peter Kaul has noted extra-judicially:
"The ICC must continue to consolidate its ongoing development into... a
functioning and credible international court. It also remains essential
that the ICC continues to show... that it is a purely judicial,
objective, neutral and nonpolitical institution.' (230)


Although, as a matter of legal principle, an ICC finding could be utilised in establishing state liability, political considerations may thus encourage caution.

V Conclusion

The opportunity provided by the introduction of the crime of aggression in the ICC to examine the relationship between state and individual systems of responsibility has shown potential for interaction. The content of the crime appears to be coextensive with the customary law prohibition on state aggressive acts; it will unlikely be affected by procedural bars to its use in the ICJ; and ICJ case law indicates its findings of both fact and law may cany persuasive weight. This outcome is consistent with a powerful theoretical model of system interaction --Bonafe's thesis of shared norms. While this path could give rise to questions over the boundaries of the ICC's mandate, this need not necessarily undermine the possibility of the use of its finding. Such questions say nothing as to the quality and method of an ICC finding and its persuasive nature. Moreover, a conclusion of state aggression by the ICC is unlikely to be adopted as the sole and unconsidered basis of a finding of state responsibility in the ICJ. The latter is by no means ill-equipped to engage in fact finding, (231) nor is it unlikely to carry out its self-declared task of arriving at its 'own clear assessment.' (232) As such, none of these considerations are necessarily fatal to the possibility of system interaction.

Should the ICJ act in accordance with this conclusion then the murky waters covering the question of system interaction may be somewhat cleared. At least in terms of aggression, legal conclusions in one system have the potential to affect conclusions in the other. Given the grave nature of international crimes it will not be uncommon that a state will be implicated from the same facts. Whether there is broader possibility for system interaction, however, and whether there is a resulting cohesive thesis on system interaction remains to be seen. Much will depend on the content and nature of the crime and the continued development of a consistent attitude by courts of state responsibility towards those of individual responsibility.

EDWARD McGINNESS (*)

(*) LLB/BIGS (Honours candidate), University of Sydney, Graduate, King & Wood Mallesons. The author would like to thank Professor Timothy Stephens for his supervision and advice.

(1) Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) ('Rome Statute').

(2) France v Goring (Judgment) (International Military Tribunal, 1 October 1946) 413.

(3) Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), as amended by Resolutions and Declarations Adopted by the Review Conference, signed 11 June 2010 (not yet in force) annex II, art 8bis (2) ('Resolutions of the Review Conference').

(4) This interaction arises irrespective of how proceedings are commenced. While the UNSC can determine aggression under the Kampala definition, this only initiates proceedings. See Resolutions of Review Conference, arts 15bis, 15ter, Claus Kre[beta] and Leonie von Holtzendorff, 'The Kampala Compromise on the Crime oi Aggression' (2010) 8(3) journal of International Criminal Justice 1179, 1195; Stefan Baringa and Claus Kre[beta], The Travaux Preparatoires of the Crime of Aggression (Cambridge University Press, 2012) 30-31.

(5) Prosecutor v Anto Furundzija (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No. IT-95-T, 10 December 1998) [216].

(6) Alain Pellet, 'La responsabilite des dirigeaents pour crime international de l'Etat. Quelques remarques sommaires au pont de vue du droir international' in Chislaine Doucet (ed), Terrorisme, victimes et responsabilite penale internationale (Calmann-Levy, 2003) 195, 207 (emphasis added).

(7) Ondrej Svacek, 'State and Individual Responsibility for International Crimes' (Phd Thesis, University of Oslo, 2010) 5.

(8) Mark Drumbl, 'Looking Up, Down and Across: The ICTY's Place in the International Legal Order' (2003) 37(4) New England Law Review 1037, 1038.

(9) Pierre-Marie Dupuy, 'International Criminal Responsibility of the Individual and International Responsibility of the State' in Cassese et al (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002) 1085, 1098.

(10) International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN GAOR, 58th sess, UN Doc A/CN.4/L.682 (13 April 2006) 11.

(11) Jean Galbraith, 'The Pace of International Criminal Justice' (2009) 31(1) Michigan Journal of International Law 79.

(12) While aggression is not the only ICC finding which could implicate a state (for example the possibility of a finding of a state organisational plan under the crime against humanity) the explicit wording of the Kampala definition provides a more explicit opportunity.

(13) Gerhard Werle and Florian Je[beta]berger, Principles of International Criminal Law (Oxford University Press, 3rd edition, 2014) 530.

(14) Sergey Sayapin, The Crime of Aggression in International Criminal Law (T.M.C. Asser Press, 2014) 8-24.

(15) Ibid 34.

(16) Page Wilson, Aggression, Crime and International Security (Routledge, 2009) 27.

(17) Covenant of the League of Nations, signed 29 April 1919 [1920] ATS 1 (entered into force 10 January 1920) art 10; 1919 Treaty of Versailles, signed 28 June 1919 [1920] ATS 1 (entered into force 10 January 1920) art 227, 231.

(18) It also attempted to impose individual liability but prosecutions proved unsuccessful. See William Schabas, 'Origins of the Criminalization of Aggression: How Crimes Against Peace Became the "Supreme International Crime"' in Mauro Politi and Giuseppe Nesi (eds), The International Criminal Court and the Crime of Aggression (Ashgate, 2004) 17, 20.

(19) Record, 'Draft Treaty of Mutual Assistance, Records of the Fourth Assembly, Minutes of the Third Committee' (1923) 16 League of Nations Journal: Special Supplement 203; Record, 'Protocol for the Pacific Settlement of International Disputes (Geneva Protocol): Resolutions and Recommendations adopted by the Assembly during its Fifth Session' (1924) 21 League of Nations Journal: Special Supplement 21; Record, 'Declaration Concerning Wars of Aggression' (1927) 53 League of Nations Official Journal: Special Supplement 22; Sixth International Conference of American States, 'Resolution Aggression, 28th February 1928' in James Brown Scott (ed), The International Conferences of American States 1889-1928 (Oxford University Press, 1931) 441; General Treaty for the Renunciation of War as an Instrument of National Policy, opened for signature 27 August 1928, 94 LNTS 58 (entered into force 24 July 1929) arts 1-3; Record, 'Definition of "Aggressor": Draft Declaration' (1933) 8(2) Monthly Summary of League of Nations 2.

(20) Sergey, above n 14, 31-36.

(21) Ibid 38-49.

(22) Charter of the United Nations, art 2(4).

(23) Ibid art 39.

(24) Definition of Aggression, GA Res 3314, UN GAOR, 5th comm, 29th sess, 2319th plen mtg, Agenda Item 86, UN Doc A/RES/3314 (XXIX) (14 December 1974) annex I.

(25) Ibid art 1.

(26) Ibid art 3.

(27) Yet has remained unprosecuted since. See Matthew Gillet, 'The Anatomy of an International Crime: Aggression at the International Criminal Court' (2013) 13(4) International Criminal Law Review 829, 833.

(28) Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed 8 August 1945, 82 UNTS 279 (entered into force 8 August 1945) art 6(a).

(29) United States v Krauch (judgment) (United State Military Tribunal, 30 July 1948) 62; see also Polyukhovich v The Commonwealth (1991) 172 CLR 501.

(30) See United States v Araki (Judgement) (International Military Tribunal lor the Far East, 12 November 1948) 44-49 (Judge Roling), 61-64 (Judge Pal); Kirsten Sellars, 'Imperfect Justice at Nuremberg and Tokyo' (2011) 21(4) The European Journal of International Law 1085.

(31) France v Goring (Judgment) (International Military Tribunal, 1 October 1946) 444.

(32) Ibid.

(33) United States v von Leeb (Judgment) (United States Military Tribunal, 27 October 1948).

(34) Ibid 490.

(35) Citing Ex Parte Quinn (1942 317 US 1).

(36) Affirmation of the Principles of International Law Recognized by the Charter of the Nurnberg Tribunal, GA Res 95(1), GAOR, 55th plen mtg, UN Doc A/Res/1/95 (11 December 1946).

(37) 'Draft Code of Offences against the Peace and Security of Mankind' [1951] (II) Yearbook of the International Law Commission 133; 'Draft Code of Offences against the Peace and Security of Mankind' [1954] (II) Yearbook of the International Law Commission 151; 'Draft Code of Offences against the Peace and Security of Mankind' [1991] (II) Yearbook of the International Law Commission 79; 'Draft Code of Offences against the Peace and Security of Mankind' [1994] (II) Yearbook of the International Law Commission 26; 'Draft Code of Offences against the Peace and Security of Mankind' [1996] (II) Yearbook of the International Law Commission 15.

(38) 'Draft Code of Crimes Against the Peace and Security of Mankind' [1996] (II) Yearbook of the International Law Commission 15 art 16.

(39) Not legal persons. See Kathryn Haigh, 'Extending the International Criminal Court's Jurisdiction to Corporations: Overcoming Complementarity Concerns' (2008) 14(1) Australian Journal of Human Rights 199.

(40) Resolutions of Review Conference, art 8bis.

(43) Ibid art 8bis (2).

(42) Anouk Boas, "The Definition of the Crime of Aggression and its Relevance for Contemporary Armed Conflict' (Briefing Paper, No 1, International Crimes Database, 1 June 2013) 11-13.

(43) Beatrice Bonafe, The Relationship Between State and Individual Responsibility for International Crimes (Martinus Nijhoff Publishers, 2009) 211; Fazia Parel King, "The Crime of Aggression: Is it Amenable to Judicial Determination?' in Bartram Brown (ed), Research Handbook to International Criminal Law (Edward Elgar, 2011) 133-140.

(44) Stefan Baringa and Claus Kre[beta], The Travaux Preparatoires of the Crime of Aggression (Cambridge University Press, 2012) 13,207,363,397,399.

(45) Resolutions of Review Conference, arts 15bis (9), 15ter(4).

(46) Rome Statute, art 13(b); Resolutions of Review Conference, art 15ter.

(47) Resolutions of Review Conference, art 15bis, 15ter, Claus Kre[beta] and Leonie von Holtzendorff "The Kampala Compromise on the Crime of Aggression' (2010) 8(5) Journal of International Criminal Justice 1179, 1195; Baringa and Kre[beta], above n 44, 30-31.

(48) Rome Statute, art 25(4).

(49) See below on the ' Tadic caveat'.

(50) For the purposes of state responsibility. For use domestically, see Nidal Nabil Jurdi, 'The Domestic Prosecution of the Crime of Aggression after the International Criminal Court Review Conference: Possibilities and Alternatives' (2013) 14(2) Melbourne Journal of International Law 129.

(51) Convention on the Prevention and Punishment of the Crime of Genocide, opened for signarure 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) art II; Rome Statute, art 6.

(52) While the Convention is a basis of state responsibility a claim may also be brought under customary law which could theoretically differ in content, see John Quigley, The Genocide Convention: An International Law Analysis (Routledge, 2016)81-82.

(53) Rome Statute, art 10. See also Annex III, Understanding 4.

(54) International Law Commission, Report of the International Law Commission, GAOR, 53rd sess, Supp No 10, UN Doc A/56/10 (November 2001) 208 ('Draft Articles').

(55) Resolutions of Review Conference, art 8bis(1).

(56) Ibid art 8bis(2).

(57) Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Reports 168, 306 (Separate Opinion of Judge Kooijmans) ('Armed Activities'); Patrycja Grzebyk, Criminal Responsibility for the Crime of Aggression (Routledge, 2003) 159; Alina Kaczorowska-Ireland, Public International Law (Routledge, 2015)732.

(58) Baringa and Kre[beta], above n 44, 92.

(59) Claus Kre[beta] and Leonie von Holtzendorff, 'The Kampala Compromise on the Crime of Aggression' (2010) 8(5) Journal of International Criminal Justice 1179, 1188.

(60) Unless an exceptional case of unanimous adoption of a UNGA resolution containing a clear intention of establishing an internarional norm, see Hugh Thirlway, Sources of International Law (Oxford University Press, 2014) 79-80.

(61) Antonio Cassese et al, Cassese's International Criminal Law (Oxford University Press, 3rd edition, 2013) 144.

(62) Marko Oberg, 'The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ' (2006) 16(5) European Journal of International Law 879, 896-904; Brian Lepard, Customary International Law (Cambridge University Press, 2010) 208-217; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Reports 14, 100 [188] ('Paramilitary Activities').

(63) Preparatory Commission for the International Criminal Court, Historical Review of Developments Relating to Aggression, UN Doc PCNICC/2002/WGCA/L.l (19 April 2002) 115-128.

(64) Carrie McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court (Cambridge University Press, 2013) 83-89.

(65) Ibid 90.

(66) Ibid.

(67) Jurisdictional Immunities of the State (Germany v Italy; Greece Intervening) (Judgment) [2012] ICJ Reports 99, 123 [55], 135 [77].

(68) R v Jones [2007] 1 A.C. 136 [19] (Lord Bingham), [59] (Lord Hoffman), [99] (Lord Mance).

(69) Claus Kress, 'The German Chief Federal Prosecutor's Decision Not to Investigate the Alleged Crime of Preparing Aggression Against Iraq' (2004) 2(1) Journal of International Criminal Justice 245, 246.

(70) Dapo Akande and Antonios Tzanakopoulos, 'The International Court of Justice and the Concept of Aggression' in Claus Kre[beta] and Stefan Barriga (eds), The Crime of Aggression--A Commentary (Cambridge University Press, Forth-coming).

(71) Paramilitary Activities [1986] ICJ Reports 14, 70 [126].

(72) Armed Activities [2005] ICJ Reports 168, 180 [23].

(73) Akande and Tzanakopoulos, above n 70.

(74) Paramilitary Activities [ 1986] ICJ Reports 14,101.

(75) Armed Activities [2005] ICJ Reports 168, 180.

(76) Case concerning Oil Platforms (Islamic Republic of Iran v. United States of America) (Merits), ICJ Reports (2003) 161 ('Oil Platforms').

(77) Akande and Tzanakopoulos, above n 70, 8.

(78) Definition of Aggression, GA Res 3314, UN GAOR, 5th comm, 29th sess, 2319th plen mtg, Agenda Item 86, UN Doc A/RES/3314 (XXIX) (14 December 1974) annex I, art 5(2).

(79) Mohammed Gommaa, 'The Definition of Aggression' in Giuseppe Nesi and Mauro Politi (eds), The International Criminal Court and the Crime of Aggression (Routledge, 2004) 55.

(80) Akande and Tzanakopoulos, above n 70, 11.

(81) Ibid 8.

(82) Ibid 6.

(83) As this wording from Article 2(4) of the Charter is discussed by the Court.

(84) Armed Activities [2005] ICJ Reports 168, 180 [23]; 223 [146]; Paramilitary Activities [1986] ICJ Reports 14, 103 [195]. Akande and Tzanakopoulos also argue [72] of Oil Platforms is analogous to Resolution 3314.

(85) Paramilitary Activities [1986] ICJ Reports 14, 70, 195.

(86) Gommaa, above n 79, 74.

(87) Ibid.

(88) While the German delegation objected to Resolution 3314 on the distinction between 'war of aggression' and 'crime of aggression', for state responsibility there is not a material difference, see Grant Dawson, 'Defining Substantive Crimes within the Subject Matter Jurisdiction of the International Criminal Court: What is the Crime ot Aggression' (2000) 19(1) New York Law School Journal of International and Comparative Law 413, 431.

(89) Christine Gray, International Law and the Use of Force (Oxford University Press, 3rd edition, 2008) 9; Sergey, above n 14, 50.

(90) Armed Activities [2005] ICJ Reports 168, 331 [15] (Separate Opinion of Judge Elaraby), 335 [3] Separate Opinion of Judge Simma), cf 322 [63] (Separate Opinion of Judge Kooijmans).

(91) See, eg, Dmitri Kolsenik, 'Self-Defence' in William Elliot Butler (ed), The Non-Use of Force in International Law (Martinus Nijhoff Publishers, 1989) 156; Carrie McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court (Cambridge University Press, 2013) 69.

(92) Baringa and Kre[beta], above n 44, citing Report, 'Commission on Responsibility of the Authors of the War and on Enforcement of Penalties' (1920) 14(1) The American Journal of International Law 95; Covenant of the League of Nations, signed 29 April 1919 [1920] ATS 1 (entered into force 10 January 1920) art 10; 1919 Treaty of Versailles, signed 28 June 1919 [1920] ATS 1 (entered into force 10 January 1920) art 227, 231; Record, 'Draft Treaty of Mutual Assistance, Records of the Fourth Assembly, Minutes of the Third Committee' (1923) 16(1) League of Nations Journal: Special Supplement 203; Record, 'Protocol for the Pacific Settlement of International Disputes (Geneva Protocol), Resolutions and Recommendations adopted by the Assembly during its Fifth Session' (1924) 21 League of Nations Journal; Special Supplement 21; Record, 'Declaration Concerning Wars of Aggression' (1927) 53 League of Nations Official Journal: Special Supplement 22; Sixth International Conference of American States, 'Resolution Aggression, 28th February 1928' in James Brown Scott (ed), The International Conferences of American States 1889-1928 (Oxford University Press, 1931)441; General Treaty for the Renunciation of War as an Instrument of National Policy, opened for signature 27 August 1928, 94 LNTS 58 (entered into force 24 July 1929) arts 1-3; Record, 'Definition of "Aggressor": Draft Declaration' (1933) 8(2) Monthly Summary of League of Nations 2; Charter of the United Nations, Charter of the International Military Tribunal, signed 8 August 1945, 82 UNTS 284, annex I; Record, 'Control Council Law No. 10' (1946) 3 Official Gazette of the Control Council for Germany 50; Charter of the International Military Tribunal for the Far East, enacted 19 January 1946, 1589 TIAS 4 (entry into force 19 January 1946); Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, GA Res 95(1), UN GAOR, 1st sess, 55th plen mtg, UN Doc A/RES/95(1) (11 December 1946); United States v Araki (Judgement) (International Military Tribunal for the Far East, 12 November 1948); 'Principles of International Law Recognized in the Charter of the Nurnberg tribunal and in the Judgment of the Tribunal' [1950] (II) Yearbook of the International Law Commission 374; Draft Code of Offences against the Peace and Security of Mankind' [1951] (II) Yearbook of the International Law Commission 133; 'Draft Code of Offences against the Peace and Security of Mankind' [1954] (II) Yearbook of the International Law Commission 151; Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res 2625, UN GAOR, 25th sess, 1883rd plen mtg, Agenda Item 85, UN Doc A/Res/25/2625 (24 October 1970); Report of the Special Committee on the Question of Defining Aggression, UN GAOR, 29th sess, 112th mtg, Supp No 19, UN Doc A/9619 (12 April 1974); Report of the Sixth Committee UN GOAR, UN Doc A/9890, 29th sess, Agenda Item 86 (6 December 1974); Official Records of the 2319th Plenary Meeting, UN GAOR, 2319th plen mtg, UN Doc. A/PV.2319(14 December 1974); Definition of Aggression, GA Res 3314, UN GAOR, 5th comm, 29th sess, 2319th plen mtg, Agenda Item 86, UN Doc A/RES/3314 (XXIX) (14 December 1974) annex I; 'Draft Code of Offences against the Peace and Security of Mankind' [1991] (II) Yearbook of the International Law Commission 79; 'Draft Code of Offences against the Peace and Security of Mankind' [1994] (II) Yearbook of the International Law Commission 26; 'Draft Code of Offences against the Peace and Security of Mankind' [1996] (II) Yearbook of the International Law Commission 15.

(93) Ibid.

(94) Baringa and Kre[beta], above n 44, 93.

(95) Statute of the International Court of Justice art 1, art 36(2)(b), art 38(1.

(96) Note however that the use of force is less likely to be brought before the ICJ than other disputes. See Christine Gray, 'The ICJ and the Use of Force' in Christian Tarns and James Sloan (eds), The Development of International Law by the International Court of Justice (Oxford University Press, 2013); Abraham Sofaer, 'The International Court of Justice and Armed Conflict?' (2004) 1 Northwestern Journal of International Human Rights 1.

(97) See, eg, Evidence Act 1995 (Cth) s91.

(98) Anna Riddell and Brendan Plant, Evidence before the International Court of Justice (British Institute of International and Comparative Law, 2009) 152.

(99) Riddell and Plant, above n 98, 152-153; Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Judgment) [1970] ICJ Rep 3, 99.

(100) Riddell and Plant, above n 98, 154-159.

(101) Rome Statute, arts 62-76.

(102) Ibid art 66(3).

(103) Prosecutor v Lubanga Dylio (Appeal Judgment) (International Criminal Court, Appeals Chamber, Case No ICC-01/04-01/06 A 5, 1 December 2014).

(104) Ibid [22].

(105) Riddell and Plant, above n 98, 126.

(106) Oil Platforms Case [2003] ICJ Rep 161, 189.

(107) Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v Albania) (Merits) [1949] ICJ Rep 4, 17.

(108) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43 (^Bosnian Genocide Case).

(109) Ibid 90.

(110) Andreas Zimmermann er al, The Statute of the International Court of Justice: A Commentary (Oxford University Press, 2012) 1265.

(111) Riddell and Plant, above n 98, 135.

(112) Andrea Gattini, 'Evidentiary Issues in the ICJ's Genocide Judgment' (2007) 5(4) Journal of International Criminal Justice 889, 904.

(113) The dispositif being the relevant section for the purposes of res judicata, see Rosa Theofanis, 'The doctrine of Res Judicata in International Criminal Law' (2003) 3 International Criminal Law Review 195, 197.

(114) Rosa Theofanis, "The doctrine of Res Judicata in International Criminal Law' (2003) 3 International Criminal Law Review 195

(115) Iain Scobbie, 'Res Judicata, Precedent and the International Court: A Preliminary Sketch (1999) 20 Australian Yearbook of International Law 16.

(116) Interpretation of Judgments Nos. 7 and 8 (The Chorzow Factory) (Germany v Poland) (Judgment) [1926] PCIJ (ser A) No. 13,23.

(117) Rosa Theofanis, "The doctrine of Res Judicata in International Criminal Law' (2003) 3 International Criminal Law Review 195, 196.

(118) Ibid.

(119) The state can appear on matters of deferral of proceedings, see Rome Statute, Article 18 (4).

(120) Rome Statute, art 72(4).

(121) Prosecutor v Francis Kirmi Muthaura, Uhiri Muigai Kenyatta and Mohanned Hussein Ali (Decision on the Request by the Government of Kenya in respect of the Confirmation of Charges Proceedings) (International Criminal Court, Pre-trial Chamber, Case No. ICC-01/09/02/11, 20 September 2011).

(122) Hugh Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence, Volume II (Oxford University Press, 2013) 1209.

(123) Kimberly Hardtke, "The actions of one, the responsibility of a nation: Charles Taylor's conviction by the Special Court for Sierra Leone and its impact on state responsibility claims against Liberia' (2013) 31(4) Wisconsin International Law Journal 909, 929.

(124) SC Res 827, SCOR, 48th sess, 3217 mtg, UN Doc S/RES/827 (25 May 1993) para 2.

(125) Bosnian Genocide Case [2007] ICJ Rep 43, 133.

(126) Ibid 132 [216].

(127) Ibid 132 [216]-134 [224].

(128) Ibid 134 [223] (emphasis added).

(129) Under Genocide Convention, art 2.

(130) Bosnian Genocide Case [2007] ICJ Rep 43, 142-154. Note: The Court established that the acts under (a)-(c) had occurred, but not (d) and (e).

(131) Genocide Convention, art 2.

(132) Gerhard Werle and Florian Je[beta]berger, Principles of International Criminal Law (2014, 3rd edition, Oxford University Press) 314.

(133) Bosnian Genocide Case [2007] ICJ Rep 43, 175 [318], 182 [334].

(134) Ibid 155 [277].

(135) Ibid 186 [344].

(136) Ibid 179 [328].

(137) Prosecutor v Galic (Judgment) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber, IT-98-29-T, 5 December 2003) [593].

(138) Prosecutor v Blagojevic (Judgment) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber, IT-02-60-T, 17 January 2005) [674]; Prosecutor v Krstic (Judgment) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber, T-98-33-A, 19 April 2004) [15].

(139) Bosnian Genocide Case [2007] ICJ Rep 43, 166 [295] (emphasis added).

(140) Ibid 184 [370].

(141) Prosecutor v Stakic (Judgment) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber, IT-97-24-T, 31 July 2003) [546]-[561].

(142) Prosecutor v Brdanin (Judgment) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber, IT-99-36-T, 1 September 2004) [303].

(143) Bosnian Genocide Case [2007] ICJ Rep 43, 196 [372].

(144) Ibid 197 [374].

(145) Ibid 214 [413H415].

(146) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Merits) [2015] ICJ Rep 1 ('Second Bosnian Genocide Case').

(147) Ibid 72[200]-121 [442].

(148) Ibid 68 [182].

(149) Ibid 72 [199].

(150) Bosnian Genocide Case [2007] ICJ Rep 43, 131 [217].

(151) Prosecutor v Gotovina (Indictment) (International Criminal Tribunal for the former Yugoslavia, IT-01-45-I, 21 May 2001).

(152) Second Bosnian Genocide Case [2015] ICJ Rep 1, 68 [187].

(153) Ibid 55 [127].

(154) Ibid.

(155) Ibid 55 [129].

(156) Ibid.

(157) Paramilitary Activities [1986] ICJ Reports 14, 65 [115].

(158) Prosecutor v Tadic (Appeal Judgment) (International Criminal Tribunal for the former Yugoslavia, Appeal Chamber, IT-94-1-A 15 July 1999) ('Tadic).

(159) Tadic (International Criminal Tribunal for the former Yugoslavia, Appeal Chamber, IT-94-1-A, 15 July 1999) [104].

(160) Ibid [116].

(161) Ibid [124].

(162) Ibid [130H131], [137].

(163) Bosnian Genocide Case [2007] ICJ Rep 43, 209 [403].

(164) Ibid 209 [404].

(165) Ibid.

(166) Tadic (International Criminal Tribunal for the former Yugoslavia, Appeal Chamber, IT-94-1-A, 15 July 1999) [92].

(167) See Andrea Gattini, 'Evidentiary Issues in the ICJ's Genocide judgment' (2007) 5(4) journal of International Criminal Justice 889.

(168) Coalition for the International Criminal Court, The International Criminal Court and Ad Hoc International Criminal Tribunals: A Comparison of Provisions (9 September 2005) Coalition for the International Criminal Court <http://vvww.iccnow.org/documents/FS-CICC-AdHocTribunals_current.pdf>; Rome Statute, arts 62-76; SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc S/RES/827 (25 May 1993), as amended by SC Res 1877, UN SCOR, 64th sess, 6155th mtg, UN Doc S/RES/1877 (7 July 2009) ('ICTY Statute).

(169) Armed Activities [2005] ICJ Reports 168, 201 [61].

(170) Svacek, above n 7, 2.

(171) Beatrice Bonafe, The Relationship Between State and Individual Responsibility for International Crimes (Martinus Ni-jhoff Publishers, 2009).

(172) Ibid 43-68.

(173) Massimo Starira, 'Amnesty for Crimes Against Humanity: Coordinating the State and Individual Responsibility for Gross Violations of Human Rights' (1999) 9(1) The Italian Yearbook of International Law 86, 104.

(174) Bonafe, above n 171, 46; Andrew Clapham, "The Role of the Individual in International Law' (2010) 21(1) The European Journal of International Law 25, 27.

(175) Bonafe, above n 171, 46-52.

(176) Andre Nollkaemper, 'Concurrence between Individual Responsibility and State Responsibility in International Law' (2003) 52(3) International and Comparative Law Quarterly 615, 619-620.

(177) Paola Gaeta, 'On What Conditions Can a State Be Held Responsible for Genocide? (2007) 18(4) European Journal for International Law 631, 641.

(178) Bonafe, above n 171, 76-144.

(179) Ibid 240.

(180) Prosecutor v Kordic (Appeal Judgment) (International Criminal Tribunal for the former Yugoslavia, Appeal Chamber, Case No IT-95-14/2-A, 17 December 2004) [54].

(181) Bonafe, above n 171, 53.

(182) Cited in Bonafe, above n 171, 52-62.

(183) Ibid.

(184) See James Crawford, Brownlie's Principles of Public International Law (Oxford University Press, 8th ed, 2012) 540.

(185) See also Natalie Reid, 'Bridging the Conceptual Chasm: Superior Responsibility as the Missing Link between State and Individual Responsibility under International Law' (2005) 18(4) Leiden Journal of International Law 795, 797.

(186) Bonafe, above n 171, 245.

(187) Christopher Stanley, 'Book Review: The Relationship Between State and Individual Responsibility for Inrernational Crimes' (2010) 48(3) Columbian Journal of Transnational Law 655, 659.

(188) Bonafe, above n 171, 246.

(189) Hans Kelsen, Principles of International Law (Holt, Rinehart and Winston Inc, revised ed, 1966) 437-438, 555-556; Francois Rigaux, 'Hans Kelsen on International Law' (1998) 9(2) European Journal of International Law 325, 329-333.

(190) Bonafe, above n 171, 245.

(191) Martti Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 58th sess, A/CN.4/L.682 (13 April 2006) Official Records of the 2319th Plenary Meeting, UN GAOR, 2319th plen mtg, UN Doc. A/PV.2319(14 December 1974); Joel Trachtman, 'Fragmentation, Coherence and Synergy in International Law' (2011) 2(4) Transnational legal Theory 505.

(192) Prosecutor v Seselj, [judgment] (International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Case No IT-03-67, 31 March 2016) [281]; Prosecutor v Karadzic (Judgment) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Case No 1T-95-5/18, 24 March 2016) [3524].

(113) Neil Buckley, 'Karadzic and Seselj decisions risk reputation of ICTY', The Financial Times (online) 1 April 2016 <http://blogs.ft.com/the-world/2016/04/karadzic-and-seselj-decisions-risk-reputation-of-icty/>; Australian Broadcasting Corporation, ICTY rules on two Serbian leaders', Law Report, 6 April 2016 (Damien Carrick).

(194) Vimalen Reddi, 'The ICC and the Crime of Aggression: A Need to Reconcile the Prerogatives of the SC, the ICC and the ICJ' (2008) 8(4) International Criminal Law Review 655, 677.

(195) Cassese et al, above n 61, 7.

(196) See, eg, Rome Statute, pts V, VI, VIII; SC Res 955, UN SCOR, 49th sess, 3453th mtg, UN Doc S/RES/955 (8 November 1994) annex, arts 14, 20, 24, 25 ('Statute of the International Tribunal for Rwanda'); ICTY Statute, art 15, 21.

(197) See, eg, Rome Statute, pts III, VI.

(198) James Crawford, State Responsibility: The General Part (Cambridge University Press, 2013) 52-53; Draft Articles, above n 54, 63.

(199) See Christoph Schreuer, 'The Waning of the Sovereign State: Towards a New Paradigm for International Law?' (1993) 4(1) European Journal of International Law 447.

(210) Ian Brownlie, System of the Law of Nations: State Responsibility: Part One (Oxford University Press, 1983) 5.

(211) Draft Articles, above n 54, 268.

(202) Ibid 277-286.

(203) Christian Tarns, 'Do Serious Breaches Give Rise to Specific Obligations of the Responsible State?' (2002) 13(5) European Journal of International Law 1161, 1166-1170; Stephen Wittich, Awe of the Gods and Fear of the Priests: Punitive Damages and the Law of State Responsibility' (1998) 3(1) Austrian Review of International and European Law 101, 154.

(204) Draft Articles, above n 54; James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge Universiry Press, 2002) 18-19.

(205) James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002) 18-19; Eric Wyler, 'From 'State Crime' to 'Responsibility for Serious Breaches of Obligations Under Peremptory Norms of General International Law' (2002) 13(1) European Journal of International Law 1147.

(206) Cassese, above n 61, 8.

(207) Ibid. See also Prosecutor v Kunarac (judgment) (International Tribunal for the former Yugoslavia, Case No IT-96-23-T & IT-96-23/1-T, 22 February 2001) [470].

(208) Patrick Wegner, The International Criminal Court in Ongoing Intrastate Conflicts Navigating the Peace--Justice Divide (Cambridge University Press, 2015) 19-22.

(209) Gerry Simpson, 'Politics, Sovereignty, Remembrance' in Dominic McGoldrick et al (eds), The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing, 2004) 49.

(210) Ibid.

(211) Theodor Meron, 'Defining Aggression for the International Criminal Court' (2002) 25(1) Suffolk Transnational Law Review 1, 13. See also Buhm-Suk Baek, 'The Definition and Jurisdiction of the Crime of Aggression and the International Criminal Court' (Graduare Student Paper Series No 19, Cornell Law School, 21 December 2006).

(212) Sean Murphy, 'The Crime of Aggression and the ICC in Marc Weller (ed), The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2013) 37.

(213) Benjamin Schiff, Building the International Criminal Court (Cambridge University Press, 2008) 9.

(214) Rome Statute, art 25(4).

(215) Ibid art 17. Cf the ICTR and ICTY operating with primacy over domestic courts.

(216) International Criminal Court, Resolutions and Declarations Adopted by the Review Conference, Doc No ICC-ASP/8/RC Res 6, annex II art 15bis (4).

(217) See Rome Statute, art 12.

(218) Resolutions of Review Conference, art 15bis(6)-(8).

(219) Ibid.

(220) Steven Roach, Politicizing the International Criminal Court (Rowman & Littlefield, 2006) 170-175.

(221) Rome Statute, art 34.

(222) Hector Olasolo, 'The prosecutor of the ICC before the initiation of investigations: A quasi-judicial or a political body?' (2003) 3(2) International Criminal Law Review 87, 98-106 citing Rome Statute, arts 13(a)-(b), 14(1), 15(5)-(6), 18(1), 19(3).

(223) Ibid 98-106.

(224) Dan Zhu, 'China, the Crime of Aggression, and the International Criminal Court' (2015) 5(1) Asian Journal of International Law 94, 118.

(225) Rome Statute, arts 15(4), 18(1)-(4), 19(10), 53(a)-(b); Olasolo, above n 222, 98-106.

(226) United Nations, The Rome Statute of the International Criminal Court United Nations Treaty Collection, International Criminal Court <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chap-ter=18&lang=en>.

(227) As date of writing. See International Criminal Court, All Cases, International Criminal Court <https://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/cases/Pages/cases%20index.aspx>.

(228) See Kasaija Apuuli, 'The ICC Arrest Warrants for the Lord's Resisrance Army Leaders and Peace Prospects for Northern Uganda' (2006) 4(1) Journal of International Criminal justice 179.

(229) See Antonio Cassese, 'Is the ICC Still Having Teerhing Problems?' (2006) 4(3) Journal of International Criminal Justice 434.

(230) Hans-Peter Kaul, 'The International Criminal Court: Current Challenges and Perspectives' (2007) 6(3) Washington University Global Studies Law Review 575, 579.

(231) Statute of the International Court of Justice, Chapter III; Simone Halink, 'All Things Considered: How the International Court of Justice Delegated its Fact-Assessment to the United Nations in the Armed Activities Case' (2008) 40(13) New York University Journal of International Law and Politics 13; Ruth Teitelbaum, 'Recent Fact-Finding Developments at the International Court of Justice' (2007) 6(1) The Law and Practice of International Courts and Tribunals 119, 157.

(232) Armed Activities [2005] ICJ Reports 168, 200 [59].
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