This article examines the draft definition of the crime of aggression and how this definition will be applied to certain uses of armed force, ultimately identifying whether these actions constitute “manifest violations” of the U.N. Charter. Part II establishes the analytical framework of criminal aggression. Initially, the threshold question is explained in detail, followed by an examination of the Charter’s prohibition of the unlawful use of force and the magnitude test required to determine manifest violations of the Charter. The threshold question is then applied to humanitarian intervention in Part III. In Part IV, certain measures against terrorism, preemptive self-defense, and attacks against non-State armed groups, are examined under the terms of the draft definition of aggression. Ultimately, whether cases of criminal aggression go forward at the ICC will be an issue of intent, as addressed in Part V. The article concludes in Part VI with a brief summary of issues that will hopefully be resolved by an operational definition of the crime of aggression.
It would be unrealistic to attempt to enumerate every possible manifest violation of the U.N. Charter for the purposes of criminal aggression. Thus, this article establishes a preliminary framework for analyzing the threshold of aggression, both for prosecutors at the ICC and regime elites considering the use of force. The Assembly of States Parties’ adoption of the crime of aggression should give pause to decision makers before engaging in questionably lawful uses of force.
Keith A. Petty, Criminalizing Force: Resolving the Threshold Question for the Crime of Aggression in the Context of Modern Conflict, 33 SEATTLE U. L. REV. 105 (2009).