The Constitutive Elements Of Crime Of Aggression Under Rome Statute Of International Criminal Court

After nearly sixty years of efforts after the Second World War,the international community finally adopted the definition of the crime of aggression in the Rome Statute of the International Criminal Court(the “Rome Statute”),and the International Criminal Court(the “ICC”)officially activated the jurisdiction over the crime of aggression.However,Chinese researches on the crime of aggression are not really thorough at present,and most of them stop at the procedure regarding how the ICC to exercises jurisdiction over the crime of aggression and how to deal with ICC's relationship with the Security Council in determining act of aggression.It has to be admitted that the crime of aggression is an extremely complex issue that contains various legal issues.If the ICC wants to achieve real jurisdiction over the crime of aggression,it must first sort out these legal issues.This article will review the definition and constitutive elements of the crime of aggression through four parts.First of all,this article will talk about the formation and development of the crime of aggression.The predecessor of the crime of aggression was the crime against tried by military courts established after the Second World War.The Nuremberg trial,the Tokyo trial and the Subsequent Trials of Nuremberg confirmed the individual criminal responsibility of crime of aggression.However,since the Second World War,the international community's work on the crime of aggression has progressed slowly.The only improvement is the United Nations(the “UN”)General Assembly Resolution 3314(XXIX)which defines the act of aggression.Finally,at the review meeting of the Rome Statute,based on the work of the Preparatory Committee and the Special Working Group on the Crime of Aggression,the Assembly of States Parties unanimously adopted the Amendments to the Rome Statute,the Amendments to the Elements of Crimes,and the Understanding of the Amendment to the Rome Statute of the International Criminal Court on the Crime of Aggression and then incorporated the definition of the crime of aggression into the Rome Statute.Secondly,the Rome Statute clearly states that the determination of the state act of aggression is the substantive component of the crime of aggression,and that the character,gravity and scale of these state acts of aggression must constitute a manifest violation of the Charter of the United Nations(the “UN Charter”).In determining the contextual element of the crime of aggression—the state act of aggression,Article 8 bis(2)of the Rome Statute draws on the content of General Assembly Resolution 3314(XXIX)and applies the “abstract concept + specific enumeration” model to define the concept.In contrast to Article 2(4)of the UN Charter,the Rome Statute emphasizes that only acts of a State that actually use armed forces can constitute state acts of aggression.The enumeration of acts is not exhaustive list,and all acts that satisfy the definition of Article 8 bis(2)of the Rome Statute constitute state acts of aggression.To clarify the state act of aggression which can lead to individual criminal responsibility,the Rome Statute contains a certain quantitative and qualitative threshold which requires that the character,gravity and scale of the acts need to clearly violate UN Charter.However,there is no need in the Rome Statute that the three elements of the acts of aggression shall be fulfilled.In fact,if the two elements of a state act of aggression are obviously illegal,such act meets the requirements of the threshold clause.In terms of whether humanitarian intervention constitutes an act of aggression,it should be noticed that since the airstrikes against Syria launched by the UK,US and French,humanitarian intervention that complies with the three tests of the UK has formed customary international law,and therefore does not constitute an act of aggression.Even if such humanitarian intervention is not customary international law,considering the continuing doubts over the legitimacy of humanitarian intervention,it is unrealistic to believe that its character constitute the manifest violation of the UN Charter.In addition,the major feature of the crime of aggression is that only persons in a certain leadership position can be the subject of the crime of aggression.This has been accepted by the international community since the Nuremberg trial.In the Subsequent Trials of Nuremberg,the court proposed that only those who “shape or influence” the country's aggressive policy can be held criminally responsible for the crime of aggression.The Rome Statute raised the standard of leadership element to “control or direct”,which means that the person shall effectively control or direct the political or military action of a state.As the ICC has not yet exercised jurisdiction over the crime of aggression,the understanding of “control or direct” can draw on other relevant concepts in international law,such as “control” and “direct” in the Responsibility of States for Internationally Wrongful Acts,“control” in the theory of control over crimes and the theories of “effective control” and “overall control”.Over these concepts,the theory of “overall control” is the most suitable concept to explain the requirements of the leadership element of the crime of aggression,that is,if a person finances,provides equipment,coordinates and assists the general planning of the governments' military or paramilitary activity,then he may be considered to be able to meet the requirement of “control”.Under this interpretation,religious leaders,private entrepreneurs,and leaders of other countries can also be held criminally responsible for the crime of aggression.Finally,the understanding of the mental element of the crime of aggression should be combined with the default rule in Article 30 of the Rome Statute and the special provisions regarding the crime of aggression in the Amendments to the Elements of Crimes.Different from the “crime analysis method” of the civil law system,Article 30 of the Roman Statute adopts the “elemental analysis method” of the common law system,and requires intent and knowledge regarding the mens rea of conduct,consequences and circumstances associated with each crime.Specifically,a person can be responsible for the crime when he/she has the intend in relation to conduct,the intent and knowledge in relation to consequences and the knowledge in relation to circumstances.And the ICC explicitly states that the intent in Article 30 of the Statute includes dolus directus of the first degree and dolus directus of the second degree,and does not include dolus eventualis in its jurisprudence.For crime of aggression,the perpetrator intends to plan,prepare,initiate and wage the state act of aggression,knows he has the leadership position,the state act of aggression violates the UN Charter and such violation reaches the level of manifest violation.Pursuant to Article 32 of the Rome Statute,a mistake of fact can a ground for excluding criminal responsibility under crime of aggression if it negates the mental element required by the crime of aggression.Since the Amendments to the Elements of Crimes emphasizes the perpetrator only needs to be aware of the factual circumstances regarding the manifest violation and there is no requirement to prove the perpetrator has made a legal evaluation as to such manifest violation,it seems no room for the application of the mistake of law stipulated in Article 32 under the crime of aggression.