Constitutionalization and the International Criminal Court : whither individual criminal liability for aggression

Kemp, Gerhard (2008-01)

CITATION: Kemp, G. 2008. Constitutionalization and the International Criminal Court : whither individual criminal liability for aggression?. South African Law Journal, 125(4):694-714.

The original publicatio is available at https://journals.co.za/content/journal/ju_salj

Article

The Rome Statute of the International Criminal Court provides for the criminalization of the most serious crimes under international law, including aggression. However, the International Criminal Court can only exercise jurisdiction over aggression after the adoption of a definition and conditions for the exercise of jurisdiction by the Assembly of States Parties to the Rome Statute. The debate about the definition of aggression involves a number of important perspectives. It is submitted that a constitutionalist perspective on these developments might help to put the debate in its proper context, namely an attempt to advance international peace and security through multiple means. The quest to find a suitable definition of aggression for purposes of ICC jurisdiction is more than a legal problem; it is also a political problem. It concerns in essence a debate about the role of international criminal law in the contemporary international system. It is argued that the Rome Statute contains certain constitutionalist traits that can contribute to the further development of international criminal law. A constitutionalist perspective on the criminalization of aggression can contribute to multiple efforts to enhance international peace and security.

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