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sion does not appear to have emerged at the time
from a particular conflict.
7. See “Report of the Special Committee on the Question
of Defining Aggression (25 April – 30 May
1973)”, UN Doc A/9019. By this time, aggression
was being proposed to include the use of force
“against the sovereignty, territorial integrity or political
independence of another State”. Self-determination
in the colonial context of non-self-governing
peoples was provided for, with use of force permissible
in order to resist “alien domination”.
8. UN General Assembly Resolution 3314 (14 December
1974), Annex, “Definition of Aggression”, Article
3 (“any of the following acts, regardless of a
declaration of war, shall … qualify as an act of
aggression: … invasion or attack … or any military
occupation, or any annexation by the use of force”).
9. This is reflected in the maxim nullum crimen sine
lege, codified as Article 22 of the Rome Statute.
10. Article 2(4) of the Charter of the United Nations (26
June 1945) 1 UNTS XVI (in force 24 October 1945)
UN Charter provides that “the UN Organization
and its Members, in pursuit of the Purposes of the
UN stated in Article 1, shall act in accordance with
the following principles … All Members shall refrain
in their international relations from the threat or use
of force against the territorial integrity or political
independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations”.
11. The criminalization of unlawful use of force is extensive
in the Rome Statute. Article 8bis(2) prohibits
almost all extraterritorial use of force without the justifications
of UN Security Council authorization or
self-defence, from bombardment and blockade to
the use of mercenary forces against another state.
12. See Steven W Becker, “The Objections of Larger
Nations to the International Criminal Court” (2010)
81 Revue Internationale de Droit Pénal 47.
13. Rome Statute, supra note 3, art 15bis(5) (“in
respect of a state that is not a party to this Statute, the
Court shall not exercise its jurisdiction over the crime
of aggression when committed by that State’s nationals
or on its territory”).
14. There appears to be no instance of a non-ICC state
legislating the crime of aggression. ICC states that
accede to Rome Statute aggression are required to
domestically legislate the crime within a year.
15. See JJ Smith, “A Four-Fold Evil? The Crime of
Aggression and the Case of Western Sahara”
(2020) 20 International Criminal Law Review 492.
16. See Tom Ruys & Luca Ferro, “Weathering the Storm:
Legality and Legal Implications of the Saudi-Led Military
Intervention in Yemen” (2016) 65 International
& Comparative Law Quarterly 61.
17. Mauritius claims the islands have been subject to
“unlawful colonial administration”. See the arguments
of Mauritius to the International Court of Justice
in Legal Consequences of the separation of the
Chagos Archipelago from Mauritius in 1965
(Request for Advisory Opinion), “Written Statement
of Mauritius” (1 March 2018) at 251ff, online:
18. Neither Ukraine nor Russia is a Rome Statute member
state. However, with the invasion of the Crimea
and conflicts in its eastern provinces, Ukraine put
itself within the jurisdiction of the ICC under Article
12(3) of the Rome Statute for crimes in its territory
effective from November 21, 2013. No claim of
aggression was made. See International Criminal
Court – Office of the Prosecutor, Report on Preliminary
Examination Activities 2019 (5 December
2019) at 66: <www.icc-cpi.int/itemsDocuments/
19. Rome Statute, supra note 3.
20. Elements, Rome Statute, supra note 3. Element 1 of
the crime of aggression provides that more than one
person may fulfill the criterion of directing or controlling
a state’s use of force.
21. Understanding 3, Jurisdiction ratione temporis (“it
is understood that in case of article 13, paragraph
(a) or (c), the Court may exercise its jurisdiction only
with respect to crimes of aggression committed after
a decision in accordance with article 15 bis, paragraph
3, is taken, and one year after the ratification
or acceptance of the amendments by thirty States
Parties, whichever is later”).
22. In other words, the immunity of states is to be preserved
when prosecuting aggression in national
23. However, consider the threshold prescription of Article
8bis(2)(b) prohibiting “bombardment … or the
use of any weapons by a State against the territory
of another State”.
24. For the rationale of Russia’s would-be incorporation
of Ukraine, see Vladimir Putin, “On the Historical
Unity of Russians and Ukrainians” (12 July 2021),
first published on the website of The Kremlin, online:
25. Allegations of Genocide under the Convention on the
Prevention and Punishment of the Crime of Genocide
(Ukraine v Russian Federation), supra note 4.
26. Supra note 18.
27. The war in Ukraine will predictably be the most documented
in history with overwhelming evidence
amassed. See e.g. the website of Bellingcat, the international
consortium of “researchers, investigators
and citizen journalists”, online: <www.bellingcat.