As stated at Nuremberg, the crime of aggression is the “supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” International instruments clearly and repeatedly have outlawed initiating wars of aggression and other illegal uses of armed force. States parties recently have defined and codified the crime in the Rome Statute of the International Criminal Court (ICC) and delineated the scope of the ICC’s jurisdiction over aggression. Although the ICC is an important mechanism for accountability and justice, it is not certain when it will be able to adjudicate the crime of aggression. Moreover, the ICC will not have jurisdiction to prosecute all individuals who wage aggressive war, nor will it be free of political cooptation by states parties interested in quashing attempts to seek justice for acts of aggression committed by their leaders. Consequently, advocates combating impunity for international crimes should continue to view the ICC as a court of last resort, especially for prosecuting cases of aggression. Despite the many legal and political challenges, primary responsibility for prosecuting individuals for the use of armed force in violation of the U.N. Charter—the crime of aggression—should still rest with national courts. Once aggression is criminalized at the domestic level, three types of extraterritorial jurisdiction—passive nationality jurisdiction, protective jurisdiction, and universal jurisdiction—are avenues for enabling criminal prosecution of leaders who illegally use armed force. This Article examines each of these principles, their potential, and the challenges inherent in prosecuting the crime of aggression in national courts. In addition, it supports scholars’ arguments for expanding national-level jurisdiction over crimes of aggression committed domestically and internationally, finding that the crime of aggression is among the ‘core’ international crimes demanding accountability at the domestic level. It challenges arguments put forth by some scholars that national legislatures and prosecutors should not criminalize or prosecute individuals who wage aggressive war and finds that domesticating international criminal law, including outlawing the crime of aggression, is essential to achieve more effective prosecution of aggression. Unless additional exceptions are made to the current legal structures, however, the challenges of bringing perpetrators of aggressive war to justice under domestic law are considerable. Individual states, therefore, should (1) exercise jurisdiction and prosecute the crime whenever possible, and (2) consider ways to widen domestic avenues for justice in cases of aggression.
Kestenbaum, Jocelyn Getgen
"Closing Impunity Gaps for the Crime of Aggression,"
Chicago Journal of International Law:
1, Article 2.
Available at: https://chicagounbound.uchicago.edu/cjil/vol17/iss1/2