Η έννοια της επίθεσης στο Διεθνές Δίκαιο

Book published by Sakkoulas Publications (2012)

The commission of aggressive wars is now forbidden by both customary and conventional International Law. Additionally, aggression itself constitutes a crime under International Criminal Law. After the ... [more ▼]

The commission of aggressive wars is now forbidden by both customary and conventional International Law. Additionally, aggression itself constitutes a crime under International Criminal Law. After the Second World War, aggression was universally condemned as the most serious international crime, nonetheless, its definition as a crime was only achieved in June 2010 at the Review Conference of the International Criminal Court. In the preamble of UN Charter, the ‘saving of succeeding generations from the scourge of war’ is set as the cornerstone of the UN’s foundation, however, until 2010, the international community had not achieved (nor had it demonstrated the will to agree on) a legally binding definition of aggression. The research for this dissertation was undertaken as a response to this peculiar finding. This thesis presents the evolution of the definition of aggression through the processes undertaken at the international level (both from the standpoint of state responsibility and of individual criminal responsibility) rather than examining the jus ad bellum, i.e. the requirements for the lawful use of armed force by states. In order to follow the distinction of the definition based on the criterion of liability, the thesis is divided into two main parts. The first part discusses the evolution of the concept of aggression in the context of state responsibility, culminating with the adoption of Resolution 3314 (XXIX) / 12.14.1974 of the General Assembly on the Definition of Aggression. The second part deals with aggression as a crime which carries individual criminal responsibility. It begins at Nuremberg and ends with an analysis of the definitional procedures and of the definition of aggression that was adopted in framework of the International Criminal Court. The analysis of these elements was performed with a combined methodology. A qualitative research method was employed in order to examine the content of different sources. Scarce case-studies were examined for the illustration of the historical events that took place mainly during the early attempts of the international community to denounce war. Additionally, a quantitative research method was used to determine the intent of the international community to define aggression (e.g., how many states voted in favor or against in every definitional procedure) and finally, the utilization of a narrative analysis when referring to historical events. Though the prohibition of aggression represents one of the most important rules of International Law, its application has not yet been fully embedded into the practice of states since they continue to commit aggressive acts, often defining their actions under different legal terms such as ‘self defense.’ Therefore, rather than actually deterring war, the legal rule of the prohibition of aggression has simply contributed to the renunciation of the term as demonstrated by the fact that very seldom do states now declare war officially. As stated eloquently by Benjamin Ferencz, ‘(…) it is seemingly easier to evoke aggression than to dispel it, and easier to commit aggression than to define it (…)’. The thesis concludes that the definition of aggression can and should be implemented as long as the different nature of the international organs that respond to aggression (specifically, the Security Council and the International Criminal Court) is understood. By itself, the prosecution of the crime of aggression by the International Criminal Court will not prevent the commission of wars or other serious international crimes. Nonetheless, in this process that began early last century, the application of the definition of aggression and the prosecution of the crime will still represent a significant accomplishment in humanity’s attempts to prevent and outlaw war. [less ▲]

An argument in favour of a more normative distinction between principals and accomplices in International Criminal Law

in Hague Yearbook of International Law 2008 (2009), 21

While International Criminal Law ‘in action’ is recognized today as primarily criminal law, the rules of attribution are still underdeveloped. This article explores the reasons why the attribution of ... [more ▼]

While International Criminal Law ‘in action’ is recognized today as primarily criminal law, the rules of attribution are still underdeveloped. This article explores the reasons why the attribution of penalties in international criminal law requires a priori a differentiated approach depending on the degree of each person’s participation in the criminal act. Whatever the causes of the absence of a normative distinction regarding accomplice liability as far as penalties are concerned, this article proposes that International Criminal Law should provide that persons belonging to different categories of criminal conduct (perpetrators and participants) must be punished in different ways. The legal rules for this differentiated approach should be provided in the General Part of International criminal law, so that the principle of nullum crimen and nulla poena sine lege is fully upheld. From a practical point of view, the normative distinction might serve as a point of departure and guideline for the sentencing. [less ▲]