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Recent developments in International Laws

September 10, 2021
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This article is written by Aditi Aggarwal, from Symbiosis Law School, Noida. The article discusses the recent developments in international laws, specifically focusing on two major developments that took place in the year 2018.

Introduction

It was not many years ago that individuals as victims of crimes of aggression were not recognised nor there was a detailed interpretation of the human right to life under international law. Recent developments in international laws (as in 2018) aimed to depart from this approach. 

Two developments will be discussed in this article. The first development is by the International Criminal Court (ICC) which activated its jurisdiction over the crime of aggression, imposing criminal liability on individual leaders and therefore, became the fourth core crime to be tried at the ICC. The second development is by the United Nations Human Rights Committee that determined General Comment No. 36 for giving a wider interpretation of Article 6 mentioned under the International Covenant on Civil and Political Rights. One of the determinations was that if an act of aggression results in deprivation of human life, then it is a violation of Article 6.

Activation of jurisdiction of the ICC over the crime of aggression 

The crime of aggression was made the fourth core crime under the ICC’s jurisdiction on 15 December 2017 at the headquarters of the United Nations in New York. This revolutionary move allowed the International Criminal Court to persecute leaders who wage aggressive wars and make them criminally liable at an individual level.

Definition of the crime of aggression 

‘Crime of aggression; is defined under Article 8 bis³ of the Rome Statute of the International Criminal Court in the following way: 

One thing that should be noted here is that this definition is given only for the purposes of the particular statute under which it is defined i.e. the Rome Statute of the International Criminal Court.

The next question that comes to one’s mind after going through the above definition is what does ‘act of aggression ’ mean then. 

It is defined as an act done by State, wherein it uses:

How was the crime of aggression adopted by the ICC

When the Rome Statute was enacted in 1998, aggression was one of the four crimes mentioned in the treaty. The fulfilment of the definition and terms of jurisdiction, on the other hand, was postponed to negotiate further. A definition of ‘crime of aggression’ was adopted by the member states of ICC in 2010 along with the crime’s jurisdiction, which was finally updated in 2017 by the Assembly of States Parties (ASP)

After ten days of intensive diplomatic negotiations that lasted into the early hours of December 15, 2017, the resolution on the crime of aggression was adopted. ASP 16 was entrusted with activation after ICC member states agreed on the definition of the crime at a review meeting in Kampala in 2010.

Application of the jurisdiction of the ICC

During the negotiations, states had a divided opinion on the question of jurisdiction that would be applied to all the member states of the ICC after 30 states would ratify it or would it be applied only to these states who would ratify it.

There were two views regarding the same, which are discussed as follows:

The first view was held by the plurality of the member states.

Dual nature of ICC’s mandate

Ending the impunity for the most serious crimes under the international law 

The first aim that the ICC is to achieve through its mandate, is the ending of impunity or escapism from punishment for crimes done at an international level with a two-fold purpose, that is:

Preventive function 

The ICC tries to prevent the problems i.e. the court has a preventive function that involves

timely intervening in situations where:

It is to be noted that the ICC Prosecutor performs this duty largely through preliminary examinations, which encompass a wide variety of situations.

Exercise of the jurisdiction over the crime of aggression

The provision of the jurisdiction’s exercise is given under Article 15 bis and Article 15 ter of the Rome Statute of the International Criminal Court, which is discussed as follows:

Article 15

Under this specific article, the crime of aggression’s exercise of jurisdiction with respect to state referrals and  proprio motu (investigation initiated by the prosecutor) are discussed, which is as follows:

Article 15

Under this specific article, the exercise of jurisdiction of the ICC is discussed with regard to a UN Security Council referral. According to it, if the UN Security Council refers to a situation the prosecutor has the authority to investigate any of the four core crimes, including the crime of aggression, committed in any territory by any state’s citizen.

General Comment 36 added by the UN Human Rights Committee: the second development

Through its expanding jurisprudence on the right to life, the UN Human Rights Committee has given advocates on economic and social rights a powerful new enforcement tool. 

With its recent General Comment No. 36 on the right to life provided under Article 6 of the International Covenant on Civil and Political Rights, the Committee has contributed in a significant way to justify human rights at both the national and international levels. 

The United Nations Human Rights Committee acknowledges that any deprivation of life as a result of an act of aggression is a violation of Article 6 of the International Covenant on Civil and Political Rights, which identifies a previously ignored class of victims.

What does Article 6 say?

Article 6 comprises six paragraphs, which are briefly described as follows:

Apart from Article 6 of the International Covenant on Civil and Political Rights. The right to life is enshrined under Article 3 of the Universal Declaration of Human Rights (UDHR) as: “Everyone has the right to life, liberty, and security of person.”

Certain aspects discussed and obligations imposed under the General Comment No. 36

Conclusion

The two developments provide a way to a better world as far as criminal and constitutional law at an international level is concerned. However, the organizations and the ICC have to take utmost diligence in imposing the liability on someone or deterring someone because obligations are not fulfilled. As much as doing the right thing is important, focusing on not doing any wrong thing is equally important.

Along with focusing on upkeeping the laws, the focus should be on two points that no innocent get convicted and no convicted individual is convicted inconsistent with legal backing.

References


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