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Comment on the Aggression Question: “What should be the policy and approach of the Office of the Prosecutor in conducting investigations and prosecutions with regard to the crime of aggression?”

Humanitarian Interventions and Crime of Aggression: Does the Kampala Amendment Spell the End of Humanitarian Intervention?

I. Introduction

The entry into force of the Kampala amendment aiming at enforcing the crime of aggression provision in the Rome Statute is the culmination of a long struggle. Although described in Nuremberg as the “supreme international crime”,1 the provision of the Rome Statute discussed at the Rome conference could not gather sufficient support in 1998 to introduce a definition of the crime in the Statute. States therefore agreed the issue needed further discussions and postponed the adoption of a definition of this sensitive notion. Among the topics on which States disagreed was the question of so-called “humanitarian interventions”. Many parties to the Rome conference wanted the statute to address humanitarian intervention, but those States could not agree on the way to do so. The impossibility to reach a consensus on this question was even one of the main reasons of the reluctance of the United States to recognize the crime of aggression in the initial Rome conference.2

As in the initial discussions in Rome, State parties refused to address directly the question of humanitarian intervention in the Kampala amendment, despite numerous suggestions to do so.3 Therefore, there remains some uncertainty as to whether humanitarian interventions are or not covered by the provision on the crime of aggression. Outside of international criminal law, the topic is still very much controversial in academia, and the question as to whether humanitarian international has made its way to becoming an exception to the UN Charter’s prohibition of the use of force. In international politics however, it seems that the concept is gathering increasing support from States as a “valid means of resolving humanitarian disasters”.4

Two years after the introduction of the Kampala amendment, the situation of humanitarian intervention within the framework of the crime of aggression still remains uncertain. While avoiding discussing the legality of humanitarian intervention per se—that remains debated—some supporters of the concept have suggested the new provision would likely discourage States to engage in humanitarian intervention, therefore placing population at risk.5 On the other side of the spectrum, others have argued it is doubtful that the propensity of States to engage in such intervention will be impacted.6

In this comment, I will seek to bring my contribution to this debate. In Part II, I will assess whether or not the definition contained in the Kampala amendment actually covers humanitarian interventions. In Part III, I will then demonstrate that, in any events, it is rather unlikely—and not recommendable—to see the OTP pressing charges for an operation clearly justified on humanitarian grounds, and even less likely to see the Court sentencing anyone on this ground. In Part IV, conversely, I will consider whether there is a risk to see States abusing the qualification of humanitarian intervention, seeking to use it as a rhetorical justification. Finally, I will conclude by briefly reflecting on the role of the ICC in the context of new developments of the regulation of the use of force in international law.

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II. Does a Humanitarian Intervention fit the Definition of Crime of Aggression?

The first legitimate question is to determine whether a potential humanitarian intervention could even qualify as a crime of aggression, or if it is excluded from the scope of Article 8 bis.

The nature of an “act of aggression” is given at Article 8 bis (2). Such an act is defined as a:

[U]se of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.

The article then proceeds to a list of examples found in the resolution of the UN General Assembly 3314.7 According to this provision and the examples, it is beyond doubt that most humanitarian interventions would indeed qualify as an act of aggression, as such operations often involve “invasion or attack by the armed forces of a State of the territory of another State”, bombardment or “the use of any weapons by a State against the territory of another State”, blockades, attacks on “land, sea or air forces, or marine and air fleets of another State” etc.

At this stage, one could raise the argument that the Kosovo intervention for instance, was not conducted by one State but rather by “NATO forces”. Such situation is indeed not an easy one. Generally speaking, it is not disputed that States acting as a “group” remain liable individually.8 The situation of operations under the commandment or the auspice of a collective entity—international organization, or in the case of NATO, a military alliance—is different, at least in theory. Indeed, it is generally considered in the law of international responsibility that such collective organizations could be liable as such in case they exercise “effective control” on the troops involved in the military operation.9 However, the threshold for “effective control” is so high, that virtually all operations under the auspice of an organization such as NATO do not meet the criteria.10 Therefore, States remain individually liable and their leadership individually criminally responsible.

Pursuant to Article 8 bis (1) of the Rome Statute, the act of aggression must be of a:

[C]haracter, gravity and scale, [that] constitute a manifest violation of the Charter of the United Nations.

This formulation is often referred as the “threshold” clause.11 The intent was to avoid criminalizing any unlawful use of force, in line with the provision of Article 5 (1), that the Court’s jurisdiction is “limited to the most serious crimes of concern to the international community as a whole”.12 Analyzing these criteria reveals some of the main issues in assessing whether humanitarian interventions fit the definition of crime of aggression.

Some uncertainty remains as to the exact interpretation to give to Article 8 bis (1).13 However, it is safe to assume that the expressions “gravity” and “scale,” taken together, refer mainly to a quantitative analysis of the seriousness of the act of aggression.14 Again, the goal was to exclude minor operations from the scope of the crime of aggression. As noted by Trahan, this threshold requirement is similar to the one of “armed attack” as interpreted by the ICJ.15

The expression “characters” then refers to a qualitative analysis and designate according to Kreß and Von Holtzendorff, acts that are “unambiguously illegal.”16 The intention was to exclude the most contentious situations, that is to say, those falling within a “grey area,” “borderline cases”, and or of “questionable legal status”.17 As Trahan points out, this requirement leads to some uncertainty as to whether it can exclude humanitarian interventions.18 Indeed, the very essence of the concept of humanitarian interventions is that its legality is controversial, while many states support it, several other oppose it, and, similarly, there is no consensus in scholarship. If the intent was indeed to exclude debatable cases, then one would agree that humanitarian interventions would qualify as such. If so, the criteria of the crime of aggression would not be met, and any humanitarian intervention could therefore be excluded from the scope of Article 8 bis on this simple basis.19

The additional requirement of a “manifest violation” of the UN Charter is of no help to clarify the scope of the definition. McDougal suggests the expression simply means that the assessment of the unlawfulness of the act must be an “objective qualification”,20 whereas Trahan points out that the requirement of a “manifest” violation only make the assessment of the “character” more significant. Accordingly, if a doubt exists as to the unlawful “character” of the act, the potentially unlawfulness can de facto not be “manifest”.

As we can see, this interpretation would almost automatically exclude all humanitarian interventions, with the possible exception of clearly staged humanitarian intervention, aimed at disguising a hostile military intervention, provided there is nearly unanimous international condemnations.

However, as the US State Department Legal Adviser, Harold Koh, observed at that time, there are reasons to be concerned that “the apparent consensus on the wording of Article 8 bis marks sharp disagreement on particular points regarding the meaning of that language”.21

III. The Low Probability to see the Issue Arising in Practice

We saw that pursuant to Article 8 bis, it is unclear whether humanitarian interventions, that appear as genuine, could even meet the elements of the definition of crime of aggression. However, even in the event an intervention would be interpreted as meeting these requirements, a number of other obstacles and issues would arise, making it very unlikely that anyone could be prosecuted for a genuine humanitarian intervention. I will analyse briefly few of these elements, of both a procedural and substantial nature.

A. Strict Interpretation of a Crime

In the context of humanitarian intervention, and with regard to the discussion in the previous section, Article 22 (2) stresses, under the umbrella of the nullum crimen sine lege principle, that “definition of a crime shall be strictly construed” and further that “[i]n case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted”.22 No need to explain why this rule only makes the interpretation of Article 8 bis (1) more difficult and reinforces the interpretation of “character” and “manifest” as excluding actions of which the lawfulness would be disputed.23

B. Proof Beyond a Reasonable Doubt

Trahan also interestingly points to Article 66, that is to say the principle of the presumption of innocence.24 Article 66 (3) provides that “the Court must be convinced of the guilt of the accused “beyond reasonable doubt.” Although the provision is one of proof and not one of interpretation, it is likely to, again, add to the difficulty of ascertaining that a crime of aggression has been committed.25 Indeed, if the criminality of the act itself is difficult to determine, the criminality of the behaviour of the individual prosecuted for the act will probably be just as difficult to establish.

C. Seriousness Requirement

Article 1 provides that the Court has “the power to exercise its jurisdiction over persons for the most serious crimes of international concern”,26 meanwhile Article 17 (1)(d) specifies that a case must be ruled inadmissible when “it is not of sufficient gravity”. This is not to say that humanitarian interventions can never the “serious” enough—as the qualification of “humanitarian” is concerned the nature or intent of the operation, not its consequences. However, we can probably assume that these provisions implicitly require the Court, and the OTP, to focus their attention on most undoubted crimes.27 Conversely, as Trahan puts it “these provisions … suggest the Court should not pursue weak or debatable cases”.28 It must nonetheless be noted that real significance of these provisions remains disputed.29

D. Balancing the Crimes between Crime of Aggression and Initial Crimes

In line with the requirement of seriousness, it would probably be relevant to have regard for the circumstances of the military intervention. In particular, when it appears unequivocally that the intervention was decided in light of mass atrocities being committed in the territory of the “victim” state—including crimes under the Rome statute—which is most of the time the main rationale behind humanitarian interventions.30 Even more when the operation actually allowed the intervening state to put an end to the atrocities. In such a case, where the ICC would potentially also have jurisdiction on the core crimes committed in the territory of the “victim” state, would it really make sense for the OTP to launch proceedings against the intervening state? Additionally, if evidence clearly demonstrates that the latter state has rigorously respected jus in bello rules with a particular concern for the preservation of civilian lives, it would seem even more contradictory to prosecute this state for crime of aggression.

E. Lack of Mens Rea

Although Article 8 does not explicitly mention a requirement of mens rea, Article 30 stipulates that:

Unless otherwise provided, a person shall be criminally responsible … only if the material elements are committed with intent and knowledge.31

The legitimate question is therefore to determine what the “intent” must be in the case of crime of aggression, which is also one of those grey areas in the interpretation of the crime of aggression.32 Here, the argument could clearly be made that such mens rea does not exist in the case of a leader ordering a military operation with the purpose to stop mass human rights violation mass atrocities.33 This would be the case in particular where the intervening State has made its position clear in public statements, diplomatic forums, or that other sources such as planning documents or special rules of engagement show a particular concern for civilians lives.34

F. Mistake of Law

In the same vein as the lack of mens rea, some authors pointed to Article 32 (2) as a possible way out of the crime of aggression.35 The article announces that:

A mistake of law may … be a ground for excluding criminal responsibility if it negates the mental element required by such a crime.

The way this provision would exactly play out is unclear.36 Indeed, as noted above, the expression “manifest” in Article 8 bis should normally refer to an objective assessment of the violation of the UN Charter and therefore bar the use of the mistake of law defense. Some authors argue this argument could not in any circumstances be a valid defense,37 whereas others seem to leave the door open.38 In reality, the debate is the same as regarding the mens rea , therefore accepting that the crime of aggression contains a mens rea requirement would lead us to accept the potential argument of mistake of law. In any event, this would certainly constitute yet another hurdle to overcome.

G. The Specific Case of Defenses Under the Rome Statute

The last question to ask when assessing whether any prosecution for humanitarian interventions is likely to be achieved has regards for the applicability, in the case of the crime of aggression, of the defenses provided by the Rome Statute. In particular, many authors have pointed to self-defense, the state of necessity—or duress—as well as the possibility for the Court to find other grounds in other norms of international law.

1. Self-Defense

Murphy in particular suggests that Article 31 (1)(c) on self-defense could be used in an argument justifying a humanitarian intervention.39 Indeed, this provision justifies an operation the purpose of which would be to “reasonably … defend himself or herself or another person”, the article adding “in a manner proportionate to the degree of danger to the person or the other person”.40 We easily see how this provision could be used to justify a humanitarian intervention aiming at protecting not “another person,” but a whole civilian population of a third state, using proportionate means. As Murphy points out, we could even argue that the proportionality test becomes more flexible as the number of other “persons” increase, therefore allowing for operations potentially amounting to a crime of aggression when entire populations are at stake.41

2. Duress

Beside self-defense, Article 31 (1)(d) also provides some potential arguments for a defense based on duress and necessity in cases where the conduct:

[H]as been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person”, provided the response is necessary and reasonable and the person did not “intend to cause a greater harm than the one sought to be avoided.42

At first glance, it appears that a bona fide humanitarian intervention would meet the requirements of this provision, so long as it respects the standard of necessity and reasonableness set out in the article.

3. Article 31 (3)

Article 31 (3) is possibly the most interesting provision. Indeed this article allows for the Court to consider grounds of defense not explicitly specified by the Rome Statute, insofar as such grounds can be found in sources of international law listed in Article 21.43 Although the travaux préparatoires suggest the drafters did not foresee a potential argument on the basis of humanitarian intervention, it certainly does not bar the argument from being made. The main obstacle would actually to find textual support in international law for the legality of humanitarian intervention from which a relevant defense could be “derived.” Indeed, none of the arguments supporting the right of humanitarian intervention are based on any explicit international legal instrument.44 Such an argument would therefore mainly rely on human rights treaty, pointing to the rights potentially violated and thus justifying the intervention.45

While most of the arguments I have listed in this section would only come into play at the trial phase, it is certain that they would also necessarily inform the appreciation of the OTP when assessing the opportunity to initiate proceedings. Indeed, considering the sensitivity of the topic of humanitarian intervention, the OTP would probably, and quite rightly, be very careful in its choice to prosecute aggression appearing as justified by humanitarian concerns.

IV. Conversely is There Really a Risk of Abuse of States Arguing on the Basis of Humanitarian Intervention, the Case of Justifications?

After observing all the potential arguments in favor of the exclusion of humanitarian interventions from the scope of Article 8 bis, or in favor of potential defenses and justifications, one would wonder if these actually lead to a risk to see the humanitarian intervention argument being abused by states. Nevertheless, I do not consider such abuses to be a real risk in practice. Indeed, while the arguments I have pointed out, taken together, make a strong case for the assumption that it is unlikely to see the OTP taking action against leader of a state engaging in a humanitarian intervention, these arguments are not affirmative legal arguments automatically excluding any prosecution. Rather, they require a very specific set of circumstances. As noted above, one of the main elements the OTP will have to analyse is the way the operation was conducted: were there initial grave human rights violations or international crimes justifying the operation? Did the intervening state try to act first through the UN Security Council? Did the intervening state act on its own or as part as a coalition? Did the intervening state issue sufficient warning? Were the rules of jus in bello respected? Did the troops leave the territory of intervention as soon as the humanitarian situation was addressed? Did the operation receive widespread support or widespread condemnation at the international level, within the UN as well as other multilateral organizations? These are some of the questions the OTP and potentially the Court would need to look into in order to assess whether an operation is indeed what some authors have called a “bona fide” humanitarian intervention. As the argument of humanitarian intervention also remains an exception, at the trial stage, the onus will be on the accused to prove all these elements, while at an earlier stage, the OTP will interpret restrictively the elements I have raised in the previous section.

V. Conclusion: What Place for the ICC in the Debates on Humanitarian Intervention?

A last question one could legitimately ask is: is a case of aggression where a state was actually conducting a humanitarian intervention likely to ever arise before the Court? In particular in light of the limited jurisdiction of the Court, but also of the limited ratification of the Kampala amendment.46 First of all, it must be stressed that while the Court currently has a limited jurisdiction, the solutions regarding exceptions to the crime of aggression for humanitarian interventions must be thought of and designed to be able to address all situations, indeed the UN Security Council could refer cases normally outside of the reach of the Court’s jurisdiction, other states could voluntarily do so—although it remains unlikely—finally, other States could in the future ratify the Kampala amendment and/or accede to the Rome Statute and therefore extend the scope of the Court. In the current state of affairs however, although some uncertainty remains as to the extent of the jurisdiction among other things, it is clear that such a situation will probably not appear in the near future, for several reasons.47 Firstly, as Bosco observes, two third of the world’s military are currently beyond the reach of the ICC.48 Similarly, some of the states that intervene the most in military operations on foreign soil, such as the United States for instance, are not party to the Statute, while other States among the most involved in humanitarian intervention have not ratified the Kampala amendment, such as France and the United Kingdom. Secondly, genuine humanitarian interventions are not as common as a zealous international lawyer would sometimes tend to think. Indeed, many operations of a humanitarian nature are part of international efforts, or at the invitation of the country of intervention. Additionally, some authors actually point to an increasing “absence of the will to act at all”.49 Referral by the Security Council also seem rather unlikely, especially in the case of interventions conducted by one of the permanent members.50 In the same vein, even if the OTP were to move forward, the Security Council still has the power under Article 16 to defer an investigation, which would likely happen in a case of an operation receiving widespread support.51

The crime of aggression is inherently political—which is evidenced by the role given to the UN Security Council, an intrinsically political institution—and when state parties agreed to the Kampala amendment, they knew the Court would face many challenges in its implementation and would probably be put, in some situations, in a very difficult position. Very often, the decision will rest with the OTP through its prosecutorial discretion.52

Turning to the role of the ICC in the debate on the legality of humanitarian interventions, because of the extremely low probability that the issue arises in practice and proceeds beyond the stage of preliminary consideration of the issue by the OTP, I do not share the enthusiasm of some authors hoping that the Court will clarify the question; rather, it seems to me that the ICC will probably not dramatically change the current debate.53 Perhaps for the better as far as the Court is concerned.54

However, in light of the various arguments I referred to, and going forward, it would be advisable for the OTP to publish a new version of its “regulations of the office of the prosecutor”, detailing how it plans to enforce the prosecution of crimes of aggression, in particular with regard the situation of humanitarian interventions. This could also be clarified in the next strategic plan for 2018–2023.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    The International Military Tribunal for Germany, Judgment, 22 Nuremberg Trial Proceedings 410, 416 (Sep. 30, 1946), available online. ↩

  2. 2.

    Sean D. Murphy, Criminalizing Humanitarian Intervention, 41 Case W. Res. J. Int’l L. 341, 360 (2009), available online. ↩

  3. 3.

    Leslie Esbrook, Exempting Humanitarian Intervention from the ICC’s Definition of the Crime of Aggression: Ten Procedural Options for 2017, 55 Va. J. Int’l L. 791, 802 (2014), paywall. ↩

  4. 4.

    Id. at 802.; Antonio Cassese, Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, 10 EJIL 23 (1999), available online; Nico Krisch, International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order, 16 EJIL 369 (2005), available online. ↩

  5. 5.

    Tom Ruys, Criminalizing Aggression: How the Future of the Law on the Use of Force Rests in the Hands of the ICC, EJIL (Forthcoming 2017), available online; Elise Leclerc-Gagne & Michael Byers, A Question of Intent: The Crime of Aggression and Unilateral Humanitarian Intervention, 41 Case W. Res. J. Int’l L. 379, 385 (2009), available online. ↩

  6. 6.

    Jennifer Trahan, Defining the ‘Grey Area’ Where Humanitarian Intervention may not be Fully Legal, but is not the Crime of Aggression, 2 J. Use of Force & Int’l L. 42 (Jun. 24, 2015), paywall. ↩

  7. 7.

    Definition of Aggression, G.A. Res. 3314, A/Res/29/3314, Dec. 14, 1974, available online. ↩

  8. 8.

    Claus Kreß, The State Conduct Element, in The Crime of Aggression: A Commentary 412, 423 (Claus Kreß & Stefan Barriga eds., 2017). ↩

  9. 9.

    Pierre Klein, The Attribution of Acts to International Organizations, in The Law of International Responsibility 289, 298–303 (James Crawford, Alain Pellet & Simon Olleson eds., 2010). ↩

  10. 10.

    Kreß, supra note 8, at 423. ↩

  11. 11.

    Keith A. Petty, Criminalizing Force: Resolving the Threshold Question for the Crime of Aggression in the Context of Modern Conflict, 33 Seattle U. L. Rev. 105 (2009), available online. ↩

  12. 12.

    Gerhard Kemp, Individual Criminal Liability for the International Crime of Aggression 179 (2010), eponymous dissertation from 2008 available online; Oscar Solera, Defining the Crime of Aggression 409–414 (2007); Trahan, supra note 6, at 57. ↩

  13. 13.

    Joshua L. Root, First Do No Harm: Interpreting the Crime of Aggression to Exclude Humanitarian Intervention, 2 U. Balt. J. Int’l L. 63, 81 (2013), available online; Beth Van Schaack, The Crime of Aggression and Humanitarian Intervention on Behalf of Women, 11 Int’l Crim. L. Rev. 477, 486 (2011), available online. ↩

  14. 14.

    Van Schaack, supra note 13, at 486. ↩

  15. 15.

    Trahan, supra note 6, at 59. ↩

  16. 16.

    Claus Kreß & Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, 8 J. Int’l Crim. Just. 1179, 1207 (2010), available online. ↩

  17. 17.

    Carrie McDougall, The Crime of Aggression Under the Rome Statute of the International Criminal Court 125–127 (2d ed. 2015); Trahan, supra note 6, at 60. ↩

  18. 18.

    Trahan, supra note 6, at 60. ↩

  19. 19.

    Claus Kreß, Time for Decision: Some Thoughts on the Immediate Future of the Crime of Aggression: A Reply to Andreas Paulus, 20 EJIL 1129, 1140 (2009), available online; Van Schaack, supra note 13, at 479. ↩

  20. 20.

    McDougall, supra note 17, at 126–127. ↩

  21. 21.

    Id. at 125. ↩

  22. 22.

    William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute 410–411 (2d ed. Nov. 22, 2016); Sergey Sayapin, The Crime of Aggression in International Criminal Law 277 (2014). ↩

  23. 23.

    Root, supra note 13, at 97. ↩

  24. 24.

    Trahan, supra note 6, at 62. ↩

  25. 25.

    Schabas, supra note 22, at 786–788; Richard May & Marieke Wierda, Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha, 37 Colum. J. Transnat’l L. 725, 754 (1998), paywall. ↩

  26. 26.

    See also Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 5 (1), available online.

    (Repeats language of “most serious crimes of concern to the international community”). ↩

  27. 27.

    McDougall, supra note 17, at 132–137. ↩

  28. 28.

    Trahan, supra note 6, at 63. ↩

  29. 29.

    Schabas, supra note 22, at 348–349. ↩

  30. 30.

    Erin Creegan, Justified Uses of Force and the Crime of Aggression, 10 J. Int’l Crim. Just. 59, 63–64 (Mar. 1, 2012), paywall. ↩

  31. 31.

    Keith A. Petty, supra note 11, at 7; Gerhard Werle & Florian Jessberger, “Unless Otherwise Provided”: Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law, 3 J. Int’l Crim. Just. 35 (2005), paywall, paywall. ↩

  32. 32.

    Kemp, supra note 12, at 186–187; Noah Weisbord, The Mens Rea of the Crime of Aggression, 12 Wash. U. Global Stud. L. Rev. 487 (Jan. 2013), available online; Solera, supra note 12, at 420–431. ↩

  33. 33.

    Weisbord, supra note 32, at 503–506; Esbrook, supra note 3, at 832; Leclerc-Gagne & Byers, supra note 5, at 387–388; Van Schaack, supra note 13, at 485–486; Trahan, supra note 6, at 64. ↩

  34. 34.

    Leclerc-Gagne & Byers, supra note 5, at 388. ↩

  35. 35.

    Drew Kostic, Whose Crime is it Anyway? The International Criminal Court and the Crime of Aggression, 22 Duke J. Comp. & Int’l L. 109, 126 (2011), available online; Trahan, supra note 6, at 65. ↩

  36. 36.

    Schabas, supra note 22, at 502–506. ↩

  37. 37.

    McDougall, supra note 17, at 196–197; Sayapin, supra note 22, at 296; Kreß & von Holtzendorff, supra note 16, at 1200–1201. ↩

  38. 38.

    Trahan, supra note 6, at 65; Weisbord, supra note 32, at 497. ↩

  39. 39.

    Murphy, supra note 2, at 827–828. ↩

  40. 40.

    Hannah Tonkin, Defensive Force Under the Rome Statute, 6 Melb. J. Int’l L. (2005), available online; Beatrice Krebs, Justification and Excuse in Article 31 (1) of the Rome Statute, 2 CJICL 382, 394–398 (2013), paywall. ↩

  41. 41.

    Murphy, supra note 2, at 828. ↩

  42. 42.

    Id. at 367.; Krebs, supra note 40, at 398–409; Schabas, supra note 22, at 490–491. ↩

  43. 43.

    Schabas, supra note 22, at 492–493. ↩

  44. 44.

    Carsten Stahn, Between Law-Breaking and Law-Making: Syria, Humanitarian Intervention and “What the Law Ought to Be”, 19 J. Conflict & Security L. 25 (Oct. 22, 2013), paywall. ↩

  45. 45.

    Esbrook, supra note 3, at 830. ↩

  46. 46.

    Murphy, supra note 2, at 359; Esbrook, supra note 3, at 839. ↩

  47. 47.

    Esbrook, supra note 3, at 799; Andreas Zimmermann, Amending the Amendment Provisions of the Rome Statute: The Kampala Compromise on the Crime of Aggression and the Law of Treaties, 10 J. Int’l Crim. Just. 209 (Mar. 2012), paywall. ↩

  48. 48.

    David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics 15 (Jan. 16, 2014), paywall. ↩

  49. 49.

    Michael Byers & Simon Chesterman, Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law, in Humanitarian Intervention: Ethical, Legal, and Political Dimensions 177 (J. L. Holzgrefe & Robert O. Keohane eds., Feb. 2003), available online. ↩

  50. 50.

    Murphy, supra note 2, at 364. ↩

  51. 51.

    Esbrook, supra note 3, at 834–835. ↩

  52. 52.

    Murphy, supra note 2, at 366–367. ↩

  53. 53.

    Id. at 376. ↩

  54. 54.

    Id. at 364; Matthew Gillett, The Anatomy of an International Crime: Aggression at the International Criminal Court, 13 Int’l Crim. L. Rev. 829, 853 (Jan. 31, 2013), available online. ↩

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