Contents - Constitutional Court of Georgia

The Blank-Prose Crime of Aggression
the crime of aggression, the provisions of this article shall apply only to persons in a position effectively
to exercise control over or to direct the political or military action of a State.” 68
Concerning the role, if any, of the Security Council in the decision to prosecute, the SWGCA was
unable to come to a consensus. It summarized a range of various options; some included the Council
in the prosecutorial decision and others excluded it. 69
The definition is scheduled to be considered for inclusion in the Statute at the Review Conference
to be convened in Kampala in May 20l0. 70
III. THE PRINCIPLE OF LEGALITY IN DOMESTIC AND INTERNATIONAL LAW
Lon Fuller articulated eight standards of legality under which laws might be evaluated. 71 While
these derive from Fuller’s conception of natural law, two are particularly relevant to the SWGCA’s
proposed definition of the crime of aggression for they are well embedded in most domestic legal
systems as well as in international law. These standards concern the prohibition on retroactivity and
the requirement of legal clarity, or the absence of vagueness of the law. 72
68 Id. app. at l3.
69 Its summary is as follows:
There are divergent views regarding a possible role for the United Nations Security Council prior to the initiation of an investigation by the
Prosecutor. Some delegations consider the Prosecutor may only proceed with an investigation in respect of a crime of aggression if the
Security Council has previously made a determination that an act of aggression has been committed by a State.
Other options under consideration foresee that in the absence of such a determination by the Security Council the Prosecutor may
only proceed with an investigation if:
(a) The Security Council has adopted a resolution under Chapter VII of the Charter requesting the Prosecutor to proceed with an
investigation;
(b) The Pre-Trial Chamber has authorized the commencement of the investigation in accordance with the procedure contained in
article l5;
(c) The United Nations General Assembly has determined that an act of aggression has been committed; or
(d) The International Court of Justice has determined that an act of aggression has been committed.
Furthermore, some delegations posit that the absence of a determination of an act of aggression by the Security Council should not
prevent the Prosecutor from proceeding with an investigation.
Press Release, ICC, Assembly of States Parties Concludes the Second Resumption of Its Seventh Session, ICC Doc. ICC-ASP-200902l3-
PR390-ENG (Feb. l3, 2009), HYPERLINK http://www.icc-cpi.int/NR/rdon http://www.icc-cpi.int/NR/rdonlyres/84lE4C4C-9093-467l-
9A20-3B3B80387F5E/0/ICCASPPressRelease200902l3PR390ENG.pdf.
70 See Press Release, supra note 5. Still, a tortuous procedure must be followed before the crime of aggression can actually be prosecuted
with respect to a given defendant. See infra text accompanying notes 2l7-2l9.
71 FULLER, supra note l, at 46-8l.
72 Id. at 5l-65. Joseph Raz also opines that “all laws should be prospective, open and clear.” JOSEPH RAZ, THE AUTHORITY OF LAW 2l4
(l979).
159