The Nature of Leadership in the Crime of Aggression: The ICC’s New Concern?

in International Criminal Law Review
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Since the Nuremberg trials, it has been accepted that only the highest echelon of state leadership can be responsible for the crime of aggression. The crime of aggression is distinguished from other core crimes under the International Criminal Court’s (icc) purview by, inter alia, its leadership nature. According to Articles 8bis(1) and 25(3bis) of the Rome Statute, only a person ‘in a position effectively to exercise control over or direct the political or military action of a State’ can be held responsible for aggression. The ‘control or direct’ standard was adopted at the first Review Conference of the Rome Statute in Kampala in 2010 and differs from the customary counterpart (‘shape or influence’) established by the Nuremberg Military Tribunal (nmt). This article will explore how the leadership clause has evolved and whether the new standard is more appropriate for the icc.