Dannenbaum, KTJ; (2016) Politics, the Rule of Law, and the Role of the Crime of Aggression: A Response to Koh and Buchwald. AJIL Unbound , 109 pp. 235-239.

Text Dannenbaum, Politics, the Rule of Law, and the Role of the Crime of Aggression.pdf - Published Version Access restricted to UCL open access staff Download (215kB)

Abstract

In this essay, I take up two concerns raised by Harold Koh and Todd Buchwald in their critique of the Kampala amendments on aggression: what they term “proxy prosecution” and the notion of aggression as a uniquely political question. I also take issue with the argument in Alain Pellet’s response on attacks by nonstate actors. These areas of contention notwithstanding, there are important issues on which I think that Koh and Buchwald get it right. In forthcoming work, I argue that the object and purpose of the criminalization of aggression precludes an interpretation of Article 8bis of the Rome Statute that would include humanitarian interventions not authorized by the Security Council. Nonetheless, the failure to make this textually explicit at Kampala was a mistake that the authors are correct to lament. Similarly, they accurately identify the ambiguities in the provisions on the amendments’ entry into force as an entirely avoidable defect that creates unnecessary confusion. These important points notwithstanding, the article takes some misleading positions on the politics of the crime.

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