Brottslingar eller hjältar? Aggressionsbrottet i Romstadgan och våldsanvändning vid unilaterala humanitära interventioner

Sammanfattning: The crime of aggression has a long history in customary international law, but it was not until 2010 that the offense was defined for the purposes of the ICC. Interstate use of force has been, and it still is, a highly political issue, which has affected the international community's willingness to establish individual criminal liability for those responsible. The definition of the crime of aggression in Article 8 bis of the Rome Statute is a political compromise between the State Parties. As opposed to the other crimes in the Rome Statute, which have the main aim of upholding the protection of human rights and respect for humanitarian law, i.e. jus in bello, the crime of aggression aims at maintaining the rules of jus ad bellum, inter alia by criminalizing acts contrary to the prohibition of the use of force in the UN Charter. Despite the extensive description of the crime a number of legal issues remain unanswered and all the legal controversies within jus ad bellum – for example; the right to anticipatory self-defense or the right to use force in humanitarian interventions and for protection of nationals abroad – are now also part of the discussion on the meaning of Article 8 bis. This paper examines one such legal controversy and its’ place within Article 8 bis. The study focuses on answering whether the new crime in the Rome Statute can be interpreted so as to entail individual criminal liability for the leaders of unilateral humanitarian intervention. The doctrine of humanitarian intervention has its origins in the early history of public international law and it is wildly discussed as a possible exception to the prohibition of the use of force in international relations. Considering that the Article 8 bis does not deal with this issue explicitly it will be the task of the ICC to determine whether the crime of aggression also covers unilateral uses of force for humanitarian purposes. The Court's potential interpretation of Article 8 bis is important to review as the effects of the international criminal justice and individual criminal liability may have an influence on future policy making regarding unilateral humanitarian interventions. The analysis of this paper highlights that unilateral use of force in humanitarian interventions can fulfil both the material, as well as the mental elements of the crime of aggression in the Rome Statute, consequently Article 8 bis could entail individual criminal liability for the leaders of such interventions. The essay further notes that the existing defences in the Rome Statute are indeed possible to invoke in situations of unilateral use of force in humanitarian interventions, but that the future success of such arguments is limited. Lastly, the conclusion entails that, with the inclusion of Article 8 bis to the Rome Statute, the ICC has been entrusted with an opportunity to influence and shape the rules of jus ad bellum and thus pinpoint and strengthen the ban on the use of force in public international law.