Aggression and Monetary Gold quo vadis?

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O'Gorman, Mirinda
Sampford, Charles
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Keyzer P., Popovski V. and Sampford C.
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Introduction No lawyer should object to Jackson’s statement. Indeed, to deny it is to not only deny the international rule of law but, for many, the concept of law itself. It would also ignore the only strong (and it was strong) legal foundation for the trials – the Pact of Paris1 – which was signed by the nations sitting in judgment and those whose citizens were judged. The only objection that might be made is that its force might be confined to mere utility. Yet it is a trite reflection that what Robert Jackson thought was clear was denied institutional expression for the following half century and has been making only slow and uneven progress since. It is beyond the scope of this chapter to list, let alone determine, the reasons why the powers that established the Nuremberg and Tokyo war crimes trials institutionally ignored the laws they had so loudly proclaimed and thereby retrospectively denied the legitimacy of the trials they had established.2 Despite the enormous progress made by the states parties at the Review Conference of the Rome Statute in Kampala3 in activating the jurisdiction over crimes of aggression when it is ratified by the required 30 states, there will be many obstacles to its implementation, even within those states that ratify the changes. One of the more intriguing potential obstacles is provided by the Monetary Gold principle that arose from Monetary Gold Removed from Rome in 1943 (Monetary Gold Case)4 heard by the International Court of Justice (ICJ) soon after Nuremberg. It applies a strong form of consent theory to prevent the court making any finding (positive or negative) about a party that has not agreed to the court’s jurisdiction. This raises two questions for the crime of aggression. First, does the Monetary Gold principle apply solely to the ICJ, or can it be applied to other international bodies? Second, we need to consider the way the crime of aggression introduces issues of consent to the International Criminal Court (ICC). If applied in its strongest form it would not only limit who might be prosecuted but what defences could be run. Mirinda O’Gorman did extensive research in the lead-up, and during an internship at the International Criminal Court in 2011. She developed a powerful argument, grounded in case law and legal commentary, that Monetary Gold applies to the crime of aggression, preventing any consideration of the behaviour of an alleged victim-state who has not consented to the Court’s jurisdiction for the crime of aggression. This argument, based on a strong view of the principle of consent enshrined in international law, had considerable support among lawyers at the ICC but less support among the international lawyers present at the workshop.

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Access to International Justice
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Criminology not elsewhere classified
International Law (excl. International Trade Law)
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