Browsing by Author "Kairisalo, Ekaterina Johanna"

This thesis investigates how the legal framework of the crime of aggression reflects the political agenda of the Friend/Self and the Enemy/Other dichotomous distinction, and how has the legal contextual discourse of the crime of aggression historically developed. This thesis endeavours to explore the role of politics in the historical recognition of aggression as a crime in relation to the cases of the International Military Tribunal of Nuremberg and the 2010 Kampala Conference. The thesis applies Carl Schmitt’s theoretical framework of the Friend/Self and the Enemy/Other as a species of politics that has played a role in the historical development of the legal category of the crime of aggression. The work employs a historical design: 1) focusing on series of legal doctrines within the Nuremberg Tribunal and the 2010 Kampala Conference aiming to explain how political context influenced the legal framework, and 2) annotating how and why structures of legal institutions evolved beyond this. The international anarchical system relies on political tensions, which depend on ones’ independence and freedom. The one who is threatening these principles, the Enemy/Other, is aimed to be contained and possibly defeated by the Friend/Self. To be able to refrain the Enemy/Other, without being categorised as an aggressor, the Friend/Self had to resolve to legal applications to promote and to reaffirm their political objectives in the international legal system. This would legitimize their use of force action without being condemned for committing the crime of aggression. Hereby, the judicial process becomes politicized. The Friend/Self and the Enemy/Other politics have led to unequal and discriminatory treatment of states within the international system where the Friend/Self represents the sovereign, who decides on the exception. This has inscribed an anomie within the legal category of the crime of aggression where politics can steer the legal debate. The Nuremberg Tribunal that “recognize[d an enemy] as the enemy” in the legal doctrine, while in the Kampala Conference the jus belli power was transferred into alliance system – the Security Council. This gave it the competence to determine a state act of crime of aggression before referring the case to the ICC. The amendment to Article 8 bis(2) adopted a generic formulation on the crime of aggression allowing cases of insufficient in gravity to manifest. Due to absence of the threshold clause in paragraph (2) it left the state act of crime of aggression ambiguous in its formulation, and it diverted the responsibility from the state to the individual (paragraph (1)). Thus, the individual is condemned, while the state remains within the legal norm. This allowed the Friend/Self and the Enemy/Other politics to prevail, which solidified the dichotomous politics within the legal category of the crime of aggression. The historical development of the crime of aggression doctrine has politicized through the Friend/Self and the Enemy/Other disposition by the powerful states. This has led to wars/conflicts that were waged in the name of humanity in order to preserve peace, order, and security in the international system (UN Charter Article 1). This has inscribed politicized system that entails ‘corruptive’ nature in waging wars/conflicts. To prevent this from happening paragraphs (1) and (2) of Article 8 bis would need to be reversed in order to serve more justice. This would allow states to become held responsible for the crime of aggression – as the political leaders act on behalf and represent the state. As this is not the case, the development of the 2010 Kampala Conference demonstrates that power politics will prevail and even deepen the escalation of violence, i.e. crime of aggression, through legal means; even though law is perceived to constrain politics through legal constitutional boundaries.