prosecuted by such a court, no matter how atrociously they behaved themselves. The judges at the Nuremberg Tribunal, in finding that "crimes against peace" and "war crimes" had been committed, relied mostly on peace and war crimes treaties to which Germany was a party.
In 1974, the General Assembly adopted a Resolution on the Definition of Aggression, which provided that "a war of aggression is a crime against international peace" (article 5(2)). However the Resolution did not deal with individual criminal responsibility for acts of aggression, and so it is questionable whether the definition of aggression in that Resolution is applicable to individual criminal acts.
The ICC Prepcom Working Group on the Crime of Aggression has a challenging task ahead of it, if it is to reach consensus on this issue. There is also considerable controversy over the exact meaning of the phrase in article 5 (2) of the Statute, which provides that any provision on the crime of aggression "shall be consistent with the relevant provisions of the Charter of the United Nations." Many States are of the view that this means the Security Council has to make a determination that an act of aggression has occurred, in accordance with its powers under Chapter 7 of the UN Charter, before the ICC can assume jurisdiction over a crime of aggression. However, other States do not support such an interpretation. Therefore, work is proceeding slowly on an acceptable compromise for all concerned States.
Assistance of Defence Counsel
The development of the international rule of law is obviously centred on the vigorous prosecution of alleged war criminals, which translates itself into the support of a strong and independent prosecutorial process. The implementation of the rule of law is equally based, however, on the way accused persons are brought before the ICC. The process for achieving such an objective includes ensuring a fair trial for all accused persons. That is why it is necessary to enable the development of a strong and independent defence process. Guaranteeing the rights of the accused is crucial to the establishment of such a strong defence process, and States Parties may need to adapt certain aspects of their criminal justice systems in the future, to ensure that their practices in relation to accused persons take into account the development of ICC jurisprudence in this area. Otherwise they may jeopardise the integrity of the process and undermine the future work of the Court.
One of the goals of the international criminal justice system is to encourage reconciliation between peoples and avoid acts of collective retribution. For this to happen, trial proceedings should respect the rights of the accused, guaranteeing them employment of all the means of defence to which they are entitled. There must be a fair trial, or members of the group to which the accused belongs will perceive themselves as being wronged by a justice system that is nothing but a front for organised vengeance.
The Rights of the accused
Articles 55 and 67 outline the general rights granted to accused persons, and these rights affect the proceedings within the jurisdiction of the arresting and detaining State.
The rights and obligations alluded to are within the contemplation of the Universal Declaration of Human Rights, and more specifically guaranteed by the International Covenant on Civil and Political Rights (ICCPR) which is binding on the majority of member States of the United Nations. Article 67 makes it abundantly clear that there should be full equality between the defence and prosecution in any proceeding before the ICC. Thus the Rome Statute entrenches the principle of equality of arms.
In light of the rights of the suspect set out in both article 55 and article 67, it is crucial to a fair and effective proceeding that such rights are fully enab
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