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Unpublished Paper
"First, Do No Harm:" Interpreting the Crime of Aggression to Exclude Humanitarian Intervention
ExpressO (2013)
  • Joshua L. Root, University of Edinburgh

The yet to be implemented Article 8 bis of the Rome Statute criminalizes, as the crime of aggression, acts of aggression which by their “character, gravity and scale” constitute a “manifest violation” of the Charter of the United Nations. This article argues that Article 8 bis must be construed so as to exclude from the International Criminal Court’s jurisdiction uses of force which are facial violations of the UN Charter but which nonetheless comport with the principles and purposes of the Charter, such as bona fide humanitarian intervention unauthorized by the Security Council. This article applies the Vienna Convention on the Law of Treaties, state practice and opinion juris to conclude that such humanitarian intervention is not a use of force prohibited by Article 2(4) of the UN Charter. However, even if these acts are prohibited, they will not be – by their “character, gravity and scale” – “manifest” violations of the UN Charter, and therefore not crimes within the competency of the International Criminal Court to punish.

  • international criminal law,
  • human rights,
  • aggression,
  • humanitarian intervention,
  • Charter of the United Nations,
  • Rome Statute,
  • Responsibility to Protect,
  • treaty interpretation
Publication Date
July 10, 2013
Citation Information
Joshua L. Root. ""First, Do No Harm:" Interpreting the Crime of Aggression to Exclude Humanitarian Intervention" ExpressO (2013)
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