To hold a person criminally responsible, the prosecution must prove that his conduct violated (without justification) a prohibitory norm of the criminal code and that he is culpable for such wrongdoing. In international criminal law, wrongfulness and culpability are assessed through the prisms of material (actus reus) and mental (mens rea) elements, respectively. Also called “objective attribution,” ascribing wrongfulness requires a causal link between individual conduct and criminal consequences. Attributing culpability, or “subjective attribution,” on the other hand, consists of establishing mental links between the perpetrator and the occurrence he has caused and the situation in which such an event took place. This Article sets out the normative foundation for the attribution of criminal responsibility for aggression based on the theory of actus reus that I proposed in my previous scholarship. Two findings are paramount. First, to incur wrongfulness, the perpetrator need not necessarily be accountable for an entire act of aggression. It suffices if the prosecution proves that he caused a single instance of the use of armed force that is part of broader hostilities which, taken as a whole, amount to the overarching state conduct element, i.e., an act of aggression that manifestly violates the Charter of the United Nations (U.N. Charter). Second, as a consequence of the first proposition, the individual is culpable if he is mindful of his state leadership position and intends the use of armed force against another state or is aware that such occurrence will result from his conduct, while being cognizant of the factual circumstances allowing for such action to constitute in and of itself or contribute to an overarching act of aggression that manifestly violates the U.N. Charter.
Nikola R. Hajdin,
Attributing Criminal Responsibility for the Crime of Aggression,
Ga. J. Int’l & Compar. L.
Available at: https://digitalcommons.law.uga.edu/gjicl/vol51/iss1/2