The Jurisdiction of the International Criminal Court in War Crime Trials and the Use of Force

In December 2017, it was decided that the International Criminal Court is to activate its jurisdiction over the crime of aggression on the 17th July 2018, which is directed towards the leadership of a state who plan an aggressive war. Lower level military commanders on the ground, will not be able to be tried for the crime. Further, the ‘equality of belligerents’ principle protects soldiers on the battleground from decisions of their leaders. Meaning that lower-level
military commanders cannot be held accountable for taking part in an illegal war.

This preserves the distinction between jus ad bellum (justifications for going to war) to the jus in bello (law regulating conduct in war). However, preserving this distinction and bringing the crime of aggression under its jurisdiction,
means that the ICC can now rule the same civilian deaths as being lawful and unlawful, in the same time and place.

This article addresses this concern, arguing that by means of proportionality rules contained within Article 8(2)(b)(iv) of the Rome Statute, that the ICC has the ability to prosecute military commanders who participate in an aggressive war.
It will show that the rules of proportionality has developed to a point where there exists an overlap in jus ad bellum and the jus in bello; the former now defines the perimeter of the latter. When examined in this new light, the ICC can prosecute a lower level military commander who takes part in an aggressive war.