The crime of aggression under the Rome Statute of the International Criminal Court 9781107011090, 1107011094, 9781107521841, 110752184X

Table of contents :
1. The crime of aggression under the Rome Statute of the International Criminal Court: an introduction
2. Criminalising aggression
3. An act of aggression: by any other name
4. The elevation of acts of aggression to the state act element of the crime of aggression
5. The individual conduct elements of the crime
6. The Court's jurisdiction over the crime of aggression
7. 2017 and beyond.

Citation preview

more information – www.cambridge.org/9781107011090

The Crime of Aggression under the Rome Statute of the International Criminal Court This guide to the crime of aggression provisions under the Rome Statute of the International Criminal Court (ICC) offers an exhaustive and sophisticated legal analysis of the crime’s definition as well as the provisions governing the ICC’s exercise of jurisdiction over the crime. A range of practical issues likely to arise in prosecutions of the crime of aggression before the ICC are canvassed, as is the issue of the domestic prosecution of the crime. It also offers an insight into the geo-political significance of the crime of aggression and the activation of the ICC’s ability to exercise its jurisdiction over the crime. The author’s intimate involvement in the crime’s negotiations combined with extensive scholarly reflection on the criminalisation of interState uses of armed force makes this highly relevant to all academics and practitioners interested in the crime of aggression. carrie m c dougall is a legal specialist in the International Law Section of the Australian Department of Foreign Affairs and Trade, where she advises on various topics including international criminal law and the use of force.

cambridge studies in international and comparative law Established in 1946, this series produces high quality scholarship in the fields of public and private international law and comparative law. Although these are distinct legal sub-disciplines, developments since 1946 confirm their interrelations. Comparative law is increasingly used as a tool in the making of law at national, regional and international levels. Private international law is now often affected by international conventions, and the issues faced by classical conflicts rules are frequently dealt with by substantive harmonisation of law under international auspices. Mixed international arbitrations, especially those involving state economic activity, raise mixed questions of public and private international law, while in many fields (such as the protection of human rights and democratic standards, investment guarantees and international criminal law) international and national systems interact. National constitutional arrangements relating to ‘foreign affairs’, and to the implementation of international norms, are a focus of attention. The Series welcomes works of a theoretical or interdisciplinary character, and those focusing on the new approaches to international or comparative law or conflicts of law. Studies of particular institutions or problems are equally welcome, as are translations of the best work published in other languages. General editors

James Crawford SC FBA Whewell Professor of International Law, Faculty of Law, University of Cambridge John S. Bell FBA Professor of Law, Faculty of Law, University of Cambridge

cambridge studies in international and comparative law Books in the Series The Crime of Aggression under the Rome Statute of the International Criminal Court Carrie McDougall Crimes against Peace and International Law Kirsten Sellars The Non-Legal in International Law Fleur Johns Armed Conflict and Displacement: The Protection of Refugees and Displaced Persons under International Humanitarian Law Me´lanie Jacques Foreign Investment and the Environment in International Law Jorge Vin˜uales The Human Rights Treaty Obligations of Peacekeepers Kjetil Larsen Cyberwarfare and the Laws of War Heather Harrison Dinniss The Right to Reparation in International Law for Victims of Armed Conflict Christine Evans Global Public Interest in International Investment Law Andreas Kulick State Immunity in International Law Xiaodong Yang Reparations and Victim Support in the International Criminal Court Conor McCarthy

Reducing Genocide to Law: Definition, Meaning, and the Ultimate Crime Payam Akhavan Decolonizing International Law: Development, Economic Growth and the Politics of Universality Sundhya Pahuja Complicity and the Law of State Responsibility Helmut Philipp Aust State Control over Private Military and Security Companies in Armed Conflict Hannah Tonkin ‘Fair and Equitable Treatment’in International Investment Law Roland Kla¨ger The UN and Human Rights: Who Guards the Guardians? Guglielmo Verdirame Sovereign Defaults before International Courts and Tribunals Michael Waibel Making the Law of the Sea: A Study in the Development of International Law James Harrison Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality Caroline E. Foster Legal Aspects of Transition from Illegal Territorial Regimes in International Law Yae¨l Ronen Access to Asylum: International Refugee Law and the Globalisation of Migration Control Thomas Gammeltoft-Hansen Trading Fish, Saving Fish: The Interaction between Regimes in International Law Margaret Young

The Individual in the International Legal System: State-Centrism, History and Change in International Law Kate Parlett The Participation of States in International Organisations: The Role of Human Rights and Democracy Alison Duxbury ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice Tom Ruys Science and Risk Regulation in International Law: The Role of Science, Uncertainty and Values Jacqueline Peel Theatre of the Rule of Law: The Theory, History and Practice of Transnational Legal Intervention Stephen Humphreys The Public International Law Theory of Hans Kelsen: Believing in Universal Law Jochen von Bernstorff Vicarious Liability in Tort: A Comparative Perspective Paula Giliker Legal Personality in International Law Roland Portmann Legitimacy and Legality in International Law: An Interactional Account Jutta Brunne´e and Stephen J. Toope The Concept of Non-International Armed Conflict in International Humanitarian Law Anthony Cullen The Challenge of Child Labour in International Law Franziska Humbert

Shipping Interdiction and the Law of the Sea Douglas Guilfoyle International Courts and Environmental Protection Tim Stephens Legal Principles in WTO Disputes Andrew D. Mitchell War Crimes in Internal Armed Conflicts Eve La Haye Humanitarian Occupation Gregory H. Fox The International Law of Environmental Impact Assessment: Process, Substance and Integration Neil Craik The Law and Practice of International Territorial Administration: Versailles, Iraq and Beyond Carsten Stahn Cultural Products and the World Trade Organization Tania Voon United Nations Sanctions and the Rule of Law Jeremy Farrall National Law in WTO Law: Effectiveness and Good Governance in the World Trading System Sharif Bhuiyan The Threat of Force in International Law Nikolas Stu¨rchler Indigenous Rights and United Nations Standards Alexandra Xanthaki

International Refugee Law and Socio-Economic Rights Michelle Foster The Protection of Cultural Property in Armed Conflict Roger O’Keefe Interpretation and Revision of International Boundary Decisions Kaiyan Homi Kaikobad Multinationals and Corporate Social Responsibility: Limitations and Opportunities in International Law Jennifer A. Zerk Judiciaries within Europe: A Comparative Review John Bell Law in Times of Crisis: Emergency Powers in Theory and Practice Oren Gross and Fionnuala Nı´ Aola´in Vessel-Source Marine Pollution:The Law and Politics of International Regulation Alan Tan Enforcing Obligations Erga Omnes in International Law Christian J. Tams Non-Governmental Organisations in International Law Anna-Karin Lindblom Democracy, Minorities and International Law Steven Wheatley Prosecuting International Crimes: Selectivity and the International Law Regime Robert Cryer Compensation for Personal Injury in English, German and Italian Law: A Comparative Outline Basil Markesinis, Michael Coester, Guido Alpa, Augustus Ullstein Dispute Settlement in the UN Convention on the Law of the Sea Natalie Klein

The International Protection of Internally Displaced Persons Catherine Phuong Imperialism, Sovereignty and the Making of International Law Antony Anghie Necessity, Proportionality and the Use of Force by States Judith Gardam International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary Ole Spiermann Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order Gerry Simpson Local Remedies in International Law C. F. Amerasinghe Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law Anne Orford Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of Law Joost Pauwelyn Transboundary Damage in International Law Hanqin Xue European Criminal Procedures Mireille Delmas-Marty and John Spencer The Accountability of Armed Opposition Groups in International Law Liesbeth Zegveld Sharing Transboundary Resources: International Law and Optimal Resource Use Eyal Benvenisti

International Human Rights and Humanitarian Law Rene´ Provost Remedies Against International Organisations Karel Wellens Diversity and Self-Determination in International Law Karen Knop The Law of Internal Armed Conflict Lindsay Moir International Commercial Arbitration and African States: Practice, Participation and Institutional Development Amazu A. Asouzu The Enforceability of Promises in European Contract Law James Gordley International Law in Antiquity David J. Bederman Money Laundering: A New International Law Enforcement Model Guy Stessens Good Faith in European Contract Law Reinhard Zimmermann and Simon Whittaker On Civil Procedure J. A. Jolowicz Trusts: A Comparative Study Maurizio Lupoi The Right to Property in Commonwealth Constitutions Tom Allen International Organizations Before National Courts August Reinisch

The Changing International Law of High Seas Fisheries Francisco Orrego Vicun˜a Trade and the Environment: A Comparative Study of EC and US Law Damien Geradin Unjust Enrichment: A Study of Private Law and Public Values Hanoch Dagan Religious Liberty and International Law in Europe Malcolm D. Evans Ethics and Authority in International Law Alfred P. Rubin Sovereignty Over Natural Resources: Balancing Rights and Duties Nico Schrijver The Polar Regions and the Development of International Law Donald R. Rothwell Fragmentation and the International Relations of Micro-States: Selfdetermination and Statehood Jorri Duursma Principles of the Institutional Law of International Organizations C. F. Amerasinghe

The Crime of Aggression under the Rome Statute of the International Criminal Court

Carrie McDougall

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sa˜o Paulo, Delhi, Mexico City Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9781107011090 Ó Carrie McDougall 2013 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2013 Printed and bound in the United Kingdom by the MPG Books Group A catalogue record for this publication is available from the British Library Library of Congress Cataloging in Publication data McDougall, Carrie, 1978– The crime of aggression under the Rome Statute of the International Criminal Court / Carrie McDougall. pages cm. – (Cambridge studies in international and comparative law; 98) Includes bibliographical references. ISBN 978-1-107-01109-0 1. Aggression (International law) 2. International crimes. 3. Rome Statute of the International Criminal Court (1998) 4. International Criminal Court. I. Title. KZ6396.M33 2013 341.60 2–dc23 2012032865 ISBN 978-1-107-01109-0 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents

Foreword Preface The Crime of Aggression Amendments Abbreviations 1.

page xix xxi xxiii xxxi

The crime of aggression under the Rome Statute of the International Criminal Court: an introduction A crime of aggression at last The early history of the crime of aggression The lead-up to Rome The Rome Conference The Special Working Group on the Crime of Aggression The Review Conference of the Rome Statute

2.

1 1 2 6 9 13 24

The approach of this book

31

Criminalising aggression Misplaced misgivings

34 34

A prohibition of at least certain forms of inter-State armed violence Desirability versus possibility

34 39

Beyond an end to impunity: the significance of the crime

49

International politics and the crime of aggression The crime of aggression and the jus ad bellum Conflict over aggression? A chilling effect

49 54 56 59

Conclusion

60

xv

xvi

contents

3.

An act of aggression: by any other name The distinction between acts and crimes Resolution 3314: a poor precedent New nomenclature: inter-State armed violence under the UN Charter The 3314 Definition: a compromised text

Acts of aggression and the jus ad bellum Security Council practice General Assembly practice Decisions of the International Court of Justice Conclusion: the definition of an act of aggression for the purposes of the jus ad bellum

Article 8bis (2) Picking and choosing

Open or closed In and out Non-State actors Cyber operations

Understanding the Understandings The status of the Understandings Understanding an ‘act of aggression’

Conclusion: an act of aggression under Article 8bis (2) 4.

5.

The elevation of acts of aggression to the State act element of the crime of aggression An act of aggression that by its character, gravity and scale constitutes a manifest violation of the Charter of the United Nations Nullum crimen sine lege and the prohibition of analogy The most serious crimes of concern to the international community as a whole Inconsistency with customary international law Making the ICC an arbiter of the grey areas in the jus ad bellum Article 31: grounds for excluding criminal responsibility Conclusion The individual conduct elements of the crime Effectively exercising control over or directing the political or military action of a State The ‘leadership’ requirement The relevance of Article 28

62 62 62 63 70

82 83 87 89 95

96 97

103 105 106 110

113 113 119

122 124

124 130 132 137 155 163 164 167 168 168 183

contents

The perpetrator’s contribution The mental elements Article 32: mistake of fact or mistake of law The relevance of Article 33

Modes of participation Third State officials Can you attempt to commit a crime of aggression?

6.

xvii

185 189 196 197

198 199 200

Conclusion

202

The Court’s jurisdiction over the crime of aggression A regime consistent with international law

205 206

Does the UN Charter give the Security Council a prerogative to identify acts of aggression? The Council’s pre-emptive right to identify acts of aggression The Council’s right to identify acts of aggression is a primary one Omitting a role for the Council would raise a conflict under Article 103 The Council’s prerogative does not extend to international criminal law Other entities have the ability to identify acts of aggression Article 103 is no barrier to independent ICC identification of acts of aggression Policy arguments against a role for the Council in State referrals or proprio motu investigations Conclusion

The jurisdictional regime of the ICC Entry into force: the slow burn issue The dilemma: Article 121(4) or Article 121(5)? The second sentence of Article 121(5) The negative interpretation and non-States Parties

The exclusions under Article 15bis The Article 5(2) reference The Article 12 reference The rationale of the opt-out declaration A comparison with Article 15bis (5) The absence of an understanding Over whom can the Court exercise jurisdiction? The applicability of Article 12(3) Future States Parties

208 209 213 214 214 220 229 230 234

234 237 237 243 247

249 251 252 253 256 257 258 263 264

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contents

The when and what of Article 15bis (4) declarations Security Council determinations

265 268

What amounts to a Security Council determination? Does a ‘negative determination’ have any effect?

268 270

The Pre-Trial Division filter What is the relationship between Article 15bis and Article 15? Article 16

7.

271 273 274

Security Council referrals Conclusion

276 279

2017 and beyond Activating the Court’s jurisdiction

281 281

The requirements The prospects of an active jurisdiction

Prosecuting a crime of aggression before the ICC Judicial elections and staffing the Court Victims of crimes of aggression Cooperation in the investigation and prosecution of crimes of aggression

Domestic prosecutions Domestic prosecutions under the aggression amendments Bases of domestic jurisdiction Foreign State immunities Other potential barriers to domestic prosecutions of crimes of aggression Conclusion

Review of the amendments Conclusion: a crime in name only? References Index

283 286

289 289 292 301

311 311 315 320 324 326

327 332 336 374

Foreword

The striking of the President of the Assembly of States Parties’ . . . gavel at 12:17am on 12 June 2010, signalling the adoption by the Review Conference of a resolution annexing provisions on the crime of aggression, unleashed a wave of emotion in the Speke Ball Room at Munyonyo Commonwealth Resort in Kampala, Uganda.

By these words, Dr Carrie McDougall accurately captures the prevailing mood at the moment when the States Parties of the Statute of the International Criminal Court reached consensus on the definition of the crime of aggression and on the conditions for the Court’s exercise of jurisdiction over it. The ‘wave of emotion’ reflected a widespread sense of the historic importance of the decision just taken after almost a century of debate over the project to criminalise the contribution of State leaders to the commission of the most serious forms of use of force in violation of the Charter of the United Nations. Dr McDougall has accompanied the negotiation process leading to the Kampala breakthrough by weighty scholarly contributions, including a thorough and innovative piece on Nuremberg’s legacy, and she has participated in a significant part of the negotiations as an advisor to the delegation of Australia, which in turn played an important part in reaching the final compromise. Based on this previous scholarly reflection about the crime and the intimate knowledge of the multilateral negotiations, Dr McDougall was ideally equipped to present and analyse the new legal regime in a comprehensive fashion and this is what she has done. Her book is, to the best of my knowledge, the first monograph on the crime of aggression after Kampala. Herein, Dr McDougall deals with each element of the crime’s definition, with its complex jurisdictional regime and with the legal questions pertaining to the ultimate activation of the compromise package. She also covers the most important xix

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foreword

legal issues surrounding the new legal landscape including, for example, procedural and institutional challenges for the Court and the question of domestic criminal proceedings. Finally, she contributes to the legal policy debate about the subject and in doing so she does not shy away from tackling the hard questions that this subject raises. Throughout the elegantly and lively written book, Dr McDougall formulates powerful arguments and conclusions, each time based on thorough research and rigorous reasoning. In addition, the positions taken reflect excellent judgment. All this taken together will make the book an extremely useful piece of reference for scholars, State representatives and legal practitioners at the International Criminal Court for many years to come. Throughout her analysis, Dr McDougall does not spare any criticism of the final outcome of the negotiations. Yet, in her overall assessment in law and legal policy she concludes that the aggression amendments are ‘both important and remarkable’. I think the same of Dr McDougall’s book. Prof. Dr Claus Kress LLM (Cambridge) Director of the Institute for International Peace and Security Law Cologne University

Preface

This book grew out of my PhD and thus is the result of some seven years of endeavour. In that context I wish to express great thanks to my PhD supervisors, Professors Tim McCormack, Stuart Kaye and Gerry Simpson. Tim convinced me to stay in Melbourne and work with him when fancy scholarships overseas beckoned. Had I not remained in Australia it is unlikely that I would have become a member of Australia’s delegation to the SWGCA, which was one of the most wonderful things that has ever happened to me. Stuart first exposed me to international law as an undergraduate student at the University of Tasmania, so working with him was a special thing. Gerry is, or at least was, a naysayer when it comes to the crime of aggression: this book is all the better for having had someone of his fierce intellect constantly challenging my arguments. Warm thanks also to my wonderful former Asia Pacific Centre for Military Law colleagues, particularly Cathy Hutton, Alison Duxbury, Helen Durham, David Blumenthal, Kevin Heller, and the amazing and inspiring Bruce ‘Oz’ Oswald. Thanks also to my Melbourne Law School teaching and research colleagues, Ian Malkin, Martin Vranken, Maureen Tehan, Jenny Morgan and Carolyn Evans. Special thanks to PhD colleagues and sounding boards, Dominique Allen, Michelle Lesh, Sarah Finnen, Sasha Radin, Anita Foerester, and Kym Sheehan. The Australian Department of Foreign Affairs and Trade enabled my participation in successive Australian Delegations to the SWGCA. I am thankful for the support of the other members of those Delegations, particularly Andrew Rose, alongside whom I now have the pleasure of working in Canberra. I am also grateful to all my other DFAT colleagues, particularly Greg French and Richard Rowe, who have been incredibly supportive as I have finished this book on my weekends. xxi

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preface

An enormous debt of gratitude is owed to Don Ferencz and the Planethood Foundation. The Foundation’s financial support was of great assistance in making trips to SWGCA meetings in New York; Don’s personal support was, moreover, overwhelming. Special thanks too to the delightful Ben Ferencz, whose lifelong commitment to the criminalisation of State acts of aggression has been an enormous inspiration. Ben – it is a privilege and an honour to have worked alongside you. A very warm thank you also to all my colleagues in the SWGCA and the Review Conference for their willingness to discuss issues ‘in the corridors’ with me. Special thanks to Claus Kress (who not only wrote a fabulous foreword to this book but was also one of my PhD examiners), Stefan Barriga, Pa˚ l Wrange, Astrid Reisinger Coracini, Bill Pace, Robbie Manson, Jutta Bertram Nothnagel, Jennifer Trahan, Noah Weisbord, Osvaldo Zavala and Elizabeth Lees. Finally, an extra special thanks is reserved for my family, particularly my parents, Cam and Linda McDougall. This book is dedicated to them. No one could ask for more loving or supportive parents. There is literally no way that either my PhD or this book could have been written without them. Thank you too to Nelson who provided devoted company throughout the writing of both my PhD and this book and who somehow always seemed to know when cartwheels were in order. This book was written in my personal capacity and should not be taken to reflect the views of the Australian Government or any other organisation or entity.

The Crime of Aggression Amendments

Resolution RC/Res.6 The crime of aggression The Review Conference, Recalling paragraph 1 of article 12 of the Rome Statute, Recalling paragraph 2 of article 5 of the Rome Statute, Recalling also paragraph 7 of resolution F, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998, Recalling further resolution ICC-ASP/1/Res.1 on the continuity of work in respect of the crime of aggression, and expressing its appreciation to the Special Working Group on the Crime of Aggression for having elaborated proposals on a provision on the crime of aggression, Taking note of resolution ICC-ASP/8/Res.6, by which the Assembly of States Parties forwarded proposals on a provision on the crime of aggression to the Review Conference for its consideration, Resolved to activate the Court’s jurisdiction over the crime of aggression as early as possible, 1.

2.

Decides to adopt, in accordance with article 5, paragraph 2, of the Rome Statute of the International Criminal Court (hereinafter: “the Statute”) the amendments to the Statute contained in annex I of the present resolution, which are subject to ratification or acceptance and shall enter into force in accordance with article 121, paragraph 5; and notes that any State Party may lodge a declaration referred to in article 15 bis prior to ratification or acceptance; Also decides to adopt the amendments to the Elements of Crimes contained in annex II of the present resolution;

xxiii

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the crime of aggression amendments 3.

4. 5.

Also decides to adopt the understandings regarding the interpretation of the abovementioned amendments contained in annex III of the present resolution; Further decides to review the amendments on the crime of aggression seven years after the beginning of the Court’s exercise of jurisdiction; Calls upon all States Parties to ratify or accept the amendments contained in annex I.

ANNEX I

Amendments to the Rome Statute of the International Criminal Court on the crime of aggression 1. 2.

Article 5, paragraph 2, of the Statute is deleted. The following text is inserted after article 8 of the Statute:

Article 8 bis Crime of aggression 1.

2.

For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

the crime of aggression amendments

xxv

(e)

The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. 3.

The following text is inserted after article 15 of the Statute:

Article 15 bis Exercise of jurisdiction over the crime of aggression (State referral, proprio motu) 1.

2.

3.

4.

5.

6.

The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraphs (a) and (c), subject to the provisions of this article. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute. The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years. In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory. Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents.

xxvi

the crime of aggression amendments 7.

Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression. 8. Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorised the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15, and the Security Council has not decided otherwise in accordance with article 16. 9. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute. 10. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5.

4. The following text is inserted after article 15 bis of the Statute:

Article 15 ter Exercise of jurisdiction over the crime of aggression (Security Council referral) 1.

2.

3.

4.

5.

The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraph (b), subject to the provisions of this article. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5.

5. The following text is inserted after article 25, paragraph 3, of the Statute: 3 bis. In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.

the crime of aggression amendments

xxvii

6. The first sentence of article 9, paragraph 1, of the Statute is replaced by the following sentence: 1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7, 8 and 8 bis. 7. The chapeau of article 20, paragraph 3, of the Statute is replaced by the following paragraph; the rest of the paragraph remains unchanged: 3. No person who has been tried by another court for conduct also proscribed under article 6, 7, 8 or 8 bis shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: A N N E X II

Amendments to the Elements of Crimes Article 8 bis Crime of aggression Introduction 1.

It is understood that any of the acts referred to in article 8 bis, paragraph 2, qualify as an act of aggression. 2. There is no requirement to prove that the perpetrator has made a legal evaluation as to whether the use of armed force was inconsistent with the Charter of the United Nations. 3. The term “manifest” is an objective qualification. 4. There is no requirement to prove that the perpetrator has made a legal evaluation as to the “manifest” nature of the violation of the Charter of the United Nations.

Elements 1.

The perpetrator planned, prepared, initiated or executed an act of aggression. 2. The perpetrator was a person1 in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression. 3. The act of aggression – the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations – was committed.

1

With respect to an act of aggression, more than one person may be in a position that meets these criteria.

xxviii 4.

5. 6.

the crime of aggression amendments The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations. The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations.

ANNEX III

Understandings regarding the amendments to the Rome Statute of the International Criminal Court on the crime of aggression Referrals by the Security Council 1.

2.

It is understood that the Court may exercise jurisdiction on the basis of a Security Council referral in accordance with article 13, paragraph (b), of the Statute only with respect to crimes of aggression committed after a decision in accordance with article 15 ter, paragraph 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later. It is understood that the Court shall exercise jurisdiction over the crime of aggression on the basis of a Security Council referral in accordance with article 13, paragraph (b), of the Statute irrespective of whether the State concerned has accepted the Court’s jurisdiction in this regard.

Jurisdiction ratione temporis 3.

It is understood that in case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction only with respect to crimes of aggression committed after a decision in accordance with article 15 bis, paragraph 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later.

Domestic jurisdiction over the crime of aggression 4.

5.

It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.

the crime of aggression amendments

xxix

Other understandings 6.

7.

It is understood that aggression is the most serious and dangerous form of the illegal use of force; and that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations. It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself.

Abbreviations

3314 Definition ASP AU CICC Court, the Draft Code FRY GA ICC ICCPR ICJ ICRC ICTR ICTY IHL ILC IMT IMT Charter

IMTFE OP OTP P3

Definition of Aggression annexed to General Assembly Resolution 3314 (XXIX) Assembly of States Parties African Union Coalition for the International Criminal Court International Criminal Court Draft Code of Offences Against the Peace and Security of Mankind Federal Republic of Yugoslavia General Assembly International Criminal Court International Covenant on Civil and Political Rights International Court of Justice International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Humanitarian Law International Law Commission International Military Tribunal Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and the Charter of the International Military Tribunal International Military Tribunal for the Far East Operational paragraph Office of the Prosecutor US, UK and France xxxi

xxxii

list of abbreviations

P5 PP Preparatory Committee Review Conference Rome Conference Rome Statute SWGCA UNCIO VCLT WGCA

Permanent five members of the United Nations Security Council Preambulatory paragraph Preparatory Committee on the Establishment of an International Criminal Court First Review Conference of the Rome Statute United Nations Conference of Plenipotentiaries on the Establishment of the International Criminal Court Rome Statute of the International Criminal Court Special Working Group on the Crime of Aggression United Nations Conference on International Organisation Vienna Convention on the Law of Treaties Working Group on the Crime of Aggression

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The crime of aggression under the Rome Statute of the International Criminal Court: an introduction

A crime of aggression at last At a little after midnight on the final day of the First Review Conference of the Rome Statute (Review Conference), the planning, preparation, initiation and execution of the most serious forms of the illegal interState use of force were criminalised under the Rome Statute of the International Criminal Court (Rome Statute). It was a portentous moment. The decision to criminalise State acts of aggression marks a significant step in ending the impunity that has so long shadowed the illegal use of inter-State armed violence. It evidences the commitment of the international community to the International Criminal Court (ICC or the Court). It also quite possibly signals a dramatic paradigm shift in the global politics that dictate when and how States use armed force. The striking of the President of the Assembly of States Parties’ (ASP)1 gavel at 12.17am on 12 June 2010, signalling the adoption by the Review Conference of a resolution annexing provisions on the crime of aggression, unleashed a wave of emotion in the Speke Ball Room at the Munyonyo Commonwealth Resort in Kampala, Uganda. Like many delegates, I found myself swallowing and blinking rapidly in an effort to conceal my tears. Undeniably, the palpable emotion in the room was partly the product of the roller coaster that was the preceding two weeks of fever-pitched negotiations, wherein every advance and retreat towards consensus was overshadowed by the very real spectre that the goodwill of the majority would be trumped by cards held by

1

Ambassador Christian Wenaweser, Liechtenstein’s Permanent Representative to the United Nations, who served as Chairman of the Special Working Group on the Crime of Aggression between 2003 and 2009, presided over the Review Conference.

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the UK or France, or any number of smaller States doing the bidding of the US. But to focus on the immediate events that led up to the adoption of the resolution would be to overlook the telling history of the crime of aggression, a history that by June 2010 extended some ninety-odd years, and which has been controversial for reasons that are largely selfevident. For unlike the other crimes under the ICC’s jurisdiction, which are based on the jus in bello and international human rights law, the crime of aggression is a child of the jus ad bellum. And it is something of an understatement to say that the prohibition of the threat or use of force is one of the most fraught areas of international law. As Theodor Meron wrote in the context of the crime’s long incubation period, ‘[t]he mission is more sensitive, the precedents fewer, the implications for the integrity of international law and the UN Charter deeper and broader, and national security interests more directly involved’.2

The early history of the crime of aggression The controversial history of the crime of aggression begins with the early, largely unsuccessful, attempts to regulate, and then prohibit, the use of inter-State armed force. In one sense such attempts are as old as the use of armed violence itself, but in a more consequential sense, they date back to the Covenant of the League of Nations,3 reaching a pre-World War II high point with the adoption of the Kellog-Briand Pact.4 The attachment of individual criminal responsibility to such uses of armed force was marked by the inclusion of crimes against peace in the Statutes of the Nuremberg and Tokyo Tribunals. While the trial of German and Japanese defendants for crimes against peace (defined in the International Military Tribunal (IMT) Charter as the ‘planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing’5) was not

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Theodor Meron, ‘Defining Aggression for the International Criminal Court’ (2001) 25 Suffolk Transnational Law Review 1, 3. Treaty of Peace Between Allied and Associated Powers and Germany, Peace Treaty of Versailles, signed 28 June 1919, 2 Bevans 43 (entered into force 10 January 1920). General Treaty for the Renunciation of War as an Instrument of National Policy, opened for signature 27 August 1928, 94 LNTS 57 (entered into force 24 July 1929). Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and the Charter of the International Military Tribunal, signed 8 August 1945, 82 UNTS 279 (entered into force 8 August 1945) (IMT Charter).

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without controversy, the crime was given the imprimatur of subsequent international acceptance and approval, over time solidifying its place as a crime under customary international law.6 I have published elsewhere a critique of the scholarly review of the judgments of the Nuremberg and Tokyo Tribunals.7 Scholars typically conclude that the Tribunals failed to define crimes against peace. I have shown, however, that the Tribunals’ factual findings demonstrate that the definition of the State act element of the crime must include: (i) (ii) (iii)

war with the object of the occupation or conquest of the territory of another State or part thereof; war declared in support of a third party’s war of aggression; and war with the object of disabling another State’s capacity to provide assistance to (a) third State(s) victim of a war of aggression initiated by the aggressor.

Translating the somewhat unsatisfactory and outdated notion of crimes against peace into a crime responsive to both twenty-first century uses of armed force and twenty-first century understandings of the prohibition of the threat or use of force was, however, no easy task. Before the Nuremberg and Tokyo trials had even started, the international community had adopted the Charter of the United Nations,8 which introduced a new lexicon to describe inter-State armed violence. While the intention was to remove any room for argument over definitions of terms of art having been met, faith in collective security soon melted (exacerbated by the onset of the Cold War and the fast-paced evolution of military technology) resulting in the fierce defence on the part of many States of their right to use inter-State armed force in certain situations. This in turn led to protracted debates over the meaning of the prohibition of the use of force and its exceptions under the Charter, as well as the meaning of ‘act of aggression’, which is one of the terms used to describe inter-State armed violence in the Charter, and which had been the subject of an unresolved definitional debate during 6 7

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For a detailed demonstration of the customary status of the crime see Chapter 4. Carrie McDougall, ‘The Crime of Aggression: Born of the Failure of Collective Security – Still Shackled to its Fate? Time to Catch Up or Part Ways’ in David A. Blumenthal & Timothy L. H. McCormack (eds.), The Legacy of Nuremberg, The Hague: Martinus Nijhoff Publishers, 2007, 131–167. See also a forthcoming chapter in Stefan Barriga & Claus Kress (eds.), The Crime of Aggression: A Commentary, Cambridge University Press, forthcoming 2014. Charter of the United Nations, opened for signature 26 June 1945, 1946 UKTS 67 (entered into force 24 October 1945).

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the inter-war years.9 This had important ramifications for the codification of a post-Charter equivalent of crimes against peace. In late 1950, the Soviet Union presented the UN General Assembly (GA) with a draft resolution defining aggression.10 Resolution 378B, adopted by the GA on 17 November 1950, referred the Soviet proposal to the International Law Commission (ILC) for consideration in conjunction with its work on the draft Code of Offences Against the Peace and Security of Mankind (Draft Code).11 Article 2 of the ILC’s first Draft Code, published in 1951, included a list of crimes that had their roots in crimes against peace but which reflected the development in the jus ad bellum represented by Article 2(4) of the UN Charter. These included Article 2(1): ‘[a]ny act of aggression including the employment by the authorities of a State of armed force against another State for any purpose other than national or collective self-defence or in pursuance of a decision or recommendation by a competent organ of the United Nations’.12 The transformation of crimes against peace into the crime of aggression under the 1951 Draft Code was not merely a nicety of nomenclature. The content of the crime was uncertain, exacerbated by the fact that the Draft Code did not provide a definition of the term ‘act of aggression’. This was a subject of much controversy. ILC Special Rapporteur for the Draft Code, Mr Jean Spiropoulos, had recommended that the Commission abstain from defining aggression because it would be a ‘waste of time’, arguing that everyone could recognise aggression, although it was impossible to define comprehensively.13 Not completely convinced, various members of the ILC proposed draft definitions and one was put to a vote, but it was rejected, as was a proposal to

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For a detailed account of the meaning of the Charter’s terms and the reasons behind the focus on the meaning of an ‘act of aggression’ see Chapter 3. Union of Soviet Socialist Republics , Draft Resolution on the Definition of Aggression, UN Doc. A/C.1/608 (1950), 4–5. The Resolution was similar to a definition of aggression proposed by the Soviet Union at the 1933 Disarmament Conference. Resolution on the Duties of States in the Event of the Outbreak of Hostilities, UN Doc. A/RES/378B (1950). Also highly relevant was Article 2(8): ‘Acts by the authorities of a State resulting in the annexation, contrary to international law of territory belonging to another State or of territory under an international regime.’ Report of the International Law Commission on the Work of its Third Session, in 1951 Yearbook of the International Law Commission, vol II, UN Doc. A/CN.4/SER.A/1951/Add.1 (1951), 135–136. Report by J. Spiropoulos, Special Rapporteur in 1950 Yearbook of the International Law Commission, vol II, UN Doc. A/CN.4/SER.A/1950/Add.1 (1950), 262.

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continue the search for a definition.14 When the 1951 Draft Code was presented to the GA’s Sixth Committee, however, questions as to the possibility and desirability of defining ‘an act of aggression’ were the focus of much debate, leading to the adoption, in 1952, of Resolution 599, requesting the Secretary-General to prepare a report on defining aggression.15 The Secretary-General’s 1952 report provided a useful overview of the historical attempts to define aggression, but essentially served only to highlight the complexity of the definitional enterprise, concluding that ‘[t]here is not a single, universally recognized concept of Aggression, but, rather, several concepts which, according to their advocates, can either be combined or are mutually exclusive’.16 In response, the Assembly established a Special Committee and mandated it to study the concept of aggression, draft a definition and to study the role of such a definition in the jus ad bellum and international criminal law frameworks.17 That Committee failed to reach any conclusions and the ILC, in 1954, published a second Draft Code that again referred to an act of aggression without providing any definition of the term.18 On 4 December 1954 the GA established a second Special Committee, which was requested to submit a detailed report and a draft definition at the Assembly’s Eleventh Session.19 On the same day the GA decided to postpone consideration of the 1954 Draft Code and the question of international criminal jurisdiction until the Special Committee had submitted its report.20 It took twenty years for the successor of the second Special Committee to furnish a definition of aggression. The Definition of Aggression annexed to General Assembly Resolution 3314 (XXIX) (the 3314 Definition) adopted on 14 December

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Report of the ILC on the Work of its Third Session, 133. Resolution on the Question of Defining Aggression UN Doc. A/RES/599 (1952). Report by the Secretary-General on the Question of Defining Aggression, UN Doc. A/2211(1952) reproduced in Benjamin B. Ferencz, Defining International Aggression: The Search for World Peace: A Documentary History and Analysis, New York: Oceana Publications, 1975, vol II, 112, 147. Resolution on the Question of Defining Aggression, UN Doc. A/RES/688 (1952). Report of the International Law Commission on the Work of its Sixth Session, in 1954 Yearbook of the International Law Commission, vol II, UN Doc. A/CN.4/SER.A/1954/Add.1 (1954), 151. Resolution on the Question of Defining Aggression, UN Doc. A/Res/895 (1954). Resolution on the Draft Code of Offences Against the Peace and Security of Mankind, UN Doc. A/Res/897 (1954); Resolution on International Criminal Jurisdiction, UN Doc. A/Res/898 (1954).

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197421 consisted of a chapeau definition (‘[a]ggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition’), a list of illustrative acts (arguably covering most conceivable uses of force in the 1970s), and a series of instructions as to how the definition was to be interpreted (aimed at overcoming differences in relation to issues such as the relevance of priority and intent, as well as ambiguities as to permissible uses of force, such as in the context of selfdetermination). The definition was most certainly a breakthrough; however, in many ways its formulation masked deep divisions of opinion.22 Nonetheless, it prompted the rehabilitation of the international criminal court project.

The lead-up to Rome On 10 December 1981, the GA requested the ILC to resume its work on the Draft Code.23 After much debate among members of the ILC as to the utility of various provisions of the 3314 Definition,24 Article 15 of the Commission’s 1991 Draft Code substantially mirrored it.25 This caused concern for a number of States that submitted that Article 15 went ‘beyond existing international law which criminalizes wars of aggression only’.26 This division was replicated in the ILC’s commentary to Article 20 of the Commission’s 1994 Draft Statute for an international criminal court, which listed the crime of aggression as a crime within the jurisdiction of such a court.27 21 22 23

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Resolution on the Definition of Aggression, UN Doc. A/RES/3314 (1974). For a detailed analysis of the 3314 Definition see Chapter 3. Resolution on the Draft Code of Offences Against the Peace and Security of Mankind, UN Doc. A/ RES/36/106 (1981). Third Report on the Draft Code of Offences Against the Peace and Security of Mankind by Mr Doudou Thiam, Special Rapporteur, in 1985 Yearbook of the International Law Commission, vol II, UN Doc. A/CN.4/SER.A/1985/Add.1 (Part 1) (1985), 63, 72; Fourth Report on the Draft Code of Offences Against the Peace and Security of Mankind, by Mr Doudou Thiam, Special Rapporteur, in 1986 Yearbook of the International Law Commission, vol II, UN Doc. A/CN.4/SER.A/1986/Add.1 (Part 1) (1986), 83–84. Report of the International Law Commission on the Work of its 43rd Session, in 1991 Yearbook of the International Law Commission, vol II, UN Doc. A/CN.4/SER.A/1991/Add.1 (Part 2)(1991), 95–96. Thirteenth Report on the Draft Code of Crimes Against the Peace and Security of Mankind, by Mr Doudou Thiam, Special Rapporteur in 1995 Yearbook of the International Law Commission, vol II, UN Doc. A/CN.4/SER.A/Add.1(Part1) (1995), 38 (comments of the Government of Australia). Report of the International Law Commission on the Work of its 46th Session, in 1994 Yearbook of the International Law Commission, vol II, UN Doc. A/CN.4/SER.A/1994/Add.1(Part 2) (1994), 38.

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In 1995 the ILC reported that that there was broad agreement among Commission members ‘both as to the character of aggression as the quintessential crime against the peace and security of mankind and as to the difficulties of elaborating a sufficiently precise definition of aggression for purposes of individual criminal responsibility’.28 The Commission reported that it was split on the usefulness of the 3314 Definition. An alternative, general definition proposed by the Special Rapporteur (‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations’) found only limited support.29 Linked to this was the ongoing disagreement as to whether individual criminal responsibility could arise from acts other than wars of aggression.30 Article 16 of the ILC’s 1996 Draft Code reversed the position the Commission had adopted in its 1991 draft. It provided that: ‘[a]n individual, who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State, shall be responsible for a crime of aggression.’31 The commentary to Article 16 stated that the question of the definition of ‘aggression by a State’ was ‘beyond the scope of the Code’.32 Nonetheless, the ILC observed that ‘[t]he action of a State entails individual responsibility for a crime of aggression only if the conduct of the State is a sufficiently serious violation of the prohibition contained in Article 2, paragraph 4 of the Charter of the United Nations . . . The Charter and the Judgment of the Nu¨rnberg Tribunal are the main sources of authority with regard to individual criminal responsibility for acts of aggression.’33 The debate over the definition of the crime of aggression is, however, just one part of the story. When the ILC switched its attention to drafting a statute for an international criminal court in the early 1990s the issue of the conditions under which an international criminal court could exercise jurisdiction over the crimes listed in the Draft Code emerged as a significant issue. States were divided as to whether the future international criminal court should exercise universal 28

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Report of the International Law Commission on the Work of its 47th Session, in 1995 ILC Yearbook, 20. Ibid., 20–22. 30 Ibid., 21. Report of the International Law Commission on the Work of its 48th Session in 1996 Yearbook of the International Law Commission, Vol. II, UN Doc. A/CN.4/SER.A/1996/Add.1 (Part 2) (1996), 42–43. Ibid. 33 Ibid.

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jurisdiction, or whether the court’s jurisdiction should depend on the consent of the State of nationality of the perpetrator (or the victim), the State on whose territory the conduct occurred, and/or the State in possession of the alleged perpetrator. The crime of aggression posed an added difficulty. There emerged a view that under Article 39 of the UN Charter, only the Security Council had the ability to determine that an act of aggression had occurred. The 1993 report of the ILC’s Working Group on a draft statute, for example, proposed that ‘a person may not be charged with a crime of or directly related to an act of aggression . . . unless the Security Council has first determined that the State concerned has committed the act of aggression which is the subject of the charge’.34 The commentary to the relevant Article explained that the Court would in effect only decide consequential issues, principally whether an individual has ‘acted on behalf of that State in such a capacity as to have played a part in the planning and waging of the aggression’.35 Not all members of the ILC, however, were prepared to concede such a significant role in international criminal law to the Security Council. A second jurisdictional issue was highlighted in the final Draft Code adopted by the ILC in 1996. Article 8 provided that jurisdiction over the crime of aggression was to be exercised exclusively by the future international criminal court, unless a domestic court was trying its own nationals.36 The commentary to Article 8 explained that: An individual cannot incur responsibility for this crime in the absence of aggression committed by a State. Thus, a court cannot determine the question of individual criminal responsibility for this crime without considering as a preliminary matter the question of aggression by a State. The determination by a national court of one State of the question of whether another State had committed aggression would be contrary to the fundamental principle of international law par in parem imperium non habet. Moreover, the exercise of jurisdiction by the national court of a State which entails consideration of the commission of aggression by another State would have serious implications for international relations and international peace and security.37

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Article 27, International Law Commission, Revised Report of the Working Group on the Draft Statute for an International Criminal Court, UN Doc. A/CN.4/L.490 and Add. 1 (1993). Ibid. Draft Code of Crimes against the Peace and Security of Mankind with commentaries, in 1996 ILC Yearbook, Vol. II, Part 2. Ibid., [14].

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As the ILC’s work progressed, the GA established, in 1994, the Ad Hoc Committee on the Establishment of an International Criminal Court to review the Draft Statute prepared by the ILC.38 A year later, the GA established the Preparatory Committee on the Establishment of an International Criminal Court (Preparatory Committee),39 which was mandated to complete the drafting of a text for submission to a conference aimed at finally adopting a statute to establish such a court.40 The Preparatory Committee’s Final Report41 indicated that in the leadup to the United Nations Conference of Plenipotentiaries on the Establishment of the International Criminal Court (the Rome Conference) there was still no agreement in relation to the proposed crime of aggression. Nonetheless, the crime was listed as falling within the proposed court’s jurisdiction under Article 5(b) of the Draft Statute annexed to the Report, accompanied by a note that this inclusion reflected ‘the view held by a large number of delegations that the crime of aggression should be included in the Statute’.42

The Rome Conference The summary records of the Plenary and Committee of the Whole meetings at the Rome Conference reveal that of the 134 States that made statements in relation to the crime of aggression, only fifteen failed to indicate that they supported the crime’s inclusion in the ICC’s statute.43 Of these, only Morocco, Pakistan, Turkey and the US questioned the idea that at least some State acts of aggression entail, or should entail, individual criminal responsibility. The remaining eleven States expressed only a fear that in the limited time allowed for the Conference, participants would be unable to overcome their differences 38

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Resolution on the Establishment of an International Criminal Court, UN Doc. A/RES/49/53 (1994). Resolution on the Establishment of an International Criminal Court, UN Doc. A/RES/50/46 (1995). Resolution on the Establishment of an International Criminal Court, UN Doc. A/RES/51/207 (1997). See also Resolution on the Establishment of an International Criminal Court, UN Doc. A/ RES/52/160 (1998). Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, Draft Statute for an International Criminal Court, UN Doc. A/CONF.183/2/Add.1 (1998). Ibid., 12, note 6. Australia, Brazil, Canada, Liechtenstein, Luxembourg, Malaysia, Mali, Mexico, Morocco, Norway, Pakistan, Rwanda, Togo, Turkey and the United States of America. It is noted that both Ghana and Israel made conflicting statements on their support (or lack thereof) for the crime of aggression.

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in relation to the definitional and jurisdictional issues associated with the crime.44 The Preparatory Committee’s Draft Statute had presented States with three different definitional models.45 A number of States favoured a ‘war of aggression’ style definition reflecting the origins of the crime. Other States argued that the concept of a ‘war of aggression’ was outdated and failed to adequately capture the conduct prohibited by Article 2(4) of the UN Charter. Definitions modelled on the general language of Article 2(4), on the other hand, were said to raise concerns related to the scope of the prohibition of the threat or use of force and its exceptions. The third major definitional model, based on the 3314 Definition, found a significant degree of support on the basis that it represented agreed language. Others, however, argued that it was an unsuitable model because it was the product of an unsatisfactory political compromise, was full of ambiguities, and had never been intended to serve the purposes of international criminal law. States were equally divided on the jurisdictional question. At one end of the spectrum, a number of States (including, unsurprisingly, the permanent members of the Security Council (the P5)) argued that the UN Charter requires the Security Council to determine the existence of an act of aggression as a precondition to the exercise of jurisdiction by the ICC. Others maintained that no such requirement exists and that any such role for the Council would infringe upon the independence of the ICC. In order to bridge the gap between these positions a number of compromise proposals providing roles for the GA or the International Court of Justice (ICJ) were suggested, but none attracted any significant level of support. So deeply divided were States that it appeared for some time that the Rome Statute would omit the crime of aggression. The Conference Bureau’s 6 July Discussion Paper listed the crime of aggression as optional under draft Article 5(d).46 The options relating to the crime listed in the

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United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Summary Records of the Plenary and Committee of the Whole Meetings, UN Docs A/CONF.183/SR.1–A/CONF.183/SR.8 (1998) and A/CONF.183/C.1/ SR.1–A/CONF.183/C.1/SR.36 (1998). Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute, 13–14. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Committee of the Whole, Discussion Paper, Bureau Proposal, Part 2: Jurisdiction, Admissibility and Applicable Law, UN Doc. A/CONF.183/C.1/L.53 (1998), 1.

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Discussion Paper failed, moreover, to reflect the cross-section of views on the definitional and jurisdictional issues.47 This led to increased disagreement among Conference participants, such that the crime was deleted altogether from the revised draft statute circulated by the Conference Bureau on 10 July.48 The Bureau’s commentary noted that the crime could be reinserted if ‘generally accepted provisions’ were developed by 13 July, but greater emphasis was placed on the possibility of the adoption of a subsequent Protocol or the insertion of the crime into the Court’s Statute at a later date.49 Ultimately, despite a failure to reach any sort of agreement in respect of either definition or jurisdiction, a majority of Conference participants (led by Germany and the Non-Aligned Movement) were unwilling to adopt a statute that omitted the crime. The suggestion that the Conference adopt a resolution noting the importance of the crime and requiring ongoing work was rejected out of a fear that this would allow the issue to be postponed indefinitely. The Conference thus found the only compromise possible: the crime of aggression was included under the ICC’s jurisdiction by Article 5(1)(d) of the Statute,50 but the detail, where the devil lay, was left to another day. More specifically, Article 5(2) provided that: The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with

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Ibid., 9, 10, 13. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Committee of the Whole, Bureau Proposal, Part 2: Jurisdiction, Admissibility and Applicable Law, UN Doc. A/CONF.183/C.1/L.59 (1998). Ibid., 1. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002). On the general negotiating process in Rome and in relation to aggression in particular see Philippe Kirsch & Darryl Robinson. ‘Reaching Agreement at the Rome Conference’ in Antonio Cassese, Paola Gaeta & John R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, 2002, 72–78; Fanny Benedetti & John L. Washburn, ‘Drafting the International Criminal Court Treaty: Two Years to Rome and an Afterword on the Rome Diplomatic Conference’ (1999) 5(1) Global Governance 1–37; Philippe Kirsch & John T. Holmes, ‘The Rome Conference on an International Criminal Court: The Negotiating Process’ (1999) 93 American Journal of International Law 2–12; M. Cherif Bassiouni, ‘Negotiating the Treaty of Rome on the Establishment of an International Criminal Court’ (1999) 32 Cornell International Law Journal 443–469; Roy S. Lee, ‘The Rome Conference and its Contribution to International Law’ in Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute, The Hague: Kluwer Law International, 1999, 13–26.

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respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

Resolution F annexed to the Conference’s Final Act mandated the Preparatory Commission for the International Criminal Court to prepare proposals in relation to the crime, with a view to the adoption of relevant provisions at the first Review Conference.51 The Preparatory Commission established a Working Group on the Crime of Aggression (WGCA) to carry out this task.52 The WGCA undertook much important groundwork. It commissioned a detailed historical analysis of the crime,53 which informed subsequent debate and flushed out a number of creative proposals aimed at finding compromises to the definitional and jurisdictional questions. Most notably, however, as reflected in the WGCA Coordinator’s 2002 Discussion Paper,54 the WGCA came up with the notion of a threshold that must be met for an ‘act of aggression’ to become the ‘crime of aggression’. The 2002 Discussion Paper referred to an act of aggression (defined by reference to the 3314 Definition), which ‘by its character, gravity and scale, constitutes a flagrant violation of the Charter of the United Nations’. In an interesting attempt to marry two of the leading definitional models, one optional addition would have required such an act to amount to a war of aggression or an act that has the object or result of establishing a military occupation of, or annexing, the territory of another State or part thereof. The 2002 Discussion Paper also outlined the principal options for the crime’s jurisdictional provisions, in relation to which the WGCA made less progress.55

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Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/10 (1998), Annex I. Preparatory Commission for the International Criminal Court, Proceedings of the Preparatory Commission at its Second Session (26 July-13 August 1999), UN Doc. PCNICC/ 1999/L.4/Rev.1 (1999), 8. Historical Review of Developments Relating to Aggression, Prepared by the Secretariat, UN Doc. PCNICC/2002/WGCA/L.1 (2002). Discussion Paper Proposed by the Coordinator, UN Doc. PCNICC/2002/WGCA/RT.1/Rev.2 (2002). For an account of the debates of the Working Group see S. Fernandez de Gurmendi, ‘Completing the Work of the Preparatory Commission: The Working Group on Aggression at the Preparatory Commission for the International Criminal Court’ (2002) 25 Fordham International Law Journal 589 and Roger S. Clark, ‘Rethinking Aggression as a Crime and Formulating Its Elements: The Final Work-Product of the Preparatory Commission for the International Criminal Court (2002) 15 Leiden Journal of International Law 859.

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The Special Working Group on the Crime of Aggression After the Rome Statute entered into force on 1 July 2002, the ASP came into being pursuant to Article 112 of the Statute. It inherited the unfinished business of the Preparatory Commission and in its first session created the Special Working Group on the Crime of Aggression (SWGCA) to continue the work of the WGCA.56 At the outset it appeared that divergent views were entrenched. A creative approach to negotiations, however, enabled the SWGCA to make steady progress over time under the astute leadership of the SWGCA Chairman, Ambassador Christian Wenaweser.57 Three modalities of the SWGCA’s work deserve particular mention. First, the participation of genuine experts in negotiations, both as part of State delegations and as representatives of non-governmental organisations.58 While it would be naı¨ve to suggest that the negotiations were not driven by politics, the negotiations were definitely shaped by the participation of experts, who were among the most respected voices of the SWGCA. Second, between 2004 and 2007 the SWGCA held four meetings at the Liechtenstein Institute on Self-Determination at the Woodrow Wilson School of Princeton University. The ‘Princeton Process’, as it became known, allowed delegates to meet in an intensive but informal setting. At these meetings, delegates were encouraged to think outside the box and explore ideas that did not necessarily represent the views of their 56

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Resolution on the Continuity of Work in respect of the Crime of Aggression, Assembly of State Parties, First Session, 3–10 September 2002, Official Records, ICC Doc. ICC-ASP/1/3 (2002), 328. The SWGCA was open to all UN Member States, members of the specialised agencies and of the International Atomic Energy Agency. The author served as a member of the Australian Delegation to meetings of the SWGCA between 2006 and 2009 and attended the Review Conference as an independent expert. Ambassador Wenaweser won praise for focusing the efforts of the SWGCA through a series of non-papers and chairman’s drafts, which were crucial to encouraging the abandonment of minority positions and the forging of new compromises. In this work he was aided by, in particular, Liechtenstein’s Deputy Permanent Representative to the UN, Stefan Barriga, responsible for much of the technical drafting of these papers. Prince Zeid Ra’ad Zeid Al-Hussein, former President of the ASP and Jordan’s Permanent Representative to the UN, was elected Chairman of the SWGCA in early 2009 after Ambassador Wenaweser’s election to the position of President of the ASP. NGOs participated in the work of the SWGCA under the auspices of the Coalition of the International Criminal Court (CICC) (www.iccnow.org). The CICC’s very significant support for the work of the SWGCA was particularly notable given the fact that many large NGOs (including Amnesty International and Human Rights Watch) kept a low profile in respect of negotiations until the final months leading up to the Review Conference.

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capitals. Without doubt, these working methods engendered a conducive camaraderie among the SWGCA’s regular participants, as well as a sense that the work being done was both special and important. It also fostered genuinely creative thinking rather than the repetition of wellknown positions.59 Finally, the SWGCA’s order of business was quite important. Sensing at the outset that little progress would be made on the definitional and jurisdictional issues, the Chairman asked the Group to focus on a range of more technical and less sensitive matters, including the applicability of existing Rome Statute provisions to the crime of aggression. As agreement was reached that the general parts of the Rome Statute should be altered as little as possible in order to accommodate the crime of aggression, and that very few consequential amendments were required, the SWGCA began to focus on the next least contentious aspect of the provisions needing negotiation: the individual conduct aspects of the definition of the crime. The Group was quick to conclude that the crime of aggression can only be committed by a State’s leaders. While there was some discussion about the best way of characterising the leadership requirement, the SWGCA had agreed to the formulation that was finally adopted at the Review Conference by 2007.60 By the time the SWGCA came to revisit the question of the definition of the State act element of the crime, the Group’s work had gained sufficient momentum to break through the impasse. The process was one of gradual elimination, achieved through a focus on narrow subissues, rather than a direct choice between the three leading definitional models (war of aggression, Article 2(4), and the 3314 Definition). In a 2005 Discussion Paper authored by Phani Daskalopoulou-Livada of Greece (drawing on ideas articulated in earlier discussions and proposals),61 participants were asked whether the definition should be generic (no illustrative acts) or specific (incorporating illustrative acts); 59

60 61

The ‘Princeton Process’ is described in further detail in the opening essays to the collected materials of the SWGCA in Stefan Barriga, Wolfgang Danspeckgruber & Christian Wenaweser (eds.), The Princeton Process on the Crime of Aggression, Liechtenstein Institute on Self-Determination, Princeton University, 2009; and Stefan Barriga, ‘Negotiating the Amendments on the Crime of Aggression’ in Stefan Barriga & Claus Kress (eds.), The Travaux Pre´paratoires of the Crime of Aggression, Cambridge University Press, 2012, 31. See further, Chapter 5. Discussion Paper 3: Definition of Aggression in the Context of the Statute of the ICC, Annex II.D, Report of the Special Working Group on the Crime of Aggression, ICC Doc. ICC-ASP/4/SWGCA/1 (2005).

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whether the State use of force should be described as ‘use of force’, ‘armed attack’, ‘act of aggression or ‘use of armed force’; whether the definition of the crime of aggression should incorporate a threshold, and if so whether reference to a ‘flagrant’ or a ‘manifest’ violation was preferable; whether an act of aggression had to amount to a war of aggression to constitute the crime of aggression; and whether the object or result of the act was relevant. By June 2006 there emerged majority support for a compromise general chapeau combined with illustrative list. This pointed quite clearly to the use of the list found in the 3314 Definition: almost all seemed to be of the view that any attempt to revisit the question of the type of acts that could amount to the State act element of the crime would be contentious and would likely derail the definitional endeavour. A clear preference was also expressed for describing the State act element of the crime as ‘an act of aggression’ as it had long been known (as opposed to, for example, an armed attack), which neatly tied in with a 3314 approach. While some thought a threshold was unnecessary (given the inbuilt thresholds of the Rome Statute) and unwarranted (on the basis that all acts of aggression should attract punishment), many thought that a threshold would usefully exclude not only less serious acts of aggression, but also borderline cases relating to the uncertainty surrounding the prohibition of the use of force, which had proved to be the primary stumbling block in criminalising inter-State uses of force in the postCharter era. Given strong opposition by a numerical majority to any explicit reference to a war of aggression or an act with the object or result of the occupation or annexation of territory on the basis that this was overly restrictive (despite support for this definitional model by the P5 and others on the basis that it best represented customary international law),62 the threshold also served as a compromise to bring the 3314 and war of aggression definitional camps together. Increasingly, discussions focused on how and to what extent the 3314 Definition should be incorporated into the definition of the crime and by January 2007 the minority positions had been largely moved into bracketed text.63 By June 2007 the catchcry of the SWGCA was that we 62

63

While custom might have been the official reason provided for support, it is clear that many States were also attracted to the fact that a narrow definition would likely exclude their own conduct. Report of the Special Working Group on the Crime of Aggression, January 2007, ICC Doc. ICCASP/5/35 (2007).

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were a breath away from agreement on the definitional issue. While there were subsequent, lengthy, discussions about the merits and effect of relying on text extracted from Articles 1 and 3 of the 3314 Definition alone (versus reliance on the 3314 Definition in toto),64 as well as the satisfactoriness of the proposed threshold,65 the definition itself did not change between this time and its eventual adoption in Kampala.66 The SWGCA was less successful in relation to the jurisdictional question. Its early efforts were focused on an exploration of compromise proposals, attempting to bridge the distance between those who favoured an independent Court and those who argued that the UN Charter required Security Council determination of the occurrence of an act of aggression – which would serve as a precondition to the ICC’s exercise of jurisdiction and would be prejudicial in that it would finally determine the State act element of the crime. Such proposals variously provided that the occurrence of an act of aggression should be determined by: * *

*

64

65 66

67

68 69

the ICJ – in the course of a contentious decision;67 the ICJ – in an advisory opinion on the request of the Security Council,68 or the GA, acting in turn on the request of the ICC (limited in the latter case to situations where the Security Council makes no determination or fails to utilise Article 16 within twelve months, in addition requiring a positive recommendation from the GA that prosecution proceeds);69 the ICJ – in unspecified circumstances, in the event the Security Council made no determination within six months of being notified

Report of the Special Working Group on the Crime of Aggression, December 2007, ICC Doc. ICCASP/6/SWGCA/1 (2007), [14]–[16], [23]; Report of the Special Working Group on the Crime of Aggression, June 2008, ICC Doc. ICC-ASP/6/20/Add.1 (2008), [27]–[33], [37]. December 2007 SWGCA Report, [25]–[26]; June 2008 SWGCA Report, [23]–[29]. Proposals for a Provision on Aggression Elaborated by the Special Working Group on the Crime of Aggression, Annex II, Appendix I to Report of the Special Working Group on the Crime of Aggression, February 2008, ICC Doc. ICC-ASP/7/SWGCA/2 (2009). It should be noted that there was a lingering reference to ‘war of aggression’ in a footnote to the Discussion Paper on the Crime of Aggression Proposed by the Chairman (Revision June 2008), ICC Doc. ICC-ASP/6/ SWGCA/2 (2008), Annex, Draft Amendments to the Rome Statute of the International Criminal Court (Chairman’s 2008 Draft Amendments). Proposal Submitted by the Netherlands Concerning PCNICC/2002/WGCA/RT.1, UN Doc. PCNICC/ 2002/WGCA/DP.1 (2002); Discussion Paper on the Crime of Aggression Proposed by the Chairman, ICC Doc. ICC-ASP/5/SWGCA/2 (2007) (Chairman’s January 2007 Discussion Paper), Article 8bis (5), option 4. Ibid. Proposal Submitted by Bosnia and Herzegovina, New Zealand and Romania, UN Doc. PCNICC/ 2001/WGCA/DP.1 (2000).

a crime of aggression at last

*

*

*

17

that a reasonable basis to proceed with an investigation in respect of a crime of aggression exists;70 the GA – limited in some proposals to situations where the Security Council failed to make a determination or did not make use of Article 16 within a specified period of time;71 the ICC – in the event the Security Council failed to act and the GA failed to make a determination after a request for such determination made by the ICC;72 and the ICC – in the event the Security Council, after notification by the Court, fails to act within a specified time period (limited in some proposals to situations where the commencement of an investigation into a crime of aggression was authorised by the Pre-Trial Chamber).73

As negotiations progressed it was clear that there was waning support for a role for a third body – the introduction of which was unlikely to convince Security Council proponents to compromise, and would have introduced new problems. It was widely observed, for example, that the GA is a political body as much as the Security Council is. The involvement of the ICJ was seen as attractive primarily because of the Court’s status as a judicial body. Some proposals would have allowed ICJ determination in the form of an advisory opinion. Before the ICJ can give an advisory opinion, however, either the Security Council or the GA must adopt a resolution seeking such an opinion. This opened up the possibility of the use of the veto in the Council. Securing a requisite majority in the GA might have been equally as difficult.74 Additional, more specific, problems would have arisen. While legal questions pending between two or more States are admissible for advisory opinions,75 the existence of an act of aggression could be the primary or sole point of dispute between States. An advisory opinion on this question could thus have violated the principle of consent-based jurisdiction in contentious 70 71

72 73

74

75

Chairman’s 2008 Draft Amendments, Article 15bis (4), option 4. Chairman’s January 2007 Discussion Paper, Article 8bis (5), option 3; Chairman’s 2008 Draft Amendments, Article 15bis (4), option 3. Chairman’s January 2007 Discussion Paper, Article 8bis (5), option 3. Proposal Submitted by Greece and Portugal, UN Docs PCNICC/1999/WGCA/DP.1 (1999) and PCNICC/2000/WGCA/DP.5 (2000); Chairman’s January 2007 Discussion Paper, Article 15bis (5); Chairman’s 2008 Draft Amendments, Article 15bis (4), options 1 and 2. See further Hermann Mosler & Karin Oellers-Frahm, ‘Article 96’ in Bruno Simma with Herman Mosler, Albrecht Randelzhofer, Christian Tomuschat & Ru¨diger Wolfrum (eds.), The Charter of the United Nations: A Commentary (2nd edn), Oxford University Press, 2002, 1179, 1183. See Article 102(2) International Court of Justice, Rules of Court adopted 14 April 1978 (entered into force 1 July 1978) as amended September 2005.

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cases, as an answer to the question could amount to an adjudication of the dispute.76 It could also have compromised the ICJ were it subsequently asked to adjudicate a bilateral dispute between the subject States.77 It was also possible that the ICJ could have rejected a request on grounds of judicial propriety,78 as the Permanent Court of International Justice did in the Eastern Carelia Case, where the Court determined that the question put to it was ‘not one of abstract law’, but concerned ‘the main point of the controversy between Finland and Russia’ which could ‘only be decided by an investigation into the facts underlying the case’.79 The alternative proposal that ICJ decisions in contentious cases be relied upon by the ICC was equally problematic. Criminal prosecutions before the ICC would have been dependent upon States bringing parallel disputes to the ICJ. Among other things, this would have excluded the possibility of trying the leaders of any State that has not consented to the ICJ’s jurisdiction. Moreover, even if one State was to request that the Court adjudge and declare that a second State was responsible for an act of aggression, as demonstrated by the Armed Activities Case,80 the Court might be unwilling to make such a determination, as opposed to identifying a breach of the prohibition of the threat or use of force. Proceedings before the ICJ can, moreover, take a very long time,81 which would have been inconsistent with an accused’s right to trial without undue delay.82 Such considerations led the SWGCA to focus on formulations that included a role for the Security Council, but somehow preserved the independence of the Court. There emerged a wide recognition that Security Council decisions may involve considerations of international law, but are generally influenced to a greater extent by politics, economics and security issues, not to mention, on occasion, public opinion. 76

77 78 79

80 81

D. Stephen Mathias, ‘The Definition of Aggression and the ICC: Remarks’ (2002) 96 American Society of International Law Proceedings 181, 184–185; Mosler & Oellers-Frahm, ‘Article 96’, 1185, 1187; Meron, ‘Defining Aggression’, 14; Matthias Schuster, ‘The Rome Statute and the Crime of Aggression: A Gordian Knot in Search of a Sword’ (2003) 14(1) Criminal Law Forum, 1, 19. Mathias, ‘The Definition of Aggression’, 184–185. Mosler & Oellers-Frahm, ‘Article 96’, 1181, 1187. Advisory Opinion PCIJ 1923, Series B, No. 5, 28–29. Cf. Dapo Akande, ‘Prosecuting Aggression: The Consent Problem and the Role of the Security Council’ (February 2011), University of Oxford, Legal Research Paper Series, Paper No. 10/2011, 21. Discussed in detail in Chapter 6. Schuster, ‘Gordian Knot in Search of a Sword’, 19. 82 Article 67(1)(c), Rome Statute.

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In making an Article 39 determination, members of the Council that are parties to the dispute are also not excluded from voting.83 It was recognised that these factors would mean that the rights of an accused protected under the Rome Statue would likely be violated by Security Council determinations of the prejudicial kind.84 This led to the breakthrough concession that Security Council determinations should not finally determine the State act element of the crime. Further compromises were explored by the SWGCA. One that gained some momentum was known as the ‘green light’ model. First discussed in June 2005,85 it was based on the idea that a Security Council determination could act as a ‘green light’ giving permission to the Court to proceed.86 While the green light signalled the death knell of the idea that a Security Council determination of the act of aggression should be binding for the purpose of the subsequent criminal trial,87 it 83

84

85

86

87

Article 27, United Nations Charter. Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems, London: Stevens & Sons Ltd, 1951, 442. The Rome Statute protects an accused’s right to: an impartial hearing (Article 67(1)); a public hearing (Article 67(1)); be present at their trial (Article 67(1)(d)); conduct their defence in person or through legal assistance of the accused’s choosing (Article 67(1) (d)); call witnesses on their behalf and examine witnesses against them (Article 67(1)(e)); and raise defences and present admissible evidence (Article 67(1)(e)), in addition to the presumption of innocence until proven guilty (Article 66). It is difficult to see how any of these rights could have been said to have been upheld in full had the Security Council been granted the ability to determine finally the State act element of the crime. For similar arguments see Anacleto Rei Lacanilao, ‘The International Criminal Court in the Balance: Should the Security Council be Given a Role in the Crime of Aggression?’ (2001) 1:1 Eyes on the ICC, 98, 100, 113 and Giorgio Gaja, ‘The Long Journey Towards Repressing Aggression’ in Cassese, Gaeta & Jones, The Rome Statute, 427, 434. The idea first arose in Discussion Paper 2: The Conditions for the Exercise of Jurisdiction with Respect to the Crime of Aggression, Annex II.C, Report of the Special Working Group on the Crime of Aggression, ICC Doc. ICC-ASP/4/SWGCA/32 (2005), question A 2(b). The ‘green light’ model was first proposed in writing in January 2007 by Sweden: January 2007 SWGCA Report, [31], note 8. This author had already been working on something similar and circulated an article on the jurisdictional question proposing a detailed ‘green light’ model in March 2007. The paper was subsequently published, see: Carrie McDougall, ‘When Law and Reality Clash – The Imperative of Compromise in the Context of the Accumulated Evil of the Whole: Conditions for the Exercise of the ICC’s Jurisdiction Over the Crime of Aggression’ (2007) 7 International Criminal Law Review 277. Variations of the green light model appeared in the Non-Paper by the Chairman on the Exercise of Jurisdiction, circulated informally to the SWGCA, June 2007, on file with author, (Article 15bis (3)(b)); the Chairman’s 2008 Draft Amendments, Article 15bis (3), option 2; and the Proposals for a Provision on Aggression Elaborated by the Special Working Group on the Crime of Aggression (Article 15 bis (4) Alternative 1, option 2) Annex II, Appendix I to the February 2008 SWGCA Report XI. See further Report of the Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, June 2005, ICC Doc. ICC-ASP/4/SWGCA/INF.1 (2005), [60]–[62]; Report

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was resisted by those States that felt it still conceded too much to the Council. In June 2008, Belgium proposed an alternative to the green light, known in the SWGCA as the ‘red light’ proposal.88 It would have utilised a provision resembling Article 16 of the Rome Statute, allowing the Security Council to prevent the investigation of a crime of aggression by the adoption of a Chapter VII resolution, which could be reviewed on the basis of a request of the Prosecutor in the event new facts arose. While Belgium maintained that its proposal differed from Article 16 (which is meant to suspend the Court’s jurisdiction for peace and security reasons only) and reflected the Council’s right under Article 2 of the 3314 Definition to conclude that a determination that an act of aggression has been committed was not justified in the circumstances,89 the majority of States remained unconvinced that the proposal added anything that would help achieve a compromise.90 Another idea explored by the SWGCA was the notion that different jurisdictional solutions might be found for the Court’s different jurisdictional triggers. For example, it was questioned whether an additional jurisdictional filter was required in the case of Security Council referral pursuant to Article 13(b) of the Rome Statute or aggressor State selfreferrals under Article 13(a).91 It was suggested that the Pre-Trial Chamber could be required to authorise all crime of aggression investigations (regardless of the use of the Prosecutor’s proprio motu powers),92 potentially after the Security Council failed to act for a

88

89 90

91

92

of the Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, June 2006, ICC Doc. ICC-ASP/5/SWGCA/INF.1 (2006), [70]–[72]. See Non-Paper Submitted by Belgium, circulated informally to the SWGCA, June 2008, on file with author and Non-Paper Submitted by Belgium (Revision Version), circulated informally to the SWGCA, November 2008, on file with author. Non-Paper Submitted by Belgium (Revised Version), 1. Report of the Special Working Group on the Crime of Aggression, November 2008, ICC Doc. ICCASP/7/SWGCA/1 (2008), [22]. As early as 2000, it had been proposed that no special jurisdictional provisions might be needed in the event of an Article 13(b) referral by the Security Council see: Proposal Submitted by Bosnia and Herzegovina, New Zealand and Romania. See further June 2006 SWGCA Report, [61]; June 2007 SWGCA Report, [18]. The idea was first proposed by Belgium (Proposal Presented by Belgium on the Question of Jurisdiction of the Court with Respect to the Crime of Aggression, ICC Doc. ICC-ASP/5/SWGCA/ WP.1 (2007). Belgium actually proposed that such authorisation be considered by the Pre-Trial Division – an idea that re-emerged in Kampala. Belgium’s proposal would not have applied to situations referred by the Security Council. See further December 2007 SWGCA Report, [31]–[34]; November 2008 SWGCA Report, [24]–[25] (a suggestion by the Chairman that a Special Chamber – possibly consisting of ‘B List’ judges be convened – did not find favour with the majority).

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specified period of time. It was envisaged that as an alternative, or an addition, the Pre-Trial Chamber could authorise an investigation where there had been a Security Council determination, or the Security Council had provided a green light to a prosecution or there was a preexisting GA or ICJ determination.93 Despite such creative thinking, the SWGCA was unable to put forward a recommendation for a particular jurisdictional model. Rather, it presented the Review Conference with a list of options and alternatives, which the Group agreed reflected the various positions of delegations.94 That said, the SWGCA did forge agreement on a number of key aspects of the jurisdictional question, namely that: *

*

*

*

all jurisdictional triggers under Article 13 of the Statute would apply to the crime; the Prosecutor could proceed with an investigation into a crime of aggression where the Security Council had made a determination of the occurrence of an act of aggression;95 any decision by an external organ would be without prejudice to the Court’s consideration of the State act element of the crime; and any special jurisdictional filter applying to the crime of aggression would not affect the investigation and prosecution of other Rome Statute crimes arising from the same situation.

At the outset of the SWGCA’s work, no one foresaw how significant the issue of entry into force would come to be. The issue was first painted as a question of whether Article 121(4)96 or Article 121(5)97 would govern the entry into force of the aggression amendments.98 The reason a choice needed to be made was that the plain language of Article 121(5) appeared not to extend to provisions on the crime of aggression, as such provisions would not constitute an amendment 93 94 95 96

97

98

Chairman’s 2008 Draft Amendments, Article 15bis (2) and (3). February 2009 SWGCA Report, [19]. Chairman’s 2008 Draft Amendments, Article 15bis (2). Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them. Any amendment to Articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory. Report of the Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, June 2004, ICC Doc. ICC-ASP/3/SWGCA/INF.1 (2004), [13]–[19].

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of Article 5 (given aggression was already listed as a crime under the Court’s jurisdiction) or Articles 6 to 8. On the other hand, a teleological interpretation supported the application of Article 121(5) on the basis that it seemed only logical that it apply to all amendments relating to the Court’s subject matter jurisdiction. Although questionable whether such an interpretation should extend to the crime’s jurisdictional provisions, it was agreed relatively early on that a single amendment procedure should be applied to all crime of aggression amendments. While there were differences of opinion as to the proper approach, in the early days of the SWGCA’s work this issue was seen as a technical one. In June 2005, for example, the SWGCA’s report noted a suggestion that the Group focus on the issues of definition and jurisdiction, stating that ‘if consensus was attained on those issues, the answer to the question as to whether paragraph 4 or paragraph 5 of Article 121 was applicable would probably become self-evident’.99 When the issue re-emerged for discussion in June 2008, differences of opinion were focused on the practical effect of reliance on Article 121(4) compared with 121(5). Concern was expressed that reliance on Article 121(5) would mean that the amendments would only enter into force for those States Parties that accepted them, which was seen as inconsistent with the fact that the crimes already fell within the jurisdiction of the Court by virtue of Article 5(1). On the other hand, waiting for seven-eighths of States Parties to ratify the amendments before they entered into force for all raised concerns relating to what was seen as an inevitable delay. Some were in addition concerned that use of 121(4) could lead to withdrawals from the Statute of those States Parties opposed to the crime.100 In November 2008, a new issue emerged to complicate the choice between 121(4) and 121(5): the meaning of the second sentence of Article 121(5). Two possible interpretations were put forward. The sentence could be understood as a confirmation of the Article’s first sentence, in that States Parties that do not ratify the amendment are not bound by it (the positive interpretation). Alternatively, it could be read as limiting the Court’s jurisdiction over crimes of aggression when committed by a national, or on the territory, of a State Party that has not accepted the amendment (the negative interpretation). In effect, the interpretation adopted was seen as dictating whether the Court would have jurisdiction over the crime when a victim State only had ratified 99

June 2005 SWGCA Report, [17].

100

June 2008 SWGCA Report, [50]–[52].

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the amendments (in line with Article 12 of the Statute, on the basis of the understanding that crimes of aggression are committed on the territory of both the victim and aggressor States) or whether an aggressor State must have ratified the relevant amendments (therefore modifying the operation of Article 12). The complexity of the issue was indicated by the Chairman’s development of an illustrative chart depicting nine different jurisdictional scenarios depending on whether the aggressor and victim States were respectively either a State Party that had accepted the amendment, a State Party that had not accepted the amendment, or a non-State Party.101 The closer analysis of the entry into force issue raised a string of additional questions including whether a negative interpretation applied to Security Council referrals and the position of future States Parties. This new confusion, arising so late in the course of the SWGCA’s work, led to the suggestion that there might be a need to amend the Statute’s amendment procedures before adopting provisions on the crime.102 During the SWGCA’s subsequent negotiations, a clear preference emerged for an interpretation of Article 121(5) that would allow the Court to exercise jurisdiction on the basis of a Security Council referral independent of State Party acceptance.103 A clear majority also agreed that non-States Parties and States Parties that had not accepted the amendment should be treated identically under Article 121(5).104 The substantive question of the choice between Articles 121(4) and 121(5) and the proper interpretation of the latter, however, were further complicated by the introduction in June 2009105 of the concept of consent. The Non-Paper by the Chairman on the Conditions for the Exercise of Jurisdiction106 asked whether consent of an alleged aggressor to the Court’s exercise of jurisdiction lay behind some States’ preference for Article 121(5), and whether such consent could be expressed separately from the acceptance of the amendments. The implicit understanding 101 103

104 105

106

November 2008 SWGCA Report, Appendix II. 102 Ibid., [5]–[19] and [35]–[41]. February 2009 SWGCA Report, Annex II, [28]; Report of the Informal Inter-Sessional Meeting on the Crime of Aggression hosted by the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, at the Princeton Club, New York from 8 to 10 June 2009, ICC Doc. ICC-ASP/8/ INF.2 (2009). [30]. February 2009 SWGCA Report, Annex II, [31]–[37]. At an informal meeting on the crime of aggression held after the formal conclusion of the SWGCA’s work: Report of the Informal Inter-Sessional Meeting on the Crime of Aggression, June 2009, ICC Doc. ICC-ASP/8/INF.2 (2009). Ibid., Annex III.

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was that the introduction of consent might also assist to resolve the jurisdictional question, based on the idea that the P5 and their supporters might show more flexibility if they were able to control when the Court exercised jurisdiction over their own nationals through alternative means. The paper mooted the possible use of an opt-in declaration (meaning that the Court would only be able to exercise jurisdiction over a crime of aggression where the alleged aggressor had provided the relevant consent). An opt-out mechanism, potentially shifting the burden (and likelihood) of acceptance, was posed as an alternative. Thus, on arrival in Kampala, delegates were faced not only with a choice between amendment procedures, but also a complicated array of possible complementary mechanisms that might be used to broker a compromise in relation to both entry into force and the jurisdictional question.

The Review Conference of the Rome Statute While the Review Conference provided an important opportunity for stakeholders to engage in a stocktake of the ICC system, the undeniable focus of the Conference was the unfinished business of Rome: the conclusion of negotiations on the crime of aggression. There was a great sense among participants in Kampala that it might be now or never. For much of the two weeks over which the Review Conference was held it appeared that it might be never. A Chair’s Non-Paper entitled Further Elements for a Solution on the Crime of Aggression, circulated immediately before the Review Conference,107 introduced two new possible compromises: delaying the Court’s ability to exercise jurisdiction in the event Article 121(5) was relied upon; and the possible addition of a review clause to accommodate the concerns of those delegations that had shown flexibility in their position. Work at the Review Conference began, on 31 May 2010, with bilateral consultations between interested delegations and the Chairman of the SWGCA and the President of the ASP. The first formal debate on the crime of aggression was held on 4 June. Despite professing its reengagement on ICC issues, the US Delegation’s opposition to the crime was made clear during this debate. Head of the US delegation and Legal Advisor of the Department of State, Harold Koh, emphasised the lack of consensus regarding jurisdiction and entry into force and in addition questioned whether genuine consensus had been reached regarding the meaning of the proposed definition of the crime, noting that in the US’ 107

ICC Doc. RC/WGCA/2 (2010).

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view, there was a risk that the definition would criminalise lawful uses of force and that the definition did not reflect customary international law.108 The US’ discontent was translated into the suggested inclusion of five additional ‘Understandings’.109 The Understandings were a list of interpretive provisions that it was proposed the ASP would adopt alongside the definitional and jurisdictional provisions and elements of the crime aimed at clarifying the intent of the amendments’ drafters. The US’ proposed understandings were aimed at narrowing the definition of an act of aggression, principally by referencing other provisions of the 3314 Definition and stating that an act would not meet the Statute’s definition of a manifest violation of the UN Charter ‘unless it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and good faith’ and thus an act taken to prevent crimes contained in Articles 6, 7 or 8 of the Rome Statute could not amount to an act of aggression. The US would also have required all three components of character, gravity and scale to be independently sufficient to justify a manifest determination and would have clarified that the Statute’s definition was not a statement of customary international law. As noted by Claus Kress (a member of the German delegation who was appointed focal point for the negotiation of the understandings) a majority of delegations were reluctant to enter into a discussion of these proposals in light of the consensus that had been achieved in relation to the definitional question, and the late hour at which the US proposals had been tabled.110 Nonetheless, it was felt that it would be unwise to ignore the US altogether given their re-engagement with the ICC. This led to a series of bilaterals and broader informal consultations, which resulted in the inclusion in subsequent Conference Room drafts of two greatly watered down understandings relevant to the definition of the crime.111

108

109 110

111

Statement by Harold Hongju Koh, Legal Adviser, US Department of State, Review Conference of the International Criminal Court, Kampala, Uganda, 4 June 2010, on file with author. Koh’s statement elaborated on a number of concerns raised in the Statement by Stephen J. Rapp, US Ambassador-at-Large for War Crimes, Review Conference of the International Criminal Court, Kampala, Uganda, 1 June 2010, on file with author. Untitled document circulated on 6 June 2010, on file with author. Claus Kress & Leonie von Holtzendorff, ‘The Kampala Compromise on the Crime of Aggression’ (2010) 8 Journal of International Criminal Justice 1179, 1205. Annex III, Resolution RC/Res.6 (2010).

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On the entry into force and jurisdictional questions, the Chairman of the SWGCA showed a strong desire to focus on building consensus. The Chairman’s 5 June Conference Room Paper on the Crime of Aggression112 removed GA and ICJ options from the jurisdictional mix. The following day, Argentina, Brazil and Switzerland formally circulated what became known as the ‘ABS Proposal’.113 The Proposal differentiated between Security Council referrals on the one hand and State referrals and proprio motu investigations on the other – an idea that had been canvassed in the past but never fully explored. It proposed that the definition of the crime and the Security Council trigger, together with technical amendments, would enter into force under the first sentence of Article 121(5), but that Article 121(4) would govern State referrals and proprio motu investigations. Despite being governed by different entry into force provisions, the amendments were to be ratified as a package. Security Council referrals would require a determination or a green light from the Council. In the case of a State referral or the Prosecutor wishing to act proprio motu, the Prosecutor would be able to proceed (if no Council determination was made within six months) only if the PreTrial Chamber had authorised an investigation.114 While the creativity of the ABS Proposal was welcomed by some States that considered there to be a need for flexibility given the lack of clarity in the amendment provisions, others expressed concern about the legality of such an approach.115 On 8 June, Canada formally circulated its proposal for a ‘menu approach’, which it had been discussing with like-minded States in the year leading up to the Review Conference.116 Under the proposal in cases where the Security Council had failed to make a determination within six months, the Prosecutor would be able to proceed so long as

112 113

114

115

116

ICC Doc. RC/WGCA/1/Rev.1 (2010). Non-Paper Submitted by Argentina, Brazil and Switzerland, 6 June 2010, on file with author. The ABS approach was first circulated informally several weeks prior to the Review Conference. The ABS Proposal was reflected as bracketed text in the Chairman’s Conference Room Paper on the Crime of Aggression, 7 June 2010, ICC Doc. RC/WGCA/1/Rev.2 (2010). See further Report of the Working Group on the Crime of Aggression, ICC Doc. RC/11 (2010), Part II, Annex III, [14]. Proposal by Canada, 8 June 2010. 09:30, on file with author. The original proposal by Canada (Draft Proposal of Canada, 7 July 2009), on file with author, would have allowed States Parties to indicate which filter mechanism they would accept. It was envisaged that the chosen filters would operate on the basis of reciprocity between the putative victim and aggressor states.

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the Pre-Trial Chamber had authorised the commencement of an investigation, and all States concerned117 had declared their acceptance of the amendments.118 A variation on this theme was presented the same day by Slovenia,119 which proposed in addition that in the absence of the acceptance of the crime of aggression amendments by all States concerned, the Prosecutor would be authorised to readdress the possibility of Security Council referral with the UN Secretary-General. The formal introduction of State consent was seen as a welcome step away from Security Council exclusivity by some, but inconsistent with Article 12 of the Statute by others. Other features of the Slovenian Proposal were a provision requiring future States Parties to ratify the amendment before it would be binding on them after the ratification of the amendments by seven-eighths of States Parties,120 and a review conference to be convened to consider the applicability of the amendment to all States Parties. The idea of a review of the amendments was welcomed by those who felt that compromise was inevitable. The explicit exclusion of any suggestion that the amendments would apply to future States Parties was also welcomed by certain States not currently party to the Statute. On 9 June, the ABS and Canadian proposals were combined to produce what became known as the ‘CABS Proposal’.121 It distinguished between Security Council referrals on the one hand and State referrals and proprio motu investigations on the other, providing in relation to the latter that: (i) (ii)

117

118

119 120

121

the Court’s jurisdiction would not be active until five years after the entry into force of the amendments for any State Party; the Court’s exercise of jurisdiction would be governed by Article 12, unless the State Party on whose territory the crime was committed or the State of which the perpetrator was a national had filed a declaration of non-acceptance of the jurisdiction of the Court;

This was one means by which the parties from whom consent was required under the proposal could be identified; the alternative was more specific, describing the parties as ‘the state on whose territory the alleged offence occurred and the state(s) of nationality of the persons accused of the crime’. The proposal noted that it was compatible with other proposals that might assist in a consensus resolution, such as a provision delaying the entry into force of the Court’s jurisdictional competence. Non-paper by Slovenia, 8 June 2010, on file with author. Calculated by reference to the number of States Parties to the Statute at the time of the adoption of the amendments at the Review Conference. Declaration (Draft of 9 June 2010, 16:00), on file with author. Slovenia and the Africa Group also played a significant role in the negotiation of the CABS Proposal.

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the crime of aggression an introduction (iii) such declaration could be submitted to the United Nations SecretaryGeneral any time before 31 December 2015 (or for future States Parties on the date of ratification or acceptance) and could be withdrawn at any time; and (iv) the Court could not exercise jurisdiction over crimes of aggression committed on a non-State Party’s territory or by its nationals.

The CABS proposal formed the basis of compromise going forward. Bit by bit the proposal, and variations on it, were reflected in iterations of the President’s draft.122 By the morning of 10 June,123 the President’s draft indicated that the amendments would be adopted under Article 121(5), the idea of a declaration of non-acceptance of the Court’s jurisdiction with regards to State referrals and proprio motu investigations was included in square brackets, the exercise of jurisdiction over those connected to non-States Parties had been excluded, and a footnote suggested a possible delay in the exercise of the Court’s jurisdiction. Alternatives in relation to exclusive Security Council determination or Pre-Trial Chamber authorisation remained, but a variation had been introduced in a footnote, which noted a suggestion to enhance the internal filter by involving all judges of the Pre-Trial Division or subjecting the decision of the Pre-Trial Chamber to an automatic appeal process. By that evening, the President’s draft124 had introduced a delaying mechanism, providing the Court could only exercise jurisdiction with respect to crimes of aggression committed five years after the adoption of amendments and one year after the ratification of the amendments by thirty States Parties. In relation to State referrals and proprio motu investigations it was specified that declarations of non-acceptance could be lodged prior to ratification but were required to be considered after three years. Alternatives in relation to exclusive Security Council determination or Pre-Trial Chamber authorisation still remained but further possible variations had been introduced in square brackets. The option of the Security Council providing an authorisation for the Prosecutor to proceed with an investigation was included as an addition to the Security Council determination option. The alternative internal filter option had been amended to refer to the Pre-Trial Division. In 122

123 124

Note is also made of the (untitled) 10 June 2010 Japanese proposal and the Africa Group’s Response to the Non-Paper by the President of the Assembly of the 10th June 2010, both on file with author. Non-Paper by the President of the Assembly, 10 June 2010, 10:00, on file with author. Non-Paper by the President of the Assembly, 10 June 2010, 23:00, on file with author.

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addition, the option included a possible additional requirement that the Security Council had not decided that the Court could not exercise jurisdiction over a crime of aggression. A review of the amendments was also contemplated seven years after the commencement of the Court’s exercise of jurisdiction. Despite meetings running into the early hours of the morning, no variation seemed to have secured majority support. As delegates gathered at the Munyonyo Commonwealth Resort on the morning of Friday 11 June, the final day of the Review Conference, there was a mood of nervous expectation. While many delegations had demonstrated substantial flexibility and a willingness to compromise in order to finally adopt provisions on the crime of aggression, it appeared that the UK and France were unwilling to relent. The US was also still actively working the floor and Japan had made clear that it was deeply concerned by the legality of the proposed application of Article 121(5).125 As the overwhelming majority of delegations had instructions to adopt amendments by consensus, but not by vote, everyone present was acutely aware that all the UK or France or Japan had to do to prevent the amendments being adopted was to call for a vote. Much of the day was spent in frantic huddles as like-minded States and regional groupings tried to push a consensus agreement over the line. All eyes were on the delegations of the UK, France and the US. At 2 pm the President circulated a further revised text.126 It was a breakthrough, removing any special role for the Security Council in cases of State referral or proprio motu investigation. The internal filter would allow the Prosecutor to proceed with an investigation six months after notifying the UN Secretary-General of the situation before the Court, provided the Pre-Trial Division had authorised the commencement of the investigation and the Security Council had not prevented such action by exercising its powers under Article 16 of the Statute. The draft further provided that declarations of non-acceptance of the Court’s jurisdiction would expire after seven years, if not affirmed, but could be withdrawn at any time. Finally, it was stipulated that the exercise of the Court’s jurisdiction over State referrals or proprio motu investigations was to be put on hold until at least 2017, requiring a decision of the States Parties to activate it, while the Court would be able 125 126

As to the role played by politics in the adoption of the amendments, see Chapter 2. Untitled and undated Non-Paper circulated in the plenary by the President at 14:00, 11 June 2010, on file with author.

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the crime of aggression an introduction

to exercise jurisdiction over Security Council referrals seven years after the adoption of the amendments. Two and a half hours later a further draft was circulated.127 It indicated that the delaying mechanism in the President’s previous draft had not won majority support. The latest draft allowed the Court to exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties – the inclusion of an additional provision delaying entry into force was, however, referenced in square brackets. Any reference to the automatic lapsing of declarations of non-acceptance of the Court’s jurisdiction in respect to State referrals and proprio motu investigations had also been deleted, the draft reverting to earlier language, which specified only that such declarations could be withdrawn at any time and must be considered by the State Party lodging it within three years. Long hours of further urgent huddling ensued. The plenary only reconvened at 11pm, one hour before the official conclusion of the Review Conference. The President circulated a further draft text addressing the delaying mechanism. It revived the idea of a delay of seven years, providing that for all jurisdictional triggers, the Court’s exercise of jurisdiction over the crime of aggression would be subject to a decision of the ASP to be taken no sooner than 1 January 2017. The President indicated that the plenary would again be adjourned to allow informal consultations on the draft to take place but asked delegations to return to the room in fifteen minutes. It took over an hour for delegations to reassemble. A further, composite, draft text was circulated, piecing together the individual iterations debated during the day. The nervous energy in the room was palpable. The President of the Assembly spoke to the draft. He put the possibility of adoption by consensus to the floor. As the room held its breath, the eyes of all delegations on the UK and France, the delegation of Japan asked for the floor. Japan’s Head of Delegation, Ichiro Komatsu, said that it was his sad duty to state that the draft resolution being proposed by the Chair did not live up to the requirement of fostering an ICC that could function truly effectively on the basis of total confidence of the international community. He noted that his delegation continued to have serious doubt as to the legal integrity of the amendment procedure on which the draft resolution was based, which he believed would undermine the credibility of the Rome 127

Non-Paper by the President of the Review Conference, 11 June 2010, 16:30, on file with author.

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Statute. As those concerns were detailed, I, along with a majority of the room, felt my heart sink. It seemed as though Japan would call for a vote, which would, inevitably, fail. Komatsu suddenly declared, however, that with heavy heart, if all other delegations were prepared to support the proposed draft resolution, Japan would not stand in the way of consensus. A collective sharp intake of breath was literally held. It was 12:17 am. The Review Conference was supposed to be over. The President again asked the Review Conference if he could take it that the amendments were adopted by consensus. No delegation asked to take the floor. The President’s gavel descended and the provisions on the crime of aggression were declared to have been adopted. Celebrations ensued. As order was restored and the formalities of the plenary session continued, the delegations of Brazil, France, Japan, Norway and the UK took the floor, followed by representatives of non-States Parties, China, Cuba, Iran, Israel, Russia and the US. Several of those States advanced their preferred interpretation of the UN Charter, which they argued gives the Security Council an exclusive right to determine the occurrence of an act of aggression. Almost all referred to the impending vote on the activation of the Court’s jurisdiction in 2017. But their words seemed somewhat hollow. Whatever concerns were held by those delegations, they had not been sufficient to warrant standing in the way of consensus, and the interventions did little to dim the euphoria that had gripped the room. Despite all the odds we had done something that will make it infinitely harder for armed force to be used unlawfully, meaning that untold numbers of potential victims of future acts of violence have been given a reprieve.

The approach of this book Viewed from one angle, the amendments on the crime of aggression adopted in Kampala clearly exceed what (many) sceptical commentators thought would be possible. The amendments demonstrate the commitment of the majority of States to the prohibition of the use of force and to the criminalisation project. That said, the amendments cannot be regarded as anything but a political compromise, subject to significant exceptions, and beset by ambiguities that will be the cause of much spilt ink for years to come. The balance of this book will analyse the provisions adopted in detail.

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the crime of aggression an introduction

Chapter 2 will outline the political context in which the crime of aggression amendments were adopted. It will examine the debate over the desirability of criminalising certain uses of inter-State armed violence, identifying the misplaced misgivings that delayed the criminalisation of acts of aggression for more than fifty years after the Nuremberg and Tokyo trials. It will also consider the role played by international politics in shaping the crime. Finally, Chapter 2 will analyse the significance of the crime for international politics and international law, studying the potential power shift that might be marked by the successful unification of Latin American and African States in the negotiations, and the implications of the crime’s adoption for the ICC and the jus ad bellum. Chapter 3 undertakes a study of the meaning of ‘an act of aggression’. It studies the flaws of the 3314 Definition, and establishes that the Definition was ultimately intended to be used for collective security, rather than criminal law, purposes, and was not intended as a legal statement of meaning. The definition of acts of aggression under the jus ad bellum is also examined through an analysis of the terms of the UN Charter, the practice of the Security Council and the General Assembly and the decisions of the ICJ. The chapter finally turns to examine the meaning of the term in Article 8bis of the Rome Statute, as elaborated in the Elements of the Crime and the ‘Understandings’ adopted alongside the definition at the Review Conference. Among other things, the chapter will identify the types of force that may be considered to fall within, and outside, the definition adopted. Chapter 4 analyses the meaning of the ‘manifest violation’ threshold, exploring the gap between intention and execution on the part of States Parties. It also outlines particular concerns associated with the definition of the State act element of the crime, asking whether the definition is limited to the most serious crimes of international concern; whether it is consistent with the definition of the crime under customary international law; and examining the implications of making ICC judges the arbiters of the content of the prohibition of the use of force. Chapter 5 outlines the leadership requirements that must be satisfied in order for the definition of the crime to be met. In this context, the interaction of the crime with Articles 27, 28 and 33 of the Rome Statute are analysed. The chapter also examines the necessary contribution of the perpetrator (in terms of planning, preparing, initiating or executing) and the mental element that must be satisfied. Finally, the chapter examines the application of the modes of liability under Article 25 of

the approach of this book

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the Rome Statute to the crime and considers whether a crime of aggression can be attempted. Chapter 6 studies the complex jurisdictional regime adopted under the crime of aggression amendments. The chapter will establish that the regime adopted is consistent with international law, specifically Article 39 of the UN Charter. The chapter examines the complexities of the opt-out declarations that can be lodged in respect of State Party referrals and proprio motu investigations, determining over whom exactly the Court will be able to exercise its jurisdiction. The chapter also outlines the mechanics of a Security Council determination and the operation of the Pre-Trial Division filter. Finally, Chapter 6 examines Security Council referrals, looking at how a chilling effect might be avoided. Chapter 7, the final chapter of the book, looks toward 2017. It considers the mechanics and prospects of the activation of the Court’s jurisdiction. The chapter identifies a number of practical and legal considerations associated with the prosecution of crimes of aggression. It will look at the crime’s implications for the election of judges and the staffing of the Court, the roles played by victims in prosecutions of crimes of aggression and special requirements for State and Security Council cooperation. The chapter also looks at the difficult and oft-neglected issue of domestic prosecutions, noting a number of complexities that will make domestic prosecutions difficult and perhaps also unwise. Amendments that might be made to improve the crime of aggression provisions at the time they come up for review are considered. Finally, the chapter closes by discussing whether the crime of aggression will become a crime in name only or will have an operative effect, rehearsing arguments for why States, including those that use armed force, should ratify the amendments and refrain from opting-out.

2

Criminalising aggression

In the lead-up to the Review Conference in Kampala commentators questioned the desirability of criminalising State acts of aggression, mounting any number of policy reasons for why the criminalisation project was, in their view, a bad idea. Such arguments will likely be wheeled out again as States consider ratifying the aggression amendments, and as they contemplate the activation of the Court’s jurisdiction. Each of these policy reasons will be examined in the first part of this chapter. It will be shown that not only is the crime of aggression grounded in a rule of public international law that is both vital and full of vitality, misgivings over the criminalisation of acts of aggression are misplaced. The second part of the chapter looks at the interrelationship between international politics and international law. The chapter will examine both the impact of international politics on the shape of the crime of aggression amendments, and the potential impact of the amendments on the jus ad bellum.

Misplaced misgivings A prohibition of at least certain forms of inter-State armed violence Some fundamental criticisms of the criminalisation project focus on a critique of the prohibition of the use of force on which the crime is based. Inter-State armed violence, or rather the desire to prevent it, lies at the heart of the UN Charter. Article 2(4) is the pivotal provision. It states that: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. 34

misplaced misgivings

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Article 2(4) cannot, of course, be read in isolation. It must be read in conjunction with, in particular, Articles 39, 42, 51 and 53 of the Charter. Article 39 enables the Security Council to determine the existence of any threat to the peace, breach of the peace or act of aggression and make recommendations or decide what measures shall be taken in accordance with subsequent provisions to restore international peace and security. The most important of these subsequent provisions in the current context is Article 42, which allows the Council to ‘take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security’ where measures not involving the use of armed force would be, or have proven to be, inadequate. Article 53(1) further allows the Security Council to utilise regional arrangements or agencies for enforcement action under its authority. Article 51 outlines States’ right of self-defence: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

This thumbnail sketch of key provisions does not pretend to paint a complete picture of the Charter’s regulation of inter-State armed violence. It is, however, sufficient to demonstrate that the UN Charter prohibits at least certain types of inter-State armed violence. The effectiveness of Article 2(4) in preventing the use of inter-State armed violence can certainly be questioned. Events since 1945 testify to the fact that neither the prohibition nor the Charter’s collective security regime have eliminated the use of armed violence as was hoped by the Charter’s drafters. The exact content of the prohibition and its exceptions are hotly debated. Nevertheless it is widely agreed that even if the boundaries of the prohibition are uncertain its core is not, meaning that today, regardless of the prohibition’s (in)effectiveness, the threat or use of at least certain types of inter-State armed violence remains unlawful.1 1

A similar analysis, labelled the ‘core-interpretist’ approach, is outlined in A. C. Arend & R. J. Beck, International Law and the Use of Force: Beyond the UN Charter Paradigm, London: Routledge, 1993, 182–183. The authors identify this as the majority position. Even those who argue that the boundaries of the use of force are incredibly fluid accept that there is

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There is, of course, a contrary view. As early as 1970, Thomas Franck asked who killed Article 2(4)?2 Franck’s argument in precis was that the evolution of the modes and means of inter-State armed violence (which undid conventional thought about war and peace), combined with the exploitation of the ‘exceptions and ambiguities’ in the Charter by States determined to act in their national interest, and the failure of the UN’s collective security machinery, had led to the erosion of the prohibition.3 Controversial at the time of its publication, Franck’s thesis received renewed attention after the Coalition of the Willing’s invasion of Iraq in 2003, which many States and commentators viewed as a clear violation of the prohibition, prompting some to make the suggestion that the invasion sounded Article 2(4)’s final death knell. Glennon, for example, argues that had States intended to make the prohibition binding ‘they would have made the costs of violation greater than the costs of compliance’.4 Moreover, even if the rule was once binding, Glennon’s thesis is that the ‘massive violation of a treaty by numerous states over a prolonged period’ can cast a treaty into desuetude, and further, that violations can be regarded as subsequent custom that creates new law, or alternatively, that State practice contrary to the prohibition may have thrown the law into confusion creating a non liquet.5 The hypothesis that Article 2(4) lies in tatters has clearly been rejected by the ICJ, which implicitly upheld the prohibition in Nicaragua,6 and explicitly upheld it in the Armed Activities Case.7 The argument has, moreover, been roundly rejected by a clear majority of States and commentators. Louis Henkin, writing in response to Franck’s article in 1971, noted that Franck judged ‘the vitality of the law by looking only

2

3 4 5

6

7

a ‘hardened normative core’: Sean D. Murphy, ‘Protean Jus Ad Bellum’ (2009) 27 Berkeley Journal of International Law 22, 51. See also Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) (Merits) ICJ Rep [2003] 161, Separate Opinion of Judge Simma, [6]. Thomas M. Franck, ‘Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States’ (1970) 64 American Journal of International Law 809. Ibid., passim. Michael J. Glennon, ‘Why the Security Council Failed’ (2003) 82 Foreign Affairs 16, 23. Ibid., 22–23; Michael J. Glennon, Limits of Law, Prerogatives of Power: Interventionism after Kosovo, New York: Dalgrave, 2001, 60–63. See also Arend & Beck, International Law and the Use of Force, 179, 181. Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America) (Merits) ICJ Rep [1986] 14, [176], [190]. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (Merits) ICJ Rep [2005] 116, [148].

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at its failures’ and asserted that Article 2(4) had in fact been ‘a norm of behaviour’ having ‘deterred violations’.8 Henkin argued that ‘no government . . . has been prepared or has wished to pronounce it dead’.9 In this context, Glennon argues: ‘[t]he truth is that no state . . . has ever accepted a rule saying, in effect, that rules can be changed only by openly declaring the old rules to be dead. States simply do not behave that way. They avoid needless confrontation.’10 This may be an accurate assessment. But it is not merely that the rule has never been openly rejected by States. To the contrary: an analysis of State practice demonstrates frequent reference to, and reliance on, the Charter prohibition. No State has invoked another’s breach of Article 2(4) as a legal reason to repudiate Charter rules.11 More importantly, States generally offer legal justifications for armed violence.12 This may be a self-serving exercise. Nonetheless, as Schachter notes, ‘the felt need of governments to advance a legal argument is itself a fact of some consequence’.13 Indeed, as Dinstein puts it ‘[t]here is a common denominator between those who try (even disingenuously) to take advantage of the refinements of the law, and those who rigorously abide by its letter and spirit. They all share a belief in the authority of the law.’14 In other words, the mere fact that States are currently debating the content of the right of self-defence, rather than the existence or legitimacy of the prohibition

8

9

10 11

12

13 14

Louis Henkin, ‘The Reports of the Death of Article 2(4) are Greatly Exaggerated’ (1971) 65 American Journal of International Law 544. Edward Gordon, ‘Article 2(4) in Historical Context’ (1984–1985) 10 Yale Journal of International Law 271, 272, further suggests that ‘[t]he seeming frequency of discrepant behaviour is evident largely because it is so much easier to itemize and recognize an overt incident of non-compliance than one that is compliant’. Henkin, ‘Reports of the Death of Article 2(4)’, 547. See further Arend & Beck, International Law and the Use of Force, 180. Glennon, ‘Why the Security Council Failed’, 23–24. Oscar Schachter, ‘In Defense of International Rules on the Use of Force’ (1986) 53 University of Chicago Law Review 113, 129. Oscar Schachter, International Law in Theory and Practice, Dordrecht: Martinus Nijhoff Publishers, 1991, 130–131; Gordon, ‘Article 2(4)’, 272; Bill Campbell & Chris Moraitis, ‘Memorandum of Advice to the Commonwealth Government on the Use of Force Against Iraq’ (2003) 4(1) Melbourne Journal of International Law 178. Schachter, ‘In Defense of International Rules’, 123. Yoram Dinstein, War, Aggression and Self-Defence (3rd edn), Cambridge University Press, 2001, 89–90. See also Constantine Antonopoulos, ‘The Unilateral Use of Force by States After the End of the Cold War’ (1999) 4 Journal of Armed Conflict Law 117, 124; Mary Ellen O’Connell, ‘Enforcing the Prohibition on the Use of Force: The UN’s Response to Iraq’s Invasion of Kuwait’ (1990–1991) 15 Southern Illinois University Law Journal 453, 468.

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of the use of force, is symptomatic of a continued belief that States are bound by the obligations outlined in the Charter.15 Any suggestion that the effective functioning of the UN’s collective security machinery was a precondition to the operation of the prohibition is equally unconvincing. It overlooks the fact that perceived flaws in the collective security system lie in large part behind the retention of the right of individual and collective self-defence under the Charter.16 Not only is Article 2(4) good law, it is widely agreed that a corresponding prohibition has crystallised under customary international law. While the ICJ in Nicaragua held that the substantive rules under Article 2(4) and customary international law are ‘not identical in content’,17 the Court was firmly of the view that there does exist a customary prohibition against the use of inter-State armed force, which is similar in content to Article 2(4).18 The Court’s judgment has been criticised for its scarce citation of State practice and opinio juris,19 as well as its sidestepping of the issue of contrary State practice.20 Nevertheless, while they may not approve of its methodology, a majority of commentators agree with the Court’s conclusions.21 Indeed, while cogent arguments have been made to the contrary,22 it is often asserted that the prohibition of the threat or use of force is the prime example of a rule that has attained the status of jus cogens.23 15

16 18 20

21

22

23

See further Philippe Sands, ‘Lawless World: International Law After 9/11 and Iraq’, paper presented at the University of Melbourne Law School Alumni Lecture, Melbourne, 2005, 24; Mark A. Drumbl, ‘Self-Defense and the Use of Force: Breaking the Rules, Making the Rules or Both?’ (2003) 4 International Studies Perspectives 409, 427. Schachter, ‘In Defense of International Rules’, 126. 17 Nicaragua (Merits), [175]. Ibid., [176]. 19 Ibid., [188]–[190]. See for example H.C.M. Charlesworth, ‘Customary International Law and the Nicaragua Case’ (1984–1987) 11 Australian Yearbook of International Law 1, 18–22, 28. See for example Albrecht Randelzhofer, ‘Article 2(4)’ in Bruno Simma et al., The Charter of the United Nations: A commentary (2nd edn), Oxford University Press, 2002, 112, 133; Dinstein, War, Aggression and Self-Defence, 94. Mark A. Weisburd, ‘The Emptiness of the Concept of Jus Cogens, as Illustrated by the War in Bosnia-Herzegovina’ (1995) 17 Michigan Journal of International Law 1. See for example: Nicaragua (Merits), [190] and Separate Opinion of Judge Sette Camara, 199; Oil Platforms Case, Dissenting Opinion of Judge Elaraby, [1.1] and Separate Opinion of Judge Simma, [6]; ILC, Commentary on the draft Articles on the Law of Treaties in 1966 Yearbook of the International Law Commission, vol II, UN Doc. A/CN.4/SER.A/1966/Add.1 (1966), 247, Article 50, which states that the prohibition is ‘a conspicuous example’ of jus cogens. Statements to similar effect were made at the Vienna Conference by the Soviet Union, Cuba, Lebanon, Sierra Leone, Poland, Uruguay, Cyprus, Ecuador, Italy, Czechoslovakia, German Federal Republic, Ukraine, Philippines, Switzerland, Norway, Malaysia, Bielorussia and Nepal: Natalino Ronzitti, ‘Use of Force, Jus Cogens and State Consent’ in Antonio Cassese (ed.), The Current Legal Regulation of the Use of Force,

misplaced misgivings

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On the basis of the foregoing, it is submitted that a prohibition of the threat or use of at least certain forms of inter-State armed violence exists under the Charter and under customary international law.24 This is not to confuse the existence of the prohibition with the existence of a crime of aggression (as was arguably done in Nuremberg and Tokyo). Rather it is argued that the prohibition provides a crucial rationale and basis for the establishment of the crime of aggression.

Desirability versus possibility For many years leading up to the Rome Conference and again in the lead-up to the Review Conference sceptics expressed doubt as to the desirability and possibility of criminalising State acts of aggression.25 First, the pedigree of the crime was questioned. It was noted that crimes against peace were the most controversial aspect of the Nuremberg and Tokyo judgments26 and had not been prosecuted since 1945.27 I accept that the Allies invented crimes against peace in 1945. It will nevertheless be demonstrated in Chapter 4 that subsequent events have cemented the place of the crime in customary international law. The fact that the crime has been dormant since the post-war trials is immaterial. In the first place, the inactivity is completely explained by the debate over the definition of the State act element of the crime that arose following the adoption of the UN Charter, which introduced new terminology to describe inter-State uses of armed violence and, for the first time, introduced an unequivocal prohibition of the threat or use of force, which left States scrambling to determine its contours,

24

25

26

Dordrecht: Martinus Nijhoff Publishers, 1986, 147, 149–150. See also Case Concerning Barcelona Traction, Light and Power Co Ltd (New Application: 1962) (Belgium v. Spain) (Second Phase) (Merits) ICJ Rep [1970] 3, [33]–[34] where the Court cited ‘the outlawing of acts of aggression as an example of an obligation erga omnes’. Other commentators agree with this conclusion. See Dinstein, War, Aggression and SelfDefence, 94; Belatchew Astrat, Prohibition of Force Under the UN Charter: A Study of Article 2(4), Uppsala: Iutus Forlag, 1991, 44. See for example Linda Springrose, ‘Aggression as a Core Crime in the Rome Statute Establishing an International Criminal Court’ (1999) St. Louis-Warsaw Transatlantic Law Journal 151, 174; Sir Franklin Berman, ‘The International Criminal Court and the Use of Force by States’ (2000) 4 Singapore Journal of International and Comparative Law 479, 487; Andreas L. Paulus, ‘Peace through Justice? The Future of the Crime of Aggression in a Time of Crisis’ (2004) 50 Wayne Law Review 1, 7; Schuster, ‘Gordian Knot in Search of a Sword’, passim; Gerry Simpson, ‘“Stop Calling it Aggression”: War as Crime’ (2008) 61 Current Legal Problems 191, 216. Schuster, ‘A Gordian Knot in Search of a Sword’, 11–12. 27 Ibid., 12–13.

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exceptions and consequences. Between 1945 and 1998 the other crimes under the ICC’s jurisdiction were only twice prosecuted on the international stage in relation to conflicts involving Rwanda and the former Yugoslavia. The crime of aggression, premised as it is on an inter-State use of armed violence, was clearly not relevant to the internal armed conflict in Rwanda, and was of uncertain application in the case of the former Yugoslavia.28 In any event, the crime of aggression has featured in a number of German cases and in a series of decisions before the UK courts.29 As a leadership crime involving inter-State conduct, the crime is, moreover, generally viewed as being more suitable for international, rather than domestic, prosecution. As such, the failure to prosecute the crime of aggression in the post-Charter era is better explained by the absence of international criminal courts or tribunals that could have responded to conduct that potentially satisfied the State act element of the crime, as opposed to the crime’s lack of standing under international law. It has been suggested that the crime of aggression causes little calculable harm. Creegan argues that: [w]hile genocide, crimes against humanity or war crimes are inexcusable abuses, aggression, by contrast, is a more political crime. It is a crime committed by the leadership of one state, directed against the abstract interests of another state, both states being political entities and actors. The harm of aggression is the insult to a state’s territorial independence and sovereignty, itself a political idea. The suffering of persons is attendant upon harm to a state’s sovereignty – yet preventing wartime suffering is not the direct object of the crime of

28

29

Simpson argues that: ‘[i]t may be that the drafters of the Statute believed the wars in the Balkans were largely internal armed conflicts to which the crime of aggression was an irrelevance (if so, the inclusion of grave breaches of the Geneva Conventions, applicable at the time of the Statute’s adoption only to international armed conflict, was a curious move). More likely, the Secretary-General and the Council believed either that aggression no longer had sufficient contemporary standing as a crime or that its inclusion would have . . . “involved the tribunal squarely in the political issues surrounding the conflict”.’ Gerry J. Simpson, Law, War and Crime, Cambridge: Polity, 2007, 150 (references omitted). This analysis accords insufficient attention to the fact that the definition of the State act element of the crime was at the time hotly contested: aside from the fact there was little time to reach agreement on an acceptable definition, it must be borne in mind that the P5 traditionally supported a definition based on the ‘war of aggression’ model, which is centred on notions of the occupation or annexation of a foreign State. Given this was the dominant understanding of the crime among the members of the Council most influential in shaping the ICTY’s Statute, it is hardly surprising that the Statute makes no reference to the crime of aggression. See Chapter 4.

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aggression as defined. Aggression can be accomplished without a single person being physically harmed.30

Such assertions overlook the reality of the physical, psychological and societal harm caused by acts of aggression. Sovereignty and territorial integrity are the building blocks of international law and international relations: harm caused to these interests is incredibly real. The majority of States depend on respect for territorial integrity, sovereignty and the prohibition of the use of force for their very survival. The violent, non-consensual undermining of these notions risks tearing the very fabric of the international system. It is also somewhat disingenuous to sideline so completely the death and destruction associated with the inter-State uses of force. It is absolutely clear that this was a large part of what motivated States to agree to the prohibition of the use of force under the UN Charter. The definition of the State act element of the crime of aggression, moreover, requires evidence of an act of aggression that, by its character, gravity and scale amounts to a manifest violation of the Charter. It is difficult to see how this definition could be met in the absence of the killing and wounding of innocent persons and significant damage to property. I would go so far as to suggest the opposite to the view espoused by Creegan: that the incalculable harm that flows from acts of aggression is the reason so many fought for so long to have them criminalised. Critics of the crime of aggression have additionally suggested that: the joint consideration of issues of jus ad bellum and jus in bello might render difficult the acceptance of the Court’s impartiality. Once the ‘war guilt’ is assigned to one party alone, supporters of this party will consider the whole court as partial and inimical to their side. And indeed, the analysis of the responsibility for the war may make it difficult for the international court concerned to maintain its neutrality and objectivity.31

This assumes that an aggressor/victim dynamic always applies. While this is often true, it is equally possible for exchanges of inter-State armed violence to involve dual or multiple aggressive acts. The Court, moreover, could be accused of prejudice in the absence of an active jurisdiction over the crime of aggression as soon as it has found an accused of one party or group guilty of any crime under its jurisdiction. 30

31

Erin Creegan, ‘Justified Uses of Force and the Crime of Aggression’ (2012) 10 Journal of International Criminal Justice 59, 62. Paulus, ‘Peace Through Justice’, 33. See also Andreas Paulus, ‘Second Thoughts on the Crime of Aggression’ (2009) 20(4) European Journal of International Law 1117, 1127.

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The only way for the Court to prove its impartiality is for it to demonstrate on an ongoing basis that justice is being done. This will not be altered by the inclusion of the crime of aggression under the Rome Statute. Most importantly, the distinction between the jus ad bellum and the jus in bello is one of the most basic principles of public international law. Admittedly, in other contexts, such as during the US’ domestic debate as to the applicability of the Geneva Conventions to the conflict in Afghanistan, it had been suggested that the application of the jus in bello hinges on compliance with the jus ad bellum. This argument, however, has been widely rejected by international lawyers and statesmen alike. There is no rational reason to suggest that the ICC will throw fundamental principles of international law aside and blur the boundaries between different crimes once its jurisdiction over the crime of aggression is activated. It has been argued that the crime of aggression is superfluous as individual State leaders who could be charged with the crime would likely also be guilty of one of the other crimes under the ICC’s jurisdiction.32 Such an argument, however, presupposes the existence of a correlation between leaders responsible for State acts of aggression and leaders responsible for genocide, crimes against humanity and war crimes. Even if inter-State armed violence is sometimes or often a cloak under which other crimes are carried out,33 this argument ignores the difficulty of establishing the criminal responsibility of State leaders. The individuals who could be held criminally responsible for State acts of aggression are unlikely to have themselves perpetrated any of the other crimes under the Court’s jurisdiction. Thus any liability must be established on the basis of such individuals having ordered, or having failed to take measures to prevent, repress or punish, the commission of

32

33

Irina Kaye Mu¨ller-Schieke, ‘Defining the Crime of Aggression Under the Statute of the International Criminal Court’ (2001) 14 Leiden Journal of International Law 409, 414; Grant M. Dawson, ‘Defining Substantive Crimes Within the Subject Matter Jurisdiction of the International Criminal Court: What is the Crime of Aggression?’ (2000) 19 New York Law School Journal of International & Comparative Law 413, 446 citing Patricia A. McKeon, ‘An International Criminal Court: Balancing the Principle of Sovereignty Against Demands for International Justice’ (1997) 12 St John’s Journal of Legal Comment 535, 564. This was the thesis of the IMT, which described the crime of aggression as ‘the accumulated evil of the whole’: United States et al. v. Hermann Wilhelm Go¨ring et al. in International Military Tribunal, Trial of the Major War Criminals Before the International Military Tribunal (1950) (Nuremberg Judgment), 186. Contra Larry May, Aggression and Crimes Against Peace, Cambridge University Press, 2008, 223.

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such crimes.34 While the trials of Slobodan Milosevic, Saddam Hussein and Charles Taylor demonstrate that such responsibility can (or likely can) be established, the same trials demonstrate the inherent difficulty of proving such cases – a difficulty that would be greatly magnified in States where command structures are more complex. The argument also disregards the benefits of separately criminalising aggression. As Kress astutely observes, countless soldiers and civilians suffer as a result of uses of inter-State armed force that fully respect international humanitarian and human rights law.35 The prosecution of crimes of aggression may in addition serve an inter-State equivalent of transitional justice: punishing the leaders responsible for an inter-State use of force may usefully signal a break with the past, blunting the desire for revenge of the target State, and creating the conditions for a return to international peace.36 Criminalisation may also serve to deter State acts of aggression. The deterrence of inter-State armed violence quite plainly cannot be achieved through the prosecution of the other crimes under the ICC’s jurisdiction given they are aimed at quite different conduct.37 If the crime of aggression can be deterred, this may, moreover, have a positive impact on the other core crimes.38 If the incidence of international armed conflict (often the product of an act of aggression) can be reduced, one of the key contributing factors to the occurrence of genocide, crimes against humanity, and, by definition, war crimes, would be greatly lessened.39 It is acknowledged that the deterrent value of the crime has itself been questioned. In 1958, Stone asserted that ‘we certainly cannot 34 35

36

37

38 39

See Articles 25(3)(b) and 28 of the Rome Statute. Claus Kress, ‘Time for Decision: Some Thoughts on the Immediate Future of the Crime of Aggression: A Reply to Andreas Paulus’ (2009) 20(4) European Journal of International Law, 1129, 1135. The argument made here is based on what Antonio Cassese (‘On the Current Trend Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 European Journal of International Law 2, 9–10) identifies as the transformative justice motivations that lie behind war crimes. There is no rational reason why traditional understandings of criminal justice’s ability to heal intra-State wounds cannot be translated to inter-State relations. Dawson, ‘What is the Crime of Aggression’, 446–447; Mu¨ller-Schieke, ‘Defining the Crime of Aggression’, 414. Ibid. See also Dawson, ‘What is the Crime of Aggression’, 446–447. See Robert Cryer, Ha˚ kan Friman, Darryl Robinson & Elizabeth Wilmshurst, An Introduction to International Criminal Law and Procedure, Cambridge University Press, 2007, 267.

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confidently assume that at the crisis of decision the deterrent pressure of an international criminal law would usually prevail in this struggle’.40 Given the lack of data, however, it equally cannot be presumed that criminalisation would have no deterrent effect.41 Certainly the argument that State practice since 1945 ‘makes a mockery of the Nuremberg principles’42 misunderstands the operation of deterrence. To act as a deterrent, the criminal law requires three elements: a set of clear proscriptive norms, a functioning court system to enforce individual accountability for the violation of such norms and a demonstrated commitment to punish all violations.43 The absence of these factors to date means that the deterrent value of the crime of aggression has not, as yet, been able to be measured. It may nonetheless be hypothesised that the criminalisation of State acts of aggression could have a greater deterrent effect compared with the other crimes under the Court’s jurisdiction. State acts of aggression rarely appear to be motivated by the ‘radical evil’ that has been said sometimes to inspire other crimes.44 While genocidal fanatics may not make cost-benefit analyses prior to beginning work,45 anecdotal evidence suggests that the prospect of criminal punishment will be an important consideration in foreign policy decisions relating to the use of force.46 This was infamously evidenced by Attorney-General Lord 40

41

42

43

44

45 46

Julius Stone, Aggression and World Order: A Critique of United Nations Theories of Agression, Sydney: Maitland Publishers, 1958, 147. In relation to deterrence and international criminal law more generally see Mark A. Drumbl, Atrocity, Punishment and International Law, Cambridge University Press, 2007, 169; Payam Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’ (2001) 95 American Journal of International Law 7, 9–10. James Nicholas Boeving, ‘Aggression, International Law and the ICC: An Argument for the Withdrawal of Aggression from the Rome Statute’ (2004) 43 Columbia Journal of Transnational Law 557, 590. Walter Gary Sharp Sr, ‘Revoking an Aggressor’s License to Kill Military Forces Serving the United Nations: Making Deterrence Personal’ (1998) 22 Maryland Journal of International Law & Trade 1, 25. Martti Koskenniemi, ‘Between Impunity and Show Trials’ in J. Frowein & R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law (vol. 6), The Hague: Kluwer Law International, 2002, 8. Drumbl, Atrocity, 171; Dinstein, War, Aggression and Self-Defence, 117. A similar argument is made by Paul H. Robinson & Adil Ahmad Haque (‘Advantaging Aggressors: Justice and Deterrence in International Law’ (February 2011), electronic copy available at http://ssrn.com/abstract=1537326, 31–32), who argue that: ‘[w]hile there are no doubt examples of dictators who are mentally unbalanced or other instances of state decision-making that deviate from the state’s rational self-interest, the level of rational calculation among states is likely to be dramatically higher than among potential criminal offenders in the domestic context’.

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Goldsmith’s advice to UK Prime Minister Tony Blair, which considered the legality of a use of force against Iraq in 2003.47 Goldsmith advised that if the invasion went ahead, there was a possibility of legal action being brought against the UK in the ICJ, and a possibility of a domestic prosecution for the crime of aggression.48 It seems only logical that the import of considerations of criminal prosecutions to the decisionmaking process will be magnified once the ICC’s jurisdiction over the crime of aggression is activated. Schuster argues that the criminalisation of State acts of aggression could cause States to ‘“intensify [their] efforts . . . to ensure victory in war” thereby making sure that no international tribunal would have the actual power to prosecute them’.49 This argument echoes the outmoded notion of victor’s justice. ‘Winning’ a war no longer grants a victor the ability to mete out ‘justice’. Victory in war will neither exempt a State from the ICC’s jurisdiction, nor enable the victor to define the crime for its own purposes. As such, while States may fight to the bitter end for any number of reasons, the existence of a permanent international criminal court with jurisdiction over the crime of aggression means that to attempt to escape criminal prosecution by such means would be a fruitless task. The inevitable factual complexity of inter-State armed violence is another angle used to question the desirability of criminalising aggression. Boeving argues that criminalisation ‘obscures the basic truth that the crime of aggression, by its very nature, cannot be committed by an individual’.50 Alternatively, as early as 1919, the Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties questioned whether a criminal process was capable of untangling the complex causes of a ‘war’. Somewhat confusedly, while the Commission itself readily reached the conclusion that ‘responsibility for [World War I] lies wholly upon the Powers which declared war in 47

48

49

50

Attorney-General Lord Goldsmith’s Advice to Prime Minister Tony Blair, 7 March 2003, www.ico.gov.uk/upload/documents/library/freedom_of_information/notices?annex_ a-_attorney_general’s_advice_070303.pdf, at 29 September 2008. Ibid., [32]–[34]. Goldsmith noted in his advice that the ICC’s jurisdiction over the crime of aggression was not yet active. Schuster, ‘A Gordian Knot in Search of a Sword’, 6, citing Stone, Aggression and World Order, 147. See also Simpson, Law, War and Crime, 145–146 and Lyal S. Sunga, The Emerging System of International Criminal Law, Developments in Codification and Implementation (1997) 5 cited in Major Michael L. Smidt, ‘The International Criminal Court: An Effective Means of Deterrence?’ (2001) 167 Military Law Review 156, 205. Boeving, ‘Aggression’, 609. See also Simpson, Law, War and Crime, 157.

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pursuance of a policy of aggression’51 and stated it was ‘desirable’ that future penal sanctions be developed to respond to the initiation of aggressive war,52 it also expressed concern that: any inquiry into the authorship of the war must, to be exhaustive, extend over events that have happened during many years in different European countries, and must raise many difficult and complex problems which might be more fitly investigated by historians and statesmen than by a Tribunal appropriate to the trial of offenders against the laws and customs of war.53

In the post-Charter era, Stone has made the more nuanced argument that ‘the seamless web of history has no self-evident line of section which is obviously the only critical one for determining culpability in the particular conflict’.54 Obviously State acts of aggression can never be completed by a single individual. In all States, however, it is only a handful of individuals who have the ability to control the State’s political and military activities. As such, it is proper that only those same individuals are able to be charged with crimes of aggression. Sophisticated critiques of international criminal law more generally express concern that punishing an individual is wholly inadequate in the face of great tragedy,55 and that a focus on individuals may unfairly exonerate the collective.56 Individuals, however, perhaps counterintuitively, might be more appropriately singled out for crimes of aggression compared with other international crimes. Singling out individual leaders responsible for State acts of aggression cannot be compared to the selection of (sometimes random) individuals from among many perpetrators, who have committed one of the other crimes under the ICC’s jurisdiction in any given situation, and against whom a criminal case can be made. The former is both a more accurate attribution of overall responsibility and is of greater symbolic value. And while populations might often develop nationalistic fervour in the immediate build-up to, and participation in, a violation of the jus ad bellum, 51

52

53 54

55

Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties, ‘Report Presented to the Preliminary Peace Conference’ (1920) 14 American Journal of International Law 95, 98. Ibid., 119. The Commission reached the conclusion that in 1914 the initiation of a war of aggression was not ‘an act directly contrary to positive law’ (118). Ibid., 118–119. Julius Stone, Conflict Through Consensus: United Nations Approaches to Aggression, Baltimore: The Johns Hopkins University Press, 1977, 13. See also Simpson, Law War and Crime, 147–148; Koskenniemi, ‘Beyond Impunity’, especially 13 and 22. Ibid., 2 discusses and builds on Hannah Arendt’s critiques. 56 Ibid., 14–15.

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cases of leaders being goaded into using force by their constituents, in the absence of earlier, carefully laid out propaganda, are very rare. Indeed, recent history shows that leaders often use inter-State armed force despite the wishes of their citizens. In such circumstances it seems particularly appropriate that individual leaders be punished for their decisions and actions, rather than any blame being placed on an entire people. In relation to the factual complexity of inter-State armed force, a distinction must be made between historical accounts of the causes of inter-State armed violence and legal determinations as to the attribution of responsibility for such acts. Certain causal factors that lie behind a use of force are simply irrelevant to the determination of individual criminal responsibility. An understanding of the policy of appeasement, for example, is crucial to explaining the causes and unfolding of World War II; there is, however, no need to take appeasement into account in a determination of whether or not the jus ad bellum was violated, as neither the pursuit nor abandonment of the policy by a target State could affect the legality of a threat or use of force against it. In this way, I agree with Stone that deep and wide-reaching reviews are necessary to understand many conflicts – but I contest his assertion that such studies are necessary to determine criminal responsibility. To be properly understood, the Arab-Israeli conflict, for example, undoubtedly requires vast historical and political knowledge. The establishment of relevant facts relating to a use of armed force carried out in the context of that conflict does not require the same depth of understanding. Facts that are legally relevant to the determination of responsibility for a State act of aggression can be readily separated out from the historical or political matrix: was armed force used against another State? Was the armed force an exercise of self-defence? Was it authorised by the Security Council? The answers to such questions may not be simple: different versions of events may be proffered, the scope of self-defence may be contested, Security Council resolutions may be open to differing interpretations – but these questions are all ultimately capable of resolution without resort to the lengthy and complex history of the interaction of the Jewish and Arab peoples. Indeed, ICJ case law demonstrates that it is possible to sift through contested narratives to determine crucial objective facts. The ability, indeed requirement, of courts to make such determinations was explicitly acknowledged by Judge Kooijmans in the Armed Activities Case. Kooijmans was admittedly critical of the majority’s failure to fulfil the duty of a court to ‘make clear in its reasoning that it is fully aware of the wider context and the complexity

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of the issues involved’,57 but he held that, unlike social scientists who may produce a ‘thick description’ of complex episodes,58 a judicial body is compelled ‘to come to a clear and unequivocal determination of the legal consequences of acts committed during that “complex episode”’.59 Criminal trials are equally capable of determining the facts relevant to the identification of State acts of aggression. The higher standard of proof in the criminal law context may make the Prosecutor’s job more difficult, but certainly not impossible. Finally, many commentators argued that activating the ICC’s jurisdiction over the crime of aggression would inappropriately require the Court to sit in judgment of State acts. This argument took various forms. Some argued that the ICC has jurisdiction over natural persons only, not States (Articles 12 and 25(1) of the Rome Statute) and that decisions that an act of aggression had been committed would ‘inherently imply that a state did in fact commit aggression’60 and would, therefore, have implications for the rights of States.61 Others argued that determinations relating to acts of aggression would immerse the ICC in political controversies between States, which could endanger the ICC’s judicial role and image.62 Any suggestion that by exercising jurisdiction over the crime of aggression, the ICC would be involved in determining rights between States is, in the first place, factually incorrect. Article 25(4) of the Rome Statute specifically provides that: ‘[n]o provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law’. State responsibility in relation to a use of force can only be determined by the ICJ, which would obviously have to consider the matter anew. And while ICC determinations in relation to the crime of aggression could reflect more generally on State conduct, this statement is no less true in relation to many conceivable examples of war crimes, crimes against humanity and genocide. Arguments about the crime of aggression’s potential to politicise the Court equally ignore the politics surrounding any number of other determinations that have been, and will be, made by the ICC in relation to other crimes under its jurisdiction. Establishing the requisite intent 57 58 59 60

61

Armed Activities Case (Merits), Separate Opinion of Judge Kooijmans, [4]. Ibid., [2], citing John P. Clark, (2001) 39 The Journal of Modern African Studies, 262. Armed Activities Case (Merits), Separate Opinion of Judge Kooijmans, [3]. Jennifer Trahan, ‘Defining “Aggression”: Why the Preparatory Commission for the International Criminal Court Has Faced Such a Conundrum’ (2002) 24 Loyola of Los Angeles International and Comparative Law Review, 439, 464. Boeving, ‘Aggression’, 578; Meron, ‘Defining Aggression’, 13. 62 Ibid., 13.

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for genocide, the ‘widespread or systematic attack’ element of crimes against humanity, or the ‘plan or policy’ or ‘large-scale commission’ or ‘international armed conflict’ elements of war crimes, may cause the Court to examine various governmental actions and policies. There is no reason to suggest that such determinations involve lesser ‘political controversies’ than the identification of State acts of aggression. The issuing of arrest warrants for President Al Bashir of Sudan and the reactions thereto readily demonstrate that many of the Court’s activities are inherently ‘political’. In summary then, while many different arguments as to the undesirability of the criminalisation of State acts of aggression have been made, they do not withstand close analysis. On the contrary, there are rational and compelling reasons to hold individuals criminally responsible for State acts of aggression. Despite this, in the lead-up to the Review Conference, many commentators were sceptical about the prospect of provisions on the crime of aggression being adopted in Kampala. Gerry Simpson argued that ‘a formidable group of non-believers’63 opposed the criminalisation of State acts of aggression. His non-believers included sovereigntists who asserted that ‘neither law nor institutions have any place in the decision of nation-states when matters of core security are at stake’;64 new imperialists who asserted the right to use force ‘to pursue international order and justice’;65 and anti-imperialists, concerned that any definition of the State act element of the crime would ‘become a projection of Great Power preferences’ and that jurisdictional provisions would ensure that the crime of aggression ‘would be applied to “other people”’.66 Simpson is right in that for a long time many States, for largely selfserving reasons, were opposed to the criminalisation of aggression. What, however, made them change their minds? The answer to this question, and many of the broader politco-legal ramifications of the crime of aggression are explored next.

Beyond an end to impunity: the significance of the crime International politics and the crime of aggression In the wake of the Review Conference, Joanna Harrington, academic and adviser in successive Canadian delegations to the SWGCA as well as participant at the Review Conference, wrote: 63

Simpson, Law, War and Crime, 152.

64

Ibid., 153.

65

Ibid., 154.

66

Ibid., 155.

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The aggression amendments are not elegantly drafted but elegance is not the goal at a multilateral negotiation where sharpening the language can in fact unravel the deal. Text must be crafted in a way that allows key delegations to see their needs reflected so that the reports back to capital can claim responsibility for the insertion of this or that phrase, and this or that option. The perfect text from an academic’s point of view is not the one that will achieve consensus on the ground. And arguments of legal principle made way for accommodating policy positions and bottom line instructions.67

Harrington’s analysis hits the mark. Indeed, if anything, the impact of politics on the crime of aggression negotiations was greater than on the typical multilateral treaty process. In one sense the impact is obvious. States that consider they have been victims of acts of aggression in the post-Charter era, or that rely on the protection of international law rather than military might, were generally in the camp that sought a more expansive definition. Those States that view the use of force as defending national interests or as a legitimate way of policing infractions of international norms wanted the definition to be circumscribed. The P5’s position on jurisdiction demonstrates an unmistakeable preoccupation with the retention of their role as principal arbitrators in relation to the use of force. More vulnerable States fought to remove the politics from the activation of the Court’s jurisdiction over the crime.68 The detail of the cut and thrust, particularly on the ground in Kampala, however, requires closer examination. The US delegation in Kampala was thirty people strong. For a nonState Party, the size of the delegation was extraordinary: to put it in context, credentials were registered for delegations of fifteen from each of the Netherlands and Italy, thirteen from Brazil, eleven from each of Germany and Canada, ten from the UK, eight from France and seven from Japan.69 The US’ efforts were not based on people power alone. Rumours of pressure (in the form of cancelled aid or military support) 67

68

69

Joanna Harrington, ‘An End to War Through a Court of Law? Perhaps – and in Time’, EJILTalk!, www.ejiltalk.org/an-end-to-war-through-a-court-of-law-perhaps-and-in-time’ at 30 June 2010. Kirsten Sellars astutely observes that these are ‘established patterns of State behaviour with respect to attempts to prohibit aggression’ (‘Delegitimizing Aggression: First Steps and False Starts after the First World War’ (2010) 10 Journal of International Criminal Justice 7, 8). Delegations to the Review Conference of the Rome Statute of the International Criminal Court, ICC Doc. RC/INF.1 (2010). The delegation from the Democratic Republic of the Congo consisted of twenty-five members, while the delegation of Kenya was eighteen people strong. The size of these delegations may be explained, however, by the close geographic proximity of those States to Uganda.

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being placed on the capitals of numerous States by the US Government were rife: certainly some delegations that were, up until the Review Conference, vocal proponents of the crime of aggression, were conspicuously quiet in Kampala. P5 machinations were, moreover, a standout feature of the Conference – their favoured meeting spot in the Conference venue was isolated in the sense of providing a place to meet with little chance of them being overheard, but it was also in plain view of the main meeting room, and even from afar the casual observance of P5 meetings revealed that they held a degree of intensity. Why note this? In an attempt to convey the very real sense that pervaded the negotiations that the prospect of adopting crime of aggression amendments could have evaporated at any moment. Throughout the Conference, delegations were conscious that to defeat the adoption of the amendments all that France or the UK (or any State Party doing the bidding of the US) needed to do was to call for a vote. At the time of the Review Conference there were 112 States Parties. The adoption of the amendments by vote, therefore, would have required the affirmative vote of seventy-four States Parties. The 10 June report of the Credentials Committee indicated that seventy-two States Parties had submitted formal credentials.70 This included a number of States in arrears, however, that under the Rome Statute were ineligible to vote, although on 10 June, the request of five States Parties to an exemption from the loss of voting rights was approved.71 On 11 June, the ASP accepted the recommendation of the Credentials Committee that information concerning the appointment of representatives of an additional twelve States Parties be accepted as credentials.72 Frantic efforts were also made to obtain proxies from those States that had been unable to travel to Kampala. While the result of all this meant that obtaining the requisite number of seventy-four votes was theoretically possible, all were acutely aware that a significant number of delegations had instructions not to vote (they would only contemplate the adoption of crime of aggression amendments on the basis of consensus). As the final day of the plenary dragged on, delegations started to depart for the airport making the achievement of the requisite majority in the event of a vote essentially a numerical impossibility.

70

71

Report of the Credentials Committee, Annex I, Review Conference of the Rome Statute of the International Criminal Court, Official Records, ICC Doc. RC/11 (2010). Ibid., 3. 72 Ibid., 3 and Annex I.

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Given the existence of their ability to scuttle the crime of aggression amendments relatively easily, why didn’t the UK or France, or the handful of States supporting the P5, stand in the way? Several theories might be offered. First, a failure to adopt crime of aggression amendments in Kampala might have resulted in a decision to revisit the issue at a future ASP meeting in New York or The Hague. The P5 may have formed the view that in a more accessible location the majority of States supporting the adoption of the crime would have had the numbers to carry a vote – which might in consequence have led to the removal or weakening of any need to reflect P5 concerns in the jurisdictional provisions adopted.73 It might have been considered that there was little harm in having a theoretical crime of aggression on the books, that energies should be focused on the vote required to activate the amendments in 2017 or beyond. Or it might be that, despite references to the prerogatives of the Security Council in their interventions, in the face of the overwhelming support by a majority of States for the inclusion of the crime in the Statute, there was some genuine softening of the position of at least some members of the P5 and their supporters: the UK’s relatively new administration at the time of the Review Conference was in particular something of an unknown quantity. Alternatively (or perhaps in addition), it might be possible to read the crime of aggression negotiations as evidence of a subtle shift in international relations that is currently underway. Blokker and Kress have written that it would be a mistake to interpret the final move of the UK and France ‘as the acceptance of a weakening of the paramount Security Council’s powers in the field of international peace and security’. ‘By eventually refraining from overstretching their competences’, they say, ‘the United Kingdom and France have made a wise decision which can only be conducive to strengthening the acceptance of their privileged position as permanent members of the Security Council.’74 I agree that the perception that the UK and France would have been overstepping their competencies to insist on the prerogative of the Security Council to act as gatekeeper of crime of aggression prosecutions was likely a motivating factor in their not breaking consensus. 73

74

This begs the question of why the majority of States were not prepared to defer the adoption of the amendments. The answer is that there was a sense that the window of opportunity could close, given the real risk that many delegations would be unable to marshal the same resources or enthusiasm for continuing negotiations on the crime. Neils Blokker and Claus Kress, ‘A Consensus Agreement on the Crime of Aggression: Impressions from Kampala’ (2010) 23(4) Leiden Journal of International Law 889, 894.

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This is, however, in itself significant: an exhibition of concern regarding potential fall-out is very different from the situation in Rome when the US called for a vote, presumably on the basis that it was prepared to gamble that a significant number of countries would be so fearful of opposing their powerful ally that it had a shot at preventing the Rome Statute being voted into existence. I do not agree, however, that the exercise of restraint has resulted in a strengthening of the acceptance of the UK and France’s privileged position. Quite the opposite. While the P5 stepped back from the precipice, I think their handling of negotiations nonetheless demonstrates, first, that in relation to crucial international peace and security issues a majority of P5 allies are prepared to advance differing views, which might be read as something of a weakening of the influence of the P5. Second, I think it demonstrates that States Parties to the Rome Statute were determined to confirm the importance of the Court as a vital institution in the international peace and security framework, which is significant given that three out of the five permanent members of the Security Council sit outside it. And third, I think it demonstrates that, when coordinated, Latin American and Caribbean States and African States working with friendly Western Governments can push forward change at the expense of the P5. Certainly there were likely broader agendas at work in this regard: Beth Van Schaack is no doubt right when she asserts that Brazil, for example, used the negotiations to score points on its larger Security Council reform agenda.75 But regardless of whether the negotiations are viewed through the narrow prism of the criminalisation of certain forms of inter-State armed force, or are examined in the setting of broader international relations reform, the inescapable conclusion is that the adoption of the amendments was a win for small and medium sized powers supported by a handful of emerging big powers, over the old guard. What this might mean for the activation of the Court’s jurisdiction or the prosecution of crimes of aggression remains to be seen. Regardless, it can already be said, as Van Schaack concludes, that the adoption of the crime of aggression amendments is a further contribution to ‘the indelible shift in the balance between power and law in contemporary international relations’.76 75

76

Beth Van Schaack, ‘Negotiating at the Interface of Power and Law: The Crime of Aggression’ (2011) 49 Columbia Journal of Transnational Law 505, 519. Ibid., 509.

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The crime of aggression and the jus ad bellum What of the future impact of the crime beyond the beginning of the ending of impunity for the unlawful use of inter-State armed force? The most obvious potential impact of the crime going forward will be on the jus ad bellum. Article 10 of the Rome Statute makes it clear that neither the definition of the crime of aggression nor the jurisdictional provisions governing its application will either limit or prejudice ‘in any way existing or developing rules of international law’ for purposes other than the Rome Statute. Article 25 further makes it clear that nothing in the Rome Statute ‘shall affect the responsibility of States under international law’. These provisions are bolstered by Understanding 4, adopted at the Review Conference. It provides that: It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with Article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.

These provisions provide a solid foundation to assert that, as a matter of law, ICC jurisprudence concerning the crime of aggression will have no direct effect on the content of the jus ad bellum. Despite this, Sean Murphy has argued that a failure to indict and prosecute leaders accused of using force to affect a humanitarian intervention ‘may lend considerable credence to the view that unilateral humanitarian intervention is lawful, as well as define the conditions that characterise such intervention’.77 Murphy thus considers the mere failure of the Prosecutor to initiate an investigation into a particular situation, or a failure to prosecute a crime of aggression arising from a situation under investigation, could be read as a barometer of what is lawful and what is not. Clearly this is wrong: there could be many reasons for a Prosecutor’s inaction (a lack of jurisdiction over the situation involved, the failure of the Security Council to refer the situation, inadequate evidence to justify a proprio motu investigation, a conclusion that the criteria adopted in the Office of the Prosecutor’s (OTP) prosecutorial guidelines had not been met), which would stand in

77

Sean D. Murphy, ‘Criminalizing Humanitarian Intervention’ (2009) 41 Case Western Reserve Journal of International Law 341, 343.

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the way of a conclusion that a lack of prosecution was a reflection of the international community’s understanding of the law. This is not to say that I consider the criminalisation of acts of aggression will have no impact on the jus ad bellum. It is foreseeable that States that see favourable consequences in ICC rulings on aggression will champion ICC interpretations of the jus ad bellum, while others will disagree vociferously, resulting in examples of State practice and opinio juris. Indeed, it is possible that the mere inclusion of the crime under the Rome Statute will ‘galvanize states into a reaffirmation or recodifiction process, as a means of clarifying when government leaders may be exposed to charges of criminal conduct’,78 thereby shaping understandings of the customary rules regulating the use of force, as well as understandings of Article 2(4) of the UN Charter and its exceptions (given the inextricable relationship between the customary and conventional rules). Is this potential for international criminal law to influence the jus ad bellum a good or a bad thing? While I appreciate that views will diverge on this point, I consider the process described above, wherein the ICC acts as a catalyst for State practice and expressions of opinio juris, as a potentially positive side-effect of the criminalisation project. Those who claim that the prohibition of the use of force is moribund are able to do so because the lack of an effective enforcement model (i.e. a Security Council that functions in the manner intended by the Charter’s drafters) has meant that there is no dynamic interpretation of Article 2(4), rather, the prohibition must be interpreted through the murky veil of international interactions. A parallel can be drawn with the evolution of international humanitarian law (IHL). A lack of transparency with regards to rules of engagement, in-theatre practices and the like left a space for the International Committee of the Red Cross (ICRC) to advance its views on the interpretation of the rules of IHL – interpretations that have started to be reflected in military and criminal law. Some States have reacted negatively to such interpretations and there is an observable phenomenon of States reclaiming this space in order to advance competing views. This might be distasteful to some, having as it does the inevitable effect of narrowing the ICRC’s conception of IHL. Nevertheless, when it comes to the use of force, if consideration of key issues by the ICC prompts States to reclaim that space in international relations in which the meaning of use of force rules is debated, this will, 78

Murphy, ‘Protean Jus Ad Bellum’, 44.

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over time, have the effect of clarifying the law which, more likely than not, would leave fewer uncertainties behind which States can hide, rather than creating more exceptions. That the opposite effect could be reached compared with IHL is a product of the simple fact that IHL is comprised of a mosaic of exceptions to the lawful use of armed force, whereas the jus ad bellum is built on a blanket prohibition to which there are few agreed exceptions. Clearer, narrower rules would presumably lead to fewer violations, even if it would be unlikely to exclude them altogether.

Conflict over aggression? One potential impact of the criminalisation of aggression that has been touted by naysayers as being of concern is the possibility of ‘tension, if not outright conflict’ between the ICC, the Security Council and the ICJ, which could ‘generate potentially contradictory interpretations of aggression and sow confusion in the international community’.79 Of particular concern is the prospect of the ICC convicting a defendant for a crime of aggression in the absence of Security Council action. According to the US this could ‘undermine the credibility of all the institutions involved and provide an easy basis for observers (hostile or otherwise) to reject the Court’s judgment’.80 Others consider that it is the reputation of the Council only that is at risk, namely that ‘to the extent that the ICC emerges as the central player in assessing the legality of recourse to force, it does so at the expense of the Security Council, which may harm the reputation and status of the global institution charged with maintaining international peace and security’.81 Problems caused by a potential conflict between Security Council and ICC determinations are exaggerated. It is well understood that the Council often makes decisions on the basis of political expediency and that other times it is hamstrung by a threat of the exercise of the veto. It would, therefore, not be at all surprising if the Court on occasion made a finding that a crime of aggression had been committed in a situation 79 81

Beth Van Schaack, ‘Negotiating at the Interface’, 564. 80 Ibid. Sean D. Murphy, ‘Criminalizing Humanitarian Intervention’, 377. See also June 2005 SWGCA Report, 61; Jackson Nyamuya Maogoto, ‘Aggression Supreme: International Offence Still in Search of a Definition’ (2002) 6 Southern Cross University Law Review 278, 307; Trahan, ‘Defining “Aggression”’, 464; Schuster, ‘A Gordian Knot in Search of a Sword’, 15–16; William A. Schabas, ‘United States Hostility to the International Criminal Court: It’s All About the Security Council’ (2004) 15(4) European Journal of International Law 701, 715.

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where the Council had failed to act.82 The international community is sophisticated enough to be able to appreciate the different processes that lie behind the Court and the Council’s respective decision-making processes such that the Council’s role in relation to the maintenance of international peace and security would not be undermined – or at least not undermined any further than it has been on the basis of existing critiques. This point has been clearly accepted already in relation to the ICJ; the recognition that the ICJ and the Council can exercise jurisdiction concurrently necessarily implies a possibility of conflict between their respective determinations in relation to uses of force.83 Indeed, the possibility of conflicting Security Council and ICC decisions already exists. In the course of making findings against a particular accused the Court will commonly have to determine whether an international armed conflict existed. The Council may have been utterly silent in relation to the conflict in question. Given the existing potential for contradictory findings, why single out aggression? As for conflicting ICC and ICJ decisions – systemic differences between the Courts make differing decisions a distinct possibility. If the precedent of the Armed Activities Case is followed, the ICJ will be unlikely to determine whether a use of force amounts to an act of aggression but will focus on whether the force used was unlawful or not.84 The ICJ makes its determinations on the balance of probabilities, while the ICC must be satisfied beyond a reasonable doubt. Thus it will be perfectly possible, and completely justifiable, for the ICJ to find that the prohibition of the use of force has been violated in circumstances where the crime of aggression could not be made out. As for the reverse prospect – an ICC conviction in circumstances where the ICJ finds there has been no violation of the prohibition of the use of force – unfortunately, the definition adopted, which will require the judges of the ICC to make detailed findings as to the content of Article 2(4), means that, however unlikely, this risk cannot be ruled out. The possible risk of the fragmentation of international law posed by the inclusion of the crime of aggression under the Rome Statute is not unique. Much has been written about the risks of fragmentation associated with the proliferation of tribunals dealing with issues 82 83

84

Gaja, ‘The Long Journey’, 434. R. St. J. MacDonald, ‘Changing Relations Between the International Court of Justice and the Security Council of the United Nations’ (1993) 31 Canadian Yearbook of International Law 3, 17. See further Chapter 6.

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traditionally dealt with by the ICJ.85 At one stage, for example, the International Criminal Tribunal for the former Yugoslavia (ICTY) (in the Milosevic Case)86 and the ICJ (in the Genocide Case)87 were simultaneously considering genocide. Indeed, the ICTY has produced decisions that conflict with the jurisprudence of the ICJ – most notably setting out a new effective control test in Tadic88 that differs from that set down in Nicaragua.89 In this context, Reddi has argued that conflict over the jus ad bellum between two authoritative judicial bodies is ‘bound to be greatly damaging for the order they constitute and seek to maintain’.90 Reddi also fears the prospect of forum shopping:91 it is not inconceivable that one State brought before the ICJ for a use of force may seek to refer the situation to the ICC in an attempt to muddy the waters.92 Not all commentators, however, view the multiplication of adjudicative bodies with overlapping jurisdiction as a bad thing. Many commentators argue that multiplication is a sign of the growing maturity of international law and that, while such tribunals have to be sensitive to the need to promote unity, there is little evidence to suggest that the risk of conflicting decisions is a significant one.93 As to the risk of conflicting decisions, Charney has argued that the: lack of a strictly hierarchical system provides international tribunals with the opportunity to contribute collectively ideas that might be incorporated into general international law . . . Ultimately, one would expect that the best ideas will be adopted widely, contributing to the body of international law.94

85

86 87

88

89 90 92

93

94

Vimalen J. Reddi, ‘The ICC and the Crime of Aggression: A Need to Reconcile the Prerogatives of the SC, the ICC and the ICJ’ (2008) 8 International Criminal Law Review 655, 668. See further Chapter 6. The Prosecutor v. Slobodan Milosevic (Case No. IT-02–54). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) ICJ Rep [2007] 43. Prosecutor v. Dusko Tadic (Case No. IT-94–1-A), Judgment of the Appeals Chamber, 15 July 1999, [118–120], [131], [137], [141]. Nicaragua (Merits), [105]–[115]. Reddi, ‘The ICC and the Crime of Aggression’, 676. 91 Ibid., 677. See also Gerhard Hafner, ‘Pros and Cons Ensuing From Fragmentation of International Law’ (2003–2004) 25 Michigan Journal of International Law 849, 858. See for example Pemmaraju Sreenivasa Rao, ‘Multiple International Judicial Forums: A Reflection of the Growing Strength of International Law or its Fragmentation’ (2003–2004) 25 Michigan Journal of International Law 929, 930, 960. J. I. Charney, ‘The Impact on the International Legal System of the Growth of International Courts and Tribunals’ (1999) 31 New York University Journal of International Law and Politics 697, 700.

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In a similar vein, Rao argues that ‘[i]nevitable disagreements may be considered healthy, as long as these relate to differences in perception about the applicable principles and exceptions that apply within the same system’.95 Given the criticisms attracted by the ICJ’s scant use of force decisions, there is room to argue that careful judicial scrutiny of use of force issues might enrich the jurisprudence, serving, in the manner outlined above, to clarify over time the prohibition of the use of force and its exceptions. This said, as will be outlined in detail in Chapter 4, I am of the view that it is unfortunate indeed that States Parties adopted a definition that will require ICC judges to interpret the contours of the jus ad bellum. Finally, it should be underscored that the potential spectre of fragmentation is not unique to aggression. The ICC and the ICJ could equally reach different definitions in considering whether genocide occurred or whether an international or non-international armed conflict existed. As such, there is no justification for making aggression a fragmentation scapegoat.

A chilling effect A final potential follow-on effect from the criminalisation of State acts of aggression will be the pause for thought that the crime will give those who are willing to have their acts scrutinised by the ICC. States subject to the crime of aggression are likely to be much less willing to use force that has not been authorised by the Security Council or is not a clear example of self-defence. If countries like Germany, the Netherlands, Canada, and Australia choose to ratify and/or not to opt out of the aggression amendments, it could become far more difficult for the United States, the most active proponent of coalitions of the willing in the twenty-first century, to build such coalitions in the absence of Security Council authorisation. This is not mere speculation. The US referred to the fact that potential coalition partners would be ‘subject to different degrees of exposure to prosecution’ for crimes of aggression and may ‘exhibit different levels of tolerance for the uncertainty inherent in the aggression provisions’ in arguing against the amendments’ adoption.96 This potential chilling effect leads Van Schaack to speculate that this ‘may paradoxically lead to more unilateral actions by states that are

95 96

Rao, ‘Multiple International Judicial Forums’, 958. Beth Van Schaack, ‘Negotiating at the Interface’, 583; Donald M. Ferencz, ‘The Crime of Aggression: Some Personal Reflections on Kampala’ (2010) 23 Leiden Journal of International Law 905, 907.

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not subject to the aggression provisions’.97 There is, however, little basis for such an assertion. The US’ prolonged engagement in Iraq and Afghanistan has left it stretched for resources, and the cost of those operations (both in financial and human terms) has weakened the domestic appetite for US invasions. Considered in this light the better conclusion would seem to be that coalitions not authorised by the Security Council or not exercising collective or individual self-defence may be few and far between. Given the inevitable death and destruction caused by any inter-State use of force this must be seen as a positive thing. The inevitable retort is that a reluctance on the part of States to use armed force could allow mass atrocity crimes to be perpetrated within State borders with almost no prospect of international action being taken.98 Interventions made by ‘coalitions of the willing’ in the twentyfirst century, however (with the exception of the intervention in Libya), have not been examples of humanitarian interventions, or interventions based on the responsibility to protect, whatever rhetoric surrounded such uses of force. And, as outlined in Chapter 4, a strong argument can be made that such uses of force fall outside the definition of the State act element of the crime. Of course any ambiguity could be avoided by the Security Council authorising force used to humanitarian ends. In this way, the establishment of the ICC’s jurisdiction over the crime of aggression, so long resisted by the P5, may ironically become one of the strongest arguments yet for why the Council should step up to the plate and play its intended role.

Conclusion It is hoped that the foregoing has led the reader to the conclusion that the concerns raised regarding the criminalisation of acts of aggression 97

98

Beth Van Schaack, ‘Negotiating at the Interface’, 583. See also Beth Van Schaack, ‘The Aggression Amendments: Points of Consensus and Dissension’, American Society of International Law, Proceedings of the 105th Annual Meeting: Harmony and Dissonance in International Law, Washington DC 23–26 March 2011, 2, 3. Beth Van Schaack, ‘The Crime of Aggression and Humanitarian Intervention on Behalf of Women’ (2011) 11 International Criminal Law Review 477, 478, 482, 493; Beth Van Schaack, ‘“The Grass that Gets Trampled When Elephants Fight”: Will the Codification of the Crime of Aggression Protect Women?’ (2011) 15 UCLA Journal of International Law and Foreign Affairs, forth coming 2012, http://ssrn.com/abstract-1676506, 1, 5; Keith A. Petty, ‘Criminalizing Force: Resolving the Threshold Question for the Crime of Aggression in the Context of Modern Conflict’ at http://ssrn.com/abstract=1399722 at 14 August 2011, 33.

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are largely unfounded. The arguments of sceptics and opponents of the crime of aggression are neither evidence-based nor compelling. It is true that the definition of the crime leaves open the possibility (however unlikely) of the ICC and the ICJ reaching conflicting decisions. While, however, such a scenario would be very unfortunate – both for the reputation of the Courts and any individual who might be sentenced by the ICC – it is worth noting again that the risk posed is not exclusive to the crime of aggression. The ICC and the ICJ could equally reach different conclusions regarding the existence of an armed conflict, or the occurrence of genocide. It is true that the risk of divergent opinions could be said to be somewhat higher with regard to the crime of aggression, given the lack of agreement that exists in relation to the exceptions to the prohibition and the fact that it has been left to the Court to iron out many of these controversies. The risk of some uncertainty is not, however, to my mind, a reason to abandon the criminalisation project. Establishing a mechanism to end impunity for violations of the prohibition of the use of force is too important for that. As outlined in this chapter, the mere presence of an activated crime of aggression under the Rome Statute has strong prospects of serving as an effective deterrent to the unlawful use of force. And not only that, it will likely have a chilling effect on the use of coalitions of the willing in order to garner legitimacy and avoid the repercussions of a violation of the prohibition. It is also possible that the ICC’s jurisprudence could have an impact on the jus ad bellum by encouraging State practice and the demonstration of opinio juris. Such impact, as discussed above, is likely to provide greater clarity to the law and engender a new dynamism in the interpretation of the prohibition. Such developments would signal a further shift away from power and towards the law: a move that bodes well for international peace and security.

3

An act of aggression: by any other name

The distinction between acts and crimes The definition of the crime of aggression under Article 8bis of the Rome Statute is constituted by a number of separate components. First, the definition combines a State act element (act of aggression) with individual conduct elements (planning, preparation, initiation or execution by a person in a position effectively to exercise control over or to direct the political or military action of a State). Second, the definition distinguishes between an act of aggression and the State act element of the crime of aggression, providing that a State act of aggression (defined under Article 8bis (2)) amounts to the State act element of the crime of aggression (defined under Article 8bis (1)) only when such an act meets a particular threshold, namely a manifest violation of the UN Charter. This chapter examines the definition of a State ‘act of aggression’ under Article 8bis (2) as a precursor to subsequent chapters that will examine the State act element of the ‘crime of aggression’ and the individual conduct elements of the crime. It will be shown that the definition adopted is questionable at best and a poor reflection of the understanding of the meaning of an act of aggression under the jus ad bellum.

Resolution 3314: a poor precedent The definition of an ‘act of aggression’ in Article 8bis (2) of the Rome Statute is based on Articles 1 and 3 of the 3314 Definition. The 3314 Definition was ultimately relied upon by States Parties because it 62

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represented agreed language, rather than for its intrinsic value.1 That this is so is obvious from a review of the definition’s shortcomings – shortcomings that were arguably amplified by the omission of Articles 2, 4, 5, 6, 7 and 8 of the 3314 Definition.

New nomenclature: inter-State armed violence under the UN Charter The 3314 Definition can only be properly understood in the context in which it was negotiated. This requires, as a first step, an understanding of the relevant provisions of the UN Charter. The terminology employed in the UN Charter to describe inter-State armed violence makes for fascinating study. The term ‘war’ appears in the Charter only four times. All references are historical: the Charter’s preamble opens with a reference to the ‘scourge of war’, which twice in the drafters’ lifetime had ‘brought untold sorrow to mankind’; while Articles 53(2), 77(1)(b) and 107 use the term ‘Second World War’. Instead of ‘war’, the Charter relies on the terms ‘use of force’,2 ‘act of aggression’,3 ‘armed force’,4 ‘threat to the peace’,5 ‘breach of the peace’6 and ‘armed attack’7 to describe the objects of its attention. None of these terms are defined in the Charter itself.8 There was a clear rationale behind the abandonment of ‘war’ as a term of art. While the inter-war international community did not agree on the precise meaning of the term, it was understood that ‘war’, at least

1

2 3

4 8

A similar conclusion is reached by Stefan Barriga, ‘Against the Odds: The Results of the Special Working Group on the Crime of Aggression’ in Barriga, Danspeckgruber & Wenaweser, The Princeton Process, 9–10. Article 2(4). Articles 1(1) and 39. In addition, Article 53(1) makes historical references to the ‘renewal of aggressive policy’ and ‘further aggression’ by the Second World War’s enemy States. Preamble. 5 Articles 1(1) and 39. 6 Articles 1(1) and 39. 7 Article 51. It might be noted that numerous collective defence treaties also refer to ‘aggression’ or ‘acts of aggression’ without defining these terms. See for example: Pact of the Arab League, opened for signature 22 March 1945, 70 UNTS 241 (entered into force 10 May 1945); Charter of the Organization of American States, opened for signature 30 April 1948, 30 UNTS 449 (entered into force 31 December 1951); South East Asia Collective Defence Treaty, opened for signature 8 September 1954, 209 UNTS 28 (entered into force 19 February 1955). More helpfully, Article 9 of the Inter-American Treaty of Reciprocal Assistance, opened for signature 2 September 1947, 21 UNTS 324 (entered into force 3 December 1948) provides that: ‘[i]n addition to other acts which the Organ of Consultation may characterize as aggression, the following shall be considered as such: (a) unprovoked armed attack by a State against the territory, the people, or the land, sea or air forces of another State; (b) invasion, by the armed forces of a State, of the territory of an American State, through the trespassing of boundaries’.

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in some contexts, was a term of legal significance.9 The identification of the term ‘war’ with a technical condition led States wishing to avoid the implications of a breach of the Covenant of the League of Nations or the Kellogg-Briand Pact10 to contend that any armed violence used by them fell short of the status of ‘war’. The term ‘war’ was thus deliberately avoided by the Charter’s drafters in an attempt to circumvent future arguments as to whether or not a particular use of inter-State armed violence amounted to ‘war’.11 Indeed, wary of adopting a view of armed violence that was definitionally prescribed (and, they thought, thereby open to abuse),12 the statesmen of 1945 favoured terms that largely had no technical meaning, yet which, taken together, arguably cover the spectrum of conceivable types of inter-State armed violence.13 The obvious irony of this decision is that in the years since the Charter was signed the absence of definitions has been constantly exploited, in turn fostering a desire in Member States to return to the use of agreed definitions to close the loopholes that the drafters tried so valiantly to ensure would not be the undoing of the UN.14

9

10

11

12 13

14

Ian Brownlie asserts that from the nineteenth century up until the time of the Nuremberg and Tokyo trials, customary international law provided that ‘war’ was ‘not a legal concept linked with objective phenomena such as large-scale hostilities between the armed forces of organised State entities but a legal status the existence of which depends on the intention of one or more of the States concerned’. Ian Brownlie, International Law and the Use of Force by States, Oxford: Clarendon Press, 1963, 208. Brownlie further notes that there were strong incentives for giving a use of force a label other than ‘war’, including the developing jus in bello and the symbolic significance of the term (27). See also Christopher Greenwood ‘The Concept of War in Modern International Law’ (1987) 36 International and Comparative Law Quarterly 283, 286. General Treaty for the Renunciation of War as an Instrument of National Policy, opened for signature 27 August 1928, 94 LNTS 57 (entered into force 24 July 1929). E. Lauterpacht, ‘The Legal Irrelevance of the State of “War”’(1968) Proceedings of the American Society of International Law 58, 62; T. W. Bennett, ‘A Linguistic Perspective of the Definition of Aggression’ (1998) 31 German Yearbook of International Law 48, 51; Ahmed M. Rifaat, International Aggression: A Study of the Legal Concept, Stockholm: Anqvist & Wiksell International, 1979, 117. Stephen C. Neff, War and the Law of Nations, Cambridge University Press, 2005, 286. Myres S. McDougal and Florentino P. Feliciano, ‘Legal Regulation of Resort to International Coercion: Aggression and Self-Defense in Policy Perspective’ (1958–9) 68 Yale Law Journal 1057, 1074; Jeffrey A. Doose, ‘The United Nations Definition of Aggression: A Preliminary Analysis’ (1975) 5 Denver Journal of International Law and Policy 171, 175. See Bennett, ‘A Linguistic Analysis’, 68 who argues that ‘if the [Charter] system is to have any logical coherence, norms (or words) must be defined to avoid possible conflicts or overlaps and to facilitate the internal harmony of the elements constituting the system’.

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‘Use of force’, ‘armed force’, ‘threat to the peace’, ‘breach of the peace’, ‘act of aggression’, ‘armed attack’: the first, obvious, point to make is that the mere fact a variety of terms are used to describe interState armed violence indicates that the terms have differing meanings. If, for example, the intention of the drafters had been to equate all violations of Article 2(4) with an armed attack, triggering the right to self-defence under Article 51, they could easily have used consistent terminology. Similarly, had all uses of force in violation of Article 2(4) been seen as amounting to acts of aggression, it is unclear why the Charter would also authorise the Security Council to act in the event of threats to, and breaches of, the peace – or indeed why Article 39 would employ three different terms if the events triggering the Security Council’s enforcement powers are identical. Importantly, the same terms have been employed in the key interpretive resolutions concerning the use of force adopted by the GA,15 meaning that the distinction cannot be shrugged off as a historical anomaly, any significance of which has been altered by subsequent practice. As such, it seems quite clear that the Charter contemplates different types of armed violence. The more pressing question is the scope of conduct captured by each term, particularly in relation to the relative gravity, constitutive acts and consequences of each. The term of broadest meaning employed in the Charter in relation to inter-State armed violence is ‘threat or use of force’, found in Article 2(4). Despite attempts of certain less developed countries to argue otherwise, the prevailing wisdom is that the reference to ‘force’ in this context is limited to armed force.16 It seems equally certain that the term ‘force’ covers all types of inter-State armed violence ranging 15

16

Resolution on the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, UN Doc. A/Res/ 2625 (1970); Resolution on the Definition of Aggression; Resolution on the Declaration on the Strengthening of International Security, UN Doc. A/Res/2734 (1970); Resolution on the Declaration on the Enhancement of the Effectiveness of the Principles of Refraining from the Threat or Use of Force in International Relations, UN Doc. A/Res/42/22 (1987). See Paulus, ‘Peace Through Justice’, 15. Leland M. Goodrich & Edvard Hambro, Charter of the United Nations: Commentary and Documents (2nd edn), London: Stevens & Sons, 1949, 104; Rifaat, International Aggression, 120; Oscar Schachter, ‘The Right of States to Use Armed Force’ (1983–1984) 82 Michigan Law Review 1620, 1624; Randelzhofer, ‘Article 2(4)’, 117–118. Randelzhofer notes that if the term ‘force’ was expanded under Article 2(4) beyond armed force, States would be left with virtually no means of exerting pressure on States that violate international law, and the fact that at UNCIO a Brazilian proposal to extend the prohibition to economic coercion was explicitly rejected.

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from the comprehensive armed hostilities commonly associated with the term ‘war’, to isolated acts that cause very little measurable damage, such as the firing of warning shots by an aircraft of one State toward a naval vessel of another. Article 2(4) itself makes a distinction between the threat of force and the use of force. Article 1(1) further talks of the ‘prevention’ and ‘removal’ of threats to the peace, but about the ‘suppression’ of acts of aggression and breaches of the peace.17 This suggests that the word ‘threat’ was employed in its ordinary sense in Articles 1(1) and 39, conveying a meaning of ‘a stated intention to inflict injury, damage or other hostile action on someone’ or ‘a person or thing likely to cause danger or damage’.18 In practice, while the term ‘threat to the peace’ has been applied to literal threats of inter-State armed force by the Security Council, it has also been employed to describe uses of inter-State armed force – undoubtedly because it is perceived as the least offensive of the three terms employed in Article 39 and thus its utilisation is seen as less likely to cause irreparable damage to relations between the Council and an offending State. The term has also been employed by the Council to describe events that cannot be properly characterised as either a threat or use of inter-State armed force such as internal armed conflicts that arguably threaten regional stability because of the potential of an overspill of fighting, or an outpouring of refugees. As the notion of peace is increasingly viewed as not merely the absence of armed violence, but more broadly as the absence of international stability,19 the term has also been read as applying to mass violations of international humanitarian or human rights law20 and, more controversially, economic and ecological disasters.21 17 18

19

20 21

See Rifaat, International Aggression, 118–119. Compact Oxford English Dictionary of Contemporary English, Oxford University Press, 2005. See, however, Jochen Frowein & Nico Krisch, ‘Article 39’ in Simma, The Charter of the United Nations, 720, who argue that ‘[i]t may be assumed . . . that ‘peace’ in Chapter VII means the absence of organized use of force, because an extension would not only run the risk of blurring the contours of the concept, but would also call into question the distribution of competencies among the different organs of the UN. This is reflected in the statement of the Security Council meeting at the level of Heads of State and Government in 1992.’ Ibid., 720, 723–726. See generally Robert Cryer, ‘The Security Council and Article 39: A Threat to Coherence?’ (1996) 1 Journal of Armed Conflict Law 161, 187; Zama Coursen-Neff, ‘Preventive Measures Pertaining to Unconventional Threats to the Peace Such as Natural and Humanitarian Disasters’ (1997–1998) 30 NYU Journal of International Law and Politics 645, 669.

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It nonetheless seems quite clear that a distinction is drawn in the Charter between activity such as a State warning that it will use armed force if certain objectives are not met, amassing military forces on a border, or otherwise actively preparing for an imminent engagement in hostilities (‘threat to the peace’) on the one hand, and, on the other, positive acts that have concrete consequences that negatively affect international peace and security (‘breach of the peace’). Accordingly it can be concluded that the term ‘breach of the peace’ applies to all actual uses of inter-State armed force. Certain consequences of a threat of armed force are also properly considered to amount to a breach of the peace. Thus, occupation or annexation resulting from a threat of force should be considered a breach of, not a threat to, the peace. ‘Act of aggression’ is a term reserved to describe grave breaches of the peace:22 either large scale or otherwise significant uses of armed force, as well as particularly severe consequences of a threat or use of armed force, such as the annexation of a significant portion of the territory of another State. The overlap but not coincidence between the meaning of the terms ‘breach of the peace’ and ‘act of aggression’ is demonstrated by Article 1(1), which refers to ‘acts of aggression or other breaches of the peace’.23 The configuration of the Article 39 triumvirate further suggests that the terms are placed in order of ascending gravity. Some support for this interpretation is found in the travaux pre´paratoires. The original US proposal presented at Dumbarton Oaks for what would become Article 39 did not include any reference to an act of aggression. The term was included at the insistence of Russia and China, despite the US’ contention that the notion of aggression was included within the idea of a breach of the peace.24 The issue arose again in San Francisco in the context of the discussion of Article 1(1). Records show that a suggestion was made to consider the words ‘other breaches of the peace’ as superfluous. The subcommittee responsible for the revision of the Article, however, determined that ‘there may be breaches of the peace other than those qualified by present connotations 22

23 24

Frowein & Krisch, ‘Article 39’, 722 agree with this interpretation. Meron, ‘Defining Aggression’, 11 and L. Goodrich, E. Hambro & A. Simons, Charter of the United Nations (3rd edn), New York: Columbia University Press, 1969, 295–300, similarly argue that the term applies to the gravest violations of the prohibition. Cf. John Yin, The Soviet Views on the Use of Force in International Law, Hong Kong: Asian Research Service, 1980, 23. Emphasis added. Rifaat, International Aggression, 106; Oscar Solera, Defining the Crime of Aggression, London: Cameron May, 2007, 47.

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as aggression’.25 The interpretation is also supported by the ICJ’s judgment in Nicaragua, which distinguished between aggression and ‘less grave forms of the use of force’.26 Finally, a distinction must be drawn between an ‘act of aggression’ and an ‘armed attack’. The language employed in the French text of Articles 39 (‘acte d’agression’) and 51 (‘agression arme´e’) indicates a closer relationship between the two terms than is apparent in the English text. Nonetheless, while the meanings of the two terms overlap, important distinctions must be made between the two. First, it is widely agreed that not all violations of Article 2(4) amount to an ‘armed attack’. Such a view is supported by the conclusions of the ICJ in Nicaragua, where the Court concluded that ‘the supply of arms and other support’ to armed bands could not be equated with an armed attack, but ‘may well constitute a breach of the principles of the non-use of force . . . that is, a form of conduct which is certainly wrongful, but is of lesser gravity than an armed attack’.27 The Court specifically drew a distinction between an armed attack and ‘a mere frontier incident’.28 The Court indicated that the ‘scale and effects’ of a use of force can be used to determine whether it amounts to an armed attack,29 as can its ‘circumstances . . . or their possible motivations’.30 Despite the fact that there is little support for such a view in Nicaragua, many commentators assert that an armed attack is constituted by a use of inter-State armed force on a relatively large scale with substantial effect.31 In this way, it is contended that ‘armed attack’ and ‘act of aggression’ are terms that in many contexts substantially overlap. Nonetheless, it is usually considered that ‘armed attack’ has a somewhat narrower meaning than ‘act of aggression’.32 Randelzhofer refers to occupation and annexation in this context, noting that such acts do 25

26

27 31

32

The Report of Rapporteur, SubCom I/A to Committee I, UNCIO, Doc.723, I/I/A/19, 8 cited in Kelsen, The Law of the United Nations, 14. Nicaragua (Merits), [191]. See further section entitled ‘Decisions of the International Court of Justice’ below. Ibid., [247]. 28 Ibid., [195]. 29 Ibid. 30 Ibid., [231]. Albrecht Randelzhofer, ‘Article 51’ in Simma, The Charter of the United Nations, 788, 796; Dinstein, War, Aggression and Self-Defence, 173–174. Randelzhofer, ‘Article 51’, 795; Yoram Dinstein, ‘A Survey of Self-Defense in International Law’ in M. C. Bassiouni & V. P. Nanda (eds.), A Treatise on International Criminal Law, Volume I: Crimes and Punishment, Springfield: Charles C. Thomas, 1973, 276–277; D. N. Kolesnik, ‘The Development of the Right to Self-Defence’ in W. E. Butler (ed.) The Non-Use of Force in International Law, Dordrecht: Martinus Nijhoff Publishers, 1989, 153, 156; Pierluigi Lamberti Zanardi, ‘Indirect Military Aggression’ in Antonio Cassese, The Current Legal Regulation of the Use of Force, Dordrecht: Martinus Nijhoff Publishers, 1986, 111, 113–114.

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not constitute armed attacks if they do not involve a use of military force.33 Yet, since at least 1945 invasions employing no force that result in conquest have been understood to constitute an example of an act of aggression.34 An alternative thesis espoused by McCoubrey and White is that the: concepts are merely working at different aspects of the same level of armed force, with aggression for historical reasons being concerned with the question of state and individual responsibility, while armed attack, a relatively new concept, concentrates on the immediate response the victim State and its allies can make.35

It is agreed that it is possible to identify acts of aggression that do not amount to armed attacks. Equally it is agreed that the terms ‘act of aggression’ and ‘armed attack’ serve distinct purposes as argued by McCoubrey and White. It is not agreed, however, that an ‘armed attack’ is a narrower subset of the term ‘act of aggression’, or that ‘armed attack’ and ‘act of aggression’ are different sides of the same coin. There is nothing in Article 51 that limits the term ‘armed attack’ to ‘especially large, direct, or important armed attacks’.36 Yet it has been shown that ‘act of aggression’ is a term properly reserved to describe particularly grave breaches of the peace. It is nonsensical to suggest that self-defence (which, at least under the Charter is linked to an armed attack) can only be exercised in the face of a particularly grave subset of the activity defined as a ‘breach of the peace’. As such, rather than a term identical to, or narrower than, ‘act of aggression’, the term ‘armed attack’ should properly be seen as referring, in the first place, only to actual uses of armed force, and, secondly, as applying to almost all such uses, excepting only armed force properly employed in self-defence and violations of the prohibition akin to frontier incidents that could not fairly be described as an ‘attack’.37 33 34

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Randelzhofer, ‘Article 51’, 796. Dinstein gives the alternate example of a threat of war, which he says does constitute an act of aggression but could not be characterised as an armed attack: Dinstein, ‘A Survey of Self-Defense’, 276–277. Hilaire McCoubrey & Nigel D. White, International Law and Armed Conflict, Aldershot: Dartmouth Publishing Co Ltd, 1992, 39. John Lawrence Hargrove, ‘The Nicaragua Judgment and the Future of the Law of Force and Self-Defense’ (1987) 81 American Journal of International Law 135, 139. See also Oil Platforms Case, 195. Christine Gray, International Law and the Use of Force, Oxford University Press, 2000, 131 contends that the ICJ would include accidental incursions and incidents where officials disobeyed orders within the meaning of frontier incidents. She further observes that

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Despite the inability of any study to draw firm conclusions as to the precise meanings of the Charter’s terminology, the foregoing analysis has demonstrated one fundamental point; namely that under the Charter a distinction can be drawn between an ‘act of aggression’ and other types of inter-State threats or uses of armed violence. Comparing the various terms, we can see that the most general term used in the Charter is ‘threat or use of force’. Within the meaning of this term – and perhaps falling partly outside it in its modern interpretation – is ‘threat to the peace’. Actual uses of force and consequences of a threat of force that have tangible consequences negatively affecting international peace and security may be characterised as ‘breaches of the peace’. Reserved to describe the most serious breaches of the peace is the term ‘act of aggression’. The term ‘armed attack’ is restricted to uses of armed force, excepting only force used defensively and minor violations of the prohibition that could not fairly be described as an ‘attack’. As such, the latter term overlaps with both ‘breach of the peace’ and ‘act of aggression’ but is identical to neither.

The 3314 Definition: a compromised text As outlined in Chapter 1, in 1952 the General Assembly established a Special Committee and mandated it to study the concept of aggression, draft a definition and study the role of such a definition in the jus ad bellum and international criminal law frameworks. The report of the First Special Committee on the Question of Defining Aggression38 and the GA Sixth Committee’s subsequent report39 demonstrate that from the outset of the definitional process Member States were deeply divided. In addition to expressing divergent views as to whether a definition was possible or desirable,40 States were divided over the following critical issues: (a)

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Whether an enumerative, general or mixed definition should be preferred. Some Members argued that aggressors would be able to seize hold of loopholes in an enumerative definition or, alternatively, that such an approach could render decisions of the Security Council more or less

one very sensible reason for distinguishing between frontier incidents and armed attacks is to limit third party involvement on the basis of collective self-defence in the former (133). Report of the Special Committee on the Question of Defining Aggression, UN Doc. A/AC.66/L.11 (1953), reproduced in Ferencz, Defining International Aggression, vol. II, 187–201. Report of the Sixth Committee, UN Doc. A/2806 (1954) reproduced in Ferencz, Defining International Aggresion, vol. II, 202, 210–213. 1953 Special Committee Report, 197.

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(b)

(c)

(d)

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46 47

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automatic, making it difficult to re-establish peace in delicate political situations. An abstract and general formula, on the other hand, was said to be reliant on terms that themselves required definition. In response to suggestions that the two methodologies be combined, detractors claimed that a general formula and illustrative examples would only combine the disadvantages of the two approaches.41 Whether the Charter required the definition to be limited to armed aggression. Some Member States argued that Articles 2(4), 39 and 51 of the Charter militated a definition limited to the use of armed force against another State. In this way, aggression was compared to threats to, and breaches of, the peace, it being contended that the most serious form of a breach of the peace required armed violence.42 Other Member States sought to rely on the broad nature of Article 39 and a reading of the Charter as a whole to contend that a broad definition was appropriate.43 Specifically a push was made by a number of States, including the USSR, to include economic and ideological aggression on the basis that such acts pose equal threats to the sovereign equality and independence of States.44 Others argued that this was liable to extend the definition of aggression indefinitely and could lead to States abusing the notion of self-defence – a factor liable to disturb the peace rather than maintain it.45 Whether the definition should include the indirect use of force. Victims of Cold War politics were intent on the inclusion of indirect uses of force, including encouraging subversive activities against, or promoting internal upheaval in, another State.46 Others maintained that under the terms of the Charter indirect aggression could not be defined as an act of aggression per se, but rather amounted to a breach of the peace.47 Whether the definition should include the threat of force. Some Member States considered that Article 2(4) authorised the inclusion in the definition of a threat of force.48 Others believed that a threat of force was more akin to a threat to the peace under Article 39 and expressed concern that, if

Ibid., 190–191; Nicolas Nyiri, The United Nations’ Search for a Definition of Aggression, New York: Peter Lang, 1989, 166–173; Stone, Aggression and World Order, 80–83; Solera, Defining the Crime of Aggression, 125–126. 1953 Special Committee Report, 191–193. 43 Ibid. Ibid., 194. See Draft Resolution Submitted by the USSR, UN Doc. A/AC.6/L.332/Rev.1 (1954) reproduced in Ferencz, Defining International Aggression, vol. II, 207 in which economic and ideological aggression are defined. 1953 Special Committee Report, 195; Solera, Defining the Crime of Aggression, 136; Stone, Aggression and World Order, 230; Stone, Conflict through Consensus, 67. See in particular Draft Resolution Submitted by the USSR, 199–200. 1953 Special Committee Report, 194; Nyiri, The United Nations Search, 173–174. See generally, Solera, Defining the Crime of Aggression, 130, 151–152. See comments of Mr Ro¨ling (Netherlands) in 1953 Special Committee Report, 193.

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an act of aggression: by any other name included, attempts would be made to perpetrate acts of aggression under the cloak of self-defence.49 (e) How frontier incidents should be treated. Some Member States were of the opinion that minor transgressions should be subject to a de minimis exception. Others were concerned that this would allow States to perpetrate frontier incidents with impunity.50 (f) What role to accord to the priority principle. Some Member States were concerned that the automatic application of a definition to a State that first committed any of the acts listed as constituting aggression might not reveal the ‘true’ aggressor – particularly in a nuclear age when it is not realistic for a State to wait to be destroyed before it acts in self-defence. Concern was also expressed as to the difficulty of establishing the chronological order of events after an outbreak of hostilities. In response it was contended that the priority principle was well established, as reflected by Article 51 of the Charter, and a necessary objective element of the definition.51 The Soviets further argued that, if one of the objects of defining aggression was to prevent it, the use of a priority principle would be a significant disincentive.52 (g) Whether proof of an aggressive intent was necessary. Some Member States, particularly those that opposed the priority principle, contended that an animus aggressionis was an essential ingredient of any definition of an act of aggression. Others contended that acts of aggression need only be committed intentionally, and that any additional requirement would only create a loophole for aggressors.53 States were particularly wary of returning to just war theories.54 Concerns were also raised as to how evidence of purpose, reasons or intent could be demonstrated,55 and exactly what constituted an ‘aggressive intent’.56 (h) Whether a definition of self-defence was required. Some Member States were of the opinion that an element of negative definition was required,

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52 53 54 56

See comments of Mr Castan˜eda (Mexico), Mr Chaumont (France) and Mr Morozov (USSR), in ibid., 193–194; Report of the Special Committee on the Question of Defining Aggression, vol. II, UN Doc. A/2698/Add.1 (1954) reproduced in Ferencz, Defining International Aggression, 212. See generally, Solera, Defining the Crime of Aggression, 136–137. See comments of Mr Fitzmaurice (UK), 1954 Sixth Committee Report, 157. See generally, Stone, Aggression and World Order, 68–69. 1954 Sixth Committee Report, 213. See also Stone, Aggression and World Order, 69–72; Stone, Conflict through Consensus, 40–46, 229; William Butler, ‘Soviet Concepts of Aggression’ in Bassiouni & Nanda, A Treatise, 182, 192–193; Solera, Defining the Crime of Aggression, 138–139, 166–168. Butler, ‘Soviet Concepts’, 192. See comments of Mr Morazov, 1953 Special Committee Report, 194. Nyiri, The United Nations’ Search, 266. 55 Ibid, 259; Butler, ‘Soviet Concepts’, 192. Stone, Aggression and World Order, 87. See generally, Solera, Defining the Crime of Aggression, 137, 168–170.

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namely, a statement that acts of armed force constituting legitimate self-defence were not aggression. Of course, this raised the equally controversial question of whether it was possible to define self-defence satisfactorily.57

The GA, concerned that the first Special Committee had failed to reach any conclusions in relation to the question of the definition of aggression, decided on 4 December 1954 to establish a second Special Committee, which was requested to submit a detailed report and a draft definition at the Assembly’s Eleventh Session.58 However, neither the efforts of the second Special Committee,59 nor a third Special Committee established at the end of 1957,60 appeared to propel the UN any closer to a definition of an ‘act of aggression’. Indeed, the third Special Committee, which was to meet in 1959, adjourned its deliberations until 1962, then 1965, and finally to 1967, on the basis that the attitudes of Member States had not altered.61 At the end of 1967, the USSR again called for the General Assembly to define aggression.62 As a result, on 18 December 1967, the Assembly adopted Resolution 2330 (XXII) under which a fourth Special Committee on the Question of Defining Aggression was established.63 By 1969, that Committee was working on three competing drafts: a Soviet draft64 (which had abandoned concepts of ideological and economic aggression, but retained a broad definition of indirect aggression

57 58 59

60 61

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1953 Special Committee Report, 193. 1954 Resolution on the Question of Defining Aggression. Report of the Special Committee on the Question of Defining Aggression (1957), reproduced in Ferencz, Defining International Aggression, vol. II, 215–247. See Resolution on the Question of Defining Aggression, UN Doc. A/Res/1181 (1957). Committee Established Under GA Resolution 1181(XII) (Question of Defining Aggression), Report of the Committee Rapporteur, Mr Baile Vitsaxis (Greece), UN Doc. A/AC.91/2 (1959) reproduced in Ferencz, Defining International Aggression, vol. II, 255–260; Report of Committee Rapporteur, Dr Gonzalo Ortiz (Costa Rica), UN Doc. A/AC.91/3 (1962) reproduced in ibid., vol. II, 261–264; Report of Committee Rapporteur Mr Rafik Asha (Syria), UN Doc. A/AC.91/5 (1965) reproduced in ibid., vol. II, 265–271. Letter from the Minister for Foreign Affairs of the USSR to the President of the General Assembly dated 22 September 1967 in GAOR, Agenda Item 95: Need to expedite the drafting of a definition of aggression in the light of the present situation, Annexes (XXII) (1967) reproduced in Ferencz, Defining International Aggression vol. II, 272, 272–273. Resolution on the Need to Expedite the Drafting of a Definition of Aggression in the Light of the Present International Situation, UN Doc. A/Res/2330 (1967). UN Doc. A/AC.134/L.12 (1969) reproduced in Report of the Special Committee on the Question of Defining Aggression, General Assembly, Official Records, 24th Sess, Supp. No. 2, UN Doc. A/7620 (1969), 4.

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and relied on the priority principle); a Thirteen Power draft65 (based on a broad definition linked to territorial integrity, sovereignty and political independence, accompanied by an illustrative list, with some attempt to define self-defence); and a Six Power draft sponsored by the traditional opponents of the definitional process66 (which relied on an exceptionally general chapeau, accompanied by an illustrative list and was dependent on the identification of an aggressive intent, spelt out to require the constitutive acts having been carried out ‘in order to’ accomplish certain prohibited aims, including to ‘diminish the territory or alter the boundaries of another State’, ‘disrupt or interfere with the conduct of the affairs of another State’, ‘secure changes in the Government of another State’ or ‘inflict harm or obtain concessions of any sort’). Gradually, through the efforts of a series of working groups, the Committee edged towards an agreed definition.67 This process ultimately led, on 14 December 1974, to the adoption by consensus of Resolution 3314 (XXIX), which annexed a Definition of Aggression.68 Prior to its adoption, a number of Member States voiced serious concerns about the Definition in both the Sixth Committee and the GA. They were not willing, however, to press their views and risk upsetting the delicate balance that had been reached.69 Given the close proximity of notions of aggression to national security interests, the conflicts in existence at the time and the international 65

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Sponsored by Colombia, Cyprus, Ecuador, Ghana, Guyana, Haiti, Iran, Madagascar, Mexico, Spain, Uganda, Uruguay and Yugoslavia: UN Doc. A/AC.134/L.16 (1969) reproduced in 1969 Report of the Special Committee on the Question of Defining Aggression, 6. Australia, Canada, Italy, Japan, the US and the UK: UN Doc. A/AC.134/L.17 (1969) reproduced in 1969 Report of the Special Committee on the Question of Defining Aggression, 8. A detailed outline of the various arguments made in support or opposition to various issues that arose during the drafting process is outlined in Twenty-Fourth Session, Report of the Special Committee on the Question of Defining Aggression, UN Doc. A/7620 (1969); TwentyFifth Session, Report of the Special Committee on the Question of Defining Aggression, UN Doc. A/8019 (1970); Twenty-Sixth Session, Report of the Special Committee on the Question of Defining Aggression, UN Doc. A/8419 (1971); Twenty-Seventh Session, Report of the Special Committee on the Question of Defining Aggression, UN Doc. A/8719 (1972); Twenty-Eighth Session, Report of the Special Committee on the Question of Defining Aggression, UN Doc. A/9019 (1973); Twenty-Ninth Session, Report of the Special Committee on the Question of Defining Aggression, UN Doc. A/9619 (1974), each reproduced in Ferencz, Defining International Aggression, vol. II, 326–364, 372–438, 446–484, 493–509, 519–539, 556–598. Resolution on the Definition of Aggression. See for example Ferencz, Defining International Aggression, vol. II, 30, 49–50; Stone, Conflict Through Consensus, 19; Shabtai Rosenne, ‘On Defining International Aggression – An Exercise in Futility’ (1977) 12 Israel Law Review 401, 405.

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power balance during the Cold War, a great deal was at stake in the definitional endeavour. The definition finally arrived at by the GA in 1974 may thus be viewed as a significant breakthrough. The legitimacy and functionality of the definition, however, must also be questioned. Nyiri explains that the definitional process between 1970 and 1974 was no longer about the search for the most accurate, correct or functional definition of an act of aggression but was: a political game (a) to knock out the rival from the position of dictating to others what in fact may constitute aggression or acts of aggression, and (b) to allow the inclusion of rival claims in the Consolidated Text to earn political accolades at the expense of rivals.70

It might in addition be noted that there was a certain degree of UN face-saving involved71 and that Member States were equally concerned ‘to maximise the value of the definition to themselves as an instrument to be invoked in support of their own political objectives, or to minimise its value as an instrument invoked by others against themselves’.72 The most common criticism made of the 3314 Definition relates to its ambiguity. Article 1 of the Definition differs from Article 2(4) of the Charter in ways that add to the difficulty of its interpretation. Article 1 adds a reference to ‘sovereignty’ and substitutes inconsistency ‘with the Charter’ for inconsistency with ‘the Purposes of the United Nations’. The significance of these distinctions is unclear. Article 1 also only refers to the ‘use of armed force’ – thereby excluding the threat of armed force.73 Also excluded is political and economic coercion. Thus, while a naval blockade likely meets the definition because it requires armed force to be enforced,74 sanctions, although they achieve a similar effect, would not.75 The meaning of Article 1 is complicated by the concluding phrase (‘as set out in this definition’), which seemingly qualifies the entire chapeau clause.76 Article 2 incorporates a significant degree of flexibility into the Definition, allowing it to be reduced at whim by the Security Council. 70 72

73 74 75

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Nyiri, The United Nations’ Search, 335. 71 Stone, Conflict Through Consensus, 146. Ibid. See also Antonio Cassese, ‘On Some Problematical Aspects of the Crime of Aggression’ (2007) 20 Leiden Journal of International Law, 841, 844. This view is shared by Dinstein, War, Aggression and Self-Defence, 116–117. Ian Brownlie, International Law, 365–366. Paul Szaz, ‘The Law of Economic Sanctions’ in Michael N. Schmitt & Leslie C. Green (eds.), US Naval College International Law Studies: The Law of Armed Conflict into the Next Millennium (1988) 455, 455–456. Stone, Conflict Through Consensus, 147–148.

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Its meaning, however, is far from clear. The reference to a first use of armed force ‘in contravention of the Charter’ does little to clear up any of the uncertainties concerning the scope of the Charter’s prohibition of the threat or use of force or its principal exception, self-defence.77 The effect of a use of force constituting ‘prima facie evidence of an act of aggression’ under Article 2 is also unclear. As Garvey notes, it was left unsettled by Member States in 1974 as to whether this phrase refers to an initial use of armed force being presumed to be aggression until the presumption is rebutted, or whether instead, it is the basis for a charge or suspicion of aggression, similar to an indictment under domestic law.78 The lack-of-sufficient-gravity threshold is particularly equivocal. It raises the obvious question, left unanswered, as to how serious a use of armed force must be before it amounts to an act of aggression.79 The list of constitutive acts in Article 3 has been criticised on the basis of both questionable inclusions and omissions. Although Article 3(a) refers to military occupations resulting from invasions, a reading of Article 3(a) together with Article 1 would seem to exclude events such as the German occupation of Austria and Czechoslovakia, which occasioned no force. This is a strange omission, given the recognition afforded to such invasions under Control Council Law No. 10 and in the Ministries Case.80 Article 3(b)’s reference to the ‘use of any weapons’ is open to exceedingly broad interpretation. While the phrase was seemingly chosen to cover nuclear, chemical and biological weapons as well as conventional arms, the phrase could conceivably be stretched to nonsensical lengths. The inclusion of Article 3(e) relating to the use of armed force in the territory of another State in contravention of an agreement with the receiving State has been queried on the basis that it is not of the same gravity as the other constitutive acts.81 As Ferencz notes, it could have been omitted if the reference to military occupation in Article 3(a) had 77

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Report of the Special Committee on the Question of Defining Aggression, 11 March-12 April 1974, UN Doc. A/9619(Supp) (1974); Stone, Conflict Through Consensus, 148. Jack I. Garvey, ‘The UN Definition of “Aggression”: Law and Illusion in the Context of Collective Security’ (1976–7) 17 Virginia Journal of International Law 177, 189. V. Cassin, W. Debvoise, H. Kailes & T. W. Thompson, ‘The Definition of Aggression’ (1975) 16 Harvard International Law Journal 589, 607. USA v. Ernst von Weizsa¨cker et al, Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10 (1951), Vols XII-XIV. M. Cherif Bassiouni & Benjamin B. Ferencz, ‘The Crime Against Peace’ in M. C. Bassiouni (ed.) International Criminal Law (2nd edn), New York, Transnational Publishers Inc., 1999, vol. I, 331.

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not been limited to those caused by invasion or attack.82 Article 3(f) is curious in that it appears to confuse a use of force with an act of assistance to the use of force by another State. Attracting particular debate has been the wording of Article 3(g). The reference to the ‘sending’ of armed bands and the omission of any reference to the ‘support’ or ‘organisation’ of such groups (which had been included in earlier proposals) suggests a narrow range of activities can be characterised as an act of aggression under this paragraph. This conclusion is confused, however, by the final reference to a State’s ‘substantial involvement therein’, which begs the question of what activity the substantial involvement must concern.83 Article 4 has the opposite effect of Article 2, allowing the Security Council to enlarge the Definition on an ad hoc basis. Reference is made to the Council determining that other acts constitute aggression ‘under the provisions of the Charter’. This raises queries as to the relevance of Article 1 of the Definition in the making of such a determination and whether such acts need be considered comparable to those listed in Article 3. Indeed, it seems that the Council is almost given carte blanche – an inevitable consequence perhaps of any definition drafted by the GA for use by the Council given the Assembly has no power to fetter the Council’s discretion. The Committee was unable to agree on the scope of permissible selfdefence, thus it adopted the veiled reference to uses of force that are lawful under the Charter in the exception to the Definition found in Article 6. Again, this might have been an acceptable compromise, but it clearly allows any and all interpretations of Article 51 of the Charter, thus providing little guidance. Article 7’s treatment of self-determination, of particular relevance at the time of the Definition’s drafting, also raises questions. The meaning of the words ‘people’, ‘struggle’ and ‘support’ is unclear, as is the restriction of forcible deprivation.84 There was, moreover, no agreement as to whether or not the use of force by one State against another while 82 83

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Ferencz, Defining International Aggression, vol. II, 37–38. Stone, Conflict Through Consensus, 74; Cassin et al, ‘The Definition of Aggression’, 605. Cf. Zanardi, ‘Indirect Military Agression’, 115, who argues that the French text makes it clear that the ‘involvement’ refers to the act of sending: ‘[t]he use of the word “action” rather than “actes” makes it clear that what is being referred to is the sending rather than the acts of the armed bands.’ Stone, Conflict Through Consensus, 130, 133; Bassiouni & Ferencz, ‘The Crime Against Peace’, 333.

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assisting a ‘people’ of the second State achieve ‘self-determination’ is a valid defence to a charge of aggression.85 In sum, it has been suggested that: ‘[t]he compromise definition was not even a definition: it was a declaration or a stipulative statement on a possible meaning of aggression favoured by the majority, vaguely related to the preferences of the minority’.86 A related complaint is that the Definition is more of a description than a definition. As Bennett states, ‘it does not purport to specify all the attributes of aggression: instead it provides a list of some of the qualifying features’.87 More broadly, the Definition does little or nothing to resolve crucial uncertainties regarding the scope of the Charter’s prohibition of the threat or use of force. As Stone neatly concludes, the text of the Definition is ‘besieged by many mutually conflicting interpretations . . . at least as grave as those which it was the ostensible object of the definition [sic] exercise to remove’.88 This is, moreover, ‘no mere ex post facto perception’, rather ‘states which joined in the consensus showed ample awareness of persisting conflicts’.89 This problem is exacerbated by the fact that the Definition taken as a whole is incredibly broad. While perambulatory paragraph 5 of Resolution 3314 states that aggression is ‘the most serious and dangerous form of the illegal use of force’, this is not reflected in the Definition’s text. There is a threshold of seriousness built into Article 2, but the height of the threshold, as noted above, is undefined. The distinction between acts of aggression and threats to, or breaches of, the peace is thus not only left unresolved by the Definition but perhaps muddied given the possible wide scope of the Definition’s application. As Blix noted during the course of the Special Committees’ negotiations, the term ‘aggression’ appears to have been used ‘to encompass almost every type of action the outlawing of which is desired’.90 Perhaps the most crucial observation that must be made relates to the purpose for which the Definition was ultimately adopted. GA Resolution 2330, which established the fourth Special Committee on the Question of Defining Aggression, made reference to the import of a definition for the maintenance of international peace and for the adoption of effective measures under the Charter for preventing acts of 85 86 88 90

Cassin et al., ‘The Definition of Aggression’, 599. Nyiri, The United Nations’ Search, 328. 87 Bennett, ‘A Linguistic Perspective’, 55. Stone, ‘Hopes and Loopholes’, 225. 89 Ibid., 225. Hans Blix, Sovereignty, Aggression and Neutrality, Stockholm: The Dag Hammarskjo¨ld Foundation, 1970, 35.

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aggression, but made no reference at all to international criminal law. Operative paragraph 4 of Resolution 3314 clearly recommends that the Security Council utilise the Definition in making determinations under Article 39 of the Charter. Preambulatory paragraphs 1, 2 and 9 of Resolution 3314 additionally refer to collective security, the role played by the Security Council, and the possible effects of deterrence and the simplification of measures to suppress acts of aggression, while Articles 2 and 4 of the Definition are specifically addressed to the Security Council. While records show that the GA’s original assumption was that a single definition could serve the dual purposes of collective security and international criminal law, the balance of the text of the 3314 Definition and the Resolution under which it was adopted point to the fact that the purpose of the Definition as adopted was solely to assist the Security Council in fulfilling its collective security role. This conclusion is clouded by the curiously worded Article 5(2): ‘[a] war of aggression is a crime against international peace. Aggression gives rise to international responsibility’. At issue is whether this should be read as indicating that only wars of aggression (a term not used or defined anywhere else in the 3314 Definition) attract individual criminal responsibility. Although the majority of commentators favour such an interpretation,91 there is no clear answer to be found in Article 5(2) itself, given the awkward compromise language employed.92 The Special Committee’s final report is of limited assistance. It provides that ‘the words “international responsibility” are used without prejudice to the scope of this term’.93 In the context of the debate over the desirability of a definition, delegates referred almost exclusively to the purposes that could be served in a collective security setting – some going so far as to argue that defining acts of aggression for the purpose of international criminal law was outside the mandate of the Committee.94 Others noted more equivocally that the various issues being discussed did not

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Rifaat, International Aggression, 317; Dinstein, War, Aggression and Self-Defence, 114; Mathias, ‘The Definition of Aggression’, 183. See Twenty-Ninth Session, Report of the Special Committee, 587–588, 591. 93 Ibid., 560. Report of the Sixth Committee, UN Doc. A/6988 (1967), reproduced in Ferencz, Defining International Aggression, vol. II, 275, 277, 278; Report of the Special Committee on the Question of Defining Aggression, UN Doc. A/7185/Rev.1 (1968), re-produced in Ferencz, vol. II, 280, 292, 297, 298, 304; Report of the Sixth Committee, UN Doc.A/7402 (1968), reproduced in Ferencz, vol. II, 320, 321–322; Twenty-Fourth Session, Report of the Special Committee, 326, 348.

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necessarily apply to a definition to be used in the international criminal law field.95 This view, however, was not held universally,96 and as late as 1972, the Report of the Special Committee revealed that three significantly different provisions relating to individual and/or State responsibility remained as options on the table: 1. 2. 3.

Aggression, as defined herein, constitutes a crime against international peace, giving rise to responsibility under international law. A war of aggression constitutes a crime against the peace, for which there is responsibility under international law. Include in the general definition of aggression at the beginning, after the word ‘aggression’, ‘which is a crime against peace’.97

After the adoption of Resolution 3314, Mr Rosenstock of the United States was keen to record the US’ interpretation of the provision, noting that the second sentence of Article 5(2) provided that States were responsible for their wrongful acts.98 The same interpretation was favoured by Sir Laurence McIntyre of Australia99 and Mr Steele of the UK, who stated that the first sentence of Article 5(2): adequately reflected the principles embodied in the Nuremberg Charter and repeated in the Declaration on Friendly Relations. That was as far as international law had gone in dealing with criminal liability in the field of aggression, and it was therefore right not to attempt a wider formulation. The second sentence of the second paragraph stated a proposition, not in the context of criminal law, with which all members could agree.100

Mr Kolesnik of the USSR conceded the distinction made in the text, but thought it a mistake: there were no solid grounds for the distinction made between ‘a war of aggression’ and ‘aggression’ in Article 5. Not only a war of aggression but any other act of aggression was a crime against international peace. Any act of aggression must engage international responsibility.101 95

96

97

98 100

See for example 1953 Special Committee Report, 198, 204–206; 1957 Special Committee Report, 220–221; Resolution 2330. Twenty-Fifth Session, Report of the Special Committee, 420; Report of the Sixth Committee, UN Doc. A/8171 (1970) reproduced in Ferencz, Defining International Aggression, vol. II, 439, 445; Report of the Sixth Committee, UN Doc. A/8929 (1972), reproduced in Ferencz, vol. II, 510, 517; Report of the Sixth Committee, UN Doc. A/9411 (1973) reproduced in Ferencz, vol. II, 540, 552. Twenty-Seventh Session, Report of the Special Committee, 503. See further alternatives in Twenty-Eighth Session, Report of the Special Committee, 528, 531. 99 Twenty-Ninth Session, Report of the Special Committee, 579. Ibid., 588. 101 Ibid., 587. Ibid., 592.

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More hesitantly, Mr Bojilov of Bulgaria queried whether ‘the Special Committee had been correct in not stating that Aggression was a crime against international peace’.102 Mr Job of Yugoslavia expressed regret that it had not been possible to state clearly in Article 5(2) that ‘aggression constituted a crime against international peace giving rise to responsibility under international law’.103 He lamented that: The provision, as now formulated, would permit the absurd interpretation that aggression might not be a crime against international peace and that a war of aggression might not give rise to international responsibility.104

Mr Correa of Mexico on the other hand stated that ‘[t]he fact that the text did not expressly say that aggression was a crime against peace could not be construed as authorising a contrario interpretation’.105 Mr Elias of Spain agreed, indicating that it was his delegation’s view that ‘the characterization of a war of aggression as a crime in no way prejudged the legal characterization of acts of aggression’.106 Finally, the Chairman of the Fourth Special Committee, Bengt Broms, pointed out in Sixth Committee discussions that Article 5(2) should not be interpreted as implying that aggression without war would not in future lead to any criminal responsibility. He indicated that the question had not been adequately debated and would need to be clarified in the context of resumed work on the draft Code of Offences Against the Peace and Security of Mankind.107 The correct interpretation of Article 5(2) is thus not clear. Nor is the answer to the question of whether it was intended that the Definition be applicable in an international criminal law framework. Nonetheless, there appears to be a strong basis for concluding that there was insufficient support among Member States for the insertion of a clear statement that all acts of aggression attract individual criminal responsibility or that the Definition could be used by the ILC in its work on the Draft Code, or that the Definition was otherwise relevant to international criminal law. There was agreement that a war of aggression attracted individual criminal responsibility. Taking the case at its highest, the 3314 Definition left open the possibility that other acts of aggression attracted criminal responsibilty.

102 107

Ibid., 584. 103 Ibid., 581. 104 Ibid. 105 Ibid., 594. 106 Ibid., 573–574. Richard L. Griffiths, ‘International Law, the Crime of Aggression and the Ius ad Bellum’ (2002) 2 International Criminal Law Review, 301, 363.

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Finally, it should be noted that Resolution 3314 explicitly states that the Definition should serve only as a guide to the Security Council, where appropriate. Clearly the GA lacks the power to adopt resolutions that are binding on the Security Council. Perhaps more importantly, several commentators suggest that the reaching of a consensus was only possible because Member States were conscious of the fact that the Definition would never be a legal one per se.108 The international community’s focus on the definition of a crime of aggression is largely an accident of history. The failure of Member States to engage in any attempt to define the other terms used in the UN Charter to describe armed violence made the definition of an ‘act of aggression’ all the more difficult. As Bennett concludes, far more instructive than an isolated definition of an ‘act of aggression’ would be a study of the various Charter terms describing armed violence in the form of a hyponym.109 The principal benefit of such an exercise would be the ability of such a study to ‘concentrate on the boundaries, rather than the core, of particular words; in this way one term/concept could be separated from another’.110 Whether such an approach could have avoided the obvious politicisation of the definition during the Cold War is a moot point. What is clear is that the impact of politics on the 3314 Definition was profound – both in terms of the failure of the UN Member States to resolve competing conceptions of an act of aggression and the types of uses of force, and possible exceptions, that are reflected in the Definition’s content. In terms of the Rome Statute’s reliance on the definition in Article 8bis (2), more important is whether the 3314 Definition shaped understandings of aggression after its adoption such that it can be said today to reflect the international community’s understanding of an act of aggression.

Acts of aggression and the jus ad bellum As will be demonstrated in the following section, while aspects of paragraphs 3(a) and (b) of the 3314 Definition find some reflection in the jus ad bellum, on the whole the 3314 Definition is not representative of the Security Council, the GA, or the ICJ’s understanding of an act of aggression. 108 109

Solera, Defining the Crime of Aggression, 203–204; Stone, Conflict Through Consensus, 16. Bennett, ‘A Linguistic Perspective’, 67–68. 110 Ibid.

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Security Council practice Not once has the Security Council referred to the 3314 Definition. This may be attributable to the interplay of international politics between the Council and the GA, rather than the outright rejection of the Definition by the Council. It may also be explained by the fact that the Council has rarely referred to aggression at all.111 The Council has certainly not attempted to develop a competing definition of its own authorship. Nonetheless, given that the Council is the principal addressee of the 3314 Definition, its failure to acknowledge it in any way raises significant questions as to the Definition’s legitimacy and functionality. Various references to aggression in Security Council resolutions provide some indication of the Council’s understanding of the term ‘aggression’. As will be discussed in further detail in Chapter 6, it is difficult to conclude that the Council has ever made an Article 39 determination as to the existence of an act of aggression. It has, however, used the term ‘aggression’ and derivatives thereof in a number of resolutions in ways that suggest that the acts described in those resolutions amount to acts of aggression in the eyes of the Council. The following events have been variously described as ‘aggressive acts’, ‘acts of aggression’ or simply ‘aggression’ by the Security Council: ‘military intervention’,112 ‘military incursions’,113 ‘armed invasion’,114 ‘military occupation’ arising after a use of armed force,115 ‘bombing’,116 ‘military attack’,117 ‘use of military force’,118 ‘attack’119 and ‘killings . . .

111 112

113

114

115

116 117

118 119

See further Chapter 6. Security Council Resolution 326, UN SCOR, 28th Sess, 1691st mtg, UN Doc. S/RES/326 (2 February 1973). Security Council Resolution 386, UN SCOR, 31st Sess, 1892nd mtg, UN Doc. S/RES/386 (17 March 1976). Security Council Resolution 475, UN SCOR, 35th Sess, 2248th mtg, UN Doc. S/RES/475 (27 June 1980); Security Council Resolution 574, UN SCOR, 40th Sess, 2617th mtg, UN Doc. S/RES/574 (7 October 1985); Security Council Resolution 577, UN SCOR, 40th Sess, 2631st mtg, UN Doc. S/RES/577 (6 December 1985). Security Council Resolution 546, UN SCOR, 39th Sess, 2511th mtg, UN Doc. S/RES/546 (6 January 1984). Ibid. Security Council Resolution 567, UN SCOR, 40th Sess, 2597th mtg, UN Doc. S/RES/567 (20 June 1985); Security Council Resolution 568, UN SCOR, 40th Sess, 2599th mtg, UN Doc. S/RES/568 (21 June 1985). Ibid. Security Council Resolution 573, UN SCOR, 40th Sess, 2615th mtg, UN Doc. S/RES/573 (4 October 1985).

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in violation of sovereignty and territorial integrity’.120 In addition, the phrases ‘military operations’,121 ‘armed invasions’,122 and ‘damage and destruction done by . . . invading forces . . . and . . . [the] seizure of equipment and materials’123 have been used interchangeably with the terms ‘acts of aggression’ and ‘aggression’ within resolutions. More specifically, the attack on Cotonou in Benin on 16 January 1977, consisting of small arms fire on the presidential palace, resulting in the death of 100 persons;124 multiple attacks by Southern Rhodesia, which Mozambique claimed resulted in the death of 1,432 civilians, 527 wounded and property damage in excess of $US12.1 million;125 the attack by the South African Defence Force on the village of Maseru on 9 December 1982 resulting in, according to Lesotho, thrity-one deaths and property damage;126 the attack on 14 June 1985 by the South African Defence Force on the capital of Botswana, Gaborone, in which twelve were killed and seven injured as a result of the use of bombs, mortars, grenades and hand arms, coupled with bomb attacks on 13 February and 14 May 1985, resulting in property damage and several deaths;127 the 1 October 1985 air raid carried out by Israel against Tunisia, which, according to Tunisia, was carried out by six military aircraft dropping five delayed-action bombs, resulting in the death of at least fifty and the injury of over 100;128 the assassination of Khalil al-Wazir 120

121

122

123

124

125

126

127

128

Security Council Resolution 580, UN SCOR, 40th Sess, 2639th mtg, UN Doc. S/RES/580 (30 December 1985). Security Council Resolution 445, UN SCOR, 34th Sess, 2122nd mtg, UN Doc. S/RES/445 (8 March 1979). Ibid and Security Council Resolution 447, UN SCOR, 34th Sess, 2139th mtg, UN Doc. S/RES/447 (28 March 1978). Security Council Resolution 387, UN SCOR, 31st Sess, 1906th mtg, UN Doc. S/RES/387 (31 March 1976). Security Council Resolution 405, UN SCOR, 32nd Sess, 2005th mtg, UN Doc. S/RES/405 (14 April 1977). Security Council Resolution 411, UN SCOR, 32nd Sess, 2019th mtg, UN Doc. S/RES/411 (30 June 1977) and Letter dated 22 June 1977 from the Permanent Representative of Mozambique to the United Nations addressed to the President of the Security Council, UN Doc. S/12350 (1977). Security Council Resolution 527, UN SCOR, 37th Sess, 2407th mtg, UN Doc. S/RES/527 (15 December 1982) and Letter dated 9 December 1982 from the Charge´ d’Affaires AI of the Permanent Mission of Lesotho to the UN addressed to the President of the Security Council, UN Doc. S/15515 (1982). Security Council Resolution 572, UN SCOR, 40th Sess, 2609th mtg, UN Doc. S/RES/572 (30 September 1985) and Report of the Secretary-General pursuant to Security Council Resolution 568, UN Doc. S/17453 (1985). Resolution 573 and Letter dated 1 October 1985 from the Permanent Representative of Tunisia to the UN addressed to the President of the Security Council, UN Doc. S/17509 (1985).

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by Israel and the collateral loss of life in Tunisia on 16 April 1988;129 and Iraq’s commission of acts of violence against diplomatic missions and their personnel in Kuwait,130 were described as ‘acts of aggression’ or ‘aggression’ by the Council. Similarly, the attack on the Seychelles International Airport on 25 November 1981 by forty-five mercenaries, described by the Seychelles as inflicting ‘heavy damage’ and resulting in the abduction of hostages, was characterised as ‘mercenary aggression’ by the Council in Resolution 496.131 The Council has in addition on several occasions stated that certain unspecified ‘acts of aggression’ perpetrated by South Africa and Southern Rhodesia violated the sovereignty, air space and territorial integrity of victim States,132 resulting in death, injury and property damage.133 While it may not be possible to discern the Security Council’s definition of an act of aggression for the purpose of the jus ad bellum on the basis of this scant practice, it is possible to draw some conclusions from the foregoing analysis. First, the Council’s practice cannot be considered comprehensive in that several conspicuous uses of inter-State armed violence that might uncontroversially have been characterised as acts of aggression have either been termed threats to, or breaches of, the peace by the Council or were not addressed by the Council at all. This is undoubtedly a reflection of international politics. Second, an important common denominator in Council resolutions referring to aggression is a use of armed force on or against the actual territory of the victim State. This suggests that a violation of territorial integrity is both the most obvious measure of an act of aggression and 129

130

131

132

133

Security Council Resolution 611, UN SCOR, 43rd Sess, 2810th mtg, UN Doc. S/RES/611 (25 April 1988). Security Council Resolution 667, UN SCOR, 45th Sess, 2940th mtg, UN Doc. S/RES/677 (16 September 1990). Security Council Resolution 496, UN SCOR, 36th Sess, 2314th mtg, UN Doc. S/RES/496 (15 December 1981), and Letter dated 8 December 1981 from the Charge´ d’Affaires of the Seychelles to the UN addressed to the President of the Security Council, UN Doc. S/14783 (1981); Security Council Resolution 507, UN SCOR, 37th Sess, 2370th mtg, UN Doc. S/RES/507 (28 May 1982). Resolutions 546, 567 and 574. In addition Security Council Resolution 535, UN SCOR, 38th Sess, 2455th mtg, UN Doc. S/RES/535 (29 June 1983) refers to South African aggressive acts ‘against the territorial integrity and independence of Lesotho’. Security Council Resolution 424, UN SCOR, 33rd Sess, 2070th mtg, UN Doc. S/RES/424 (17 March 1978); Security Council Resolution 455, UN SCOR, 34th Sess, 2171st mtg, UN Doc. S/RES/455 (23 November 1978); Resolution 527; Security Council Resolution 571, UN SCOR, 40th Sess, 2607th mtg, UN Doc. S/RES/571 (20 September 1985); Resolution 577; Security Council Resolution 602, UN SCOR, 42nd Sess, 2767th mtg, UN Doc. S/RES/ 602 (25 November 1987).

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perhaps also something fundamental to its definition notwithstanding the protections also afforded to political independence and sovereignty under Article 2(4) of the UN Charter. Third, this chapter earlier argued that under the Charter the term ‘act of aggression’ is restricted in its application to the most serious breaches of the peace. In this context it is particularly notable that the killing of four people in Tunisia by an Israeli assassin force on 16 April 1988 was characterised as an act of aggression. As deplorable as South Africa’s 9 December 1982 attack on Lesotho killing thirty-one and causing property damage, and its 14 June 1985 attack on Botswana killing twelve and causing property damage are, they too fall on the less serious side of a sliding scale of inter-State uses of armed violence. Thus, there are grounds for concluding that the Council has not restricted its use of the term ‘act of aggression’ and variants thereof to large-scale uses of inter-State armed violence, or to events that entail particularly grave consequences, relatively speaking.134 There is, however, a qualifier to this conclusion. The resolutions employing references to aggression that concern such small-scale events were all directed towards the actions of South Africa and Israel. Other language in these resolutions suggests that the Council’s employment of the term ‘aggression’ was not based solely on the isolated event of immediate concern to the Council, but rather on the fact that the addressees had used armed force over a prolonged period, against a number of different States. Thus we should be cautious to conclude that a one-off, small-scale event could, or should, be similarly labelled. Finally, while the Security Council has never referred to the 3314 Definition, there is some duplication in the language used in the Definition and the language used by the Council to describe events characterised as amounting to acts of aggression. According to both the Council and the Definition an ‘invasion’, ‘attack’ or a ‘military occupation’ resulting from an armed attack can amount to an act of aggression. In addition the Council has characterised as aggression a number of acts that, while not described in terms identical to those employed in the 3314 Definition, closely correspond to the constitutive acts of Article 3. The Council’s references to ‘military intervention’,

134

On this point see D. D. N. Nsereko, ‘Defining the Crime of Aggression: An Important Agenda Item for the Assembly of State Parties to the Rome Statute of the International Criminal Court’ (2003) Acta Juridica 256, 274–275.

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‘military incursion’ and ‘armed invasion’ may be said to cover the same ground as the Definition’s reference to ‘invasion or attack’, while the Council’s reference to ‘bombing’ can be said to be of no significant difference from the Definition’s use of the term ‘bombardment’. Thus, Security Council practice provides some measure of support for a conclusion that the events listed in paragraph 3(a) of the 3314 Definition qualify as acts of aggression under the jus ad bellum. Limited support can also be found for the inclusion in the definition of an act of aggression under the jus ad bellum of the first of the events listed in paragraph 3(b). The constitutive acts referred to in the remaining subparagraphs of Article 3 have not been characterised as amounting to acts of aggression in any Council resolution (the fact that the actions of mercenaries who used force against the Seychelles were not attributed to any State rules out Council support for Article 3(g)).

General Assembly practice The GA has referred to acts of aggression more frequently than the Security Council in its resolutions. Many of the mentions are oblique – there are several examples of references to unspecified ‘acts of aggression’. Nonetheless, according to the Assembly, ‘giving direct aid and assistance to those . . . already committing aggression’;135 ‘engaging in hostilities against United Nations forces’;136 any attempt to annex a part or the whole of the territory of another State,137 or to ‘encroach upon their territorial integrity in any way’;138 ‘armed intervention’;139 the ‘intervention’ of the armed forces of one State in another State;140 ‘military occupation, however temporary, or any forcible annexation

135

136 137

138

139

140

Resolution on the Intervention of the Central People’s Government of the People’s Republic of China in Korea, GA Res 498, UN Doc. A/RES/498 (1 February 1951). Ibid. Resolution on the Question of South West Africa, UN Doc. A/RES/1899 (11 November 1963). See also Resolution on the Declaration on Namibia and Programme of Action in Support of Self-Determination and National Independence for Namibia, UN Doc. A/RES/ S-9/2 (3 May 1978); Resolution on the Situation in the Middle East, UN Doc. A/RES/36/ 226A (17 December 1981). Resolutions on the Question of Basutoland, Bechuanaland and Swaziland, UN Docs A/RES/1817 (18 December 1962) and A/RES/1954 (11 December 1963). Resolution on the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, UN Doc. A/RES/2131 (21 December 1965). Resolution on the Question of Southern Rhodesia, UN Doc. A/RES/2508 (21 November 1969).

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of such territory, or part thereof’;141 ‘illegal occupation’;142 and ‘the occupation of a part of . . . [another State’s] territory’;143 amount to an ‘act of aggression’ or ‘aggression’. Importantly, the Assembly has considered that attempts to annex territory constitute acts of aggression both when the attempt was coupled with a use of force,144 and when no armed force was involved.145 More specifically, Israel’s aerial bombing of the Osirak nuclear reactor in Iraq,146 South Africa’s ‘raid on Matola, Mozambique, in January 1981, its large-scale invasion of Angola since July 1981 and its recent invasion of Seychelles on 25 November 1981’;147 were declared to be ‘aggression’ or ‘acts of aggression’ by the Assembly. In addition the Assembly also referred in 1993 to a deterioration of the situation in the Republic of Bosnia and Herzegovina owing to, inter alia, ‘intensified aggressive acts by the Serbian and Montenegrin forces to acquire more territories by force’.148 Notably, the GA has also referred to the 3314 Definition explicitly in relation to two events. In Resolution ES-9/1 (1982) the Assembly declared that: Israel’s decision of 14 December 1981 to impose its laws, jurisdiction and administration on the occupied Syrian Golan Heights constitutes an act of aggression under the provisions of Article 39 of the Charter of the United Nations and General Assembly resolution 3314 (XXIX).149

141 142 143

144 145

146

147

148

149

Resolution on the Situation in the Middle East, UN Doc. A/RES/3414 (5 December 1975). UN doc. A/RES/S-9/2 (1978). Resolution on the Question of Namibia, UN Doc. A/RES/37/233A (20 December 1982). See also Resolution on the Question of Namibia, UN Docs A/RES/38/36A (1983); A/RES/39/50A (1984); A/RES/40/97A (1985); A/RES/41/39A (1986); A/RES/42/14A (1987); A/RES/43/26A (1988). UN Doc. A/RES/S-9/2 (1978); UN Doc. A/RES/36/266A (1981). A/RES/1899 (1963). It should be noted that in addition Resolutions A/RES/1817 (1962) and A/RES/1954 (1963) declared that any attempt of South Africa to encroach upon the territorial integrity of Basutoland, Bechuanaland or Swaziland would be regarded as an act of aggression. As such, it cannot be said that it was necessary that the attempt be coupled with armed force in order to qualify as an act of aggression. Resolution on Armed Israeli Aggression Against the Iraqi Nuclear Installations, UN Doc. A/RES/ 36/27 (13 November 1981). Resolution on Acts of Aggression by the Apartheid Regime Against Angola and Other Independent African States, UN Doc. A/RES/36/172C (17 December 1981). Resolution on the Situation in Bosnia and Herzegovina, UN Doc. A/RES/47/121 (18 December 1992). Resolution on the Situation in the Occupied Arab Territories, UN Doc. A/RES/ES-9/1 (5 February 1982). See also Resolution on the Situation in the Middle East, UN Doc. A/RES/37/123A (16 December 1982).

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And in Resolution 37/233A (1982) the Assembly declared that: South Africa’s illegal occupation of Namibia constitutes an act of aggression against the Namibian people in terms of the Definition of Aggression contained in General Assembly resolution 3314 (XXIX) of 14 December 1974.150

Thus, while the GA has been more prolific than the Security Council in referring to acts of aggression, its employment of the term has largely been consistent with the Council’s approach. The Assembly has clearly expressed the opinion on multiple occasions that invasion (and intervention) as well as occupation and annexation (the result of a use of armed force or independent of armed force), constitute acts of aggression. This clearly supports Article 3(a) of the 3314 Definition as well as going beyond its provisions in relation to annexations that are independent of a use of armed force. In addition, the GA’s determination that Israel’s 1981 attack on Iraq’s nuclear reactor amounted to an act of aggression can be interpreted as support for the idea that bombardment (listed in Article 3(b) of the 3314 Definition) is capable of amounting to an act of aggression. Importantly, the events described as acts of aggression by the GA might all be characterised as grave breaches of the peace as that term was defined above.

Decisions of the International Court of Justice The ICJ has considered relatively few cases in relation to the use of force. Decisions relevant to the definition of an act of aggression are even rarer: the notion has been considered in only two cases. As others have recognised, the reference to aggression in Nicaragua is something of a misnomer. In the course of identifying the principles of customary international law relevant to the use of force, the Court held that it was ‘necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms’.151 The Court referred to the Friendly Relations Declaration, which it saw as indicative of opinio juris, and noted it includes both ‘certain descriptions which may refer to aggression’ as well as ‘others which refer only to less grave forms of the use of force’.152 The Court went on to state that: There appears now to be general agreement on the nature of the acts which can be treated as constituting armed attacks. In particular, it may be considered to 150

151

Resolution on the Situation in Namibia Resulting from the Illegal Occupation of the Territory by South Africa, UN Doc. A/RES/37/233A (1982). Nicaragua (Merits), [191]. 152 Ibid.

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be agreed that an armed attack must be understood as including not merely action by regular armed forces across an international border, but also ‘the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to’ (inter alia) an actual armed attack conducted by regular forces, ‘or its substantial involvement therein’.153

As the Court acknowledges, the quotes come from Article 3(g) of the 3314 Definition. According to the Court, ‘this description . . . may be taken to reflect customary international law’.154 Unsurprisingly, commentators have been critical of the Court’s failure to distinguish between the terms ‘armed attack’ and ‘aggression’. Yet despite the Court’s lack of precision, it may be concluded that the ICJ considers aggression to be constituted by more serious violations of the prohibition of the threat or use of force, perhaps even analogous to an armed attack. A second issue arising from this section of the Court’s judgment is the proper interpretation of its pronouncement that ‘this description’ reflects customary international law. Many authors have interpreted this passage as meaning that the definition of an act of aggression found in Article 3(g) of the 3314 Definition reflects customary international law.155 This has led some to a corollary argument that, as sub-paragraph (g) was the most controversial of the constitutive acts listed in Article 3, it might be assumed that the entire list has crystallised into customary international law, if not the 3314 Definition as a whole.156 This is an incorrect reading of the above-quoted passage. The Court does not hold that Article 3(g) is a customary definition of an act of aggression; rather it states that the rule being articulated is part of 153 155

156

Ibid., [195]. 154 Ibid. Muhammad Shukri, ‘Will Aggressors Ever be Tried Before the ICC’ in Mauro Politi & Giuseppe Nesi (eds.), The International Criminal Court and the Crime of Aggression, Aldershot: Ashgate, 2004, 33, 35; Gaja, ‘The Long Journey’, 437; Noah Weisbord, ‘Prosecuting Aggression’ (2008) 49 Harvard International Law Journal 161, 179; Solera, Defining the Crime of Aggression, 407–408; Antonopoulos, ‘The Unilateral Use of Force’, 129; Cryer et al, An Introduction to International Criminal Law, 264; Reddi, ‘The ICC and the Crime of Aggression’, 661–662; Troy Lavers, ‘[Pre]determining the Crime of Aggression: Has the Time Come to Allow the International Criminal Court its Freedom?’ (2008) 71 Albany Law Review 299, 301. Mohammed M. Gomaa, ‘The Definition of the Crime of Aggression and the ICC Jurisdiction over that Crime’ in Politi & Nesi, The International Criminal Court, 55, 73–74; Alberto L. Zuppi, ‘Aggression as International Crime: Unattainable Crusade or Finally Conquering the Evil?’ (2007–2008) 26 Penn St. International Law Review 2, 19; Marek Melesko, ‘The Definition of the Crime of Aggression in the Context of the Rome Statute’ (2009–2010) 4 Acta Societatis Martensis 139, 142.

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customary international law – in other words the sending of armed bands is prohibited and can be characterised as an armed attack. This may be more readily accepted if one considers the immediately following passage: The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces.157

Thus the majority judgment in Nicaragua can only be read as providing ICJ support for a jus ad bellum definition of an act of aggression that is limited to more serious uses of armed force. The controversial Dissenting Opinion of Judge Schwebel addresses the status of the 3314 Definition more directly. Schwebel comments that ‘the significance of the Definition of Aggression – or of any definition of aggression – should not be magnified’.158 He notes that the text of the Resolution defers to the UN Charter and the ‘supervening authority in matters of Aggression of the Security Council’ and he cites the ‘conditions’, ‘flaws’, ‘ambiguities’ and ‘uncertainties’ of the Definition.159 He notes also the fact that the Definition is open-ended, although in his opinion ‘any definition of aggression must be, because aggression can only be ultimately defined and found in the particular case in the light of its particular facts’.160 Despite these seeming criticisms, Judge Schwebel recognises that Resolution 3314 is an interpretation of the Charter by the Assembly, which he says ‘is significant’. He continues: ‘weighed as it should be in the light of the practice and doctrine . . . the Definition cannot be dismissed’.161 While Judge Schwebel indicates that Article 3(g) reflects State practice and doctrine, he goes no further, shifting his attention to the fact that the majority judgment, in his opinion, placed insufficient emphasis on the qualifying words in the Article, which require a State’s ‘substantial involvement’ in the sending of armed bands.162 The only other reference to the Definition is found much later in his judgment, where he states that the Definition provides that ‘the first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of Aggression’ – an interpretation of Charter obligations 157 159

Nicaragua (Merits), [195]. 158 Ibid., Dissenting Opinion of Judge Schwebel, [168]. Ibid. 160 Ibid. 161 Ibid. 162 Ibid., [170].

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Judge Schwebel holds ‘is consistent rather than inconsistent with customary international law’.163 Thus, while Judge Schwebel’s Opinion provides some support for the 3314 Definition, the support is measured and is in effect limited to the conclusion drawn in relation to the majority’s judgment: that the activities described in Article 3(g) of the 3314 Definition are prohibited under customary international law. More recently, the question of the definition of an act of aggression arose in the Armed Activities Case. As will be discussed in greater detail in Chapter 6, the majority failed to discuss whether or not Uganda’s activities amounted to an act of aggression, limiting their findings to the fact that Uganda had violated the principles of the non-use of force and non-intervention.164 The only aspect of the majority judgment that is potentially relevant to the definition of an act of aggression relates to the Court’s finding that Uganda did not act in self-defence. Uganda’s self-defence claim was that it had been subjected to an armed attack by the rebel group, the Allied Democratic Forces. In this context, the majority held that ‘[t]he attacks did not emanate from armed bands or irregulars sent by the DRC or on behalf of the DRC, within the sense of Article 3(g) of General Assembly resolution 3314 (XXIX)’.165 Thus, the judgment may be interpreted as echoing the Nicaragua decision by supporting the existence of a customary rule prohibiting the activities described in Article 3(g) of the 3314 Definition (as distinct from commenting on the standing of Article 3(g) as a definition of an ‘act of aggression’ under customary international law). The Separate Opinions handed down in the case are more instructive. Judge Kooijmans dedicated a significant portion of his Separate Opinion to issues of occupation law. He noted the fact that: no distinction is made in the ius in bello between an occupation resulting from a lawful use of force and one which is the result of aggression. The latter issue is decided by application of the ius ad bellum, the law on the use of force, which attributes responsibility for the commission of the acts of which the occupation is the result.166

Judge Kooijmans then questioned whether the reluctance of governments to declare the law of belligerent occupation applicable is ‘due to

163 164

165

Ibid., [263]. See Chapter 6 and the section entitled ‘Other entities have the ability to identify acts of aggression’. Armed Activities Case, [146]. 166 Ibid., Separate Opinion of Judge Kooijmans, [58].

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the impression that occupation has become almost synonymous with aggression and oppression’.167 He continued: I am aware that this impression is lent credibility by Article 3 of General Assembly resolution 3314 . . . This resolution, as important as it may be from a legal point of view, does not in all its terms reflect customary law. The reference to military occupation as an act of aggression is in my opinion less than felicitous.168

In a footnote to this paragraph, Judge Kooijmans quotes Broms, who has written that: it could be argued in view of the way in which . . . paragraph [3(a) of the 3314 Definition] has been construed that the military occupation or annexation presupposes the existence of an act of aggression in the form of an invasion or attack and that it would therefore not have been necessary to include them separately in this paragraph.169

Thus Judge Kooijmans asserts that the 3314 Definition has not crystallised into customary international law, and raises a legitimate criticism of one of the most controversial aspects of the Definition. In his Separate Opinion, Judge Simma held that Uganda’s activities were a ‘textbook example of the first one of the definitions of “this most serious and dangerous form of the illegal use of force” laid down in General Assembly resolution 3314 (XXIX)’.170 Judge Simma thus provides some measure of support for the idea that the term ‘act of aggression’ refers to more serious violations of the prohibition of the use of force and that aspects of the 3314 Definition represent customary international law (in referring to ‘the first one of the definitions’ Judge Simma could be referring to either Article 1 or Article 3(a) of the Definition, although on the basis of syntax the latter seems more logical). A similar point is made in the Separate Opinion of Judge Elaraby.171 That Uganda’s grave violations of the principle of the non-use of force amounted to aggression ‘on account of their very seriousness as well as their specific characteristics’ is the central feature of his judgment. In relation to the meaning of the term ‘act of aggression’, Judge Elaraby held that: 167 169 170 171

Ibid., [62]. 168 Ibid., [63]. Ibid., [63] citing B. Broms, ‘The Definition of Aggression’ (1977) 154 Recueil des Cours 348. Ibid., Separate Opinion of Judge Simma, [3]. Separate Opinion of Judge Elaraby, [1]–[2], [18].

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Aggression is the core and the very essence of the use of force prohibited under Article 2, paragraph 4, of the Charter. As the Preamble of the Definition of Aggression states, ‘Aggression is the most serious and dangerous form of the illegal use of force.’172

More specifically in relation to the 3314 Definition, Judge Elaraby stated that: Although this definition is not without its problems and at times certain Member States had reservations about certain aspects thereof, it was nonetheless adopted without a vote by the General Assembly of the United Nations and marks a noteworthy success in achieving by consensus a definition of aggression. The definition does not claim to be either completely exhaustive or authoritative. Yet it does offer an invaluable guide to the scope of aggression and an elucidation of the meaning of this term in international relations.173

Judge Elaraby provides specific support for certain aspects of the Definition. He notes that the Definition’s Preamble ‘aptly clarifies that aggression “must be considered in the light of all the circumstances of each particular case”’ and he refers to Article 1 of the Definition, saying that Uganda’s activities ‘fall clearly’ within its scope.174 Contrary to the conclusion outlined above, Judge Elaraby interprets the Nicaragua decision as acknowledging ‘the customary international law status of the definition of aggression’.175 He confirms that this is his view, stating that: By dint of its dicta in the Nicaragua case, the Court should, in my view, have embarked on a determination as to whether the egregious use of force by Uganda falls within the customary rule of international law as embodied in General Assembly resolution 3314 (XXIX).176

Judge Elaraby thus asserts that the term ‘act of aggression’ refers to the most serious uses of inter-State armed force. While referring to the 3314 Definition as an incomplete ‘guide’, he also asserts that the Definition represents customary international law, and he relies in particular on Article 1 of the Definition. Overall, while the discussion of acts of aggression by the ICJ has been limited, both the Nicaragua and Armed Activities Cases provide support for the notion that the term ‘an act of aggression’ refers to more serious uses of inter-State armed force. Only the Separate Opinion of Judge Elaraby in the Armed Activities Case states that the 3314 Definition has 172

Ibid., [8].

173

Ibid., [12]–[13].

174

Ibid., [14].

175

Ibid., [16].

176

Ibid., [17].

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achieved customary status. The customary status of the Definition might be said to have been lent some support by the Separate Opinion of Judge Simma in that case and the Dissenting Opinion of Judge Schwebel in Nicaragua – but the latter also explicitly criticises the content of the Definition. The Definition’s validity was also questioned by Judge Kooijmans in the Armed Activities Case. It should also be noted that none of the Opinions supporting the customary status of the 3314 Definition or aspects thereof provide any evidence of state practice or opinio juris to support the conclusions reached. Thus, the judgments provide little support for a view that the 3314 Definition as a whole, or any particular aspect of it, represents customary international law. Nonetheless, on the basis of the Court’s pronouncements, it seems safe to conclude that the types of activity described in Article 3(g) of the 3314 Definition are capable of amounting to acts of aggression.

Conclusion: the definition of an act of aggression for the purposes of the jus ad bellum On the basis of the foregoing it can be concluded that, overall, the 3314 Definition has not crystallised into customary international law under the jus ad bellum despite the opinion to the contrary expressed by Judge Elaraby in the Armed Activities Case. The Definition has not been utilised by the Security Council and has only rarely been referred to by the GA and the ICJ. More importantly, State practice and opinio juris are virtually non-existent.177 It has been further shown that military occupation and annexation resulting from a use of force and the invasion or attack of a State’s territory by another State’s armed forces (or State-sent armed bands) are viewed as amounting to acts of aggression by the GA and the Security Council; support is lent to this interpretation by the Separate Opinions of Judges Simma and Elaraby in the Armed Activities Case. The Assembly has in addition declared that attempts at annexation independent of a use of force constitute an act of aggression. Finally, the Council and the Assembly appear to view the act of bombing another State’s territory as capable of amounting to an act of aggression. Thus the definition has been restricted to attacks directly on the territory of another State.

177

Meron, ‘Defining Aggression’, 10 and Solera, Defining the Crime of Aggression, 202 agree that the 3314 Definition has not crystallised into customary international law.

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Crucially, what characterises these constitutive acts as ‘acts of aggression’ as opposed to mere violations of the prohibition, or even a breach of the peace, has not been specified. It can only be concluded that such acts must be considered ‘serious’ – either because they are large scale, entail serious consequences or are part of a pattern of acts perpetrated by the State named the aggressor.178

Article 8bis (2) As outlined in Chapter 1, States Parties to the Rome Statute relied on Articles 1 and 3 of the 3314 Definition in defining an act of aggression for the purpose of the crime of aggression under the Rome Statute. It was suggested above that the 3314 Definition was adopted for the purpose of collective security, not international criminal law, a concern that was articulated by at least some in the SWGCA during the early days of the definitional debate.179 This should not be understood as a suggestion that fundamentally different definitions are needed for collective security or State responsibility purposes on the one hand, and international criminal law purposes on the other. Rather, it is an acknowledgement of the fact that a criminal law definition has different prerequisites, chief among them, certainty. Given the definition of an ‘act of aggression’ emerging under the jus ad bellum is, and is likely to remain, uncertain and incomplete, it could not have been replicated under the Rome Statute. The ASP could, however, have adopted a definition that was consistent with the jus ad bellum’s understanding of the term ‘act of aggression’, and perhaps focused on the more certain core of the meaning of the term under the law governing the use of force. While no definition under the Rome Statute has any legal application outside of the Court’s jurisdiction,180 the utilisation of a consistent definition in international criminal law and jus ad bellum frameworks would have had reciprocal benefits. If the Court and Council shared a common understanding of an ‘act of aggression’ and the Security Council determined in the course 178

179 180

Cf. Daniel D. N. Nsereko, ‘Bringing Aggressors to Justice: From Nuremberg to Rome’ (2005) 2 University of Botswana Law Journal 5, 23. February 2009 SWGCA Report, [17]; December 2007 SWGCA Report, [23]. See Article 10, which provides that ‘[n]othing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute’.

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of the exercise of its Chapter VII powers that an act of aggression had occurred, it would, at least implicitly, be seen as lending the support of the international community (or an important section thereof) to a subsequent investigation and prosecution of a crime of aggression. There would have been a greater likelihood of decisive action being taken against the States and individuals that commit aggressive acts if mutually reinforcing legal frameworks existed. Chapter 6 will outline the complexities of the jurisdictional provisions adopted in relation to the crime. The lingering confusion associated with the complex opt-out regime applying to State referrals and proprio motu investigations could mean that the Court will be, at least in the short term, dependent upon Council referrals. The adoption of a definition of an ‘act of aggression’ that is broader than that employed in practice by the Security Council therefore runs the risk of the Court being exposed to the criticism that it is failing to prosecute acts that the international community considers to fall under the Statute’s definition. Inconsistency between the jus ad bellum and international criminal law aside, each of the criticisms of Articles 1 and 3 of the 3314 Definition outlined above are equally applicable to the definition of an act of aggression under Article 8bis (2) of the Rome Statute. These criticisms, however, are not exhaustive. New concerns were introduced by the selective employment of provisions of the 3314 Definition under Article 8bis (2), and the failure to consider the changed means and methods of war on the occasion of the latter’s adoption almost four decades after the former. These issues will be studied next, along with the question of whether the illustrative list of aggressive acts in Article 8bis (2) is open or closed, and the status of the Understandings adopted alongside the definition of the crime.

Picking and choosing The SWGCA agonised for some time over how to employ the provisions of the 3314 Definition. Varying suggestions were made reflecting a lack of agreement in the Group as to the appropriateness of including Articles other than 1 and 3. During the SWGCA’s debates, a number of delegations argued that the inclusion of Articles 2 and 4 of the 3314 Definition (which give the Security Council the ability to restrict or expand the definition respectively) would introduce an element of uncertainty that is the antithesis

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of criminal law and would inappropriately introduce a role for the Security Council in defining the crime.181 It was further suggested that Article 2’s stipulation that ‘the first use of armed force by a State in contravention of the Charter, shall constitute prima facie evidence of an act of aggression’ may violate the protection under Article 67(1)(i) that defendants not have imposed upon them any reversal of the burden of proof.182 Article 5(2), which, as noted above, draws a distinction between ‘wars of aggression’ (stated to be a crime against international peace) and ‘aggression’ (which is said to give rise to ‘international responsibility’) was also considered an odd fit. Although ambiguous, the incorporation of this distinction would have been an anomaly in a definition that purports to criminalise a much broader range of conduct than wars of aggression.183 Other delegations favoured a reference to the 3314 Definition in its entirety, stressing that the text was a careful compromise, resulting from lengthy negotiations, and that all of its provisions were interlinked, as evidenced by Article 8.184 Ultimately, the ASP opted to replicate the language of Articles 1 and 3, adding that each of the listed acts that qualify as an act of aggression does so ‘in accordance with United Nations General Assembly Resolution 3314 (XXIX) of 14 December 1974’. What is the effect of this reference, the only purpose of which seems to have been to veil the divide between States Parties? Stefan Barriga, Deputy Permanent Representative of Liechtenstein to the UN and legal adviser to the President of the ASP, was responsible for much of the technical drafting of the aggression provisions both in the SWGCA and in Kampala. He has stated that in drafting the definition of an act of aggression, ‘[o]ne important criterion was to preserve the integrity of the GA resolution 3314 (XXIX) as a comprehensive and delicately balanced text’. He suggests that the definition in Article 8bis (2) must ‘be read in conjunction with other parts of the resolution that address relevant issues, such as statehood (Article 1), self-determination

181

182 183 184

June 2008 SWGCA Report, [76]; December 2007 SWGCA Report, [15]; June 2007 SWGCA Report, [41]; Report of the Special Working Group on the Crime of Aggression, November 2006, ICC Doc. ICC-ASP/5/SWGCA/1 (2006), [20]. June 2007 SWGCA Report, [41]; June 2006 SWGCA Report, [35]. Notes of interventions made during the SWGCA’s debates, on file with author. December 2007 SWGCA Report, [15]; June 2007 SWGCA Report, [39]; November 2008 SWGCA Report, [21]; June 2006 SWGCA Report, [33].

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(Article 7), and the principle that the provisions of the resolution are interrelated and must be read together (Article 8)’.185 It is submitted that Barriga overstates the effect of the Resolution 3314 reference. Although it might be expected that the Court will refer to the balance of the 3314 Definition where disputes arise as to the proper interpretation of Article 8bis (2), it should not be suggested that Articles 2, 4, 5, 6, 7 and 8 otherwise have operative effect.186 This argument is premised in part on the plain language of Article 8bis (2). The relevant sentence reads, ‘[a]ny of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression’. As such, the reader is not instructed to interpret any provision of the definition ‘in accordance with’ the 3314 Definition. Rather, it is a statement of the source of the definition, much like the reference to common Article 3 of the Geneva Conventions in Article 8(c) of the Rome Statute. It was, moreover, open to the States Parties to include any other relevant provisions of the 3314 Definition had this been their intent. Clearly a majority did not support such an approach;187 the SWGCA explicitly rejected a proposal to include a sub-paragraph at the end of the illustrative list of acts that would have read ‘any other act of a similar character which the Security Council determined under Article 4 of resolution 3314 to have constituted an act of aggression’.188 The exclusion of any explicit reference to Articles 2, 4, 5, 6, 7 or 8, therefore, speaks volumes. Such an interpretation is supported by the February 2009 Report of the SWGCA, which recorded that ‘[t]he point was made that the reference to General Assembly resolution 3314 (XXIX) did not import the content of that resolution as a whole’.189 185

186

187

188

189

Barriga, ‘Against the Odds’, 10; Barriga, ‘Negotiating the Amendments’, 25–27. See also Oscar Solera, ‘The Definition of the Crime of Aggression: Lessons Not Learned’ (2009–2010) 42 Case Western Reserve Journal of International Law 801, 809–810, who raises concerns in relation to the incorporation of Articles 2 and 4 of the 3314 Definition. A similar conclusion appears to have been reached by Kress & von Holtzendorf, ‘The Kampala Compromise’, 1191. Cf. Solera, ‘Lessons Not Learned’, 809, 810. Astrid Reisinger, a fellow participant in the SWGCA, agrees with this conclusion. See ‘Defining the Crime of Aggression’ in Carsten Stahn & Larissa van den Herik (eds.), Future Perspectives on International Criminal Justice, The Hague: TCM Asser Press, 2010, 425, 440. June 2008 SWGCA Report, [80] citing Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Sixth Session, New York, 30 November-14 December 2007, ICC Doc. ICC-ASP/6/20, vol. I, annex II, [21]; December 2007 SWGCA Report, [21]. February 2009 SWGCA Report, [17].

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Reference is also had to the Elements of the Crime of Aggression, adopted alongside the definition in Kampala. The ‘Introduction’ to the Elements provides that ‘[i]t is understood that any of the acts referred to in Article 8bis, paragraph 2, qualify as an act of aggression’. This language militates against any suggestion that the reference to Resolution 3314 allows the Security Council to make a determination that an act of aggression has not occurred pursuant to Article 2 of the 3314 Definition. Article 22(1) of the Rome Statute provides that a person shall not be criminally responsible under the Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. I consider that this prevents the Court having reference to any Security Council determinations purporting to expand the definition by virtue of Article 4 of the 3314 Definition. In addition, subparagraph (2) of Article 22 requires the definition of a crime to be strictly construed, prohibiting the extension of a definition by analogy and requiring a definition to be interpreted in favour of a person being investigated, prosecuted or convicted. This further suggests that any ambiguity as to the relevance of Articles 2, 4, 5, 6, 7 or 8 of the 3314 Definition should be resolved in favour of their exclusion. This is not to suggest that the exclusion of Articles 2 and 4 to 8 is altogether a good thing. The result is that the Article 8bis (2) definition has critical gaps. Article 1 of the 3314 Definition (replicated in Article 8bis (2)) is understood to cover all possible types of uses of armed force. Even those who argue that the qualifying terms leave open the possibility of lawfully using armed force in a manner that is not directed against the sovereignty, territorial integrity or political independence of a State, and is otherwise consistent with the Charter, must admit that the range of conduct that could be said to fall within this exception is exceedingly narrow. In this way, the definition fails to distinguish between acts of aggression and lesser violations of the prohibition of the use of force contemplated by the various terms used to describe armed violence under the UN Charter. In the 3314 Definition this was in part cured by the ability of the Council, under Article 2, to decide that ‘a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity’. The exclusion of Article 6 of the 3314 Definition also results in some ambiguity in relation to the exclusion from the definition under Article

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8bis (2) of force authorised by competent bodies of the UN or used in selfdefence. It is true that the definition refers to uses of force ‘inconsistent with’ the UN Charter. The disjunctive ‘or’ in the phrase ‘or in any other manner inconsistent with the Charter’, however, separates the notion of inconsistency with the Charter from the opening phrase of the definition, which separately defines an act of aggression as ‘the use of force by a State against the sovereignty, territorial integrity or political independence of another State’. The omission of a reference to lawful uses of force is a result of the exclusion of Article 6 of the 3314 Definition, which provides that ‘[n]othing in this Definition shall be construed as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning cases in which the use of force is lawful’. This gap was recognised by at least some in the SWGCA: on several occasions attempts were made to insert a reference to ‘unlawful’ uses of force in what became Article 8bis (2).190 Such attempts were, however, rejected on the basis that the wording of the 3314 Definition ‘should not be changed’.191 Given the passion with which States defend their reserved right to use force it is surprising that they have adopted a definition of an act of aggression that deals with permissible uses of force so opaquely. This is not to suggest that the State act element of the crime of aggression captures lawful uses of armed force. As discussed further below, permissible uses of force would fail to meet the threshold built into the definition of the crime of aggression in Article 8bis (1), which requires proof that the use of force was a ‘manifest violation’ of the UN Charter. The point, however, is that as a precursor to its consideration of whether a ‘crime of aggression’ has been committed, the Court is likely to determine whether an ‘act of aggression’ has occurred, in the course of which one would expect the Court to have reference to Article 8bis (2) only. This anomaly may have been corrected by the Elements of the Crime of Aggression, adopted by the ASP alongside the definition of the crime. The third Element refers to the factual occurrence of an act of aggression (‘[t]he act of aggression – the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter 190

191

February 2009 SWGCA Report, [15]; June 2008 SWGCA Report, [77]; December 2007 SWGCA Report, [17]. June 2008 SWGCA Report, [77].

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of the United Nations – was committed’). Element 4 refers to the mental element that applies to the use of force. It states: ‘[t]he perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations’. The Australians who played a significant role in drafting the Elements have expressed the view that: connecting the knowledge requirement to the inconsistency with the UN Charter also had the advantage of confirming that the phrase ‘inconsistent with the Charter of the United Nations’ in the chapeau of the draft Article 8bis (2) referred to all types of use of armed force in that sentence. This approach to Element 4 would therefore remove any doubt as to whether the definition might inadvertently cover situations where force was lawful on the basis of selfdefence or authorisation by the Security Council.192

Arguably, the matter is not as cut and dried as this quotation makes out. If the ICC considers the Elements separately, one at a time, there is a residual risk that in considering the third Element of the crime in isolation, the Court could still omit considerations relating to lawful uses of force. And of course the role of the Elements of Crimes is only to ‘assist the Court in the interpretation and application’ of the crimes defined under Articles 6 to 8bis.193 As Gadirov and Clark note in the leading commentary on the Rome Statute, the phase ‘shall assist’ is ‘quite flexible’: It connotes that it is the definition of crimes first of all, that are to be applied, that the Court does have, to a reasonable extent, discretion in the interpretation thereof, and that the binding force of the statutory definition of crimes and annexed elements is hardly the same.194 192

193 194

Frances Anggadi, Greg French & James Potter, ‘Negotiating the Elements of the Crime of Aggression’ in Stefan Barriga & Claus Kress (eds.), The Travaux Pre´paratoires of the Crime of Aggression, Cambridge University Press, 2012, 72. The author had raised the anomalous failure to refer to lawful uses of force in Article 8bis (2) on several occasions with the Australian delegation in the course of the crime’s negotiations. Article 9 of the Rome Statute. Erkin Gadirov, revised by Roger S. Clark, ‘Article 9’ in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article (2nd edn), Munich: C.H. Beck, 2008, 505, 524–525. McAulifee de Guzman notes that in contradistinction to Article 9, Article 21 states the Court ‘shall apply’ the Elements of Crimes. She, rightly in my view, states that ‘[t]his inconsistency is remedied by reading the two provisions together: the Court “shall apply” the Elements for the purpose of “assisting the Court”. This reading of the Statute comports with the intent of the majority of delegations that the Elements should not be applied directly, but rather used to assist the Court in interpreting the Statute.’ Margaret McAuliffe de Guzman, ‘Article 21’ in Triffterer, Commentary on the Rome Statute, 701, 705.

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Nonetheless, given there will be no incentive for the judges to use that discretion in this case, the sleight of hand affected in the Elements has likely rescued Article 8bis (2) from this strange – and clearly unintended – incongruity.

Open or closed The SWGCA devoted considerable time to the question of whether the list of illustrative acts in Article 8bis (2) was, or should have been, exhaustive (closed) or not (open).195 Those who favoured a closed list relied principally on the possible violation of the nullum crimen sine lege principle posed by an open list. Those on the other side of the divide indicated that there was ‘a need to provide room for future developments of international law and to ensure that perpetrators would not enjoy immunity’.196 While the SWGCA never definitively resolved the matter, the prevailing view is that the list is illustrative only, meaning that the list is open to the extent that acts other than those listed in sub-paragraphs (a) to (g) may fall within the definition of an act of aggression so long as they meet the chapeau definition provided for in the first sentence of Article 8bis (2).197 That this is correct is made clear by a linguistic analysis of the text. The second sentence of the Article states that ‘any of the following acts . . . qualify as an act of aggression’. There is no suggestion in these words that the acts listed exclusively define aggression, rather the implication of the word ‘qualify’ is that the listed acts have simply been predetermined to meet the chapeau definition provided in the first sentence. The construction of Article 8bis (2) in contradistinction to the definitions of other crimes in the Rome Statute further suggests an open list. For example, the lists of various war crimes under Article 8 of 195

196 197

June 2008 SWGCA Report, [34]–[35]; December 2007 SWGCA Report, [18]–[21]; June 2007 SWGCA Report, [47]–[53]. June 2007 SWGCA Report, [51]. This is a common conclusion among commentators, especially those participating in the deliberations of the SWGCA: Reisinger, ‘Defining the Crime of Aggression’, 440; R. S. Clark, ‘Amendments to the Rome Statute of the International Criminal Court Considered at the First Review Conference on the Court, Kampala, 31 May-11 June 2010’, on file with author; Kress, ‘Time for Decision’, 1137; Kress & von Holtzendorf, ‘The Kampala Compromise’, 1191; American Branch of the International Law Association International Criminal Court Committee, The Crime of Aggression: The New Amendment Explained, Questions and Answers, 6 December 2010, on file with author, 6–7; Barriga, ‘Against the Odds’, 11.

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the Statute are each preceded by the phrase ‘namely, any of the following acts’, making it clear that the ensuing list is closed. It is true that the definition of crimes against humanity includes a specific catch-all provision: Article 7(1)(k) refers to ‘other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’. Suggestions that a similar catch-all provision be included in what became Article 8bis (2) were rejected by the SWGCA.198 This was, it is suggested, the result of States’ hesitancy to revisit agreed language, rather than an indication that the majority were of the view that the list was closed. It is also important to note that the structure of Article 7(1) is altogether different from Article 8bis (2); the opening words of Article 7(1) do not provide a chapeau definition, rather they outline the context elements of the crime (widespread and systematic attack). Unlike Article 8, Article 7 therefore required an ‘other acts’ provision to keep the list of constitutive acts open. Finally, it is submitted that this interpretation is supported by the Elements of the crime of aggression. Admittedly, the drafters of the Elements have written that it was ‘considered important to preserve the delicate compromise that had been reached on the definition . . . [which] included different views on the open or closed nature of the list’.199 That said, the material element that relates to the factual commission of an act of aggression does not refer to the illustrative list, rather it references only the chapeau definition. The illustrative list is only dealt with in the opening paragraph of the special introduction to the Elements, which states that ‘[i]t is understood that any of the acts referred to in Article 8bis, paragraph 2, qualify as an act of aggression’. This seems to emphasise the primacy of the chapeau, indicating that any use of force that meets its definition may also be considered to be an act of aggression. It has been suggested that in order to qualify as an ‘act of aggression’ conduct that falls outside the illustrative list must be of comparable gravity and scale to those acts that are listed.200 Given, however, the lack of any requirement that a particular threshold of scale, duration, 198 200

June 2007 SWGCA Report, [53]. 199 Angaddi et al, ‘Negotiating the Elements’, 69. Notes from the December 2007 and June 2008 SWGCA meetings, on file with author and Roger S. Clark, ‘Negotiating Provisions Defining the Crime of Aggression, its Elements and the Conditions for ICC Exercise of Jurisdiction Over It’ (2009) 20(4) European Journal of International Law 1103,1105, who argues that ‘any other potential candidates surely must be interpreted ejusdem generis with the existing list’.

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intensity and/or consequences be reached under the chapeau definition of an ‘act of aggression’ under draft Article 8 bis (2) (as distinct from the threshold incorporated under draft Article 8 bis (1)), this position cannot be sustained. Kai Ambos has suggested that any interpretation of Article 8bis that provides for an open list would contravene the principle of legality.201 Such a view, however, fails to give due account to the fact that the substantive definition of the crime is provided in the chapeau paragraph. Of course, the incorporation of the principle of nullum crimen sine lege under Article 22(2) of the Rome Statute will require the chapeau to be interpreted narrowly and in favour of an accused. And it should be acknowledged that the types of acts covered by sub-paragraphs (a) to (g) are incredibly broad. As such, the conclusion that the list is open may be of little practical import to the deliberations of the Court.

In and out As indicated above, there was no appetite in the SWGCA to revisit the illustrative list of aggressive acts, the fear being that it would open a Pandora’s box of varying views, thereby fatally side-tracking negotiations.202 In this context, it is understandable why the ASP ultimately decided to replicate the list in Article 3 of the 3314 Definition. Nonetheless, it is worth observing, as Weisbord does, that the means and methods of the inter-State use of force have changed since 1974.203 As Schmitt notes ‘a lesser-advantaged state hoping to seriously harm a dominant adversary must inevitably compete asymmetrically. It must seek to counter the strengths of the opponent not head-on, but rather, circuitously, employing unorthodox means to strike at centers of gravity.’204 This raises two questions: first whether the definition does grapple, or should have grappled, with the threat posed by non-State actors to

201

202 203

204

Kai Ambos, ‘The Crime of Aggression After Kampala’ (2010) 53 German Yearbook of International Law 463, 487. December 2007 SWGCA Report, [19]. N. Weisbord, ‘Conceptualizing Aggression’ (2009–2010) 20 Duke Journal of Comparative and International Law 1, 22. Michael N. Schmitt, ‘Computer Network Attack and Use of Force in International Law: Thoughts on a Normative Framework’ (1998–1999) 37 Columbia Journal of Transnational Law 885, 897.

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international peace and security, and second, whether emerging warfare technologies, such as cyber operations, are captured by the definition.

Non-State actors In requiring the use of force by one State against another State, Article 8bis (2) has been criticised as being inappropriately State-centric and naı¨ve for excluding the unlawful acts of non-State actors, allowing terrorist groups in particular to commit ‘acts of aggression’ with impunity.205 Weisbord, for example, sees the definition’s ‘fixation on the state’ as ‘troubling’, arguing that literature on the transformation of war ‘forecasts increasing decentralization, the state’s continued loss of its monopoly on combat forces, the diminishing importance of conventional war, the rise of superempowered groups and individuals, and intangible strategic centers of gravity’.206 Most commentators who worry about the irrelevance of the definition of aggression to modern day international relations refer to the fact that international armed conflicts are increasingly a thing of the past. It is not disputed that the incidence of international armed conflicts is today far surpassed by non-international armed conflicts, such that international armed conflicts are now almost an unusual occurrence.207 This said, such conflicts do still occur (consider the conflict in Afghanistan that at least in its early stages was characterised as an international armed conflict, the conflict between Russia and Georgia over South Ossetia and current tensions between Sudan and South

205

206 207

February 2009 SWGCA Report, [16]; Dawson, ‘What is the Crime of Aggression’, 444; Antonio Cassese, International Criminal Law (2nd edn), Oxford University Press, 2008, 157; Rosemary Rayfuse, ‘The Draft Code of Crimes Against the Peace and Security of Mankind: Eating Disorders at the International Law Commission’ (1997) 8 Criminal Law Forum 43, 60; Steve Beytenbrod, ‘Defining Aggression: An Opportunity to Curtail the Criminal Activities of Non-State Actors’ 36 (2010–2011) Brooklyn Journal of International Law 647; Ambos, ‘After Kampala’, 488; Alexander G. Wills, ‘The Crime of Aggression and the Resort to Force against entities in Statu Nascendi’ (2012) 10 Journal of International Criminal Justice 83–110. It is noted that sub-paragraph 8bis (2)(g) criminalises the State act of sending armed bands and others or the substantial involvement in such groups’ acts of armed force – it therefore excludes the acts of non-State actors per se. Weisbord, ‘Conceptualizing Aggression’, 27. Uppsala Conflict Data Program, UCDP Conflict Encyclopedia, www.pcv.uu.se/research/ UCDP, at 22 May 2008; Human Security Report Project, Human Security Report 2009/2010: The Causes of Peace and the Shrinking Costs of War, New York: Oxford University Press, 2011, 19, 21.

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Sudan that threaten to spill into armed conflict). Moreover, as noted in the 2009–2010 Human Security Report, although rare, international conflicts ‘remain important because for most of the post World War II period they have been far more destructive and deadly than civil wars’.208 It is also important to remember that there is a distinction between acts of aggression and international armed conflict. One does not have to look too far afield to find potential examples of acts of aggression that occurred in recent years: consider Israel’s occupation of Palestinian and Arab territories, the US strike on Pakistan’s territory to kill Osama Bin Laden, North Korea’s alleged sinking of the Cheonan, and US drone strikes in Yemen and Palestine. Rates of incidence should not, however, be the only factor considered when we decide what conduct to criminalise. After all, few suggest that genocide is not deserving of criminalisation, despite the relatively few examples of genocide that have occurred worldwide since the adoption of the Genocide Convention. Rather, what is key is the value of the interest to be protected. In this context, as noted in Chapter 2, State sovereignty is still a valuable thing. As Fox observes: Reports of the demise of a State-centric international legal system are by now old news to international lawyers and international relations theorists. Since the end of the Cold War, as one study quotes, authors have ‘pictured sovereignty as perforated, defiled, cornered, eroded, extinct, anachronistic, bothersome, even interrogated’.209

It is undeniable that a multitude of actors have joined States on the international stage.210 It is true that the world is populated by a number of failed or failing States that are struggling to evidence the classical indicia of statehood in anything more that a juridical sense.211 Looking to the future, it is equally uncontroversial that globalisation, market integration, environmental concerns, evolving technology and consciousness of individual rights will continue to mould the shape of

208 209

210 211

Ibid., 22. Gregory H. Fox, Humanitarian Occupation, Cambridge University Press, 2008, 7 citing Michael Ross Fowler & Julie Marie Bunck, Law, Power and the Sovereign State (1995) 2 (citations omitted). Fox, Humanitarian Occupation, 144. Rosa Ehrenreich Brooks, ‘Failed States, or the State as Failure?’ (2005) 72 University of Chicago Law Review 1159, 1167–1169, 1174.

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modern sovereignty.212 Even so, there seems little real merit to claims that the State template faces disintegration. In the first place, the desirability and relevance of statehood has been confirmed by the number of entities that have joined its ranks since World War II. During the same period, there have been relatively few State deaths, and those that have occurred were not the result of objections to statehood as such, but rather territorial or political ambitions or anachronistic borders. The international community has in fact gone to great lengths to preserve or rehabilitate failing and failed States:213 this effort, aimed at preventing fragmentation into smaller units or amalgamation into larger ones, further indicates the vitality of statehood.214 Statehood has also, since World War II, been enhanced by an expanded range of benefits afforded to States.215 Theories as to how the post-State world will arrive are, moreover, incredibly murky.216 Perhaps most compelling, however, is the fact that as yet no viable alternative to the State has been identified. There is no evidence that either inter-governmental organisations (that depend on States for their successful functioning) or sub-entities will ever be able to supply the same quality or quantity of public services and rights as are currently provided and protected by States.217 In all, while the concepts of sovereignty and statehood have become more complex since World War II, they show no real signs of ceding their central position in international law in the foreseeable future. States are still the basic building block of international relations. As such, there are ample reasons for protecting the territorial integrity and political independence of States through the crime of aggression.218 It is, of course, undeniable that non-State actors have the ability to threaten international peace and security.219 It has also been suggested

212

213 214

215 217

218

219

Alfred Van Staden and Hans Vollaard, ‘The Erosion of State Sovereignty: Towards a PostTerriorial World?’ in G. Kreijen (ed.) State, Sovereignty and International Governance, Oxford University Press, 2002, 165, 167, 171, 181. Brooks, ‘Failed States’, 1163. Fox, Humanitarian Occupation, 7 and 147, citing Ann Hironaka, Neverending Wars (2005); Martti Koskeniemi, ‘The Future of Statehood’ (1991) 32(2) Harvard International Law Journal, 397. Fox, Humanitarian Occupation, 144. 216 Ibid., 148, 153. Van Staden & Vollaard, ‘Erosion of State Sovereignty’, 183; Fox, Humanitarian Occupation, 150–152; Koskenniemi, ‘The Future of Statehood’, 397. Cf. in the particular context of the crime of aggression: May, Aggression and Crimes Against Peace, 215. Ibid.

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that as international criminal law is directed towards individuals, not States, there is no logical reason not to extend the definition of aggression to non-State actors.220 Indeed, given that, as recognised by the High Level Panel on Threats, Challenges, and Change, ‘the norms governing the use of force by non-state actors have not kept pace with those pertaining to States’,221 it has been argued that it is particularly remiss for the crime of aggression not to have been extended to non-State actors.222 In the words of Beytenbrod: ‘the definition of aggression adopted by the ASP . . . limits the powers of the branch of law most effective at policing NSAs’.223 It is not disputed that at least certain inter-State uses of armed force carried out by non-State actors deserve criminal punishment and could be appropriately dealt with by the ICC. It is contended, however, that it would have been inappropriate to incorporate terrorism or other acts of non-State actor violence into the Statute via the crime of aggression. There are a number of reasons for this. In the first place, the legal basis for the crime of aggression is the prohibition of the threat or use of force found in Article 2(4), which prohibits States from threatening or using armed force.224 Moreover, it is worth returning to the observation of the High Level Panel on Threats, Challenges, and Change that ‘[t]he norms governing the use of force by non-State actors have not kept pace with those pertaining to States’.225 As the Panel acknowledges, this is ‘not so much a legal question as a political one. Legally, virtually all forms of terrorism are prohibited . . . but there is a clear difference between this scattered list of conventions and little-known provisions of . . . treaties, and a compelling normative framework, understood by all’.226 As will be explored further in Chapter 4, the crime of aggression (at least in theory) is based on a strong foundation in the jus ad bellum. There is no such consensus or foundation upon which the crime could be extended 220

221

222 224

225

Cassese, ‘On Some Problematical Aspects’, 846; Cassese, International Criminal Law, 157. It might be noted that such suggestions came from outside the SWGCA. As Kress notes, at no point was there any serious support to extend the crime’s application to nonState actors: Kress, ‘The Crime of Aggression Before the First Review Conference’, 856, note 24. UN Secretary-General, Report of the High-Level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2004). Beytenbrod, ‘Defining Aggression’, 649, 656, 665. 223 Ibid., 666. It is recognised that Article 51 does not refer to an armed attack having been perpetrated by a State. Article 51, however, is not the basis for the existence of an act of aggression. High-Level Panel on Threats, Challenges and Change, 51. 226 Ibid.

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to non-State actors, meaning that any attempt to do so would only have undermined the crime. Second, it must be recognised that the crime of aggression and terrorism are two very different species of crime. In particular, while there is no consensus definition of terrorism, most models feature a reference to the element of coercion or the notion that the purpose of the violence perpetrated is to intimidate a population or to compel a government or international organisation to do, or abstain from doing, something. This type of purpose is a poor fit with understandings of the crime of aggression. On this basis, it is contended that the ASP made the right move in refusing to plug the non-State actor gap in the Rome Statute via the crime of aggression.

Cyber operations A more difficult question is whether Article 8bis (2)’s focus on bullets and bombs leaves room for attack by bits and bytes. Offensive information operations may take several different forms, including military deception227 and psychological operations.228 The category of cyber operation most likely to meet the definition of armed force, however, is computer network attacks. A computer network attack can be defined as an intentional act in cyberspace ‘to disrupt, deny, degrade, or destroy information resident in computers and computer networks, or the computers and networks themselves’.229 Computer network attacks vary greatly, ranging from web vandalism to attacks on an enemy’s military-industrial complex.230

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229 230

‘Actions executed to deliberately mislead adversary military decision makers as to friendly military capabilities, intentions, and operations, thereby causing the adversary to take specific actions (or inactions) that will contribute to the accomplishment of the friendly mission’. United States Department of Defense, Dictionary of Military Terms, Joint Publication 102, 8 November 2010 as amended through 15 July 2011, available at www.dtic.mil/doctrine/dod_dictionary/. ‘Planned operations to convey selected truthful information and indicators to foreign audiences to influence their emotions, motives, objective reasoning, and ultimately, the behaviour of their governments, organizations, groups, and individuals. The purpose . . . is to induce or reinforce foreign attitudes and behaviour favourable to the originator’s objectives.’ United States Joint Chiefs of Staff, Joint Publication 3–13, Information Operations, 13 February 2006, II-1. Ibid., II-5. Jason Barkham, ‘Information Warfare and International Law on the Use of Force’ (2001–2002) 34 NYU Journal of International Law and Policy 57, 58; Marco Benatar, ‘The Use of Cyber Force: Need for Legal Justification?’ (2009) 1 Goettingen Journal of International Law 375, 378.

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Thus, while Article 41 of the UN Charter characterises the complete or partial interruption of means of communication as a measure ‘not involving the use of armed force’, this description would apply to some, but not all, types of computer network attacks. A determination of whether an act amounts to a use of armed force traditionally revolved around the use of a weapon. Historically, kinetic impact was required. To accommodate chemical and biological weapons, Brownlie was at the vanguard of jus ad bellum theorists who adopted a results-oriented approach, focusing on whether the act resulted in the ‘destruction of life or property’.231 On this basis, cyber experts argue that ‘some types of computer attacks easily can be determined to be uses of force’.232 In the words of Barkham ‘[a]s long as the method of computer attack seems to work like a weapon by causing damage instantaneously and in a manner analogous to a conventional weapon, it is relatively easy to consider at least some types of [computer] attacks uses of force’.233 Thus, presuming it was carried out by State actors, a computer network attack that resulted in the explosion of the on-board systems of a military unit or in the valves in a State’s water distribution network to be rapidly opened and closed, causing a hammering effect that eventually causes widespread pipe ruptures resulting in death and destruction, would likely amount to a use of armed force under Article 2(4) of the UN Charter. That said, cyber experts acknowledge that not all cyber network attacks amount to a use of armed force.234 An attack will not meet this threshold when it does not directly cause property damage, injury or death. Thus a cyber network attack taking the form of the corruption of banking computer systems, denial of service, or the mounting of an information blockade to limit the flow of electronic information into or out of a target State is unlikely to meet the definition of an act of aggression under Article 8bis (2). It is equally clear that network attacks challenge the notion of ‘territory’ – a concept central to traditional understandings of the use of force, given that ‘[t]he origins, staging, targets, and consequences for 231

232

233

Brownlie, International Law, 362–363. See also Schmitt, ‘Computer Network Attack’, 911. Barkham, ‘Information Warfare’, 79; Benatar, ‘The Use of Cyber Force’, 390; Schmitt, ‘Computer Network Attack’, 913; Eric Talbot Jensen, ‘Computer Attacks on Critical National Infrastructure: A Use of Force Invoking the Right to Self-Defense’ (2002) 38 Stanford Journal of International Law 207, 222. Barkham, ‘Information Warfare’, 80. 234 Jensen, ‘Computer Attacks’, 222.

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these attacks will not be contained neatly within the borders drawn on a map’.235 This could pose challenges related to the ICC’s jurisdictional triggers. Referencing the fact that at the height of cyber attacks against Georgian websites in 2008 during the Russia-Georgia conflict, many websites temporarily moved to servers located in the US, Ophardt explains that: The natural flow of information on the internet creates unpredictable routing through various jurisdictions. A cyber attack will nearly certainly be routed through a large number of territories. The Court must determine whether such routing creates sufficient ‘conduct’ to create jurisdiction of the court. Further, the relocation of Georgian websites to the United States creates another example of jurisdictional difficulty. The cyber attacks that occurred after the move attacked not Georgia’s, but an American company’s equipment. The crime of aggression in cyberspace creates the question of whether the territory should be virtual, actual, or both.236

As this quotation indicates, the issue is two-fold. First, Article 12(2)(a) of the Rome Statute provides that one means of activating the Court’s jurisdiction in the case of State referrals or proprio motu investigations is ratification by ‘[t]he State on the territory of which the conduct in question occurred’. The question that arises in the context of network attacks is when it can be said that the ‘conduct’ occurred on a State’s ‘territory’ given the broad range of ‘territorial’ links that could arguably be said to be enlivened through the routing activities that can constitute a cyber attack. If it is determined that this threshold is set quite high and that ‘conduct’ can only be said to have occurred on the ‘territory’ where the effects of a network attack are felt, the issue remains as to whether cyber attacks on equipment located in one State that have actual effects in another State can be said to have occurred in the territory of the former, the latter, or both. As will be demonstrated in Chapter 6, such jurisdictional conundrums will be particularly critical in the context of the crime of aggression, given the complex and controversial jurisdictional regime adopted in relation to State referrals and proprio motu investigations under Article 15bis.

235

236

Jonathan A. Ophardt, ‘Cyber Warfare and the Crime of Aggression: The Need for Individual Accountability on Tomorrow’s Battlefield’ (2010) 3 Duke Law and Technology Review 1, 21. Ibid., 22.

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Understanding the Understandings In Kampala, alongside the definition of the crime of aggression and the elements of the crime, the Assembly of States Parties adopted seven ‘Understandings’ in Annex III to Resolution RC/Res.6.237 Two of those Understandings are relevant to the definition of an act of aggression under Article 8bis (2). Before addressing the meaning of those Understandings, however, it is necessary to address their status.

The status of the Understandings The idea of adopting Understandings emerged relatively late in the course of the negotiations of the SWGCA. In the lead-up to the Group’s meeting in February 2009, the Chairman of the SWGCA circulated a NonPaper on other substantive issues on aggression to be addressed by the Review Conference. The Non-Paper stated that: In previous meetings of the Special Working Group on the Crime of Aggression (SWGCA) . . . a number of issues have surfaced which the Review Conference might usefully address when adopting the amendments on aggression, though not necessarily in the amendment text itself. Instead, these issues could be dealt with in the resolution by which the provisions on aggression are adopted, or elsewhere in the Final Act of the Conference. Delegations might also be of the view that some, or all of these issues, do not need to be addressed explicitly at all, e.g. because they would be reflected in the report of the Working Group or elsewhere in the ‘travaux pre´paratoires’.238

The Non-Paper thereafter offered a number of drafting suggestions outlining what was ‘understood’ by the States Parties. According to those most intimately involved in the negotiation of the Understandings, the inspiration for a separate document with common understandings came from the UN Convention on Jurisdictional Immunities adopted in December 2004.239 The latter Understandings, however, are styled as an ‘Annex’ to the Convention, and as such are properly regarded as part of the treaty under Article 31 of the Vienna

237

238 239

Understandings regarding the amendments to the Rome Statute of the International Criminal Court on the crime of aggression. February 2009 SWGCA Report, [1]. UN Doc. A/RES/59/38 (2004), annex; Claus Kress, Stefan Barriga, Leena Grover & Leonie von Holtzendorff, ‘Negotiating the Understandings on the Crime of Aggression’ in S. Barriga & C. Kress (eds.), The Travaux Pre´paratoires of the Crime of Aggression, Cambridge University Press, 2012, 81.

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Convention on the Law of Treaties (VCLT).240 As an Annex to a resolution adopting amendments to the Rome Statute, the Understandings adopted alongside Articles 8bis, 15bis and 15ter, cannot be considered to be part of the text of the Rome Statute itself. Indeed, as acknowledged by the drafters: The precise legal significance of what were to become the Understandings was neither debated nor decided upon in the course of the negotiations . . . The approach of the negotiators was a pragmatic one: the understandings had been discovered as a useful additional tool to clarify certain aspects of the ultimate compromise package and delegations chose to make use of this tool.241

As a result, a number of commentators have questioned what legal value the Understandings have and specifically whether the ICC may, or must, have regard to them.242 The problem arises in part because there is no reference to understandings under Article 21 of the Statute (which lists the applicable law that the Court shall apply), or in the aggression amendments themselves.243 This has led some commentators to question whether the Understandings fit within one of the categories of material that can be used in interpreting a treaty under the VCLT. Kevin Heller, in an article dedicated to the question, has expressed doubt as to whether the Understandings have any effect, concluding that the Understandings fall outside Article 31 of the VCLT and are of limited use under Article 32.244 Article 31(1) of the VCLT requires a treaty to be ‘interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. Paragraph (2) defines ‘context’ as including, in addition to the text, its preamble and any annexes, ‘(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty’ and ‘(b) any instrument which was made by one or more parties in connexion 240

241 242

243

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1155 UNTS 331, opened for signature 23 May 1969 (entered into force 27 January 1980). Kress et al, ‘Negotiating the Understandings’, 87. See also 97. Carsten Stahn, ‘The “End”, the “Beginning of the End” or the “End of the Beginning”? Introducing Debates and Voices on the Definition of Aggression’ (2010) 23 Leiden Journal of International Justice 875, 879; B. Van Schaack, ‘Humanitarian Intervention’, 487. Robert Heinsch, ‘The Crime of Aggression After Kampala: Success or Burden for the Future?’ (2010) 2(2) Goettingen Journal of International Law 713, 729. Kevin Heller, ‘The Uncertain Legal Status of the Aggression Understandings’ (2012) 10 Journal of International Criminal Justice 229–248.

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with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty’. Subparagraph (3)(a) provides that together with the context, there shall be taken into account ‘any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions’. Heller makes it clear that his preferred interpretation of Article 31(2) is that none of its provisions apply to agreements made in connection with the conclusion of an amendment to a treaty.245 Heller’s argument in relation to the non-applicability of Article 31(2)(a) is based on the words ‘in connexion with the conclusion of the treaty’. He argues that the adoption of an amendment cannot be equated to the conclusion of a treaty. The logical extension of this argument is that the references to the term ‘treaty’ throughout Article 31 do not encompass amendments to treaties. This is clearly incorrect: there is no basis for asserting that different rules apply to the interpretation of amendments to treaties. The better interpretation is, therefore, that Article 31(2) should be read as also applying to agreements and instruments related to the conclusion of amendments to treaties. For this reason, Article 31(2)(a) should be seen as being applicable to the Understandings. Regardless, Heller argues that neither the explicit unanimity requirement in Article 31(2)(a), nor the mirror requirement that he says is implicit in Article 31(3)(a), can be met due to the number of votingeligible States Parties absent from the Review Conference at the time of the amendments’ adoption by consensus.246 It is suggested that Heller overstates the requirements of Article 31(2)(a) and (3)(a). In effect, his interpretation would require a threshold to be met that is higher than the valid adoption of an amendment to the Rome Statute at a review conference (which can be done by consensus)247 – a curious result indeed. It also strains the language of the Articles in question. The term ‘party’ is defined in Article 2(1)(g) of the VCLT as meaning ‘a State which has consented to be bound by the treaty and for which the treaty is in force’. In the context of the conclusion of an original treaty text, it is nonsensical to talk of ‘parties’ to that treaty agreeing to an interpretative agreement at a time before they could possibly have 245 246

247

Ibid., 237, 239–240. Ibid., 237–238, 240–241. Heller argues that both the ILC Commentary to the draft Convention and expert commentary clearly indicate that the reference to ‘the parties’ in Article 31(3)(a) must be read as ‘all the parties’. This is a separate question to the entry into force of those amendments for States Parties, an issue discussed in detail in Chapter 7.

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ratified or acceded to the treaty in question. In light of these anomalies, it is suggested that common sense must be applied to the interpretation of the Articles, and that the Understandings, adopted by consensus under the same enabling resolution by which the amendments themselves were adopted, meet the definition of an agreement under Article 31(2)(a) (and were a different interpretation of Article 31(2) adopted, Article 31(3)(a)) and are thus a legitimate interpretive aid. If the foregoing is not accepted, and Heller’s unanimity requirement were to prevail, this would merely point to the applicability of Article 31 (2)(b), which, as noted above, refers to ‘any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty’. According to Heller, the lack of representation of States Parties at the conclusion of the Review Conference also ‘dooms’ any attempt to rely on this Article. While the sub-paragraph does not require all States Parties to ‘make’ the interpretive agreement, Heller argues that all must agree with the content of the particular instrument.248 While acknowledging that acceptance can be express or implied,249 Heller argues that some sort of positive act is required and that acquiescence cannot be implied from a choice not to attend the Review Conference, given States Parties did not have knowledge of what would be adopted and had no way of registering disagreement from afar.250 Heller further argues that acquiescence cannot be inferred from the lack of objections made since the Conference due to ‘the uncertainty that surrounds the meaning of the Understandings . . . States Parties that do not know how the Understandings will affect the crime of aggression cannot be said to have accepted a particular interpretation of the aggression amendments by failing to object to them’.251 It is asserted that this amounts to a misinterpretation of Article 31(2)(b). First, Article 31(2)(b) requires ‘the other parties’ to accept that the instrument is ‘related to the treaty’. As noted by Gardiner, ‘the 248 249

250 251

Heller, ‘The Uncertain Legal Status’, 238. Ibid., citing Sir Humphrey Waldock, Fifth Report on the Law of Treaties, UN Doc. A/CN.4/ 183 and Add. 1–4 (1966) 98; M. E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009) 430. Heller, ‘The Uncertain Legal Status’, 238–239. Ibid., 239. In a footnote Heller further relies on a rather fanciful suggestion that the typical Article 31(2)(b) agreement is a ‘carefully negotiated document’ compared with the Understandings that were ‘negotiated quickly’. Such a suggestion ignores the reality of multilateral treaty negotiations where the crystallisation of controversial texts at the eleventh hour is actually quite common.

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agreement of the parties lies only in their acceptance of an instrument of unilateral or group origin as being related to the treaty’.252 This is confirmed by the ILC’s commentary to the Draft Articles on the Law of Treaties, which notes that ‘a unilateral document cannot be regarded as forming part of the “context” within the meaning of Article [31] unless not only was it made in connexion with the conclusion of the treaty but its relation to the treaty was accepted in the same manner by the other parties’.253 I agree with Heller that a failure to object to an agreement can convey an implied acceptance of the same. I disagree, however, with his conclusion that the lack of objection raised by States Parties since the adoption of the Understandings cannot be interpreted as acquiescence given the ‘ambiguity’ of the Understandings. There is nothing in Article 31(2)(b) that nullifies an interpretive agreement if it is itself subject to differing interpretations. While I agree that the ‘Understandings’ do not resolve ambiguities relating to the provisions they purport to clarify,254 this is not part of the test for whether an agreement can be considered ‘context’ for the purpose of identifying interpretative aids. As such, if the ICC was to conclude that Article 31(2)(a) does not apply to the Understandings, it should find that Article 31(2)(b) does. If, contrary to the foregoing, a different conclusion was reached, the Understandings would have to be considered relevant under Article 32(1) of the VCLT.255 Article 32(1) provides that: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

252 253

254 255

Richard Gardiner, Treaty Interpretation, Oxford University Press, 2008, 204. Draft Articles on the Law of Treaties with Commentary, International Law Commission, Report of the International Law Commission on the Work of its Eighteenth Session in 1966 Yearbook of the International Law Commission, Vol. II, UN Doc. A/CN.4/SER.A/1966/Add.1 (1966), 221. See further below in the section entitled ‘Understanding an “act of aggresssion”’. Heller’s article also canvasses whether the Understandings fall within the ambit of Article 41 of the VCLT: Heller, ‘The Uncertain Legal Status’, 242–245. He concludes they do not. I agree that there is no basis on which the Understandings could be characterised as an agreement to modify the treaty as between two or more parties.

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Heller concludes that the characterisation of the Understandings as supplementary means of interpretation under Article 32(1) is ‘the most persuasive interpretation’.256 Nonetheless, he dismisses the possibility of the Court relying on the Understandings to clarify an ‘ambiguous or obscure’ interpretation and argues that ‘although there is clearly some ambiguity concerning what qualifies as a “manifest” violation of the UN Charter, the Understandings are designed to make it more difficult to find a manifest violation, not to clarify the definition of “manifest”’,257 the result of which, he says, is that the Court is unlikely to rely on the Understandings under Article 31(1)(a). Heller further rejects the likelihood of the Court needing to avoid ‘a manifestly absurd or unreasonable’ interpretation.258 As such, Heller concludes: the Court would be likely to rely on the Understandings only to ‘confirm the meaning resulting from the application of article 31’. But that would mean, almost by definition, that the Understandings would have no substantive effect.259

It is suggested that this is another confused conclusion. It is irrelevant that the Understandings were aimed at raising the manifest threshold. The effect of resorting to the preparatory materials of a treaty is not relevant to a determination of whether such materials may properly be considered. Under the terms of Article 32(1) if the meaning of any aspect of Articles 8bis, 15bis, or 15ter, is, inter alia, ambiguous, preparatory materials may be consulted to determine the meaning of those provisions. Finally, although I consider it an unlikely scenario, even if the Understandings are ultimately only used to confirm the Court’s interpretation of the amendments, this would not invalidate them as such. A majority of States Parties in fact observed during the Review Conference that at least the additional Understandings included at the behest of the United States had no affect on the definition as it was understood by the SWGCA.260 This should not be taken to imply that the Understandings serve no purpose. If the Court relies on the Understandings to confirm its interpretation of the amendments this will, if nothing else, help convince critics that the Court has acted in accordance with the intention of the States Parties in extending the ICC’s jurisdiction over the crime of aggression.

256

Ibid., 245.

257

Ibid., 246.

258

Ibid.

259

Ibid.

260

Notes on file with author.

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In conclusion, it is suggested that it is inconceivable that the ICC will fail to consider the Understandings in interpreting the crime of aggression amendments. The Understandings are a clear expression of the intention of the ASP in adopting the amendments at the Review Conference. Whether they are considered part of the context of the treaty under Article 31(1)(a) or (b) (Article 31(1)(b) arguably being the more appropriate) or are viewed as part of the travaux pre´paratoires under Article 32, the Understandings have a valid role to play.

Understanding an ‘act of aggression’ Understandings 4 and 6 relate to the definition of an ‘act of aggression’ under Article 8bis (2). These Understandings were not the result of the work of the SWGCA, but were the product of suggestions made by the United States in the final two meetings of the ASP in the lead-up to the Review Conference and a document outlining an extensive number of additional proposed understandings circulated in Kampala as part of a largely unsuccessful attempt to convince States Parties to reshape the definition of the crime through the backdoor of the Understandings.261 Understanding 4 provides: It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.

Understanding 6 provides: It is understood that aggression is the most serious and dangerous form of the illegal use of force; and that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations.

The meaning of Understanding 4 is relatively straightforward. It merely reiterates Article 10 of the Rome Statute – it is difficult to identify anything new introduced by its language. Its purpose appears

261

Christian Wenaweser has written that ‘[t]here was a certain level of understanding for the concerns advanced, but the view prevailed that reopening the definition would inevitably lead to its total unravelling’: ‘Reaching the Kampala Compromise on Aggression: The Chair’s Perspective’ (2010) 23 Leiden Journal of International Law 883.

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to have been simply to comfort those States who were concerned about the effect of a criminal law definition on the jus ad bellum.262 Understanding 6 is far more complex – and important. First, its terms go well beyond Article 8bis (2), which does not recognise that acts of aggression must be contrasted with threats to, and breaches of, the peace, let alone that the term ‘act of aggression’ describes the most serious uses of inter-State armed violence. Second, Article 8bis (2) refers only to types of uses of force, not their consequences. It is true that subparagraph 8bis (2)(a) refers to military occupations resulting from invasion or attack by armed forces and annexation by the use of force, but the link in this paragraph to particular uses of force confuses the issue. There is certainly no clear instruction in Article 8bis (2) to take the consequences of a use of force into account in assessing whether the definition of an act of aggression has been met. In this context it is important to note the motivation and history behind Understanding 6. The original US formulation was aimed at excluding unilateral humanitarian intervention. It read: It is understood that, for the purposes of the Statute, an act cannot be considered to be a manifest violation of the United Nations Charter unless it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith, and thus an act undertaken in connection with an effort to prevent the commission of any of the crimes contained in Articles 6, 7 or 8 of the Statute would not constitute an act of aggression.263

Having formed the view that there was little appetite for an explicit exception for humanitarian intervention, the focal point for negotiations on the Understandings proposed a modified language: It is understood that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the purposes for which force was used and the gravity of the acts concerned and their consequences, and that only the most serious and dangerous forms of the illegal use of force constitute aggression.264

In the informal meeting at which this proposal was discussed, Iran in particular objected to any reference to the purpose for which force was used, arguing that this was outside the language used in both Article 2(4) 262 263

264

But see further Chapter 4. Proposals for additional understandings were informally circulated by the US at the Review Conference on 6 June 2010 (on file with author). Non-Paper on Possible Further Understandings (Annex III of the Conference Room Paper), 8 June 2010, circulated by the German Delegation, on file with author.

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of the UN Charter and the 3314 Definition. A poor grasp of the nuance of the distinction between purpose and consequence on the part of the delegates representing the US allowed the language to be massaged through a process of group drafting, resulting in Understanding 6 as it was adopted.265 This chapter has indicated that the gravity of the consequences of a threat or use of force are taken into account in determining whether a use of force amounts to an act of aggression under the jus ad bellum. I would argue that the plain meaning of Understanding 6 should be read as instructing the ICC to approach the consequences of a use of force in much the same way. Several other commentators, however, have suggested that the Understanding provides an opening for a defence to be raised that a use of force in technical violation of Article 2(4) should not be characterised as an act of aggression because it had beneficial consequences, such as ending the perpetration of mass atrocity crimes266 – in other words they are reading into the Understanding, the ‘purpose’ consideration proposed the US. Such an interpretation requires some straining of language and is not supported by the travaux pre´paratoires. Overall, Understanding 6 is potentially an incredibly helpful addition to the crime of aggression amendments. The application of the meaning of its plain reading would address many, albeit not all, of the criticisms associated with the definition that have been outlined in this chapter by helping to bring international criminal law more closely in line with the jus ad bellum. At the same time, however, there is potential for Understanding 6 to lead the Court into deeply political debates about the prohibition of the use of force, such as how to handle conduct that is unlawful but widely considered to be legitimate. At any rate, given there would seem to be little ambiguity, obscurity, absurdity or unreasonableness associated with Article 8bis (2) (as those terms are understood under Article 32(1) of the VCLT), the potential

265

266

Neither Harold Koh (US Department of State Legal Adviser and head of the US Delegation in Kampala) nor Steven Rapp (US Ambassador-at-Large for War Crimes) were present as the US Delegation struggled to provide counter-arguments when presented with interpretations of Article 2(4) and the 3314 Definition. In an unguarded moment the US representatives agreed to compromise text. Upon realising such agreement was inconsistent with their negotiating mandate, a junior member of the delegation was sent to fetch Harold Koh. He sought offline discussions with the focal point, but the ‘damage’ had already been done. On this point, see Van Schaack, ‘Humanitarian Intervention’; Heinsch, ‘The Crime of Aggression After Kampala’, 729.

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utility of the Understanding will likely only be fulfilled if the ICC considers that the Understandings meet the requirements of the VCLT’s Article 31(2)(b) or Article 32(1). This poses something of a concern, given the desirability of certainty in international criminal law.267 While the operation of Article 22 of the Rome Statute would indicate that Understanding 6 should be given effect so as to benefit an accused, it is far from satisfactory that supplementary materials have to be resorted to in order to cure deep flaws in the Rome Statute’s definition of an act of aggression.

Conclusion: an act of aggression under Article 8bis (2) This chapter has shown that the definition of an act of aggression under Article 8bis (2) is far from desirable. As Wesibord has written, ‘[i]n a context where legitimacy is gauged by consensus and cooperation, basing an agreement on past agreements proved to be an effective approach, even as it resulted in certain substantive and analytic weaknesses in the definition’.268 Those weaknesses include the fact that the text of Article 8bis (2) fails to take into account the distinction between acts of aggression and other uses of armed violence under the UN Charter. While Understanding 6 goes someway to addressing this problem – so long as the interpretation of relevant provisions of the VCLT put forward in this chapter prevails – the fact remains that Article 8bis (2) is based on the deeply flawed 3314 Definition, which incorporates a questionable list of constitutive acts that do not reflect the understanding of an act of aggression that is emerging under the jus ad bellum. Understanding 6 will itself also potentially expose the Court to deeply political matters if it uses the text of the understanding to enter the ‘unlawful but legitimate’ debate. While other commentators have attacked the definition on the basis that it fails to cover the types of uses of force that are of the greatest concern in the twenty-first century,269 this Chapter has demonstrated that the principal examples cited in this context – cyber attacks and the use of force by non-State actors – have in fact been treated

267

268

Heinsch, ‘The Crime of Aggression After Kampala’ 730, citing B. Broomhall, ‘Article 22’ in Triffterer, Commentary on the Rome Statute, 714–729 and W. A. Schabas, ‘Article 23’, in Ibid., 731–734. Weisbord, ‘Conceptualizing Aggression’, 5. 269 Ibid., 13.

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appropriately. Other unforeseen modes of the use of force can be accommodated by the chapeau definition, which leaves the list of illustrative acts open. Nonetheless, it cannot be ignored that the definition under Article 8bis (2) contains anachronistic inclusions that undermine the definition’s relevance, and therefore its legitimacy, today.270

270

Ibid., 7.

4

The elevation of acts of aggression to the State act element of the crime of aggression

As noted at the outset of Chapter 3, to amount to the State act element of the crime of aggression under Article 8bis (1), an act of aggression must by its character, gravity and scale, constitute a manifest violation of the Charter of the United Nations. This chapter will analyse this qualifying threshold in an attempt to provide meaning to it. A number of criticisms associated with the definition will be rebuffed, particularly that the definition violates the nullum crimen sine lege principle and that the definition has given a green light to ‘lesser violations’ of the UN Charter. At the same time, it will be demonstrated that the definition of the State act element of the crime of aggression under the Rome Statute is inconsistent with the crime’s customary definition; and that it will require the judges of the ICC to resolve controversies associated with unclear rules under the jus ad bellum. The chapter will finally consider the grounds for excluding criminal responsibility under Article 31 of the Statute in relation to the crime.

An act of aggression that by its character, gravity and scale constitutes a manifest violation of the Charter of the United Nations Chapter 1 outlined the fact that the incorporation of a qualifying threshold was the tool used by the SWGCA to bridge the definitional divide. Those States previously opposed to the employment of the 3314 Definition were persuaded to accept its use on the basis that the qualifying threshold would limit the ambit of that definition. The ‘manifest violation’ threshold was preferred by a majority over any explicit reference to a requirement that a use of force amount to a war of aggression 124

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(which was seen as anachronistic in the twenty-first century) or that a use of force have the object or result of the annexation or occupation of territory (viewed as being overly restrictive), and over terms such as a ‘serious’ or ‘flagrant’ violation (viewed as inadequate and unclear). Several commentators have criticised the threshold on the basis that the meaning of a ‘manifest violation’ is itself not clear.1 The ambiguity surrounding the threshold was a particular concern of the US when it rejoined the negotiating table. In his intervention in Kampala, US State Department Legal Adviser, Harold Koh, noted that the US was ‘concerned that the apparent consensus on the wording of Article 8bis marks sharp disagreement on particular points regarding the meaning of that language’.2 It is, however, evident from interventions made by States during meetings of the SWGCA that the threshold was intended, at least by some, to exclude two types of acts from the jurisdiction of the Court: acts of insufficient seriousness and acts of questionable legal status.3 The former is perhaps less controversial. An interpretation requiring acts to meet a certain level of gravity is clearly consistent with the understanding of the meaning of acts of aggression under the jus ad bellum and with the traditional understanding of the crime, and is supported by earlier alternative threshold proposals that employed explicit references to seriousness, gravity and largeness-of-scale.4 A number of States (including, in particular, Germany) consistently maintained during the SWGCA’s negotiations that a threshold was also necessary to ensure that uses of armed violence of questionable legal

1

2

3

4

Andreas Paulus, ‘Second Thoughts on the Crime of Aggression’ (2009) 20(4) European Journal of International Law 1117, 1121; Solera, ‘Lessons Not Learned’, 808–811; Heinsch, ‘The Crime of Aggression After Kampala’, 726–728; Marko Milanovic, ‘Aggression and Legality: Custom in Kampala’ (2012) 10 Journal of International Criminal Justice 165, 170; Mary Ellen O’Connell and Mirakmal Niyazmatov, ‘What is Aggression? Comparing the Jus ad Bellum and the ICC Statute’ (2012) 10 Journal of International Criminal Justice 189, 201–204; Akande, ‘Prosecuting Aggression’, 5. Statement by Harold Hongju Koh, Legal Adviser, US Department of State, Review Conference of the International Criminal Court, Kampala, Uganda, 4 June 2010, on file with author. Notes of the June 2006, June 2007, December 2007 and June 2008 SWGCA Meetings, on file with author. Proposal Submitted by Egypt and Italy on the Definition of Aggression, UN Doc. A/AC.249/1999/ WG.1/DP.6 (1997); Draft Statute for an International Criminal Court, 13–14; Proposal Submitted by Guatemala on Document PCNICC/2001/WGCA/DP.2, UN Doc. PCNICC/2001/WGCA/DP.3 (2001); 2002 Discussion Paper Proposed by the Coordinator; Suggestion Regarding Paragraph 1 of the 2007 Chairman’s Paper, circulated informally to the SWGCA by France, June 2007, on file with author.

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status were also not criminalised.5 SWGCA meeting reports do not describe this position well. For example, the June 2006 and January 2007 Reports refer to the threshold’s role in relation to the exclusion of ‘borderline’ cases.6 Other reports fail to mention an alternative interpretation at all, focusing exclusively on considerations of seriousness.7 This trend was remedied in June 2008, when Germany, in consultation with Australia, successfully proposed an amendment to the draft June 2008 Report of the SWGCA.8 In the context of the Elements of the crime of aggression, the SWGCA’s June 2009 Report also states that the manifest violation qualification ‘was relevant to determine whether the Court had jurisdiction and would exclude situations that could fall within a legal grey area, but was without prejudice to other legal avenues that the victim State might wish to pursue, such as a ruling by the International Court of Justice on the act of aggression’.9 Several commentators who participated in the negotiations have also observed that the threshold is intended to serve the purpose of excluding, in addition to acts of insufficient seriousness, uses of force the legality of which is the subject of genuine debate.10 It thus seems clear that the intent of at least some States was that the reference to ‘manifest violation’ in Article 8bis (1) requires not only that an act of aggression meet a certain level of seriousness, but also that the act of aggression constitute an unarguable legal violation of the UN Charter. Whether this intention has been adequately captured by the language employed in Article 8bis (1) is, however, open to debate. The meaning of the term ‘manifest’ is not obvious. Little guidance is provided in the 5

6 7 8

9

10

Proposal by Germany, Article 20: The Crime of Aggression, An Informal Discussion Paper, UN Doc. A/AC.249/1997/WG.1/DP.20 (1997); Proposal Submitted by Germany: Definition of the Crime of Aggression, UN Doc. PCNICC/1999/DP.13 (1999); Proposal Submitted by Germany, The Crime of Aggression: A Further Informal Discussion Paper, UN Doc. PCNICC/2000/WGCA/DP.4 (2000); Definition of Aggression in the Context of the Statute of the International Criminal Court, ICC Doc. ICC-ASP/4/SWGCA/1 (2005); Response to Discussion Paper Three, Compiled by Phani Livada, circulated informally to the SWGCA, June 2006, on file with author, responses by Germany, Greece and Spain to Question 3. June 2006 SWGCA Report, [19]; January 2007 SWGCA Report, [16]. June 2007 SWGCA Report, [55]–[57]; December 2007 SWGCA Report, [25]–[26]. June 2008 SWGCA Report, [24]. The amendment was introduced at the initative of the author in an attempt to reverse the trend of SWGCA Reports not capturing the ‘legal grey areas’ function of the proposed threshold. June 2008 SWGCA Report, [24]. In its February 2009 Report, the SWGCA reverted to a reference to the exclusion of ‘borderline cases’: February 2009 SWGCA Report, [13]. Barriga, ‘Negotiating the Amendments’, 29; Kress, ‘Time for Decision’, 1138; James Potter, ‘The Threshold in the Proposed Definition of the Crime of Aggression’ (2008) 6 New Zealand Yearbook of International Law 155, 165.

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Elements of the crime. Element 5 simply repeats the language of Article 8bis (1). Paragraph (3) of the Special Introduction to the Elements of the crime states that ‘[t]he term “manifest” is an objective qualification’. This is useful in that it makes it clear that assessments as to whether the threshold has been reached are independent of the opinions of the actors involved,11 but it sheds little light on the meaning of the term. In an Understanding proposed during the Review Conference, the US attempted to make use of the definition of a ‘manifest violation’ found in Article 46 of the VCLT relating to violations of internal law regarding competence to conclude treaties that invalidate a State’s ratification of, or accession to, a treaty. That definition provides that ‘[a] violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith’. The Understanding was rejected by States in Kampala but in all likelihood because it was linked in the US’ proposal to an exception relating to humanitarian interventions, discussed in Chapter 3. As such, it is unlikely to be interpreted as a rejection of the definition per se and, despite the fact that it was ultimately not reflected in the Understandings, one can foresee that the VCLT definition might have some persuasive value for the judges of the ICC. More important, however, are the factors that the Article instructs the Court to consider in making a determination as to whether the manifest threshold has been reached. Gravity and scale seem to be clearly relevant to considerations of seriousness. It is difficult to see, however, how these terms are relevant to the question of the legality of a use of force, as neither concept is ordinarily employed in order to determine whether or not Article 2(4) of the Charter has been breached. The reference to the ‘character’ of an act of aggression is more obtuse.12 It could be read as a reference to types of acts or a requirement of evidence of mala fides.13 There is, however, no evidence available to support an assertion that either interpretation was intended by the SWGCA. The list of qualifying acts that follows the chapeau in Article 8bis (2) militates against an interpretation that the means by which force is carried out is relevant to determining whether the manifest threshold has been breached. And the SWGCA clearly steered away from any

11 12

13

Heinsch, ‘The Crime of Aggression After Kampala’, 727. Paulus has expressed the view that ‘“Character”, of course, is so indeterminate that it is also meaningless’. Paulus, ‘Second Thoughts’, 1121. Van Schaack, ‘Humanitarian Intervention’, 486.

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object or purpose requirement in rejecting both the traditional definition of crimes against peace, and the German attempt to translate the definition of ‘wars of aggression’ into a twenty-first century crime.14 The better view, therefore, seems to be that the reference to ‘character’ is related to the requirement that an incontrovertible breach of Article 2(4) be established.15 This raises the question of the relationship between character, gravity and scale. Heinsch argues that the use of the conjunctive ‘and’ in the definition indicates that all three components have to be fulfilled.16 Understanding 7 adopted at the Review Conference addresses this issue. It states: It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a ‘manifest’ determination. No one component can be significant enough to satisfy the manifest standard by itself.

The question begged by this Understanding is whether all three factors must point to a manifest determination (as suggested by the first sentence), or whether the satisfaction of two of these factors would justify this conclusion (as suggested by the second). The question is an important one. Presume, for example, that State A sends a trio of commandos into the territory of State B (without consent or UN authorisation), who execute the President of State B by the firing of a single bullet. Arguably such a use of force would satisfy the gravity and character tests, but it would be questionable as to whether the ‘scale’ component of the manifest violation threshold had been met.17 Some guidance is provided by the drafting history of the Understanding. The language originally proposed by the US read: It is understood that in determining whether an act is manifest, all three components of character, gravity, and scale must be sufficient to justify a ‘manifest’ determination. Satisfaction of one criterion could not by itself be sufficiently severe to meet the ‘manifest’ standard.

14 15

16 17

1999 Proposal Submitted by Germany; 2000 Proposal Submitted by Germany. Kress & von Holtzendorf, ‘The Kampala Compromise’, 1193; Potter, ‘The Threshold in the Proposed Definition’, 165. Heinsch, ‘The Crime of Aggression After Kampala’, 729. Solera, ‘Lessons Not Learned’, 808–809 raises similar concerns.

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This language clearly suggests that all three factors must point to a manifest determination. The US language was modified by the focal point for the negotiations of the Understandings to read: It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, each of the three components of character, gravity and scale must independently be sufficient to justify a ‘manifest’ determination.18

The focal point’s formulation made it even clearer that the satisfaction of all three criteria was required. During informal consultations, however, the Canadian Delegation tabled modifications to the focal point’s draft that resulted in the text adopted. The rationale provided by Canada was that the threshold should be met by a use of force that was ‘almost manifestly illegal with respect to one component, but definitely manifestly illegal with respect to the other two components’.19 The US said it could agree with the Canadian formulation provided a second sentence was added (‘[n]o one component can be significant enough to satisfy the manifest standard by itself’). In an article jointly written with others, Claus Kress, focal point for the Understandings’ negotiations, has written that: The idea behind this sentence was to exclude the determination of manifest illegality in a case where one component is most prominently present, but the other two not at all. It was thought that use of the word ‘and’ in the formulation of the threshold requirement in draft art 8 bis (1) excluded a determination of manifest illegality in such a case and that the understanding should properly reflect this fact.20

This accords with what seemed to be the understanding of the room during the negotiations. As such, it seems that a strong argument can be made that the satisfaction of two of the three components would be sufficient to allow the Court to conclude that a use of force amounted to a manifest violation of the Charter. Of course, such a conclusion should not be taken to suggest that the satisfaction of two components should automatically lead to a finding that the threshold has been met. As Kress and von Holtzendorff have said:

18

19 20

Non-Paper on possible further understandings (Annex III of the Conference Room Paper), informally circulated by Germany on 8 June 2010, on file with author. Kress & von Holtzendorff, ‘The Kampala Compromise’, 1206. Kress et al, ‘Negotiating the Understandings’, 96.

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To state that ‘no one component can be significant enough . . .’ is different from stating that the Court must make a determination of ‘manifest illegality’ whenever two of the components are present. On the contrary, the first sentence of the Understandings makes it plain that the Court must always look at all three components, although they need not all be present to the same degree.21

As such, while the drafting is far from satisfactory, a good argument can be made that the manifest violation threshold requires acts of aggression to both be of a particular seriousness and obviously unlawful. To reach a determination as to whether this threshold has been met, the Court will need to consider whether the combination of character, gravity and scale indicate a serious and unlawful act.

Nullum crimen sine lege and the prohibition of analogy Article 22 of the Rome Statute, in relevant part, states that: 1.

2.

A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.

Article 22 thus covers not only the nullum crimen sine lege principle, but also the related prohibition of extension by analogy. While interpretation by analogy can take different forms and Article 22(2) does not specify which is prohibited,22 it appears clear that the Statute’s drafters intended ‘to debar the imposition of criminal responsibility in respect of substantially new crimes’.23 It is important in this context to note, however, that the rule does not bar the use of analogy for the purpose of interpretation: analogy ‘remains a valid and indeed necessary tool with which to construe the meaning of the Statute’.24 The importance of ‘the principle of legality’ was referred to often during the negotiations of the SWGCA. Despite this, the ASP decided to employ agreed language that has long been acknowledged as exceedingly 21 22

23

24

Kress & von Holtzendorff, ‘The Kampala Compromise’, 1207. Susan Lamb, ‘Nullum Crimen, Nulla Poena Sine Lege in International Criminal Law’ in Cassese, Gaeta & Jones, The Rome Statute, 733, 752–753. Cassese, International Criminal Law, 49; Lamb, ‘Nullum Crimen’, 753; Bruce Broomhall, ‘Article 22’ in Triffterer, Commentary on the Rome Statute, 713, 725. Ibid.

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ambiguous, and new language that is equally so – particularly in relation to the manifest violation threshold. Could the employment of vague and ill-defined terms result in the Court ruling that cases are inadmissible or that accused persons are not guilty because their conduct cannot unarguably be said to fall within the definition of the crime? If the manifest violation threshold is interpreted as requiring uses of force to be evidently illegal, as I have suggested it should be (and which Article 22(2) suggests it must be), this would appear to overcome any potential concerns associated with Article 22(1) in so far as the threshold applies to illegality. There would appear to be no grounds upon which it could be argued that a use of force that amounts to an act of aggression that is particularly serious in terms of gravity and scale, is not ‘a crime within the jurisdiction of the court’ if it is also indisputably unlawful. Looked at in reverse, if there is a query as to whether a use of force is lawful or not, it will not meet the threshold built into Article 8bis (1), meaning that a defendant can argue that a substantive element of the crime cannot be satisfied, making reliance on Article 22(1) redundant. That said, it is eminently foreseeable that the question of the meaning of the second sentence of Article 22(2) may receive quite a workout in future trials. Judicial interpretation will be needed to fill in the contours of the definition of an act of aggression, as well as the manifest violation threshold and the indicia of character, gravity and scale. For example, it may have been established that uses of force must meet a certain threshold of seriousness in terms of gravity and scale (which itself may refer to the geographic breadth, intensity or duration of a use of force, or a combination of all three) in order to qualify as the State act element of the crime of aggression. Where, however, is the dividing line between acts captured by the definition, and those excluded, to be drawn? The SWGCA spoke only of acts of insufficient seriousness and acts that were ‘borderline’ – border incidents being one of the few factual examples I can recall ever having been cited during the debates. Should this be understood as meaning that only de minimis violations of the prohibition of the use of force are excluded? The individual elements of the crime (the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State) contemplate relatively largescale events that actually require planning and preparation. This might be an accident of the blind incorporation of the individual elements of a crime that was focused on wars of aggression, but be that as it may the

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individual conduct elements indicate that a de minimis interpretation would be too narrow. But once we abandon the concept of de minimis, what can be relied upon to divine the dividing line? Would a violation of airspace coupled with the dropping of a single bomb that causes minimal property damage and the deaths of fewer than 10 people be considered a manifest violation? What about the dropping of multiple bombs that cause substantial property damage of no strategic military value and no deaths? The dropping of multiple bombs that cause some property damage and the deaths of 100 people? And what of low-level but prolonged border skirmishes that result in several deaths a week over a period of months or years? The Court has been given very little guidance as to where to draw the line in the sand. As such, while there is arguably a core of prohibited conduct that will likely satisfy the definition of the State act element of the crime of aggression on any reading (for example, an unprovoked and unauthorised land and air military campaign of one State against another accompanied by the armed forces of the first State that acts as occupier of the second State causing extensive property damage and substantial loss of life), it is highly likely that in more difficult cases the Prosecutor and the Court will have no choice but to read the definition in favour of accused persons under Article 22(2).

The most serious crimes of concern to the international community as a whole During the definitional debates in the SWGCA, suggestions were made to delete the threshold clause, delegations arguing that ‘any act of aggression would constitute a manifest violation of the Charter of the United Nations, and that the definition should not exclude any acts of aggression’.25 In this context, Daniel Nsereko, judge of the ICC and onetime adviser in the Ugandan delegation to the SWGCA, suggests that the criminalisation of only grave violations of the prohibition may implicitly condone lesser violations.26 His argument is that the exemption of lesser violations will ‘encourage leaders of powerful States to launch 25 26

February 2009 SWGCA Report, [13]. See also June 2008 SWGCA Report, [70]. Daniel D. Ntanda Nsereko, ‘Aggression under the Rome Statute of the International Criminal Court’ (2002) 71 Nordic Journal of International Law 497, 503. See also Weisbord, Prosecuting Aggression’, 220 and Paulus, ‘Second Thoughts’, 1122, who argue that limiting the crime of aggression to ‘manifest violations’ may give a carte blanche to all incidents of aggression that are not manifest.

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repeated, short, sharp armed attacks on less powerful states with impunity’.27 In addition he contends that ‘small scale armed attacks often spark off large-scale wars’,28 clearly implying that a narrow definition would fail to capitalise to the maximum extent possible on the potential deterrent effect of the crime. In light of these comments, it is anticipated that some will criticise the manifest violation threshold’s likely exclusion of prohibited uses of inter-State armed violence. In response, I would contend that a decision not to criminalise lesser violations of the prohibition is not equivalent to the toleration of such acts. A failure to criminalise certain forms of inter-State armed violence has no effect on their illegal status under the jus ad bellum. To draw a parallel: not all breaches of the Geneva Conventions were considered by participants at the Rome Conference to amount to war crimes, yet it has not been suggested that as a result any of the Convention provisions have lost their status under international humanitarian law (IHL) as binding treaty obligations.29 Paulus acknowledges that, though not all violations of IHL are crimes, IHL is binding, but worries that: when one sees how some state representatives handled the Nuclear Weapons opinion of the ICJ or the ICTY Prosecutor report on the Kosovo war as justification for what states were doing anyway, the confidence that non-criminal violations of the jus ad bellum would still maintain the opprobrium of illegality after they were sorted out from criminalisation is very modest . . . in the absence of prosecution by the Court, states can easily view such abstention as an unjustified bill of clean health. Thus, in the end, criminalisation may lead to the unintended consequence of rendering the use of force easier rather than sanctioning it more effectively.30

Paulus’ concerns seem to be overstated. First, it is a mischaracterisation to claim that States generally misunderstand the complexities of the decisions to which Paulus refers. There is a significant difference between politics and law, which Paulus has conflated. Second, for any number of reasons other than the restricted definition (lack of jurisdiction to try a particular accused, inability to enforce an arrest warrant against a particular defendant, the operation of Article 16, the requirement that the Prosecutor focus on the most serious crimes) the ICC will 27 29

30

Nsereko, ‘Bringing Aggressors to Justice’, 24. 28 Ibid. In relation to war crimes see Michael Bothe, ‘War Crimes’ in Cassese, Gaeta & Jones, The Rome Statute, 379, 387. Paulus, ‘Second Thoughts’, 1124.

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only ever consider a small percentage of violations of the prohibition of the use of force. To suggest that those unlawful uses of force not labelled criminal will be sanctioned suggests that other entities in the international arena are also restricted to an examination of uses of force that meet the Rome Statute’s definition. Of course in fact, regardless of criminalisation, the Security Council will continue to be able to pursue measures under Articles 41 and 42 of the Charter in response to violations of the prohibition, the General Assembly will be able to adopt resolutions condemning such force, victim States will be able to bring complaints before the ICJ seeking compensation on the basis of State responsibility where the Court has jurisdiction, and there will be much motivation for the victim State and its supporters to cry foul. The criminalisation of certain prohibited uses of force adds another means of enforcing international law – it does not detract from anything existing. Nsereko’s concern as to the potential for small-scale attacks to spark wider conflicts appears, moreover, to be misplaced, premised as it is on a definition that would allow only the first use of armed force to be criminalised. While the principle of priority was a key characteristic of the 3314 definitional debates, it featured very little in the context of the SWGCA’s negotiations and cannot be found in Article 8bis. As such, the leader of any State that deliberately instigates an international armed conflict by engaging in frontier incidents could readily be held accountable for subsequent conduct or a course of conduct under Article 8bis (1), even if the frontier incident in isolation would not attract individual criminal responsibility. Paramount in this context is Article 5(1) of the Rome Statute, which provides that: ‘[t]he jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole’. It might be contended that these words are merely a reference to the need for the Prosecutor to exercise discretion in selecting individual cases for investigation and prosecution, or a limit in relation to the type of individual cases that might properly be heard by the Court. Certainly under Article 15(2), the Prosecutor is obliged, in relation to proprio motu investigations, to analyse the ‘seriousness’ of information received. To this end, the Prosecutor has developed Criteria for Selection of Situations and Cases, which, presuming a case is jurisdictionally admissible, makes gravity the key selection criterion.31 Moreover, under Article 17(1)(d) of 31

Draft Paper on Criteria for Selection of Situations and Cases, unpublished paper by the OTP, June 2006.

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the Rome Statute a case will be inadmissible if it ‘is not of sufficient gravity to justify further action by the Court’. Thus the Statute clearly requires the subject crimes of individual cases to be characterised as ‘serious’ before the Court may properly exercise jurisdiction over them. This requirement, however, is a separate one. The correct interpretation of Article 5(1) is that the four crimes over which the Court has jurisdiction are designated as the most serious crimes of concern to the international community as a whole. This interpretation is consistent with other references to the phrase found in the Statute. Notably, Article 1 provides that: An International Criminal Court (‘the Court’) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute . . .32

As made clear by the emphasised words, the most serious crimes of international concern can only be genocide, crimes against humanity, war crimes and the crime of aggression, given that individual crimes that might be the subject of an investigation or prosecution are not ‘referred to’ in the Statute per se. This interpretation is supported by the travaux pre´paratoires, which contain numerous expressions of State opinion that the jurisdiction of the Court should be limited to ‘the most serious crimes of concern to the international community, namely, genocide, war crimes, crimes against humanity and the crime of aggression’.33 32

33

Emphasis added. See paragraphs 4 and 9 of the Preamble to the Rome Statute and Elements of Crimes, ICC Doc. ICC-ASP/1/3 (2002), Part II(B), 116 in relation to crimes against humanity. See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Summary Record, 5th Plenary Meeting, UN Doc. A/ CONF.183/SR.5 (1998), statement by Lebanon, 7 (emphasis added). For statements of similar effect see Summary Record, 2nd Plenary Meeting, UN Doc. A/CONF.183/SR.2 (1998) interventions by Trinidad and Tobago (4), Japan (6), Sweden (8), Canada (8); Summary Record, 3rd Plenary Meeting, UN Doc. A/CONF.183/SR.3 (1998): Holy See (2–3), Czech Republic (4), United Republic of Tanzania (5), Latvia (6), Brazil (7), Pakistan (12); Summary Record, 4th Plenary Meeting, UN Doc. A/CONF.183/SR.4 (1998): Philippines (3), Colombia (5), Ukraine (7), Austria (8), Former Yugoslav Republic of Macedonia (8), Afghanistan (11); Summary Record 5th Plenary Meeting, UN Doc. A/CONF.183/SR.5 (1998): Brunei Darussalam (3), Tajikistan (4), Guinea (4), Hungary (4), Zambia (5), Azerbaijan (5), Poland (6), Bulgaria (8), USA (8); Summary Record 6th Plenary Meeting, UN Doc. ICC/ CONF.83/SR.6 (1998): Belgium (2), Ireland (3), Paraguay (10); Summary Record 7th Plenary Meeting, UN Doc. A/CONF.183/SR.7 (1998): Malaysia (7), Samoa (8), Vietnam (10) and Nigeria (11).

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The preservation of the integrity of Article 5(1), therefore, required the definition of the State act element of the crime of aggression to be restricted in its application to unlawful uses of inter-State armed violence that are so serious that they are comparable to genocide, crimes against humanity and war crimes. This view was not lost on States during the crime’s negotiations: one of the arguments advanced in favour of the threshold was that not all of the acts enumerated in the 3314 Definition could be considered the ‘most serious crimes of concern to the international community as a whole’.34 The key question then is not whether it was appropriate to exclude certain uses of force but whether the definition of the crime of aggression under the Statute indeed restricts the Court’s jurisdiction to the most serious crimes of concern. I would argue that this requires, at the very least, a recognition of the fact that not all violations of Article 2(4) of the Charter, or the customary prohibition, amount to the State act element of the crime of aggression. Understanding 6, and particularly the manifest violation threshold, are squarely aimed at limiting the definition of the State act element of the crime of aggression to the most serious violations of the Charter (measured in terms of gravity, scale and consequences). That said, the means by which this aim has been pursued are somewhat clumsy. As a result, the benchmark set is subject to differing interpretations. This has been amplified by some of the contradictions inherent in the definition. It is difficult to see how certain of the illustrative acts listed in Article 8bis (2), particularly those found in sub-paragraphs (e) and (f), could form the basis of an act of aggression that meets this threshold test. The inclusion of these acts in the illustrative list could be interpreted by the Court as a mere accident of history and the product of the ASP’s reluctance to abandon agreed language. Alternatively, consistent with conventions of interpretation that instruct courts to give meaning to each word, let alone paragraph, of a treaty, the inclusion of the conduct found in sub-paragraphs (e) and (f) could lead the Court to the view that meeting the threshold is not an overly onerous task. Thus for multiple reasons it is entirely possible that the bar could be set too high or too low by a Court that is provided with little guidance under the definition. Of course a discussion of the seriousness of uses of force begs the question of how seriousness and insufficient gravity in the context of 34

December 2007 SWGCA Report, [23].

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Articles 8bis (1) and 17(1)(d) should be interpreted. Are death and destruction the primary measuring sticks, or are consequences of serious geopolitical concern also counted? The reference to scale in Article 8bis (1) might suggest the former, but the term ‘gravity’ as it appears in both Article 8bis (1) and 17(1)(d) could be read as also encompassing the latter. From a policy point of view it might be noted that geopolitical consequences could be extremely severe and are clearly a large part of the rationale for the prohibition of the use of force on which the crime of aggression is based. On the other hand, it might be asked whether the Court is equipped to evaluate international relations, and indeed whether such action would be appropriate. This said, for all of the reputational risks it might entail, there would seem to be little basis from a literal, teleological or intent interpretive point of view to exclude such factors from the consideration of the Court.

Inconsistency with customary international law It could be suggested that the ASP was free to legislate rather than codify the definition of the crime of aggression. Consistency with customary international law, however, was a key concern of the drafters of the Rome Statute.35 Several States made explicit interventions during the Rome Conference to state that in their opinion: the crimes to fall within the jurisdiction of the Court should be defined . . . on the basis of generally accepted norms of customary international law. It was not the task of the conference to legislate or progressively develop international law.36

In addition, many States cited consistency, or inconsistency, with customary international law as the primary reason why certain 35

36

Hermann Von Hebel & Darryl Robinson, ‘Crimes Within the Jurisdiction of the Court’ in Lee, The International Criminal Court 79, 122; Leena Grover, ‘A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes’ (2010) 21(3) European Journal of International Law 543, 567; Gennady M. Danilenko, ‘The Statute of the International Criminal Court and Third States’ (2000) 21 Michigan Journal of International Law 445, 481. Kress & von Holtzendorf, ‘The Kampala Compromise’, 1188 argue that it was agreed this approach would be extended to the crime of aggression. Statement by Israel, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Official Records, Vol. II, Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole, UN Doc. A/ CONF.183/13(vol. II) (1998), 167. Statements to similar effect were made by Japan (67); China (124 and 299); USA (159 and 280); Germany (159); Spain (161); Thailand (163); Egypt (164 and 335); India (168); Italy (194); and the Dominican Republic (285).

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proposed definitions were, or were not, acceptable to them.37 An analysis of the definitions of crimes under the Statute, moreover, reveals that they are generally consistent with customary international law.38 As Meron asserts: ‘[d]elegations filled in some gaps in Rome, but this took place in the interstices of rules, not on the core of the rules, and only on the margins of precisely delineating crimes against humanity and war crimes’39. That the same definitional methodology should have been applied to the crime of aggression makes sense, firstly, on the basis of consistency. Perhaps more importantly, Broomhall has compellingly argued that: As a matter of fairness, the need to determine the customary nature of Statute crimes arises from the fact that the Court may be called upon to exercise its jurisdiction retroactively with respect to crimes allegedly committed on the territory or by the nationals of non-States Parties in the cases of Security Council referral under article 13 para. b or of a declaration [of] ad hoc acceptance of ICC jurisdiction under article 12 para. 3 of the Statute. The only legitimate basis for establishing the criminal responsibility of individuals would presumably – in the absence of relevant national criminal prohibitions at the time of the alleged conduct – be that of customary international law.40

A definition, moreover, that has crystallised into customary international law has, by definition, the broad support of the international community. A grounding in custom thus would also, at least in theory, provide a basis for the requisite support needed for provisions relating to the crime of aggression to come into force. Similarly, a custom-based definition is likely to help ensure that there is ongoing support for the 37

38

39 40

Ibid., statements by the UK (150); Slovenia (151); Canada (154–155); Israel (155); Syrian Arab Republic (158); New Zealand (160); Greece (160); Belgium (162); France (164); Jordan (187); China (270); Switzerland (277); Brazil (277); Republic of Korea (278); Bosnia and Herzegovina (285); Indonesia (287); and Russia (289). It is, of course, recognised that agreement as to the need for the crimes under the Court’s jurisdiction to be defined in a manner that is consistent with customary international law is distinct from an agreement as to the content of that law, a subject over which there were numerous debates in Rome. Von Hebel & Robinson, ‘Crimes within the Jurisdiction’, 89, 104, 123; William A. Schabas, An Introduction to the International Criminal Court, Cambridge University Press, 2001, 23. For a comparison of the Rome Statute’s definitions of crimes with customary international law see Antonio Cassese, ‘Genocide’ in Cassese, Gaeta & Jones, The Rome Statute, 335; Antonio Cassese, ‘Crimes Against Humanity’ in ibid., 353; and Bothe, ‘War Crimes’, 379. Meron, ‘Defining Aggression’, 8. Broomhall, ‘Article 22’, 713, 720. See also Grover, ‘A Call to Arms’, 567–568; Danilenko, ‘Third States’, 468.

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investigation and prosecution of crimes of aggression.41 In sum, there are good reasons for why we might assess the definition of the crime of aggression under Article 8bis (1) against the customary definition of the crime. Is there then a customary equivalent to the crime of aggression? What conduct does it prohibit? Firstly, by way of background, it is important to consider the Nuremberg and Tokyo definitions of the crime. I have argued elsewhere42 that a close study of the factual findings of the IMT and IMTFE judgments reveals that the term ‘war of aggression’ includes: (i) (ii) (iii)

war with the object of the occupation or conquest of the territory of another State or part thereof; war declared in support of a third party’s war of aggression; and war with the object of disabling another State’s capacity to provide assistance to (a) third State(s) victim of a war of aggression initiated by the aggressor.

I further have argued that, while the second branch of the State act element of crimes against peace under the Tribunal’s constitutive instruments (wars in violation of international (law,) treaties, agreements and assurances) was treated as superfluous by the Tribunals, they did not question its legitimacy as a definition of the State act element of the crime. Finally, as widely noted elsewhere, Control Council Law No. 10 expanded the definition of crimes against peace to include ‘invasions’. In the early days of the United Nations there was an immediate effort to consolidate and build upon the legacy of the Nuremberg and Tokyo judgments. Peace treaties signed with Italy,43 Roumania,44 Bulgaria,45

41

42 43

44

45

During the negotiations on the crime of aggression, several commentators recommended that the crime of aggression be based on customary international law. See for example Mu¨ller-Schieke, ‘Defining the Crime of Aggression’, 415; Claus Kress, ‘The Crime of Aggression Before the First Review Conference of the ICC Statute’ (2007) 20 Leiden Journal of International Law 851, 858–859, 864; Sean D. Murphy, ‘US View of Crime of Aggression’ (2001) 95(2) American Journal of International Law 400, 400–401. McDougall, ‘Time to Catch Up or Part Ways’, 131–167. Signed 10 February 1947, 49 UNTS 3 (entered into force 15 September 1947), Article 45(a). Signed 10 February 1947, 42 UNTS 33 (entered into force 15 September 1947), Article 6(a). Signed 10 February 1947, 41 UNTS 49 (entered into force 15 September 1947), Article 5(a).

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Finland46 and Hungary47 in 1947 required those countries to ‘take all the necessary steps to ensure the apprehension and surrender for trial’ of, inter alia, ‘persons accused of having committed, ordered or abetted . . . crimes against peace’. The 1951 Convention Relating to the Status of Refugees provides that the provisions of the Convention shall not apply to any persons with respect to whom there are serious reasons for considering that he or she has committed a crime against peace.48 Domestic constitutions and criminal codes promulgated in the years immediately following World War II incorporated references to the crime. Article 26(1) of the German Basic Law of 1949 states that: Acts tending to and undertaken with intent to disturb the peaceful relations between nations, especially to prepare for a war of aggression, shall be unconstitutional. They shall be made a criminal offence.49

Article 93 of Japan’s amended 1907 Penal Code provides that: ‘[a] person who prepares or plots to wage war privately upon a foreign state shall be punished with imprisonment’.50 Article II of the Chinese Law of 1946 identified as war criminals any alien who violated international law by participating in ‘an aggression’ or unlawful war against the Republic of China.51 The Greek Constitutional Act 73/1945,52 the Danish Law of 12 July 1946 on the Punishment of War Criminals,53 the Polish Law Concerning Trials of War Criminals,54 and the United States Law and Practice Concerning Trials of War Criminals by Military Commissions, Military Government Courts and Military Tribunals55 also provided for the prosecution of crimes against peace. On 11 December 1946 the GA affirmed the principles of international law recognised by the Nuremberg Charter and Judgment under Resolution 95(I) without articulating what those principles were.56 46 47 48

49 50 51 52

53 55 56

Signed 10 February 1947, 48 UNTS 228 (entered into force 15 September 1947), Article 6(a). Signed 10 February 1947, 41 UNTS 167 (entered into force 15 September 1947), Article 6(a). Opened for signature 8 July 1951, 189 UNTS 150 (entered into force 22 April 1954), Article 1(f). www.iuscomp.org/gla/statutes/GG.htm, last accessed 12 October 2007. www.cas.go.jp/jp/seisaku/hourei/data/pc.pdf, last accessed 12 October 2007. Brownlie, International Law, 181 citing Law Reports, UNWCC xiv. 152. Government Gazette at 250 cited in the United Nations War Crimes Commission, Law Reports of the Trials of War Criminals, Buffalo, NY: William S. Hein & Co. Ltd, 1997, Vol. XV, 36. Ibid., Vol. XV, 32. 54 Ibid., Vol. III, Annex III, 83–84. Ibid., Vol. III, Annex III, 105–106. Resolution on the Affirmation of the Principles of International Law Recognised by the Charter of the Nu¨rnberg Tribunal, UN Doc. A/Res/95 (1946). The Tokyo Judgment had not been handed down at the time of the Resolution’s adoption.

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The ILC was given the job of formulating the principles of international law recognised in the IMT’s Charter and judgment and to indicate the place of those principles in a draft Code of Offences against the Peace and Security of Mankind.57 By 1950, the ILC had agreed on the ‘Nuremberg Principles’. Principle VI (a) confirmed that crimes against peace are ‘punishable as crimes under international law’ and defined the crime in terms essentially identical to the IMT Charter.58 The ILC, however, made no comment on the status of the crime under international law. After a lengthy debate, the Commission concluded that since the Nuremberg Principles had already been affirmed by the General Assembly, the task entrusted to the Commission was not to express any appreciation of the Principles as principles of international law, but merely to formulate them without any indication as to their authority.59 Perhaps as a result, the authority of the Nuremberg Principles and the effect of Resolution 95(I) have subsequently been the subject of much debate. It is unclear whether, in affirming the principles, the Assembly believed it was lending moral weight to generally recognised rules of customary international law, or whether it was attempting to establish the place of the principles in international law.60 Similarly, it is unclear why the Assembly believed it was necessary to formulate principles that it had already affirmed.61 Pompe recognises the uncertainty in the Sixth Committee as to ‘the conformity of the principles of the Nuremberg Tribunal with general international law, and, even more . . . an uncertainty as to the consequences of a formal and binding acceptance of these principles as binding law’.62 This was partly the result of criticism

57

58

59

60

61

62

Ibid. and Resolution on the Formulation of the Principles Recognised in the Charter of the Nu¨rnberg Tribunal and in the Judgment of the Tribunal, UN Doc. A/Res/177 (1947). Report of the International Law Commission on its Second Session, in 1950 Yearbook of the International Law Commission, (vol. II), UN Doc. A/CN.4/SER.A/1950/Add.1 (1950), 376. Report of the International Law Commission to the General Assembly in 1949 Yearbook of the International Law Commission, UN Doc. A/CN.4/SER.A/1949 (1949), 282. D. H. N. Johnson, ‘The Draft Code of Offences against the Peace and Security of Mankind’ (1955) 4 International and Comparative Law Quarterly 445, 446; Clive Parry, ‘Some Considerations Upon the Content of a Draft Code of Offences against the Peace and Security of Mankind’ (1950) 3 International Law Quarterly 208, 208–209; Brownlie, International Law, 189. Johnson, ‘The Draft Code of Offences’, 446; Parry, ‘Some Considerations Upon the Content of a Draft Code of Offences’, 208–209. C. A. Pompe, Aggressive War: An International Crime, The Hague: Martinus Nijhoff, 1953, 323.

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of the Nuremberg trial, but also a result of changes in international relations, particularly growing tensions between the Permanent Five.63 Overall, it would seem that the World War II trials were unlikely in and of themselves to have created instant custom. Some of the rules that were applied in the trials no doubt belonged to customary international law before 1945. On the other hand, it seems quite clear that crimes against peace were invented by the Allies and were not part of customary law at that time. As such, even if the General Assembly believed it was lending moral weight to existing customary international law in adopting Resolution 95(I), it could only have had this effect in relation to some of the principles it affirmed – and certainly not in relation to the existence or content of crimes against peace. Nonetheless, Resolutions 95(I) and Principle VI (a) of the Nuremberg Principles, together with Resolution 177(II) and the inclusion of modern equivalents of crimes against peace in the 1951 Draft Code of Offences against the Peace and Security of Mankind, do serve to reflect a general approval of the Nuremberg Charter and judgment.64 The GA resolutions and the positive comments of governments received in relation to the 1951 Draft Code can more specifically serve as evidence of State practice and opinio juris, capable of contributing to the formation of a customary rule. During the years Member States were debating the definition of aggression in the 3314 definitional process, the US adopted its Armed Forces Field Manual, which lists ‘crimes against peace’ as a ‘crime under international law’.65 Sweden adopted its Penal Code in 1962, section 2 of Chapter 19 of which states that: A person who by violent means or foreign aid causes a danger of the Realm being involved in war or other hostilities, shall, unless it is high treason, be sentenced for instigating war to imprisonment for at least two and at most eight years.66

In 1968, section 80 was inserted into the German Criminal Code to complement Article 26(1) of the German Basic Law, outlined above. It criminalises the preparation of a war of aggression in which the Federal Republic of Germany is supposed to participate.67 Since the adoption of the 3314 Definition a number of additional States have promulgated relevant criminal laws. Article 316 of the 1974 Austrian Criminal Code 63 65

66 67

Ibid. 64 Brownlie, International Law, 190 agrees with this conclusion. Section 498, United States Department of the Army, Field Manual No. 27–10, The Law of Land Warfare (1956). www.sweden.gov.se/content/1/c6/02/77/77/eb79a8a3.pdf, last accessed 12 October 2007. www.gesetze-im-internet.deenglisch_stgbl.index.html, last accessed 9 November 2008.

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makes it an offence to undertake ‘from Austrian territory to change the constitution of a foreign State or to divide off territory which is part of a foreign State by force or threat with force’.68 Article 353 of the Criminal Code of the Russian Federation of 199669 and Article 404 of the 1999 Criminal Code of Georgia70 make the planning, preparing, unleashing or waging of an aggressive war a crime. Article 415 of the Republic of Macedonia’s Criminal Code of 199671 and Article 130 of the 2004 Provisional Criminal Code of Kosovo72 establish the crime of calling out or instigating aggressive war, while stirring up of an international or a local armed conflict, propaganda of, and calls for, war among the public, are crimes under the 2002 Criminal Code of Mongolia.73 Anyone who ‘plans, prepares or wages aggressive war’ shall be punished under Article 409 of the 1968 Penal Code of Bulgaria, as amended in 1998.74 Under Article 437 of the 2001 Criminal Code of the Ukraine: 1.

2.

Planning, preparation or waging of an aggressive war or armed conflict, or conspiring for any such purposes, shall be punishable by imprisonment for a term of seven to twelve years. Conducting an aggressive war or aggressive military operations, shall be punishable by imprisonment for a term of ten to fifteen years.75

Article 91 of the 2001 Estonian Penal Code makes ‘leading or participating in preparations for a war of aggression directed by one state against another state or war violating international agreements or security guarantees provided by the State’ and threatening to start a war of aggression by a representative of the State, crimes, while Article 92 criminalises the incitement to war or other use of armed force in violation of the generally recognised principles of international law.76 Under Article 150 of the 2003 Criminal Code of the Federation of Bosnia and Herzegovina it is an offence to attempt to detach a part of the

68 69

70 71 72 73 74

75

76

www.legislationline.org, last accessed 17 December 2007. www.russian-criminal-code/PartII/SectionXII/chapter34.html, last accessed 12 October 2007. www.legislationline.org, last accessed 24 August 2011. www.mlrc.org.mk/law/CriminalCode.htm, last accessed 17 December 2007. www.eulex-kosovo.eu, last accessed 24 August 2011. www.unhcr.org/refworld/pdfid/3ed919fd4.pdf, last accessed 24 August 2011. www.opcw.org/docs/la_natimpleg/Bulgaria-Penal-Code.pdf, last accessed 17 December 2007. www.imolin.org/doc.amlid.Ukraine_criminal%20Code%202001.pdf, last accessed 17 December 2007. www.legislationline.org, last accessed 24 August 2011.

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territory of the Federation or to conjoin a part of its territory with another entity by use of force or by threat of force.77 It is an offence under Article 139 of the 2002 Criminal Code of the Republic of Moldova to plan, prepare, unleash or wage a war.78 Initiating, conducting, making preparations to commit and publicly inciting to initiate wars of aggression are offences under the 1997 Criminal Code of the Republic of Poland.79 Article 384 of the 2003 Criminal Code of the Republic of Armenia,80 Article 151 of the 1994 Criminal Code of Uzbekistan,81 Article 395 of the 1998 Criminal Code of the Republic of Tajikistan82 and Article 156 of the Criminal Code of the Republic of Kazakhstan83 make planning, preparing, commencing or conducting an aggressive war a crime. Propaganda and public exhortation to unleash an aggressive war is also a crime under Article 157 of the 2004 Kazakhstan Criminal Code. Calling for or instigating aggressive war, as well as ordering and waging aggressive war are crimes under Article 442 of the 2003 Montenegro Criminal Code84 and Article 386 of the 2005 Criminal Code of the Republic of Serbia.85 Attempting to recruit elements of the Portuguese Armed Forces for war against a foreign state or territory endangering peaceful coexistence between peoples is an offence under Article 237 of the 1982 Penal Code of Portugal.86 Article 220 of the 1984 Argentina Criminal Code,87 Article 137 of the 1972 Criminal Code of Bolivia,88 Article 123 of the Ecuadorean Penal Code of 197189 and Article 340 of the 1991 Penal Code of Peru90 make it an offence to violate treaties, truces, armistices or, in the case of 77 78 79 80

81 82 83 84 85 86

87

88 89

90

www.lexadin.nl/wlg/legis/nofr/eur/lxwebhe.htm, last accessed 24 August 2011. www.legislationline.org, last accessed 17 December 2007. www.legislationline.org, last accessed 24 August 2011. www.nature-ic.am/ccarmenia/download.php?fid=754037392, last accessed 17 December 2007. www.legislationline.org, last accessed 17 December 2007. www.legislationline.org, last accessed 17 December 2007. www.legislationline.org, last accessed 24 August 2011. www.legislationline.org, last accessed 24 August 2011. www.legislationline.org, last accessed 24 August 2011. www.unifr.ch/ddp1/derecopenal/legislacion/1-20080626-10.pdf, last accessed 24 August 2011. www.infoleg.gov.ar/infoleginternet/anexos/15000-19999/16546/textact.htm, last accessed 24 August 2011. www.oas.org/juridico/spanish/gapeca_sp_docs_bol1.pdf, last accessed 24 August 2011. www.miliarium.com/Paginas/Leyes/Internacional/Ecuador/General/ce.pdf, last accessed 24 August 2011. www.unifr.ch/ddp1/derechopenal/legislacion/1-20080616_75.pdf, last accessed 24 August 2011.

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the Bolivian and Argentinian Codes, agreements of safe passage. Anyone who violates a truce or armistice agreement between the Republic of Chile and another enemy nation or among opposing forces at sea or land can be punished under Article 113 of the Penal Code of Chile of 1874.91 Under Article 154 of the 2000 Penal Code of Venezuela recruiting people or stockpiling weapons or preparing, forming or joining expeditions or leaving the geographical area of Venezuela, in a hostile manner to invade or attack a friendly nation or neutral, as well as building ships, arming for war or increasing forces or equipment, its endowment or the number of sailors to make war on a nation which is at peace with Venezuela, are crimes. Penalties are higher if the hostile acts against a friendly nation or neutral power have exposed the danger of war breaking out or harming friendly relations with the other nation, or war is declared on Venezuela under Article 155.92 Article 312 of the 1982 Penal Code of Panama provides that anyone who recruits, collects weapons or performs other hostile acts not approved by the government and undertaken within the territory of Panama or abroad against another State, can be imprisoned for three to six years if as a result Panama is exposed to the dangers of war or the breakdown of international relations and ten years if the result is a declaration of war on Panama.93 Section 72 of the 1999 Criminal Code of Latvia provides that: For a person who commits crimes against peace, that is, commits planning, preparation or instigation of, or participation in, military aggression, or commits conducting a war of aggression in violation of international agreements binding upon the Republic of Latvia, or commits participation in a conspiracy for the purpose of committing crimes mentioned in this section, the applicable sentence is life imprisonment or deprivation of liberty for a term of not less than three and not exceeding 20 years.94

Under Article 157 of the 1998 Criminal Code of the Republic of Croatia: (1) Whoever, regardless of whether a war has previously been declared or not, wages a war of aggression by commanding an armed action of one state against the sovereignty, territorial integrity or political independence of another state, so that such an action is performed by 91 92

93

94

www.leychile/cl/Navegar?idNorma=1984, last accessed 24 August 2011. www.cicpc.gov.ve/files/documentos/6-CODIGOPENAL.pdf, last accessed 24 August 2011. www.upoli.edu.ni/icep/legis-mesoamerica/C%F3digo%20Penal%20de%20Panam%E1. pdf, last accessed 24 August 2011. www.legislationline.org, last accessed 17 December 2007.

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(2)

(3)

(4)

invasion or by an armed attack on its territory, aircraft or ships, or by the blockading of ports or shores or by the military occupation of the territory, or in some other way which denotes the forcible establishment of rule over such a state, shall be punished by imprisonment for not less than ten years or by long-term imprisonment. The same punishment as referred to in paragraph 1 of this Article shall be inflicted on whoever, for the purpose of waging a war of aggression of one state against another, commands or enables the sending of armed mercenary groups or other paramilitary armed forces into a state, so that these forces achieve the aims of a war of aggression. The same punishment as referred to in paragraph 1 of this Article shall be inflicted on whoever acts according to a command for action from armed forces or paramilitary armed forces for the purpose of waging a war of aggression. Whoever call[s] [for] or instigates a war of aggression shall be punished by imprisonment for one to ten years.95

Article 1 of Iraqi Law No. 7 of 17 August 1958 criminalises: using the country’s armed forces against the brotherly Arab countries, threatening to use such forces or instigating foreign powers to jeopardize its security or plotting to overthrow the existing regime or interfere in their internal affairs against its own interest, or spending money for plotting against them or giving refuge to the plotters against them or attacking in international fields or through publications their heads of state.

Finally, Article 14(3) of the Statute of the Iraqi Special Tribunal96 lists as a crime: The abuse of position and the pursuit of policies that may lead to the threat of war or the use of force of the armed forces of Iraq against an Arab country, in accordance with Article 1 of Law Number 7 of 1958, as amended.97

An examination of domestic legislation thus reveals that overall a narrow definition of the State act element of the crime has been preferred. References to wars of aggression dominate. Not infrequent are 95

96

97

www.vsrh.hr/custompages/static/HRV/Files/Legislation__criminal-code.pdf, last accessed 24 August 2011. Coalition Provisional Authority, The Statute of the Iraqi Special Tribunal (2004) 43 International Legal Materials 231. An excellent analysis of domestic legislation related to the crime of aggression can be found in Astrid Reisinger Coracini, ‘Evaluating Domestic Legislation on the Customary Crime of Aggression under the Rome Statute’s Complementarity Regime’ in Carsten Stahn & Go¨ran Sluiter (eds.), The Emerging Practice of the International Criminal Court, Leiden: Martinus Nijhoff Publishers, 2009, 725.

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references to wars the key characteristic of which is that they are clearly unprovoked. The US Armed Forces Field Manual and the Latvian Criminal Code refer explicitly to crimes against peace. Annexation is the particular preoccupation of the Austrian and Bosnian-Herzegovina criminal codes, the former also contemplating regime change. The criminal codes of Argentina, Bolivia, Chile, Ecuador and Peru focus on the violation of treaties, truces or armistices – although this might be viewed as a reference to the long-lost second prong of the definition of wars of aggression under the Charters of the IMT and IMTFE. The only real exception in relation to domestic legislation is Iraq’s criminal provisions, which refer to the mere threat of armed force (without any consequences having to result) and interference in another State’s internal affairs. Domestic laws relating to crimes against peace or the crime of aggression are not entirely theoretical. In 1999, the German Constitutional Court rejected an application to open investigations relating to a complaint that Germany’s involvement in NATO’s campaign against the Federal Republic of Yugoslavia (FRY) gave rise to individual criminal responsibility under section 80 of Germany’s Criminal Code. The Court ruled that irrespective of the legality of the force used against FRY, aggressive war had to be distinguished from a violation of the prohibition against the use of force by the presence of a specific intent to disturb the peaceful coexistence of peoples. It held that the NATO action could not be classified as a war of aggression as it was a reaction to the Security Council’s determination that a threat to international peace and security existed.98 In 2003, an attempt was made to have the German Federal Prosecutor initiate prosecutions for crimes of aggression in relation to the Coalition of the Willing’s invasion of Iraq, based on the German Government’s granting to US armed forces the right of overflight and allowing US bases in Germany to be used for activities related to military operations, in addition to the deployment of German pilots on AWACS aircraft conducting reconnaissance flights in Turkish airspace.99 The attempt was rejected, the Federal Prosecutor determining that the rights granted to the US did not amount to participation in a use of force and the participation of German pilots in AWACS flights over Turkey did not constitute preparation for the use of force against Iraq. 98

99

Paulus, ‘Peace Through Justice’, 27; Claus Kress, ‘The German Chief Federal Prosecutor’s Decision Not to Investigate the Alleged Crime of Preparing Aggression Against Iraq’ (2004) 2 Journal of International Criminal Justice 245, 256. Paulus, ‘Peace Through Justice’, 28–30; Kress, ‘The German Chief Federal Prosecutor’, 247–248.

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The Prosecutor thus left unanswered the question of whether or not the use of force against Iraq amounted to a war of aggression within the meaning of section 80 of the German Criminal Code.100 As Kress argues, the Federal Prosecutor’s interpretation of participation within the meaning of section 80 is limited to ‘the actual use of its armed forces, or by way of a comparably massive military involvement’.101 Moreover, perhaps unsurprisingly, the determination made in relation to the US’ use of German territory implies that the meaning of a ‘war of aggression’ under German law does not include the activities described in Article 3(f) of the 3314 Definition.102 In 2005, the German Federal Administrative Court reviewed the court martial of a German Major who refused to follow the order of a superior to participate in the development of a software programme for a military weapons system on the basis that the software could have been used in combat in Iraq.103 In the course of its judgment the Court ruled that the Coalition of the Willing’s invasion of Iraq was prima facie a violation of Article 2(4). In relation to the German Government’s provision of assistance to the Coalition, the Court held that it had ‘grave concerns’ as to the legality of such acts of support in terms of international law. In the course of its judgment, the Court held that the legal regime governing the aiding of a belligerent State by a non-party to a conflict is derived from, inter alia, the 3314 Definition, as well as the work of the ILC and international laws governing neutrality. The Court specifically referred to Article 3(f) of the 3314 Definition and held that if a State allows an armed attack to be carried out from its territory by another State the actions can be attributed to the territorial State. As Schultz notes, however, this statement was qualified by the Court’s comment that the UN’s Member States did not claim that the 3314 Definition codified international law.104 The UK House of Lords’ decision in R v. Jones105 concerned damage done by protestors to fuel tankers and bomb trailers and aggravated

100 103

104

105

Ibid. 101 Ibid., 248. 102 Ibid., 249. Nikolaus Schultz, ‘Case Note – Was the War on Iraq Illegal? The Judgment of the German Federal Administrative Court of 21st June 2005’ (2006) 7 German Law Journal, electronic resource. Ibid., 1, 2, 5–7. In relation to failed attempts to initiate prosecutions under s.80 of Germany’s Criminal Code, see Sascha Mueller, ‘The Crime of Aggression under German Law’ 6 (2008) New Zealand Yearbook of International Law 183, 191–193. [2006] UKHL 16. Cf. the earlier decisions in the case [2004] EWCA Crim 1981 and [2005] EWHC 684 (Admin).

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trespass at two Royal Air Force bases in the weeks leading up to the invasion of Iraq. The protestors’ defence relied on an argument that they were using reasonable force to prevent the commission of a crime, a defence under relevant domestic legislation. According to the Court, the question for decision was whether the crime of aggression, if established in customary international law, was a crime under the domestic law of England and Wales. The House of Lords determined that it was not required to rule whether the UK or the US had committed an act of aggression, but instead whether, if they had done so, that would justify the otherwise criminal conduct of the appellants. Lord Bingham of Cornhill stated that it had not been suggested that there was ‘any difference of substance’ between a crime against peace and a crime of aggression and that as a matter of convenience he would refer to the latter.106 He questioned the conclusions of the United States Military Tribunal in the Ministries Case where it held that ‘aggressive wars and invasions have, since time immemorial, been a violation of international law, even though specific sanctions were not provided’.107 Lord Bingham continued: ‘[i]t may, I think be doubtful whether such wars were recognised in customary international law as a crime when the 20th century began. But whether that be so or not, it seems to me clear that such a crime was recognised by the time the century ended.’108 His Lordship recited a brief history of the crime109 then held: the core elements of the crime of aggression have been understood, at least since 1945, with sufficient clarity to permit the lawful trial (and, on conviction, punishment) of those accused of this most serious crime. It is unhistorical to suppose that the elements of the crime were clear in 1945 but have since become in any way obscure.110

Lord Hoffman also held that ‘there is no doubt that this is a recognised crime in international law’.111 His Lordship noted the then continuing disagreements in relation to the crime’s enactment under the Rome Statute but held that: I think that upon analysis it will be found that these disputes are not about the definition of the crime but about the circumstances in which the International Criminal Court (as opposed to some domestic or ad hoc international tribunal, such as the International Military Tribunal at Nuremberg) should try someone for committing it. Of course the definition of a crime so recent and so rarely 106 111

[2006] UKHL [4]. Ibid., [44].

107

Ibid., [12].

108

Ibid.

109

Ibid., [13]–[18].

110

Ibid., [19].

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punished will have uncertainties. But that is true of other crimes as well. If the core elements of the crime are certain enough to have secured convictions at Nuremberg, or to enable everyone to agree that it was committed by the Iraqi invasion of Kuwait, then it is in my opinion sufficiently defined to be a crime, whether in international or domestic law.112

This statement is of course less convincing because at the time there was clearly disagreement among the States Parties to the Rome Statute in relation to both jurisdictional and definitional issues. Moreover, while Iraq’s invasion of Kuwait may well classify as a State act of aggression, Lord Hoffman’s judgment confuses State responsibility with individual criminal liability. Nonetheless, given the other Law Lords agreed with the judgments of Lords Bingham and Hoffman,113 the House of Lords decision stands as a strong statement made by one of the most respected domestic courts in the common law world confirming the existence of a customary international law crime of aggression. While the House of Lords does not address the issue of the actual definition of that crime, its frequent references to Nuremberg and Tokyo jurisprudence indicate that the definition that is stated to be sufficiently certain is at least grounded in that which was developed by the IMT and IMTFE.114 While evidence of the customary law status of the crime was not explicitly addressed, the ILC’s work on the Draft Code and the draft Statute for an International Criminal Court demonstrates that the members of the Commission shared a strong feeling that the international community had accepted that the Nuremberg/Tokyo understanding of crimes against peace had crystallised into customary international law.115 As widely remarked upon elsewhere, the proper means of establishing customary international law is subject to some controversy and a discussion of these issues is beyond the scope of this book. Regardless, it is asserted that crimes against peace have become part of customary 112 113

114

115

Ibid., [59]. Ibid., [96]–[98]. Lord Mance added: ‘I agree in particular that there is under public international law a crime of aggression which is, as history confirms, sufficiently certain to be capable of being prosecuted in international tribunals’ [99]. The House of Lords held that a crime in international law does not automatically become assimilated into domestic English law (Bingham, [23]). Given there had been no parliamentary enactment of the crime and English courts cannot establish new crimes ([28]), the House of Lords concluded that the crime of aggression was not a crime under the domestic law of England and Wales within the meaning of the relevant legislation ([31]). See for example Report of the 46th Session of the ILC, 38.

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international law. The reference to the 1945 incarnation of the crime is deliberate. While there has been a shift in terminology since the adoption of the UN Charter, there is a clear lack of State practice and opinio juris to support a conclusion that all acts of aggression, or even a special subset thereof, attract individual criminal responsibility under customary international law. In other words, the customary definition of the State act element of the crime has not advanced past World War II jurisprudence. The first part of this contention is perhaps the more controversial but there is sufficient evidence of State practice and opinio juris to establish the customary nature of the crime, which will be referred to here, for sake of convenience, as crimes against peace. While criticisms in relation to the invention of crimes against peace were certainly voiced (primarily by academics) in the years immediately following the Allied prosecution of their World War II enemies, the place of the crime in the canons of international law was not rejected by States. On the contrary, references to the crime were built into peace treaties and versions of it are reflected in the domestic legislation of at least 35 States. The status of the crime as one under international law was affirmed by the UN’s Member States in Resolution 95(I); the same Members accepted with approval the ILC’s Nuremberg Principles, which stated that crimes against peace were punishable as a crime under international law. They also included a reference to crimes against peace in the Refugee Convention. Although their wording is not without uncertainty, Article 5(2) of the 3314 Definition, as well as Article 1(2) of the Friendly Relations Declaration, point to a belief that wars of aggression give rise to individual criminal responsibility. More importantly, records of the debates between Member States in relation to these provisions indicate that a belief was consistently espoused that wars of aggression already attracted individual criminal responsibility under existing customary law. The debate that produced such ambiguous texts related to whether or not other acts of aggression also warranted criminal prosecution. Clearly, the members of the ILC never seriously questioned that wars of aggression attracted individual criminal responsibility under existing international law: again, the debate was the state of the law in relation to other acts of aggression in the post-Charter era. The comments of governments concerning the Draft Codes reveal that the view of the ILC’s members in this regard was shared by Member States. The House of Lords has expressed its opinion that the crime exists under customary international law. And finally, as outlined in Chapter 1, an

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overwhelming number of States indicated during the Rome Conference that the crime was already part of international law, even if there was continuing debate as to the appropriate definition of the modern incarnation of the State act element of the crime, a view that was later echoed in the SWGCA. It might also be noted that a majority of commentators agree with this view.116 As for the assertion that the customary crime is defined by reference to wars of aggression, first of all, it is quite certain that neither the 3314 Definition, nor formulations based on language lifted from Article 2(4) of the UN Charter, represent the customary definition of the State act element of the crime. This is evidenced by the vociferous debates between States sparked by the 1991 and 1996 Draft Code definitions of the crime, and those held in the lead-up to, and during, the Rome Conference, as well as in the years between Rome and Kampala. Rather, it seems clear that the customary definition of the crime is pinned to its World War II origins – a view shared by other commentators117 and 116

117

See for example Cryer et al, An Introduction to International Criminal Law, 262, 263; Schachter, ‘The Right of States to Use Armed Force’, 114; Dinstein, War, Aggression and Self-Defence, 113; M. Cherif Bassiouni, ‘International Law and the Holocaust’ (1979) 2 Californian Western International Law Journal 201, 235; Meron, ‘Defining Aggression’, 6; Nigel D. White, Keeping the Peace: The United Nations and the Maintenance of International Peace and Security, Manchester University Press, 1993, 53; Robert Cryer, ‘Aggression at the Court of Appeal’ (2005) 10(2) Journal of Conflict and Security Law 209, 225, 226, 229; Reisinger Coracini, ‘Evaluating Domestic Legislation’, 725; C. P. DeNicola, ‘A Shield for the “Knights of Humanity”: The ICC Should Adopt a Humanitarian Necessity Defense to the Crime of Aggression’ (2008–2009) 30 University of Pennsylvania Journal of International Law 641, 652; Mark A. Drumbl, ‘The Push to Criminalise Aggression: Something Lost Amid the Gains?’ (2009) 41 Case Western Reserve Journal of International Law 291, 291–292; Gerhard Kemp, Individual Criminal Responsibility for the International Crime of Aggression, Antwerp: Intersentia, 2010, 85, 144; Edoardo Greppi, ‘State Responsibility for Acts of Aggression Under the United Nations Charter: A Review of Cases’ in Roberto Bellelli (ed.), International Criminal Law: Law and Practice from the Rome Statute to Its Review, Farnham: Ashgate, 2010, 499, 501; Ambos, ‘The Crime of Aggression After Kampala’, 478. See for example Cassese, ‘On Some Problematical Aspects of the Crime of Aggression’, 845; Drumbl, ‘The Push to Criminalise Aggression’, 305; Paulus, ‘Second Thoughts on the Crime of Aggression’, 1118; A. Zimmermann, ‘Article 5’ in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2nd ed.) Munich: C. H. Beck, 2008, 136; Cryer et al, An Introduction to International Criminal Law, 273. Cf. the suggestion made by Milanovic, ‘Aggression and Legality’, 183 that the manifest threshold may restrict the definition to its customary content. Milanovic’s argument is based on the threshold’s exclusion of the grey areas surrounding the prohibition. He offers, however, no argumentation to support his assertion and Milanovic himself appears to consider crimes against peace the better representation of the customary crime (184).

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supported by the understanding of an act of aggression emerging under the jus ad bellum outlined in Chapter 3. The State practice and opinio juris referred to above on occasion make reference to crimes against peace, which might be taken to refer to the three-pronged definition that emerges from the constitutive instruments of the post-war Tribunals. More commonly, however, reference is made to wars of aggression. It is contended that the meaning of a ‘war of aggression’ under customary international law is identical to that applied by the post-war Tribunals on the basis that all references to wars of aggression are firmly anchored in Nuremberg and Tokyo jurisprudence. I specifically disagree with the assertion made by the English Court of Appeal in the R v. Jones case (which was of course overturned on appeal by the House of Lords) that the division among States in relation to negotiations concerning the crime of aggression under the Rome Statute signalled that there is no customary crime of aggression.118 The Court of Appeal’s judgment artificially conflates two separate issues.119 The existence of a customary crime is not inconsistent with a disagreement as to the mechanism of its prosecution. Moreover, it is perfectly possible for there to exist a customary definition of a crime that is considered to be outmoded or otherwise insufficient for future purposes. A legislative process necessarily opens the door to a consideration of whether pre-existing definitions are appropriate. Debate over the shape the crime of aggression would take under the Rome Statute does not of itself prove that there is no customary crime. The US made an attempt in Kampala to win support for its view that the definition being adopted did not represent customary international law. It sought to add language to what ultimately became Understanding 4 that the amendments ‘shall not be interpreted as constituting a statement of the definition of “crime of aggression” or “act of aggression” 118

119

Jones & Milling, Olditch & Pritchard & Richards v. Gloucestershire CPS [2004] EWCA Crim 1981, [43]. The Court of Appeal referred to the SWGCA’s division over the jurisdictional question and stated in this context that there could be no ‘firmly established rule of international law which establishes a crime of aggression . . . where there is no consensus as to an essential element of the crime’. The same, perhaps more cogent, argument could be made in relation to the definitional question. Cryer (‘Aggression at the Court of Appeal’, 228) discusses the fact that the Court of Appeal’s judgment conflated the jurisdictional and definitional issues. The Court of Appeal in addition conflated the issues of a debate over the shape of provisions relating to the crime for the purpose of the Rome Statute and the crime’s existence under customary international law.

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under customary international law’.120 The fact that ‘it became clear that there was not even a distant chance of States agreeing to this proposal’121 should not be taken as saying something about State views as to the current content of the customary crime. It more likely represents some level of discomfort associated with the swathe of proposals advanced by the US at the eleventh hour, and the view that although it might not have represented customary law before the Review Conference in Kampala, the definition may well play a role in helping to crystallise a broader definition under customary law in years to come. In summary, it is plain that the State act element of the crime under Article 8bis goes well beyond the content of that element of the crime under customary international law.122 As outlined in Chapter 3, Articles 1 and 3 of the 3314 Definition, which are replicated in Article 8bis (2), capture an extremely broad range of conduct. The effect of the additional threshold in draft Article 8bis (1) is not entirely clear; nevertheless it seems highly unlikely that in requiring a certain level of seriousness and evident illegality it sets the bar as high as importing a de facto requirement that a ‘war’ has taken place. The intention of the majority of the SWGCA was certainly for a much broader range of acts to be captured by the definition.123 Obviously, the definition also lacks any requirement of animus aggressionis mirroring the objects towards which wars must be directed under customary international law. As such, it can be concluded that Article 8bis criminalises a significantly broader range of conduct than the customary definition of the State act element of the crime. What is the consequence of this inconsistency? As noted in the introduction to this section, where the Court exercises its jurisdiction pursuant to a Security Council referral or an ad hoc acceptance of the Court’s jurisdiction under Article 12(3) over crimes committed on the territory, and by the nationals, of non-States Parties it cannot rely on the prior consent of the relevant States to be bound by the Rome Statute.

120

121 122

123

US Proposed ‘Understandings’, circulated informally on 6 June 2010, on file with author. Kress & von Holtzendorff, ‘The Kampala Compromise’, 1205. Cf. Kress, ‘Time for Decision’, 1140 who somewhat curiously says the definition ‘goes slightly beyond customary international law’, and that ‘there is no absolute clarity about the applicable definition in customary international law and hence there is some legitimate scope for “refining” and hereby “crystallizing” customary international law’. June 2006 SWGCA Report, [23]; January 2007 SWGCA Report, [18].

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The only basis on which the Court can exercise such retrospective jurisdiction without violating the nullum crimen sine lege principle enshrined under Article 22(1) of the Statute124 (in addition to Article 15(1) of the International Covenant for Civil and Political Rights125 and potentially also Article 34 of the Vienna Convention on the Law of Treaties)126 is where the conduct concerned amounted to a crime under customary international law (absent a corresponding domestic prohibition). Thus in the case of Security Council referrals involving a crime of aggression committed by a national of a non-State Party on the territory of a non-State Party (Article 12(3) appears not to apply to the crime of aggression, see further below)127 an accused will have a strong argument that he or she cannot be held criminally responsible for any conduct falling under the definition of Article 8bis (2) that does not amount to a war of aggression.128

Making the ICC an arbiter of the grey areas in the jus ad bellum It is stating the obvious to say that there exist areas of genuine dispute in relation to the scope of the prohibition of the threat or use of force. These so-called ‘grey areas’ are well documented. They include intervention in a civil war on request (including in the more specific

124

125

126

127 128

Article 22(1) provides that a person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. Article 15(1) provides that ‘no one shall be guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed’. Consistent with the arguments advanced in this chapter, paragraph (5) of Article 15 provides that ‘nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations’. International Covenant for Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). Article 34 of the VCLT provides that: ‘A treaty does not create either obligations or rights for a third State without its consent.’ The dominant view is that Article 34 is not otherwise violated by the Rome Statute’s extension to non-States Parties because it does not in general create new obligations, rather it serves as a mechanism to enforce existing rights. Consistent with the foregoing, an argument can be made out that the Security Council does not have the power to subject the nationals of non-States Parties under the Rome Statute to criminal jurisdiction in respect of acts that do not amount to crimes under customary international law. See Chapter 6, the subsection entitled ‘The applicability of Article 12(3)’. Milanovic, ‘Aggression and Legality’, 171–175 reaches the same conclusion.

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instance of a war of national liberation),129 unilateral humanitarian intervention,130 force exercised in the course of the protection or rescue of nationals abroad,131 reprisals,132 and, more generally, force that is not directed against the territorial integrity or political independence of a State that is otherwise consistent with the Purposes of the United

129

130

131

132

See for example: Randelzhofer, ‘Article 2(4)’, 121–122, 128; Schachter, ‘The Right of States to Use Armed Force’, 1642; Arend & Beck, International Law, 84–88; Neff, War and the Law of Nations, 362–365, 372–373; Ronzitti, ‘Use of Force’, 147; Antonio Tanca, Foreign Armed Intervention in Internal Conflict, Dordrecht: Martinus Nijhoff Publishers, 1993; Tom J. Farer, ‘Harnessing Rogue Elephants: A Short Discourse on Foreign Intervention in Civil Strife’ (1969) 82(3) Harvard Law Review 511; Deborah Z. Cass, ‘ReThinking Self-Determination: A Critical Analysis of Current International Law Theories’ (1992) 18 Syracuse Journal of International Law and Commerce 21; Schachter, International Law, 114–115. See for example: Schachter, ‘The Right of States to Use Armed Force’, 1629; Arend & Beck, International Law, 129–134; Dinstein, War, Aggression and Self-Defence, 67; Thomas M. Franck, ‘Humanitarian and Other Interventions’ (2005) 43 Columbia Journal of Transnational Law 321, 324–328; Christopher C. Joyner, ‘“The Responsibility to Protect”: Humanitarian Concern and the Lawfulness of Armed Intervention’ (2006–2007) 47 Virginia Journal of International Law 693, 700–703; Christine Gray, ‘From Unity to Polarization: International Law and the Use of Force Against Iraq’ (2002) 13(1) European Journal of International Law 1, 20; Michael Byers, ‘The Shifting Foundations of International Law: A Decade of Forceful Measures Against Iraq’ (2002) 13(1) European Journal of International Law 21, 28; Erika De Wet, ‘The Relationship Between the Security Council and Regional Organisations During Enforcement Action under Chapter VII of the United Nations Charter’ (2002) 71 Nordic Journal of International Law 1, 4; Ademola Abass, ‘The New Collective Security Mechanism of ECOWAS: Innovation and Problems’ (2000) 5(2) Journal of Conflict and Security Law 211; Nigel D. White, ‘On the Brink of Lawlessness: The State of Collective Security Law’ (2002–2003) 13 Indiana International and Comparative Law Review 237, 247; Ahmad M. Ajaj, ‘Humanitarian Intervention: Second Reading of the Charter of the United Nations’ (1992–1993) 7 Arab Law Quarterly 215; Martha Brenfors & Marlene Maxe Petersen, ‘The Legality of Unilateral Humanitarian Intervention – A Defence’ (2000) 69 Nordic Journal of International Law 449; International Commission on Intervention and State Sovereignty, The Responsibility to Protect (2001), www.iciss.ca/pdf/Commission_ Report.pdf. See for example: Randelzhofer, ‘Article 2(4)’, 132–133; Brownlie, International Law, 298–299; Arend & Beck, International Law, 103–110; Dinstein, War, Aggression and SelfDefence, 181; Derek Bowett, ‘The Use of Force in the Protection of Nationals’ (1957) 43 Transactions of the Grotius Society 111, 111–126; Antonopoulos, ‘The Unilateral Use of Force’, 130. See for example: Roberto Barsotti, ‘Armed Reprisals’ in Cassese, The Current Legal Regulation of the Use of Force, 79; Julius Stone, Legal Controls of International Conflict: A Treatise on the Dynamics of Disputes and War-Law, Holmes Beach: Wm W. Gaunt & Sons, 1974, 286; Bothe, ‘War Crimes’, 387; Roda Mushkat, ‘Is War Ever Justifiable? A Comparative Survey’ (1986–1987) 9 Loyola of Los Angeles International and Comparative Law Review 227, 251–252.

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Nations.133 Also contested is the scope of the right of self-defence. This issue has been well ventilated by international lawyers and is hotly contested by States. Key points of debate are whether or not Article 51 of the UN Charter authorises the use of inter-State armed violence in anticipation of an imminent armed attack, or whether permission to use force in such circumstances under customary international law survived the introduction of Article 51 (anticipatory self-defence). Far more controversial is whether self-defence can be exercised preventively to guard against a possible future attack (pre-emptive selfdefence).134 The existence of the grey areas stems from immutable factors: the limits of language; the failure of the collective security system envisaged by the Charter; a growing consciousness that gross violations of international humanitarian and human rights law must not be tolerated; and the changing dynamics of the international community. In

133

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See for example: Stone, Aggression and World Order, 43; M. Cherif Bassiouni, ‘The Definition of Aggression in International Law: The Crime Against Peace’ in Bassiouni & Nanda, A Treatise on International Criminal Law, vol. I, 159, 164; Randelzhofer, ‘Article 2 (4)’, 123; Brownlie, International Law, 265–266; Schachter, ‘The Right of States to Use Armed Force’, 1632; McCoubrey & White, International Law, 25–26; Josef Mrazek, ‘Prohibition of the Use and Threat of Force: Self-Defence and Self-Help in International Law’ (1989) 27 Canadian Yearbook of International Law 81, 87; Subhas C. Khare, Use of Force Under UN Charter, New Delhi: Metropolitan Books, 1985, 40–41; Fernando R. Teso´n, Humanitarian Intervention: An Inquiry into Law and Morality (2nd ed.), Irvington-onHudson: Transnational Publishers, 1997, 150–154; McDougal & Feliciano, ‘Legal Regulation of Resort to International Coercion’, 1101; Dinstein, War, Aggression and SelfDefence, 82; Gordon, ‘Article 2(4)’, 276. In relation to the scope of self-defence see Randelzhofer, ‘Article 51’; Dinstein, ‘A Survey of Self-Defence’; Dinstein, War, Aggression and Self-Defence; Brownlie, International Law; Schachter, ‘The Right of States to Use Armed Force’, 1620; Abraham D. Sofaer, ‘On the Necessity of Pre-emption’ (2003) 14(2) European Journal of International Law 209; Arend & Beck, International Law, passim; Franck, ‘Humanitarian and Other Interventions’; Michael Bothe, ‘Terrorism and the Legality of Pre-emptive Force’ (2003) 14(2) European Journal of International Law 227; Mrazek, ‘Prohibition of the Use and Threat of Force’; David Kaye, ‘Adjudicating Self-Defense: Discretion, Perception, and the Resort to Force in International Law’ (2005–2006) 44 Columbia Journal of Transnational Law 134; Khare, Use of Force; Bert V. A. Ro¨ling, ‘The Ban on the Use of Force and the UN Charter’ in Cassese, The Current Legal Regulation of the Use of Force, 3; Cassese, ‘On Some Problematical Aspects’; Myres McDougal & Florentino Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion, New Haven: Yale University Press, 1961; Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, New York: United Nations (2004), 63; The White House, The National Security Strategy of the United States of America, Part V: Prevent Our Enemies from Threatening Us, Our Allies and Our Friends with Weapons of Mass Destruction, available at www.whitehouse.gov/nsc/nssall.html.

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addition to these systemic causes is the endurance of the primacy of national interests – national interests that have a stake in maintaining as much leeway as possible in relation to the prohibition of the use of force. Debates in relation to the grey areas are nuanced: often argument centres on the literal content of the law, other times, however, the focus is on whether or not there are certain circumstances (such as the objective with, and contingency for, which force is used) that justify or pardon an act that is technically unlawful (and which, for a variety of reasons, a majority of States wish it so to remain).135 It is not the role of this book to contribute to the legal debate surrounding the grey areas. Indeed my argument is that it is not the role of international criminal law to find answers to these issues. As Fife and Kress have written, the jus ad bellum should not be developed through the back door of international criminal law.136 In this context Bassiouni has explained that ‘international crimes have developed to date, without . . . an agreed-upon definition of what constitutes an international crime, what are the criteria for international criminalization, and how international crimes are distinguished’.137 Both the harm principle and legal moralism (popular philosophies of criminalisation in the context of domestic law) certainly seem insufficient to explain the international criminalisation process. This is 135

136

137

W. Michael Reisman, ‘Criteria for the Lawful Use of Force in International Law’ (1984–1985) 10 Yale Journal of International Law 279, 281. In the context of forcible interventions, Stahn identifies a range of concepts that might be employed in the course of an assessment, namely, justification, ex post validation, pardonable illegality and legitimacy, in addition to the traditional categories of legality and illegality: Carsten Stahn, ‘Enforcement of the Collective Will After Iraq’ (2003) 97 American Journal of International Law 804, 819. See also Franck, ‘Humanitarian and Other Interventions’, 325; Murphy, ‘Criminalizing Humanitarian Intervention’, 352 citing Thomas M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks (2002), 186; Murphy, ‘Protean Jus Ad Bellum’, 22. Murphy suggests that a range of factors can be analysed to predict whether coercive behaviour is acceptable, including ‘(1) the degree of coercion actually inflicted by State A upon State B or its nationals; (2) the gravity of coercion that State A fears from State B; (3) the extent to which other States are condoning State A’s coercion; (4) the pedigree of State B as a member of the international community; (5) the degree to which State A’s coercion is tailored to respond to the threat from State B; (6) the degree to which State A’s coercion has adverse collateral consequences for other states or persons’ (at ibid., 45). Rolf Einar Fife, ‘Criminalizing Individuals for Acts of Aggression Committed by States’ in Morten Bergsmo (ed.), Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjorn Eide, Leiden: Martinus Nijhoff, 2003, 53, 73; Kress, ‘The Crime of Aggression Before the First Review Conference’, 859. M. Cherif Bassiouni, Introduction to International Criminal Law, Ardsley: Transnational Publishers Inc., 2003, 111.

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principally because they ignore what can be identified as the key feature of international criminalisation: the governance of normative development by inter-State consensus. In other words, international criminal law is generally a reflection of the prohibitions that attract the broad support of the international community. Such consensus, above and beyond notions of moral wrongfulness and harm caused to the fundamental interests of the international community, is what ordinarily must be present in order for conduct to become a crime under international law.138 In the case of the crime of aggression, the jus ad bellum is the foundation upon which the criminal law rests.139 At the current stage of international relations it is patently impossible to attain consensus in relation to the grey areas outlined above. Some would go further and argue that in order to preserve the integrity of the core of the prohibition of the threat or use of force in a system where collective security works only in an ad hoc and imperfect manner, it is necessary that there be a degree of flexibility of interpretation, that allows States to tolerate ‘deviances’, while at the same time affirming the existence of the prohibition.140 The problem of grey areas was widely recognised by the SWGCA and the ASP. In response it was decided that activities of questionable legal status should not attract individual criminal responsibility. Rather, however, than carving out explicit exceptions for such actions, or developing a narrow definition that was restricted to conduct that was uncontrovertibly unlawful, thereby stepping around acts of contested legal status, States adopted a definition that defers the problem to the ICC. In other words, as argued above, by requiring proof of a ‘manifest violation’ of the Charter the ASP has attempted to restrict the content of the crime of aggression to conduct that is prohibited by an inter-State consensus. The result, however, is that the burden of determining where that consensus lies has been shifted to the ICC. Kress has argued that ‘reasonable international lawyers will find it comparatively easy to identify those instances of the use of force that 138

139 140

Ibid., 29; Yoram Dinstein, ‘International Criminal Law’ (1985) 20 Israel Law Review 206, 221; Ilias Bantekas & Susan Nash, International Criminal Law (2nd edn), London: Cavendish Publishing, 2003, 5; Cassese, International Criminal Law, 11–12. In relation to war crimes see Bothe, ‘War Crimes’, 387. Monica Hakimi, ‘To Condone or Condemn? Regional Enforcement Actions in the Absence of Security Council Authorization’ (2007) 40 Vanderbilt Journal of Transnational Law 643, 648.

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fall within the grey areas. If one studies the more recent treatises of the subject, one will almost invariably find the same list of controversial cases.’141 Indeed, such a list was produced above. This argument, however, ignores the complexities of the issue. Outside of Iraq’s invasion of Kuwait it is difficult to think of a use of force in the post-Charter era that has not had legal arguments advanced in justification and opprobation – however unconvincing some of those arguments might be. Eminent international jurists and States vehemently disagree about the current state of the law, expressing strong views that each of the activities described as a grey area by this book are in fact unambiguous violations of the Charter or clearly lawful. Thus, there is a chance that the protection afforded by the manifest violation threshold will be insufficient, depending on the view of international law adopted by the judges of the Court, who could well dismiss contrary views as misguided or illfounded. Alternatively, Paulus could be right in describing the manifest violation threshold as an extremely restrictive standard; ‘[w]hat, after all’, he says, ‘is obvious for one is completely obscure to the other, in particular in international law’.142 In other words, overly cautious judges of the ICC, in the face of any contrary arguments about the illegality of a use of force, may feel they have no choice but to determine that the threshold has not been met. It is easy to be dismissive of such concerns, but as Kress himself wrote in the course of the crime of aggression negotiations, international criminal law is ‘ill-equipped to decide major controversies about the content of existing legal rules’.143 Consider, for example, the issue most likely to be contested by a defendant in any given case: self-defence. The definition of the crime of aggression under Article 8bis leaves the scope of self-defence to be determined by the ICC on a case-by-case basis. There is some merit in this approach: although they are not exhaustive, international law’s rules on self-defence are arguably sufficiently certain to be interpreted and applied by the ICC. It is, however, crucial that States have a clear understanding of the scope of conduct excluded from the definition of the State act element of the crime by virtue of self-defence before any trial is commenced.144 The existing ambiguity is understandably likely to leave States feeling uneasy that the ICC will not share their 141 143 144

Kress, ‘Time for Decision’, 1140. 142 Paulus, ‘Second Thoughts’, 1121. Kress, ‘The Crime of Aggression Before the First Review Conference’, 859. Robinson & Haque, ‘Advantaging Aggressors’, 50, make a similar point.

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interpretation of the principal exception to the prohibition of the use of force. While the need for the Court to engage in a degree of judicial interpretation is inevitable, leaving such sensitive, highly contested and complex issues to be determined by the ICC is something of a gamble for international criminal law. Moreover, as noted above, some of the disagreement surrounding the prohibition is not about the literal content of the law, but as to whether breaches of the law should be tolerated in certain circumstances. Arguably, unauthorised humanitarian intervention falls into this category. My reading of interventions in debates and corridor discussions over the years of the SWGCA’s negotiations suggests that more than any other action, unauthorised humanitarian intervention was what States Parties had in mind in supporting the evident illegality requirement. Ultimately, however, it is unclear whether the threshold serves this purpose. As Barriga writes: ‘[s]ome . . . regard the threshold clause as the entrance door for the legalisation of humanitarian interventions without Security Council authorisation, whereas others regret that it is not’.145 As noted above, in Kampala the US sought to insert an understanding that would have explicitly excepted unilateral humanitarian interventions. That understanding was soundly rejected by States Parties in the course of bilateral negotiations. Kress, a member of the German Delegation, which was one of the most vocal proponents of the evident illegality interpretation of the manifest violation threshold, says of this: Importantly, the fact that the exclusion of certain instances of the use of force by a state was not discussed further does not mean that there was necessarily disagreement with the United States on substance. It is worth specifically underlining this point with respect to the single most sensitive American proposal, which purported to explicitly exclude genuine forcible humanitarian interventions from the scope of draft Art 8 bis. The main concern here was that it would not be appropriate to address key issues of current international security law in the form of understandings drafted not with all due care, but in the haste of the final hours of diplomatic negotiations.146

Certainly I think it true that States were of the view that there was a limit to what could be done at the eleventh hour (and arguably what should be done in the sense of accommodating the US – lessons had 145 146

Barriga, ‘Against the Odds’, 1, 8–9. Kress & von Holtzendorff, ‘The Kampala Compromise’, 1205.

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been learned from Rome, where numerous provisions were watered down in an attempt to win the US over, only to be met with the reward of the US calling for a vote as the Conference drew to a close). It is also important to underline that States did not necessarily agree with the US on the substantive question of the exclusion of humanitarian intervention. A very significant number of States remain opposed to unilateral humanitarian intervention on the basis that it violates sovereignty and that it masquerades as a form of neo-colonialism. I also think a very clear majority of international lawyers would advise that while a rule of customary international law making an exception for humanitarian intervention might be in the process of crystallising, there is as yet no rule that permits unauthorised humanitarian intervention under international law. As indicated above, the better view, I think, is that unauthorised humanitarian interventions are sometimes tolerated by the international community on the basis that they are viewed as legitimate – not legal. This begs the question of whether ‘legitimate but unlawful’ uses of force are excluded from the definition of a crime of aggression by Understanding 6 relating to the meaning of an ‘act of aggression’, or the manifest violation threshold. This will ultimately depend how the travaux pre´paratoires are read. Literally they refer to ‘legal’ grey areas, but it seems the clear intent of States was to exclude humanitarian interventions – a fact attested to in the writings of others who participated in the negotiations. Ultimately, the reader may not share my characterisation of unauthorised humanitarian interventions as illegal. This is not fatal to my argument. What is undeniable is that the determination of the status of such actions has been left to the judges of the ICC. Of course, the foregoing has been premised on an assumption that we are talking about genuine humanitarian interventions, aimed solely at protecting vulnerable civilians within a sovereign State from mass atrocity crimes. What happens when ulterior motives are added to the mix? Will a use of force aimed at protecting civilians being subjected to mass atrocity crimes but also towards installing a governing power more sympathetic to the intervening States, thereby securing better access to, say, oil, meet the threshold test? This, not unlikely, scenario perhaps more sharply illustrates the difficult decisions that will be faced by the ICC. The reader might argue that any Prosecutor with an ounce of political awareness will avoid such situations and focus attention on uses of

article 31

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force that more closely resemble Iraq’s invasion and attempted annexation of Kuwait. But this could be the thin edge of a very significant wedge. The first Prosecutor of the ICC, Louis Moreno-Ocampo, repeatedly said that his job was to follow the evidence, not to engage in political debates – and there are cogent reasons (principally the integrity of justice) for wanting the Prosecutor to make his or her decisions absent political considerations. One might argue that Article 16 can be exercised to prevent the Court having to touch difficult political issues. Article 16, however, requires an affirmative vote, or abstention, from a majority of the members of the Security Council, including all of the P5, something that could be difficult to secure in the current geopolitical environment. The result is that the ICC could well be engaged in making difficult decisions regarding the content of the jus ad bellum – which, I would argue, is not how international criminal law should work. Apart from anything else, it entails a significant risk that the Court’s reputation will be tarnished, as it seems highly likely that (legitimately or not) the mere making of such decisions (correct or not) will provide States with ammunition to criticise the ICC.147 Alternatively, in the face of competing legal arguments mounted from the sidelines, the Prosecutor may be forced to make a pre-emptive decision that in light of such disagreements such uses of force cannot satisfy the manifest violation threshold. This could in effect almost turn the crime into a dead letter law. Either scenario would be a deeply disappointing consequence of finally having agreed the definition of the crime of aggression.

Article 31: grounds for excluding criminal responsibility Article 31(1) of the Rome Statute provides a non-exhaustive list of grounds on which a person will not be held criminally responsible, including that the accused suffered from a mental disease or defect, or was in a state of intoxication that destroyed his or her ability to control his or her conduct; he or she was suffering from duress; or was acting reasonably to defend himself or herself or another person against an imminent and unlawful use of force in a manner proportionate to the degree of danger. Article 31(3) is a catch-all provision, 147

A similar conclusion is reached by Creegan, ‘Justified Uses of Force’, 66, 81. Creegan sees this as a reason not to criminalise aggression. I, on the other hand, view it as merely highlighting the fact that a narrower definition would have been preferable.

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which provides that the Court may consider additional grounds for excluding criminal responsibility derived from the law applicable to the ICC under Article 21. Clark has asserted that Article 31(3): is likely to be particularly significant where a leader alleges that in fact the state was acting in self-defence, with the approval of the Security Council, or pursuant to any other ground which he or she alleges has the support of treaty or customary law. It is, for example, here that arguments about the legality of humanitarian law need to be structured.148

This is incorrect. Put simply, it would never be necessary for an accused to rely on any jus ad bellum grounds supposedly excusing criminal responsibility for the crime of aggression arising from ‘applicable treaties and the principles and rules of international law’149 (even if it is conceded that this would be possible). If a defendant successfully argued that an inter-State use of armed force was an exercise of self-defence, this would prevent the Prosecutor from being able to establish the third element of the crime. As such, there would be no need to resort to grounds on which criminal responsibility could be excused. The situation in relation to unlawful uses of force that fail to meet the manifest threshold is exactly the same. Rather than casting humanitarian intervention as a ground for excusing criminal responsibility it should properly be seen as an argument that would be submitted by the defence aimed at preventing the prosecution from establishing, beyond a reasonable doubt, the fifth element of the crime. As such, the better view is that Article 31 applies to the crime of aggression in precisely the same manner as it does to the other Statute crimes, with no special considerations applying.

Conclusion This chapter has explored the meaning of the ‘manifest violation’ threshold and the factors character, gravity and scale, which are to be used to gauge whether that threshold has been met. It has been established that Article 31 has no special role to play in relation to the crime of aggression. A number of criticisms associated with the definition of 148

149

Roger S. Clark, ‘Negotiating Provisions Defining the Crime of Aggression, its Elements and the Conditions for ICC Exercise of Jurisdiction Over It’ (2009) 20(4) European Journal of International Law 1103, 1110. Article 21(1)(b).

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the State act element of the crime of aggression have also been addressed. It has been demonstrated that the definition of the State act element of the crime is not in danger of violating the nullum crimen sine lege principle (at least when applied to States Parties). It has further been shown that the ASP has correctly restricted the conduct captured by the definition in a manner consistent with the scheme of the Rome Statute, and that this will have no effect on the lawfulness of State uses of force that have not been criminalised, even if it cannot be said whether the dividing line will be set too high or too low by the Court in future decisions. On the other hand it has been established that the inconsistency of the definition under the Rome Statute with the customary definition of the crime opens the door to challenges to the Court’s jurisdiction where situations involving the territory and nationals of non-States Parties are referred to the Court by the Security Council – at least when they involve conduct that falls outside the customary definition of the crime. Finally, it has been shown that the Court has been left to determine where areas of consensus in relation to the jus ad bellum lie, and that in the course of making its decisions the Court will have to determine highly sensitive aspects of public international law. Since the adoption of the definition of the crime of aggression in Kampala, Kress and von Holtzendorf have acknowledged that some aspects of the definition remain problematic but have expressed the view that any attempt to eliminate such problems ‘would come very close to simply giving up on the project of defining the crime’.150 I do not share this view. I believe it is perfectly possible to construct a definition that avoids all of the problems that I have identified with the definition adopted under Article 8bis of the Statute. In an acknowledgement that this particular ship has now sailed, and that there was little appetite for the construction of a novel definition (States preferring to cling to inadequate but agreed language), I do not include such a definition in this book, but I hope to publish it elsewhere for the academically curious to consider. Unlike some commentators, my concerns regarding the definition do not lead me to call for States to refuse to ratify the amendments, or to avoid activating the Court’s jurisdiction in 2017. In essence, I believe that the crime of aggression is too important for that. I also do not see the concerns as fatal, it being naive to consider the Rome Statute an 150

Kress & von Holtzendorff, ‘The Kampala Compromise’, 1210–1211.

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otherwise perfect instrument. I also happen to think that some of the most important consequences of the criminalisation of acts of aggression will be the chilling effect it has in preventing the unlawful use of force in the first place.151 What I would urge is that States Parties think carefully about these problems in the context of making decisions about issues such as the election of judges, and in considering whether further amendments to the Statute are possible. The Security Council will need to be mindful of potential problems arising from the inconsistency of the definition, at least at this point in time, with customary international law. And the Court and the OTP will, in my view, need to engage in a careful information campaign in order to manage expectations.

151

See further Chapter 7.

5

The individual conduct elements of the crime

Comparatively little time was spent by the SWGCA discussing the individual conduct elements of the crime. While there was some debate over how to describe the crime’s leadership requirement, from the outset the Group was unanimous in the view that, in light of the Nuremberg and Tokyo legacy, only ‘leaders’ can be held individually criminally responsible for the crime of aggression. A clear majority considered that the crime required no special intent: discussions were largely focused on whether the mental element of the crime should be incorporated within its definition, or whether the default provisions in Article 30 of the Statute should be relied upon. Similarly, while differing views were expressed in the early days of the SWGCA as to whether the leadership requirement excluded the different modes of liability outlined in Article 25(3) (ordering, soliciting, inducing, aiding, abetting, contributing, attempting), and if not, whether they should be excluded, such questions were largely considered to be technical matters. Ultimately, it was decided that the crime should be inserted into the Statute with as little disturbance as possible to existing provisions. For some this may have been a position of principle, but it is fair to say that it was also the path of least resistance in the sense that it minimised the amount of drafting required and, therefore, the room for potential disagreement. Article 8bis (1) provides that the crime of aggression means ‘the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State’ of an act of aggression. The general principles of criminal law outlined in Part III of the Statute have been applied in their entirety to the crime with just one qualification: a new Article 25 (3bis) was adopted to explain that Article 25(3) applies ‘only to persons in a position effectively to exercise control over or to direct the political or military 167

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action of a State’ in order to emphasise that the leadership requirement applies in respect of all perpetrators, not only the principal perpetrator. This chapter will study the definition of leadership that has been relied upon in order to illustrate the limits of its scope. The interaction of the leadership requirement with provisions relating to responsibility of commanders and other superiors will also be discussed. The chapter will examine the individual contribution that must be made by an accused in order to reach a conclusion that an individual has ‘committed’ a crime of aggression, in particular the meaning of the terms ‘planning’, ‘preparation’, ‘initiation’ and ‘execution’. It will also consider the relevance (or lack thereof) of mistake of fact and mistake of law (Article 32) and superior orders (Article 33). Finally, the chapter will consider the relevance of the modes of liability set out in Article 25(3) and whether it is theoretically possible for a leader to order, aid, abet or attempt a crime of aggression.

Effectively exercising control over or directing the political or military action of a State The ‘leadership’ requirement Once upon a time an individual’s status as a leader, or at least as Head of State or Government, generally made them immune from criminal responsibility, both before their own domestic courts and certainly the courts of other States. The development of international criminal law has seen a shift that has not only removed many of the immunities or other exemptions that once attached to such persons, but also focused attention on ‘those most responsible’ – which in many scenarios means that State leaders, rather than those under their control, are the focus of prosecutorial efforts. These general trends were made explicit under the Rome Statute. Article 27 makes official capacity irrelevant: (1)

(2)

This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

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More generally, Article 1 of the Statute gives the Court jurisdiction over ‘the most serious crimes of international concern’. This has been translated into the investigation and prosecution of ‘those most responsible’ – which has, to date, resulted in the ICC issuing arrest warrants for three current or former Heads of State: President Omar Al Bashir of Sudan,1 Colonel Mummar Gaddafi of Libya,2 and Laurent Gbagbo of Coˆte d’Ivoire.3 The crime of aggression represents something of an extreme example of the shift from impunity that has occurred in respect of leaders under international criminal law. From the outset of negotiations there was agreement that the crime of aggression adopted under the Rome Statute would have the special characteristic of being a ‘leadership crime’, thereby excluding the multitude on whose efforts the execution of a crime of aggression may be dependent (the hundreds and possibly thousands of soldiers, for example, who may be involved in an interState use of armed force).4 States regularly referred to the Nuremberg and Tokyo precedent in justification of the leadership requirement. The definition of crimes against peace under the constitutive acts of the post-war Tribunals could conceivably have captured many of the millions who were involved in the Axis war effort. The Statutes of the Nuremberg and Tokyo Tribunals were, however, largely silent as to the individual conduct and mental elements of crimes against peace. Control Council Law No. 10 was slightly more elaborate. Article II, paragraph 2 provided that: Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined within paragraph 1 of this Article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a 1

2

3

4

The two arrest warrants against Al Bashir (Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC Doc. ICC-02/05/01/09-1 issued 4 March 2009 for war crimes and crimes against humanity and Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC Doc. ICC-02/ 05–01/09–95 issued 12 July 2010 for genocide) remain unexecuted at the time of writing. A Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi, ICC Doc. ICC-01/11-01/11-2 was issued on 27 June 2011. The case against Gaddafi was terminated upon his death in Libya (Decision to Terminate the Case Against Muammar Mohammed Abu Minya Gaddafi, ICC Doc. ICC-01/11–01/11–28, 22 November 2011). Warrant of Arrest for Laurent Koudou Gbagbo, ICC Doc. ICC-02/11-01/11-1, 23 November 2011. At the time of writing Gbagbo’s case is currently before the ICC. He first appeared before the Pre-Trial Chamber on 5 December 2011. See for example June 2005 SWGCA Report, [19].

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member of any organisation or group connected with the commission of such crime or (f) with reference to paragraph 1(a) [crimes against peace] if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, co-belligerents or satellites or held high position in the financial, industrial or economic life of any such country.

The paragraph is somewhat curious. Read literally, with reference to the conjunctive ‘or’, it provides that a person is deemed to have committed crimes against peace if he held a high political, civil or military office or held high position in financial, industrial or economic life. While there was absolutely no discussion of the meaning of this aspect of paragraph (2) in the judgments of the post-war Tribunals, it is clear, as outlined in detail below, that the military tribunals read the ‘or’ preceding subparagraph (f) as an ‘and’, requiring evidence that each accused was a principal or otherwise criminally responsible under sub-paragraphs (b) to (e). It is equally clear that sub-paragraph (f) was interpreted as having a limiting effect – that rather than deeming certain persons responsible for crimes against peace, it limited those who could be held criminally responsible to those who held ‘high office’ or, at least in theory, a high position in Germany’s financial, industrial or economic life. In rejecting the defendants’ claims that Hitler’s complete dictatorship absolved them of responsibility, the IMT held: Hitler could not make aggressive war by himself. He had to have the cooperation of statesmen, military leaders, diplomats, and businessmen . . . That they were assigned to their tasks by a dictator does not absolve them from responsibility for their acts. The relation of leader and follower does not preclude responsibility here any more than it does in the comparable tyranny of organised domestic crime.5

This indicates that, in the view of the IMT, membership of an exclusive inner circle was not a requirement of liability for Count Two of the Indictment.6 Indeed, while the IMT judgment recites the official positions in the Nazi Party and the German Government or public service held by each accused, the Tribunal’s focus was squarely on function rather than form. Equally, while Hitler’s regime was in the habit of 5 6

Nuremberg judgment, 223. The quotation is found in the judgment under the heading ‘The Law as to the common plan or conspiracy’. However, referring to the commission of crimes against peace, the Tribunal held that ‘[t]he same evidence has been introduced to support both counts. We shall therefore discuss both counts together, as they are in substance the same’ (at ibid. 221–222).

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bestowing grand titles on all and sundry, a close analysis of the roles of several of those defendants convicted on Count Two demonstrates that they can properly be described as occupying positions much further down the chain of command, albeit well above the ‘ordinary soldier’. For example, during the period in which he was held to have committed crimes against peace, Rosenberg was a mere member of the Reichstag and a middling Nazi Party functionary. Not until 1941 when he was appointed Commissioner for the Central Control of Questions connected with the East European Region did Rosenberg occupy anything approaching a position in which he had official responsibilities for the development of Germany’s political or military strategies, and even then he was appointed to advise in relation to, rather than direct, such policies.7 In 1933, Funk was made Press Chief in the Reich Government, subsequently becoming Under Secretary in the Ministry of Propaganda (1933), Minister of Economics and Plenipotentiary General for War Economy (1938), President of the Reichsbank (1939), member of the Ministerial Council for the Defence of the Reich (1939) and a member of the Central Planning Board (1943).8 In the Tribunal’s own words: ‘Funk was not one of the leading figures in organising the Nazi plans for aggressive war. His activity in the economic sphere was under the supervision of Goering as Plenipotentiary General of the Four Year Plan.’9 Nonetheless, he was found to have participated in the economic preparation for aggressive wars against Poland and the Soviet Union and on that basis was convicted for having committed crimes against peace. The case is perhaps more sharply made with regard to the three members of the military convicted by the IMT in relation to crimes against peace. From 1936, Do¨nitz was commander of the German U-boat fleet. In 1940 he was made Vice-Admiral, in 1942 Admiral; in 1943 he was appointed as Commander-in-Chief of the German Navy and in 1945 succeeded Hitler as Head of State.10 In the IMT’s own words, in the lead-up to, and for the majority of, the war ‘[h]e was a line officer performing strictly tactical duties’.11 Noting the importance of submarine attacks to Germany’s war effort, the Tribunal went on to observe that Do¨nitz was solely in charge of this warfare and was consulted almost continuously by Hitler.12 While Do¨nitz’s appointment to Head of State clearly elevated him to the top echelon of leadership positions 7 12

Nuremberg judgment, 539. Ibid., 556–557.

8

Ibid., 550.

9

Ibid.

10

Ibid., 556.

11

Ibid.

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in Germany, the Tribunal’s focus was not on Do¨nitz’s conduct after May 1945, but on the role he played prior to this time when he formally answered to a number of supervisors. The finding of guilty against Do¨nitz indicates that in the view of the Tribunal the fulfilment of a key operational role was sufficient to meet the actus reus of crimes against peace.13 A similar argument can be made in relation to Do¨nitz’s predecessor, Raeder. In 1928, he became Chief of Naval Command and in 1935 Commander-in-Chief of the Navy, a position he held until replaced by Do¨nitz. In 1939 he was also made Gross-Admiral and was a member of the Reich Defence Council.14 The Tribunal recited the evidence against him: Raeder received the directive of 24th June, 1937, from von Blomberg requiring special preparations for war against Austria . . . Raeder received directives on ‘Fall Gruen’ and the directives on ‘Fall Weiss’ beginning with that of 3rd April, 1939, the latter directed the Navy to support the Army by intervention from the sea . . . Raeder received Keitel’s directive for Norway on 27th January, 1940 and the subsequent directive of 1st March, signed by Hitler . . . Raeder received the directives, including the innumerable postponements, for the attack in the West . . . He received Hitler’s directive on Yugoslavia . . . He voiced ‘serious objections against the Russian campaign before the defeat of England, . . . But once the decision had been made, he gave permission six days before the invasion of the Soviet Union to attack Russian submarines in the Baltic Sea.15

As these excerpts make clear, Raeder was responsible for carrying out Hitler’s directives – not for formulating them. Similarly, from 1935 to 1938, Jodl was chief of the National Defence Section in the High Command and from 1939, Chief of the Operations Staff of the High Command of the Armed Forces.16 In his defence, Jodl explicitly argued that ‘he was a soldier sworn to obedience, and not a politician’.17 Nonetheless, his role in operational military planning was viewed as sufficient by the Tribunal to secure a conviction for crimes against peace. As such, it cannot be said that under the IMT judgment, participation in the planning, preparation, initiation, or waging of wars of aggression was per se a leadership crime. Rather, the Tribunal sought evidence of a concrete and significant contribution to the advancement of the Nazi’s aggressive war plans or the wars themselves. 13

14 17

See further R. D. Lumb, ‘Individual Responsibility for Aggressive War: The Crime Against Peace’ (1956–1959) 3 University of Queensland Law Journal 333, 343. Nuremberg judgment, 561. 15 Ibid., 561–562 (emphasis added). 16 Ibid., 568. Ibid.

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The US Military Tribunal in the Farben case held that liability was limited to those ‘responsible for the formulation and execution of policies’.18 To extend the net of liability any wider would mean that there would be ‘no practical limitation on criminal responsibility’ and could extend to ‘the private solider on the battlefield, the farmer who increased his production of foodstuffs to sustain the armed forces, or the housewife who conserved fats for the making of munitions’.19 Thus the Tribunal concluded that it must ‘leave the mark where we find it, well satisfied that individuals who plan and lead a nation into and in an aggressive war should be held guilty of crimes against peace, but not those who merely follow the leaders’.20 The US Military Tribunal in the High Command case held that ‘the criminality which attaches to the waging of an aggressive war should be confined to those who participate in it at the policy level’.21 It found that it was ‘not a person’s rank or status’ but their ‘power to shape or influence the policy’ of a state, which was relevant to the determination of liability for crimes against peace.22 Excluded from criminal responsibility were ‘instruments of the policy makers’.23 Thus the test for criminal responsibility applied in the High Command and Farben cases, the first explicitly, the second implicitly, would exclude those best described as instruments of the policy makers. Rosenberg, Funk, Do¨nitz, Raeder and Jodl would arguably all have been acquitted under the tests laid down in the Farben and High Command cases – despite the fact that the Tribunal in the Farben case at least expressed a desire to leave the IMT’s test unaltered. It is important to note that in addition to the different threshold applied in the IMT’s judgment as compared with that applied in the Farben and High Command cases, there are important differences between the judgments of the latter. The Farben Tribunal refers explicitly to leaders in several places. The High Command Tribunal, on the other hand, explicitly stated that neither rank nor status was important. 18

19 21

22

23

USA v. Carl Krauch et al, Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1952), Vols VII–VIII (Farben case), 1123. Ibid., 1124–1125. 20 Ibid., 1126. USA v. Wilhelm von Leeb et al, Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1951), vols X–XI (High Command case), 486. Ibid., 489. See also 488, where the Tribunal indicated that knowledge of plans for an aggressive war was necessary but insufficient, and that criminality required the possessor of such knowledge to ‘be in a position to shape or influence policy’ that brings about aggressive war. Ibid., 489.

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Both judgments refer to the role of potential perpetrators in relation to State policy – but characterise this role somewhat differently. According to Farben it was necessary to look for an ability to formulate and execute such policies. At one point the High Command Tribunal employs nearly identical language, referring to the formulation and implementation of policies, but the language that appears repeatedly in the judgment is the ability to ‘shape or influence’ state policy. Arguably these formulations extend to different categories of potential perpetrators. Placing emphasis on the conjunctive ‘and’ in the ‘formulate and execute’ requirement found in the Farben judgment, only leaders who both formulate aggressive war policy and do something towards that policy’s implementation could be held liable. In the opinion of the High Command Tribunal, on the other hand, those with the power to shape or influence policy were potentially exposed. Placing emphasis this time on the disjunctive ‘or’, it might be said that those capable of influencing policy in particular, would arguably extend to a far wider range of persons. The Farben and High Command judgments are also at odds with the judgments of the other national Military Tribunals. The Tribunal in the Krupp case was at pains to emphasise that ‘[w]e do not hold that industrialists, as such, could not under any circumstances be found guilty upon such charges’.24 This is an important qualification to the Tribunal’s decision. It clearly demonstrates that the Tribunal did not consider liability for crimes against peace to require perpetrators to possess elite positions within a government’s structure. The Tribunal in the Roechling case acknowledged that the IMT implicitly found that businessmen could be guilty of waging an aggressive war.25 At the same time, it interpreted the IMT’s judgment as holding that ‘only the “principal originators” of the plans for aggressive war could be convicted of crimes against peace’.26 It then relied on Farben’s interpretation of the IMT’s judgment to hold that such persons were ‘prominent persons whose actions bore the character of planning and carrying 24

25

26

USA v. Alfried Felix Alwyn Krupp von Bohlen and Halback et al, Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10 (1950), Vol. IX (Krupp case). Referencing the IMT’s findings against Speer, the Tribunal held that ‘[i]f Speer’s activities were found not to constitute “waging aggressive war” we most certainly cannot find these defendants guilty of it’ (at 398). Government Commissioner of the General Tribunal of the Military Government for the French Zone of Occupation in Germany v. Hermann Roechling et al, Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10 (1951–1952), Vol XIV (Roechling case), 1104. Ibid., 1108.

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out their aggressive ambitions on behalf of the nation’.27 The descriptor ‘prominent persons’ arguably applies to a much wider class of persons than ‘leaders’ and clearly the judgment was silent in relation to the formulation of policy. The inconsistency of the post-War Tribunal judgments is demonstrated most clearly in the Ministries case. The Tribunal’s findings in relation to Lammers, Minister and Chief of the Reich Chancellery, admittedly do reflect varying elements of the Farben and High Command cases. At first instance, the Tribunal noted ‘the great importance and influence of the defendant Lammers in the high Nazi circles in the distinctly policy-making sphere’,28 and, in response to a defence motion to overturn his conviction, emphasised ‘Lammers’ authority and policy-shaping power’.29 Nonetheless, the Tribunal did not characterise such a role as a requirement.30 Rather, at the outset of its judgment, the Tribunal noted that: It must be apparent to everyone that the many diverse, elaborate and complex Nazi programmes of aggression and exploitation were not self-executing, but their success was dependent in a large measure upon the devotion and skill of men holding positions of authority in the various departments of the Reich Government charged with the administration or execution of such programmes.31

This statement was reflected in the Tribunal’s findings in relation to individual defendants. For example, Von Weisza¨cker had been Ministerial Director of the Political Division of the Foreign Office in 1937, served as State Secretary from 1938 to 1943 and was appointed German Ambassador to the Vatican in 1943. These were not policymaking roles. As the Tribunal itself explicitly held ‘[w]hile his position was one of prominence and he was one of the principal cogs in the machinery which dealt with foreign policy, nevertheless, as a rule, he was an implementer and not an originator. He could oppose and object, but he could not override.’32 27 28

29 30

31

Ibid. USA v. Ernst von Weizsa¨cker et al, Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10 (1951). Vols XII–XIV (Ministries case), 409. Ibid., 974. See the Dissenting Judgment of Judge Powers who set out a three-pronged test for liability, the third limb of which read: ‘[w]as his position and influence, or the consequences of his capacity, such that his action could properly be said to have had some influence or effect in bringing about the indication of the war on the part of his government?’ (at 889). Ministries case, 338 (emphasis added). 32 Ibid., 356.

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The IMTFE’s findings were even less coherent. It held that Japan’s: far-reaching plans for waging wars of aggression, and the prolonged and intricate preparation for and waging of these wars of aggression were not the work of one man. They were the work of many leaders acting in pursuance of a common plan for the achievement of a common object.33

Several of the accused were undeniable ‘leaders’, who used their position to advance Japan’s aggressive wars. For example, Hideki Tojo, who rose to the position of Minister of War and then Prime Minister, a position he held for three years, was described by the Tribunal as ‘a principal in the making of the plans and in the waging of the wars’.34 At the same time, Shigetaro Shimada was found not to be individually criminally liable for any acts before October 1941, as during this period he ‘played nothing but the part of a naval officer carrying out his duties as such’.35 Once he became Navy Minister in 1941 and ‘took part in all decisions made’ regarding the 7 December 1941 attack on Pearl Harbor, his criminal responsibility, according to the Tribunal, was engaged.36 Other accused found guilty of waging wars of aggression, however, were not part of a small decision-making inner circle. Kenji Dohihara was promoted from Colonel to General during the relevant period, and was Lieutenant General on the General Staff that had overall control of the Lake Khassan fighting; he also commanded elements of the Army that took part in fighting at Nomonhan.37 While the Tribunal found he ‘acted in close association of other leaders of the military faction in the development, preparation and execution of their plans to bring East and South East Asia under Japanese domination’,38 at no time could Dohihara fairly be described as a leader in the formal sense of that term. Kingoro Hashimoto was found to have been ‘a principal in many of the activities by which the conspirators came ultimately to suppress the opposition of the democratic elements in Japan and to control the government’ and to have ‘played some part in the planning of the Mukden Incident’,39 but was described by the Tribunal as ‘an army officer’.40 In 1941 Naoki Hoshino became Chief Secretary of the Cabinet and soon after a Councillor of the Planning Board.41 The Tribunal concluded

33

34 39

United States et al v. Sadao Araki et al in John R. Pritchard (ed.), The Tokyo Major War Crimes Trial: The Records of the International Military Tribunal for the Far East with an Authoritative Commentary and Comprehensive Guide (1998)(Tokyo judgment), 1140–1141. Ibid., 1205. 35 Ibid., 1196. 36 Ibid. 37 Ibid., 1147–1148. 38 Ibid., 1147. Ibid., 1150. 40 Ibid. 41 Ibid., 1162.

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that ‘in his successive official positions he took a direct part in the waging of aggressive wars’. Thus, while Hoshino ultimately rose to a position of some seniority in government, while a ‘functionary’ and a ‘servant’ he was, according to the Tribunal, capable of perpetrating the waging of aggressive war.42 In relation to other accused, the IMTFE’s focus was on the ability to shape or influence policy. The Tribunal held, in relation to Heitaro Kimura: Though not a leader, he took part in the formulation and development of policies which were either initiated by himself or proposed by the General Staff or other bodies and approved and supported by him.43

The Tribunal noted that as War Minister from August 1939 to July 1940, Shunroko Hata ‘exerted considerable influence on Government policy’.44 The Tribunal found that Koichi Kido’s position of Lord Keeper of the Privy Seal was ‘one of great influence’, used by Kido to support Japan’s aggressive wars.45 From 1930 to 1933, Toshio Shiratori was Chief of the Information Bureau of the Foreign Office. The Tribunal explicitly found that ‘no doubt it was dictated to him’ what he should do. Nonetheless, the Tribunal focused on the fact that he was active in ‘expressing views on matters of policy, views which received consideration in high quarters’.46 Akira Muto was found not to have been a member of the conspiracy prior to his appointment as Chief of the Military Affairs Bureau of the Ministry of War because ‘he held no appointment which involved the making of high policy’ and there was ‘no evidence that in this earlier period he, alone or with others, tried to affect the making of high policy.’47 In summary, it is somewhat difficult to draw conclusions in relation to the Tokyo defendants. This is no doubt at least in part attributable to the fact that there were fifteen different Japanese Cabinets in seventeen years – an indication of the political instability that characterised Japan at the time. The result was that it was far more difficult for the IMTFE than the IMT to identify a core group of perpetrators, meaning it had to point to the piecemeal contributions to Japan’s aggressive wars of many of the defendants. Nonetheless, it can be said that the IMTFE did not 42

43 47

See similar findings regarding Okinori Kaya (ibid., 1168–1169) and Naoki Hoshino (1161). Ibid., 1173. 44 Ibid., 1153. 45 Ibid., 1171. 46 Ibid., 1198. Ibid., 1184. See similar findings concerning Kenryo Sato (1189) and Mamoru Shigemitsu (1192).

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require defendants to be a member of a small circle of governing elite, but found a range of individuals who had made an effective contribution to the advancement of Japan’s aggressive wars criminally responsible for those wars. The ability to formulate or influence policy appeared to be a critical factor in reaching a guilty verdict for some – but most definitely not all – of the accused. Thus, while the judgments of the post-war tribunals evince a clear intent to limit liability to a select few, neither the IMT nor the IMTFE provided a bright line test to distinguish those who could be held responsible for aggressive wars from those who could not. And while the national Military Tribunals in Germany tried to articulate such a rule, variances in the rule’s expression – and its application – resulted in a test that can be described as bright when applied to obvious cases, but which was far more murky when faced with the hard. This lack of coherence perhaps explains the emergence of the shorthand reference to ‘leadership’ to encapsulate the idea that not all those contributing to an aggressive war effort could be held individually criminally responsible. The question to be answered is whether the repetition of the description of crimes against peace, and subsequently the crime of aggression, as a leadership crime has created a self-fulfilling prophecy, or whether Article 8bis (1) reflects actual Nuremberg and Tokyo precedents, capturing a range of individuals who do not fall within the common understanding of the term ‘leader’. In the lead-up to the Rome Conference, the International Law Commission would have expressly limited individual criminal responsibility for the crime of aggression to ‘leaders’ and ‘organisers’.48 The formulation ultimately adopted under Article 8bis (1) and the Elements of the crime, however, employs more nuanced language. It limits the class of potential perpetrators to persons ‘in a position effectively to exercise control over or to direct the political or military action’ of the relevant State. Determining the scope of this definition requires a multifaceted analysis. The first point to note is that a footnote to the second element of the crime provides that more than one person may meet the criterion of being in a position effectively to exercise control over or to direct the political or military action of the State that committed the act 48

Article 15, Draft Code, 1991 ILC Yearbook, 94; Article 15, Draft Code, 1996 ILC Yearbook, 83. The ILC’s commentary specified that these terms ‘must be understood in the broad sense, i.e. as referring, in addition to the members of a Government, to persons occupying high-level posts in the military, the diplomatic corps, political parties and industry, as recognised by the Nuremberg Tribunal’.

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of aggression. An illustration provided by the SWGCA is where a joint decision to commit an act of aggression is made by two persons who are both in a position effectively to exercise control over or to direct that political or military action.49 This is a predictable situation in those many States where decisions about the use of force are not made by the Head of State or Government acting alone but by a council of key ministers. Secondly, the definition requires the perpetrator to have been a person ‘in a position’ to carry out the requisite conduct. This phrase may be interpreted in two ways. It could be understood as requiring the individual in question to occupy ‘a position’ that formally entails the ability to exercise control over or direct the political or military action of a State. Or it could be read as a synonym for being ‘able’ to carry out the requisite conduct. While in practice there would in many cases be a significant overlap between the effect of these two interpretations, clearly in some States there are persons who do not occupy any formal position within governmental power structures but who are nonetheless able to exert significant influence over that State’s decision-making processes. Such persons might include the relations of those in power, religious or social leaders, and major financial donors. The travaux pre´paratoires suggest an interpretation that captures such persons is correct. The SWGCA’s debates reveal that there was a desire among the majority to extend the definition of potential perpetrators to those sitting outside formal leadership structures.50 The reference to a person being in a position ‘effectively’ to exercise control over or to direct the political or military action of a State has the opposite effect, in that it excludes from the potential category of perpetrators those members of the formal governmental power structure who lack the ability to exercise real power (such as Heads of States who are mere figureheads).51 Thus, the first two components of the definition of potential perpetrators of the crime of aggression tell us that what is important is an actual ability to exercise control over or to direct the political or military action of a State, rather than evidence of a grant of formal powers under a constitution or legislative instrument.

49 50 51

June 2009 SWGCA Report, Appendix II, Draft Elements of Crimes, Explanatory Note, 40. Notes of the author on file. Roger Clark, ‘The Crime of Aggression’ in Stahn & Sluiter (eds), The Emerging Practice of the International Criminal Court, 709, 715; Anggadi et al, ‘Negotiating the Elements’, 66.

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Common dictionary definitions of ‘control’ include ‘dominate’; ‘command’;52 ‘the act or power of directing or regulating’;53 ‘to exercise restraint or direction over’; and ‘to hold in check’.54 Thus the phrase ‘to exercise control over’ contains a requirement that the potential perpetrator has a decisive say with regard to the political or military action of the State in question. Dictionary definitions of ‘direct’ include: ‘control’; ‘govern movements of’; ‘order (person) to do thing to be done’; ‘give orders’;55 ‘regulate the course of’; ‘supervise and control the acting of’; ‘give authoritative instructions to’;56 ‘manage’; and ‘command’.57 As such, while an argument could be made that the verb ‘direct’ has the potential to capture a slightly wider range of persons than the verb ‘control’ on the basis that the concept of managing or regulating is wider than the notion of commanding or dominating, this is only by the smallest of degrees. It is clear that both terms incorporate a high threshold test. Of course, context is paramount. In order to meet the definition of potential perpetrator, an individual must have been in a position to exercise control over or to direct ‘the political or military action’ of a State. The inclusion of the noun ‘action’ in this phrase may prove decisive. ‘Action’ is typically defined as the ‘process of acting, exertion of energy or influence’;58 ‘a thing done, a deed, an act’;59 or ‘an act of will’.60 Thus the ability to exercise control over or to direct the political or military action of a State must be understood as referring to the ability to control or direct the deeds of the political or military establishments of the State aimed at achieving particular objectives. This is clearly a limiting factor: an amorphous influence over military or political spheres is unlikely to be sufficient to meet the definition of potential perpetrator. Rather, it will be necessary to demonstrate that the individual concerned is able to dictate quite specific outcomes. Finally, it should be noted that the requisite control or direction must be exercised in respect of the State ‘which committed the act of 52 53 54 56 58 60

The Concise Oxford Dictionary of Current English (6th edn, 1976). The Shorter Oxford English Dictionary (5th edn, 2002). Macquarie Dictionary (4th edn, 2005). 55 The Concise Oxford Dictionary. The Shorter Oxford English Dictionary. 57 Macquarie Dictionary. The Concise Oxford Dictionary. 59 Macquarie Dictionary . In a military context the term ‘action’ may also be understood as ‘armed encounter’, ‘an engagement between troops or ships’, or ‘combat’; there is, however, no evidence to suggest that such a narrow definition was intended. Indeed such an interpretation is militated against by the fact that the reference to ‘military action’ is part of a broader composite phrase ‘political or military action’.

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aggression’. Thus, while an exceptional situation can be imagined in which one State is completely dominated by a second State, such that the leader of the second State is able to exercise the requisite control or direction over the political or military action of the first State, clearly in the majority of cases potential perpetrators will be a central figure in the aggressor State itself. Thus, to answer the question posed at the outset – namely whether the description of aggression as a leadership crime is a misnomer or not – it can first be concluded that persons meeting the definition of potential perpetrator of the crime of aggression must be a de facto, if not a de jure, ‘leader’ of a State. What exactly, though, are the parameters of the definition of ‘leader’? Several commentators have asserted that the definition includes religious and business leaders within its scope.61 Ambos, for example, asserts that the definition ‘focuses on de facto effective control and direction rather than formal status. For that reason, leadership is not per se limited to political leaders and/or members of government, but may also extend to business or religious leaders.’62 Ambos’ conclusion, however, is not a necessary corollary of his proposition. While I agree that de facto rather than de jure control and direction is sufficient to meet the definition in Article 8bis (1), this does not allow a conclusion to be reached that business or religious leaders are capable of exercising the requisite control or direction of the political or military action of a State. A typical industrialist might produce defence materiel to enable acts of aggression, but would not in and of himself or herself qua industrialist exercise will that would cause the political or military machinery of the State to act to achieve a particular objective. Similarly, while a religious leader might fill multiple roles within a State, such that he or she provides both religious and political or military leadership (the former leader of Iran, the Grand Ayatollah Sayyed Ruhollah Musavi Khomeini, comes to mind), absent a de facto or de jure political or military leadership role, a religious leader 61

62

See Heinsch, ‘The Crime of Aggression After Kampala’, 723; Noah Weisbord, ‘Judging Aggression’, Florida International University Legal Studies Research Paper Series, Research Paper No. 11–15, May 2011, http://ssrn.com/abstract=1846916, 31; Ambos, ‘The Crime of Aggression After Kampala’, 490. Cf. Keith A. Petty, ‘Sixty Years in the Making: The Definition of Aggression for the International Criminal Court’ (2008) 31 Hastings International and Comparative Law Review 531, 548; Clark, ‘The Crime of Aggression’ in Stahn & Sluiter, 715; and Reisinger, ‘Defining the Crime of Aggression’ in Stahn & van den Herik, 432, who raise the question of whether business leaders are captured by the definition. Ambos, ‘The Crime of Aggression After Kampala’, 490.

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in and of himself or herself would not meet the definition of potential perpetrator by, for example, exhorting the use of force to achieve religious conversions or to defeat proponents of competing ideologies. A comparison between the definition of a potential perpetrator under Article 8bis (1) and the range of persons prosecuted by the post-war Tribunals shows that Heller was right to conclude that the decision to adopt the control or direct standard ‘represents a significant retreat from the Nuremberg principles – not their codification’.63 I do not agree, however, that Heller is right in indicating that the retreat necessarily represents a misunderstanding of Nuremberg and Tokyo case law on the part of the SWGCA. In 2006, the SWGCA discussed the need to refer to an ability to influence policy,64 while in 2007 the suggestion was made that the definition needed to capture persons outside the political and military leadership who have the power to shape or influence the actions of a State.65 Such suggestions failed to find favour among the majority, however, which was of the view that widening the leadership clause in such a manner might create ‘more problems than it would solve’.66 Discussions on the margins of the SWGCA made it clear that the types of ‘problems’ contemplated included evidential difficulties, as well as concern that opening up the scope of potential perpetrators to those who were in a position to shape and influence policies, or who played a major role in an act of aggression could, especially in democratic States, capture an excessively large number of persons, including many who could not be said to be responsible to the same degree as primary motivators or decision-makers.67 Thus, while it is undoubtedly true that not all delegations benefited from expert knowledge of relevant Nuremberg and Tokyo case law, and some vaguely asserted that they were comfortable that business leaders would be captured by the ‘control and direct’ standard,68 it should be recognised that key 63

64 65 66 67 68

Kevin Jon Heller, ‘Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression’ (2007) 18(3) European Journal of International Law 477, 480. It is important to note that while I concur with Heller’s conclusion, I find fault with his methodology. Heller compares the control and direct standard to the shape or influence test in reaching this conclusion. Contrary to the assertions Heller makes, the shape and influence test is not representative of the Nuremberg and Tokyo precedent, as discussed above. June 2006 SWGCA Report, [88]. January 2007 SWGCA Report, [13]; December 2007 SWGCA Report, [9]. December 2007 SWGCA Report, [9]. June 2007 SWGCA Report, [12]. See further Barriga, ‘Against the Odds’, 8. February 2009 SWGCA Report, [25].

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negotiators were well aware of the distinction between the definition proposed and its precedent and made a conscious choice to narrow the scope of perpetrators captured. Heller is clearly disappointed that a narrower range of actors may be held responsible for crimes of aggression as compared with those tried for crimes against peace. I am not. I am of the view that the relative certainty imbued by the revised test is an improvement over the uncertainty that plagues the conflicting decisions handed down by the postwar Tribunals. If the crime of aggression, moreover, is truly about punishing those responsible for deciding to use inter-State armed force aggressively, and if one of the key objectives of international criminal law is to deter such acts, it might also be suggested that these goals are best met by characterising aggression as something of a ‘special’ category of crime with a very narrow focus in order to maximise the potential to give pause for thought to those who actually make decisions about the use of force.

The relevance of Article 28 Article 28 of the Rome Statute outlines applicable principles of command and other types of superior responsibility. Paragraph (a) provides that a military commander69 will be criminally responsible for Rome Statute crimes ‘committed by forces under his or her effective command and control’,70 ‘as a result of his or her failure to exercise control properly over such forces’ where the former knew or should have known that the forces were committing or were about to commit such crimes and the military commander ‘failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.’ Paragraph (b) applies to ‘superior and subordinate relationships not described in paragraph (a)’ and makes a superior criminally responsible for crimes committed by subordinates under his or her effective authority and control, as a result of a failure to exercise control properly over such subordinates where the superior either ‘knew or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes’; the crimes concerned activities ‘within the effective responsibility and control of the 69 70

Or persons effectively acting as a military commander. Or effective authority and control.

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superior’; and the superior ‘failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution’. The SWGCA spent some time debating the relevance of Article 28 to the crime of aggression given the leadership nature of the crime. Did it make sense to contemplate a superior or military commander being held responsible for an act of aggression committed by a ‘leader’? Consideration was given to the explicit exclusion of Article 28 to the crime. Ultimately, however, no special provision was made in respect of Article 28: seemingly the reflection of a majority view that the explicit exclusion of the Article was unnecessary, given it was considered to be inapplicable in practice.71 While I agree with commentators who conclude it is highly unlikely that Article 28 will be of practical relevance,72 I disagree with others who take this one step further and assert that the concept of superior responsibility is ‘logically impossible’ to apply to the crime of aggression given ‘subordinates . . . cannot be perpetrators’.73 Such comments are perhaps correct insofar as they are applied to paragraph (a) of Article 28. That paragraph applies to crimes committed ‘by military forces’; this term must be understood as applying generally to the members of the military, not to an individual who might meet the definition of potential perpetrator under Article 8bis (1) although technically under the military command of another individual who meets that definition. It is not possible, however, to be as definitive in relation to paragraph (b). Take, for example, a presidential Head of State in whom vests the constitutional power to dismiss the prime minister and who has the power to command the armed forces of a State, but who absents himself from key decision-making meetings so as to avoid dealing with the conflict that he feels arises from his view that the use of force being called for by the prime minister will be a manifest violation of the UN Charter, but which enjoys widespread popular support, meaning that a failure to support it could jeopardise his own privileged position. Arguably, the failure to dismiss the war-hungry prime minister, or a 71

72

73

June 2008 SWGCA Report, [64]; June 2007 SWGCA Report, [13]; June 2005 SWGCA Report, [47]; June 2004 SWGCA Report, [54]. Kress & von Holtzendorf, ‘The Kampala Compromise’, 1189; Clark, ‘Negotiating Provisions Defining the Crime of Aggression’, 1109. Ambos, ‘The Crime of Aggression After Kampala’, 493. See also Weisbord, ‘Conceptualizing Aggression’, 57.

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failure to exercise restraint over the armed forces could satisfy the conditions of Article 28(b).74 As such, while highly unlikely to be considered in the foreseeable future, the better view is that Article 28 remains theoretically applicable to the crime of aggression, despite the restricted definition of the class of potential perpetrators to which the crime applies.

The perpetrator’s contribution For some time the WGCA and SWGCA favoured a drafting approach that would have described the different forms of individual participation directly in the definition of the crime and excluded the application of Article 25(3), which outlines the various modes of participation (referred to as the monistic approach).75 Over time, however, the ‘differentiated approach’ gained support. The differentiated approach favoured defining the crime of aggression in a manner consistent with other Rome Statute crimes, which in each case are focused on the conduct of the principal perpetrator, with other forms of participation (orders, solicits, induces, aids, abets, assists, contributes, incites and attempts) addressed in Article 25(3). The differentiated approach required the identification of a conduct verb, or series of verbs, to describe what it means to say that a principal perpetrator committed the crime of aggression. As noted in the Discussion Paper on The Crime of Aggression and Article 25, paragraph 3, of the Statute, prepared for the SWGCA by Claus Kress: in the case of the crime of aggression the underlying collective act is not broken down in a list of possible individual types of conducts, as is the case with the crime of genocide (killing, causing serious bodily or mental harm etc.) and the crime against humanity (murder, extermination etc.); that means that it is the collective act as such that constitutes the point of reference for any definition of what the individual principal perpetrator actually does.76

74 75

76

A less detailed scenario was alluded to in the June 2008 SWGCA Report, [64]. See Definition of the Crime of Aggression and Conditions for the Exercise of Jurisdiction, Discussion Paper Prepared by the Coordinator in Report of the Preparatory Commission for the International Criminal Court, UN Doc. PCNICC/2002/2/Add. 2 (2002), 3, which would have described the individual conduct element of the crime as when a person ‘intentionally and knowingly orders or participates actively in the planning, preparation, initiation or execution of an act of aggression’. June 2005 SWGCA Report, Appendix III, Discussion Paper I, Section III (1)(a).

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The SWGCA considered various proposals for the conduct verb: ‘participates actively in’, ‘engages a State’, ‘directs’ and ‘engaging the armed forces of a State’. Ultimately, however, States Parties specified in Article 8bis (1) (and the first element of the crime) that the perpetrator must have ‘planned, prepared, initiated or executed an act of aggression’, an update of the Nuremberg and Tokyo formulation of the individual conduct element of the crime which referred to ‘planning, preparation, initiating or waging’. Reasons given for the preference for ‘planned, prepared, initiated or executed’ included that it ‘reflected the typical features of aggression as a leadership crime’ and ‘would highlight the criminalised conduct and thus increase the deterrent effect of the provision’.77 As with other aspects of the crime, resort to agreed language also proved attractive on the basis that it inevitably narrowed the scope for disagreement compared with something novel. Some commentators have queried what the verbs ‘planned’, ‘prepared’, ‘initiated’ and ‘executed’ add to the modes of liability covered in Article 25(3),78 expressing the view that ‘the multiplication of modes of liability will create unnecessary confusion in the current structure of the Statute’.79 Such views, however, overlook the fact that, as noted above, it is necessary for the definition of the crime to provide an explanation of the requisite individual conduct, as opposed to the State act. Absent a reference to ‘planned, prepared, initiated or executed’, the definition would make any individual in a position to exercise control over or direct the political or military action of a State that commits an act of aggression that constitutes a manifest violation of the UN Charter individually criminally liable and would thus amount to a form of strict liability. Such an approach would have been inconsistent with the general scheme of international criminal law. It would also have been a very significant extension of the precedent established in Nuremberg and Tokyo. The IMT’s focus was firmly on the defendants’ acts up to the point of the outbreak of hostilities. No reference was made at all to the actions of Hess, Ribbentrop, Jodl, Funk or von Neurath after the outbreak of war. 77 78 79

June 2006 SWGCA Report, [92]. A view also expressed by some in the SWGCA, see June 2006 SWGCA Report, [92]. Dov Jacobs, ‘The Sheep in the Box: The Definition of the Crime of Aggression at the International Criminal Court’ in Christoph Burchard, Otto Triffterer & Joachim Vogel (eds), The Review Conference and the Future of the International Criminal Court, The Hague: Kluwer Law International, 2010, 131, 142; Ambos, ‘The Crime of Aggression After Kampala’, 495.

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This suggests that responsibility for planning or preparing wars of aggression was sufficient to found individual criminal responsibility for crimes against peace in the absence of any evidence that an accused initiated or waged an aggressive war. Indeed, the IMT described Funk’s conduct as participation in the economic preparation of the aggressive war against Poland and the Soviet Union, which suggests that preparation alone is sufficient for a guilty verdict.80 This is consistent with Article 8bis (1), which employs the disjunctive ‘or’ in the list of conduct that attracts individual responsibility. A critical question, of course, is the meaning of each of the conduct verbs. No definition was provided by the Tribunals as to the meaning of planning or preparation except in so far as they clearly saw these as steps that preceded the outbreak of hostilities. Indeed the IMTFE did not consider it necessary to consider charges relating to planning a war, finding the charges duplicative of conspiracy charges.81 The Nuremberg and Tokyo precedents, therefore, provide little guidance. Dictionary definitions of planning include: ‘formulating or organising a method by which a thing is to be done’;82 ‘to arrange a plan or scheme’; ‘to form a plan, project or purpose’.83 Definitions of preparation include: ‘preparing’; ‘thing done to make ready (for)’;84 ‘a proceeding, measure or provision by which one prepares for something’; ‘any proceeding, experience, or the like considered as a mode of preparing for the future’;85 ‘making or getting ready’; ‘a thing which is prepared for any action, especially warfare’.86 Thus, planning is likely to largely consist of participation in meetings during which plans for a use of force are formulated. Preparation could include acts such as creating the necessary military or economic capacities to commit acts of aggression (such as acquiring weapons for the specific purpose of committing an act of aggression, amassing troops on a border ready for a preemptive strike, or liquidating State assets to fund a State war machine), or political and diplomatic manoeuvres (such as forming military alliances with the specific aim of enhancing military might for a planned act of aggression or the making of high-level diplomatic representations in order to conceal a State’s real intention and thereby gain the military 80

81 84 86

Cf. the Concurring Opinion of Judge Anderson in the Krupp case who held (at 427) that there was ‘no justification for the view that the IMT considered mere preparation apart from planning and initiation to be a separate and distinct offense’. Tokyo judgment, 32–33. 82 The Concise Oxford Dictionary. 83 Macquarie Dictionary. The Concise Oxford Dictionary. 85 Macquarie Dictionary. The Shorter Oxford English Dictionary.

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advantage of surprise).87 Critical is a causal nexus between the preparatory acts and the relevant act of aggression, as implied in the first element of the crime.88 Consistent with the findings of the IMT, the ICC is highly likely to require planning and preparatory acts to amount to a substantial step toward the carrying out of the crime of aggression in order to attract criminal responsibility. Verbal support for aggressive acts is, for example, likely to be insufficient to meet the definition of either planning or preparation.89 Initiation is defined as: ‘to begin, set going, or originate’;90 ‘the act of initiating’;91 ‘the action or an act of beginning or originating something’; ‘the fact of being begun’; ‘commencement’; ‘originated’.92 While the Tokyo Tribunal refused to consider charges relating to the ‘initiation’ of wars of aggression on the basis that such charges were duplicative of those relating to the waging of such wars,93 the High Command case held that ‘[t]he initiation of the war ends and the waging of the war between two adversaries begins when the war is formally declared or the first shot is fired’.94 Similarly, the IMTFE held that in the indictment, the term was ‘given the meaning of commencing the hostilities’.95 This is consistent with the view of Shukri, who has argued that initiating an act of aggression means ‘the decision to commit the act of aggression’ – impliedly the decision taken immediately before the actual use of force, not a general decision to act aggressively that might be taken in the planning stage.96 Such decisions are necessarily limited to those taken at the strategic, as opposed to operational or tactical, level by virtue of the leadership requirements included in the definition. The substitution of ‘execution’ for ‘waging’ was considered a necessary result of the definition of the State act element of the crime being broadened to ‘act of aggression’ in place of ‘war of aggression’. No views expressed in the meetings of the SWGCA reveal that any substantive

87

88 89

90 92 94 96

Muhammad Aziz Shukri, ‘Individual Responsibility for the Crime of Aggression’ in Bellelli, International Criminal Justice 519, 528. Anggadi et al, ‘Negotiating the Elements’, 65. Sascha Mueller, ‘The Crime of Aggression under German Law’ (2008) 6 New Zealand Yearbook of International Law, 183, 189. The Concise Oxford Dictionary. 91 Macquarie Dictionary. The Shorter Oxford English Dictionary. 93 Tokyo judgment, 33. High Command case, 485. 95 Tokyo judgment, 33. Shukri, ‘Individual Responsibility’, 528.

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difference of meaning, however, was intended.97 Definitions of the term include ‘carrying out’;98 ‘to perform or do’; and ‘to produce in accordance with a plan or design’.99 As Barriga has noted: ‘execution’ could be seen as the odd sibling among these words, as all the others describe the typical activity of the leader, whereas it is usually the soldier who executes an act of aggression by actively engaging in combat. Then again, modern warfare would allow a leader to execute a devastating act of armed force by a simple push of a button.100

The Nuremberg and Tokyo Tribunals clearly treated ‘waging’ as a residual term for substantive acts taken after the initiation of hostilities. In much the same way it seems likely that ‘execution’ will be read as encompassing all substantive strategic acts undertaken after the initiation of an act of aggression to secure the continuation and success of the aggressive act.101 Such acts might include a decision that State A will occupy State B made after the initiation of armed force or a decision to annex occupied territory.

The mental elements Article 8bis (1) contains no special intent requirement, meaning that the default provisions of Article 30 apply. Article 30 states that: (1) Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. (2) For the purposes of this article, a person has intent where: (a) in relation to conduct, that person means to engage in the conduct; (b) in relation to consequences, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. (3) For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.

Paragraph 2 of the General Introduction to the Elements of Crimes states that ‘where no reference is made in the Elements of Crimes to a mental element for any particular conduct, consequence or 97 98 100

Ambos, ‘The Crime of Aggression After Kampala’, 468. 99 The Concise Oxford Dictionary. Macquarie Dictionary. Barriga, ‘Against the Odds’, 7. 101 Shukri, ‘Individual Responsibility’, 529.

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circumstance listed, it is understood that the relevant mental element, i.e., intent, knowledge or both, set out in Article 30 applies’.102 As such, rather than needing to demonstrate both knowledge and intent in respect of each material element of a crime, the relevant mental element – intention, knowledge, or both – applies. As noted in the Non-Paper by the Chairman on the Elements of Crimes, usually conduct and consequence elements require an ‘intent’ that a person ‘means to engage in the conduct’ or ‘means to cause’ a consequence; following on from Article 30(3), knowledge applies to circumstance and consequence elements in that these elements require an awareness on the perpetrator’s part that ‘a circumstance exists or that a consequence will occur in the ordinary course of events’.103 Thus, the application of Article 30 to the first material (conduct) element of the crime of aggression (which refers to the requirement that the perpetrator planned, prepared, initiated or executed an act of aggression), results in a requirement that the perpetrator must have intended (that is, meant) to plan, prepare, initiate or execute an act of aggression. The leadership qualifier outlined in the second element of the crime is a circumstance element (describing a circumstance in which the individual conduct required in element one is to have taken place). It requires, under Article 30(3), the perpetrator to have been aware that he or she was in a position effectively to exercise control over or to direct the political or military action of the State in question.104 The third element of the crime outlines the need for the act of aggression to have been committed. It is paired with an individualised mental element. The fourth element of the crime requires that: ‘[t]he perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations’. The general introduction to the elements clarifies that ‘[t]here is no requirement to prove that the perpetrator has made a 102

103

104

As to the drafting history of Article 30 and the Elements of Crimes see Roger S. Clark, ‘The Mental Elements in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences’ (2001) 12(3) Criminal Law Forum 291. Appendix II, Annex II, June 2009 SWGCA Report, [10]. Cf. Gadirov, ‘Article 9’, 522, who states that ‘The conjunctive “and” implies that the mental element is composed of two sub-elements: first, intellectual sub-element – knowledge; second, moral sub-element – intent. This means that a state of mind of a perpetrator must encompass both subelements in order that responsibility be imputed to him or her.’ June 2009 SWGCA Report, [14].

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legal evaluation as to whether the use of armed force was inconsistent with the Charter of the United Nations’. According to the drafters of the Elements of the crime of aggression, it was ‘agreed that it was important to clarify that intention should be required for the individual’s conduct, i.e. the planning, preparation, initiation and execution of the State act, but that this would not include an intent that the State commit an act contrary to the UN Charter’.105 According to the Non-Paper by the Chairman on the Elements of Crimes, examples of relevant facts that could go towards the satisfaction of this mental element could include ‘the fact that the use of force was directed against another State, the existence or absence of a Security Council resolution, the content of a Security Council resolution, the existence or absence of a prior or imminent attack by another State’.106 Angaddi, French and Potter usefully emphasise that what would be relevant in this context is knowledge of the existence and contents of a Security Council resolution, not an understanding of the meaning of the resolution, which would go to knowledge of the legal status of the use of force, which is not required.107 Similarly, the fifth element of the crime requires the act of aggression, by its character gravity and scale, to have constituted a manifest violation of the UN Charter. The mental element accompanying this element (the sixth element of the crime) requires that ‘[t]he perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations’. The general introduction provides that there is no ‘requirement to prove that the perpetrator has made a legal evaluation as to the “manifest” nature of the violation of the Charter of the United Nations’. The drafters explain that the intention behind this provision was ‘to make clear that the determination of whether a particular violation of the UN Charter is “manifest” is an objective determination to be made by the Court rather than to be based on the subjective view of the alleged perpetrator’.108 This element was considered necessary by the drafters to take account of situations where an accused is aware of facts establishing that a use of force amounts to an act of aggression but is not aware of facts that establish a manifest violation. The example provided in the Chairman’s Non-Paper was of a

105 106

107

Anggadi et al, ‘Negotiating the Elements’, 65. Non-Paper by the Chairman on the Elements of Crimes, Explanatory Note, June 2009 SWGCA Report, Annex II, Appendix II, [20]. Anggadi et al, ‘Negotiating the Elements’, 72. 108 Ibid., 77.

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perpetrator who is aware of a movement of some troops across a State border but unaware of the scale of the attack.109 Another example might be where a defence minister is informed by a prime minister and minister for foreign affairs that the purpose of a use of force that they need his support to initiate is to prevent mass atrocity crimes being committed in a neighbouring State, when in truth the prime minister and foreign minister’s motivation is to oust the leader of that neighbouring State, who has been refusing to authorise a lucrative financial deal for the pair. The travaux pre´paratoires of the elements reveal several reasons as to why ‘aware of factual circumstances’ mental elements have been applied in respect of the State act element of the crime. The principal justification for the formulation was to ensure that there was no requirement that a perpetrator positively knew that the State acts were inconsistent with the UN Charter or that the act of aggression constituted a manifest violation of the same. It was argued that this would effectively require knowledge of the jus ad bellum, which ‘may have unintended consequences’: For example, it may encourage a potential perpetrator to be wilfully blind as to the legality of his or her actions, or to rely on disreputable advice supporting the legality of State acts even if that advice is subsequently shown to have been incorrect. Also, mental elements requiring knowledge of the law are regularly avoided in domestic legal systems as they are often difficult to prove to the requisite standard.110

It might be noted that this approach is consistent with the elements for other Rome Statute crimes that involve legal concepts.111 In relation to the required nexus with an armed conflict, each definition of a war crime under the Statute requires that ‘[t]he perpetrator was aware of factual circumstances that established the existence of an armed conflict’. Paragraph 3 of the ‘special introduction’ to war crimes states that ‘[t]here is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or of its character as international or non-international’. What is interesting is that the threshold for the mental elements for the crime of aggression is set at a comparatively low level. Given the very high threshold built into the actus reus it is difficult to envisage a 109 111

Non-Paper by the Chairman on the Elements of Crimes, [25]. 110 Ibid., [18]. June 2009 SWGCA Report, Appendix II, Draft Elements of Crimes, Explanatory Note, [19].

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situation in which a Prosecutor is unable to satisfy the mens rea of the crime: it takes quite a bit of imagination to conceive of a situation in which a defendant who satisfies the ‘leadership’ requirements lacks awareness of their position, or a situation in which a defendant plans, prepares, initiates or executes an act of aggression without intent, or a defendant who plans, prepares, initiates or executes an act of aggression that amounts to a manifest violation of the UN Charter without awareness of the fact that the use of force was not an exercise of selfdefence, was not authorised by the Security Council or recommended by the General Assembly, was not directed towards an end such as rescuing nationals or ending mass atrocity crimes, and was on a scale that posed danger to the territorial integrity of the victim State. Indeed, the mental elements adopted for the crime of aggression are far less strict than the mens rea of crimes against peace. In relation to the requisite mental element, the IMT held that when the defendants ‘with knowledge of his aims’ gave Hitler their cooperation, they made themselves parties to the plan he had initiated: ‘[t]hey are not to be deemed innocent because Hitler made use of them, if they knew what they were doing’.112 In turn, the Tribunal’s factual findings are focused on whether individual defendants were informed of Hitler’s military plans. A good illustration is provided by the Tribunal’s dismissal of charges against Schacht. Schacht, ‘a central figure in Germany’s rearmament program’ was found to have been ‘responsible for Nazi Germany’s rapid rise as a military power’. The Tribunal held, however, that ‘rearmament of itself is not criminal under the Charter. To be a Crime against Peace under Article 6 of the Charter it must be shown that Schacht carried out this rearmament as part of Nazi plans to wage aggressive wars.’113 According to the Tribunal this required, above all, knowledge of those plans: Schacht was not involved in the planning of any of the specific wars of aggression charged in Count Two . . . He was not clearly one of the inner circle around Hitler which was most closely involved with this common plan. He was regarded by this group with undisguised hostility . . . The case against Schacht therefore depends on the inference that Schacht did in fact know of Nazi aggressive plans.114

The Tribunal was not prepared to infer such knowledge. While holding that Schacht ‘with his intimate knowledge of German finance, was 112

Nuremberg judgment, 223.

113

Ibid., 554.

114

Ibid., 555.

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in a peculiarly good position to understand the true significance of Hitler’s frantic rearmament and to realize that the economic policy adopted was consistent only with war as its object’,115 the Tribunal concluded that the ‘necessary inference’ had not been established beyond a reasonable doubt.116 The IMTFE provided no explicit guidance in relation to the mens rea of waging wars of aggression. It did, however, acquit Iwane Matsui of waging aggressive war against China on the basis that ‘[t]o justify a conviction under Count 27, it was the duty of the prosecution to tender evidence which would justify an inference that he had knowledge of the criminal character of that war. This has not been done.’117 In addition, the Tribunal referred to the knowledge held by a number of the defendants (Kingoro Hasimoto,118 Heitaro Kimura,119 Koichi Kido,120 Kunaiki Koiso,121 Kenryo Sato122 and Mamoru Shigemitsu123) that Japan’s wars were aggressive. That said, the Tribunal failed to make any mention of the knowledge of the aggressive characterisation of Japan’s wars of the remaining eighteen defendants. The Farben Tribunal acquitted all accused on the basis that it had not been established beyond reasonable doubt that their rearmament ‘activities were undertaken and carried out with knowledge that they were thereby preparing Germany for participation in an aggressive war’.124 The Tribunal rejected an argument that knowledge of Hitler’s aggressive aims could be inferred. It found that there was no common knowledge of Hitler’s aggressive plans among the German people,125 that ‘strict measures were undertaken to impose secrecy regarding military matters and industrial strength’, which hid the true state of Germany’s military strength from those involved in rearmament,126 that ‘effective armament is relative’ (meaning it could be used either offensively or defensively, depending on the relative strength of the armaments of other nations),127 and that the defendants were not ‘military experts’.128 In the Ministries case, the Tribunal held that its task was: to determine which, if any, of the defendants, knowing there was an intent to so initiate and wage aggressive war, consciously participated in either plans, preparations, initiations of those wars, or so knowing, participated or aided in 115 119 124

125

Ibid. 116 Ibid., 556. 117 Tokyo judgment 1179. 118 Ibid., 1152. Ibid., 1173. 120 Ibid., 1174. 121 Ibid., 1177. 122 Ibid., 1190. 123 Ibid., 1192. Farben case, 1123. See also 1112–1113 and the concurring judgment of Judge Herbert at 1212–1213, who reached the same conclusion albeit with more hesitancy. Ibid., 1113. 126 Ibid., 1112. 127 Ibid., 1113. 128 Ibid.

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carrying them on. Obviously, no man may be condemned for fighting in what he believes is the defense of his native land, even though his belief be mistaken. Nor can he be expected to undertake an independent investigation to determine whether or not the cause for which he fights is the result of an aggressive act of his own government. One can be guilty only where knowledge of aggression in fact exists, and it is not sufficient that we have suspicions that the war is aggressive.129

The Tribunal in the Krupp case was more concise. In considering a motion to dismiss the charges relating to crimes against peace against the accused at the conclusion of the Prosecution’s case, it held that the crucial question was whether it could ‘be said that the defendants in doing whatever they did do prior to 1 September 1939 did so, knowing they were participating in, taking a consenting part in, aiding and abetting the invasions and wars?’130 – a question it answered in the negative. The Tribunal in the High Command case similarly held that ‘actual knowledge that an aggressive war is intended and that if launched it will be an aggressive war’131 was a necessary element of the crime. It also addressed the issue of intent, indicating that acting to hinder or prevent aggression to the extent of one’s ability would demonstrate a ‘lack of criminal intent with respect to such policy’.132 Intent was addressed more squarely in the Roechling case. There, the Tribunal held that it must be established whether Hermann Roechling’s actions constituted ‘a sufficient and, in particular, an intentional collaboration with Hitler or with Goering in the preparation and the waging of war which was a war of aggression’.133 Roechling was found not guilty on the basis that it had not been established that his ‘participation in rearmament was carried out with the intention and aim to permit an invasion of other countries or a war of aggression’.134 Overall, despite the lassitude exhibited in the Tokyo Tribunal’s judgment, it seems correct to conclude that each of the post-IMT judgments recognised that knowledge of Germany or Japan’s aggressive aims was 129

130 133

Ministries case, 337. See also 339. Numerous of the defendants in the Ministries case were acquitted on the basis that they lacked the requisite knowledge. See, for example, Ritter (there was ‘no evidence he took part in or was informed of any of Hitler’s plans of aggression’ (399)); Veesenmayer (there was ‘no evidence that he had any knowledge of Hitler’s aggressive plans, and it is most unlikely that one holding such a minor position would have been informed of them’ (at 399)); and Berger (‘[w]hile, without question, he vigorously engaged in waging wars, there is nothing to indicate that he knew that they were aggressive or in violation of international law’ (at 417)). Krupp case, 396. 131 High Command case, 488. 132 Ibid. Roechling case, 1097. 134 Ibid., 1108.

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essential. Intent also featured as a critical feature of the crime in some judgments. Clearly, this was a much more onerous test than the mental elements required for the crime of aggression under the Rome Statute. The definition of the crime has thus in effect reversed the operation of the crime: in the aftermath of World War II the international community was comfortable that they knew what an unlawful State act looked like and controversy focused on who could be held responsible for such acts. Under the Rome Statute, the international community’s deliberations have focused on which type of acts to criminalise, with those to be held responsible likely to be relatively easily identified.

Article 32: mistake of fact or mistake of law Article 32 of the Rome Statute provides for limited mistake of fact and mistake of law defences: (1)

(2)

A mistake of fact shall be a ground for excluding criminal responsibility only if it negatives the mental elements required by the crime. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental elements required by such a crime, or as provided for in article 33.

Article 32 had a contested history: while many of those involved in the drafting of the general part of the Statute considered the article to be unnecessary as it amounted only to a denial of intent or knowledge, others were adamant that mistake be addressed, resulting in the inclusion of the Article under the Statute.135 Mistake of fact could clearly result in an inability to establish those elements of the crime of aggression that require proof of the perpetrator’s awareness of the factual circumstances that established that a use of armed force was inconsistent with, and a manifest violation of, the UN Charter. Clark provides a useful illustration of a military leader falsely led to believe by politicians and intelligence agencies that a use of force was required to respond pre-emptively to an imminent massive attack. The military leader’s mistake means he is likely to lack the mental element required by the crime.136 135 136

Clark, ‘The Mental Element in International Criminal Law’, 308. Clark, ‘The Crime of Aggression’ in Stahn & Sluiter, The Emerging Practice of the International Criminal Court, 716.

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Of greater interest is whether mistake of law could ever negate the mental element of the crime of aggression. I consider that the requirement that the perpetrator have knowledge of factual circumstances rather than the illegality or manifest nature of a State act of aggression means that mistake as to the legality of the State act is irrelevant to the mental element of the crime.137 Holding an honest and reasonable belief that a use of force was not unlawful would be irrelevant to the satisfaction of mens rea.

The relevance of Article 33 Article 32 cross-references Article 33. Article 33 relates to superior orders. Paragraph (1) states that: The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful.

Article 33 received little attention in the SWGCA. Reports of the limited discussions that did take place reflect some confusion both as to the compatibility of the Article with the definition of individual conduct under Article 8bis (1) as a matter of law, and the policy considerations impacting on a decision to retain the Article in relation to the crime of aggression.138 The better view would seem to be that while the application of Article 33 to the crime of aggression cannot be ruled out, a defendant attempting to rely on the defence will face significant difficulties.139 While it is possible to conceive of a situation where one individual in a position effectively to exercise control over or to direct the political or military action of a State is able to give binding orders to another individual who meets this definition (such as an order given by a member of a royal family to an elected leader), clearly there is a tension between such scenarios and the leadership nature of the crime. 137

138 139

June 2009 SWGCA Report, Appendix II, Draft Elements of Crimes, Explanatory Note, [21]. Cf. Ambos, ‘The Crime of Aggression After Kampala’, 498. June 2004 SWGCA Report, [58]–[60]; June 2005 SWGCA Report, [44]–[45]. Clark reaches a similar conclusion: Clark, ‘Negotiating Provisions Defining the Crime of Aggression’, 1110.

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While knowledge of the unlawfulness or manifest violation status is, moreover, not a required element under the definition of the crime of aggression, it is clear that in the majority of conceivable cases any interState use of force that meets the high threshold of the State act element of the crime will be patently unlawful to all participants. As such, it is apparent that in the overwhelming majority of cases it would be extremely difficult to satisfy the defence’s requirement that the order not be ‘manifestly unlawful’.

Modes of participation As outlined above, States Parties decided that Article 25(3) would apply to the crime of aggression. Article 25(3) sets out the modes of participation in a crime that attract individual criminal responsibility under the Statute, relevantly: commits, orders, solicits, or induces; aids, abets or otherwise assists; in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with common purpose; and attempts. A new paragraph (Article 25 (3bis)) provides that the leadership requirements apply as a qualifier to each mode of participation: In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.140

The application of the leadership requirement to all forms of participation, not only to the principal perpetrator, means that a much narrower class of individuals can be held criminally responsible for the crime of aggression compared with other Rome Statute crimes. For example, while a co-conspirator who leads surrenderees into a trap where others commit the crime against humanity of murder could be held individually criminally responsible for aiding the commission of the crime, none of the in-theatre commanders who execute an act of aggression (who would otherwise fall within Article 25(3)(c) or (d)) are likely to satisfy the requirements of Article 25 (3bis) given that they are likely only to be able to control and direct a portion of the relevant State’s armed forces, not the military action of the State per se.141

140 141

See February 2009 SWGCA Report, [25]; June 2008 SWGCA Report, [62]. For further examples see Ambos, ‘The Crime of Aggression After Kampala’, 491–492.

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Two key interpretive questions arise in relation to Article 25, paragraphs (3) and (3bis). Can third State officials be held individually criminally responsible for another State’s act of aggression, and can an act of aggression be attempted?

Third State officials The IMT’s conviction of Seyss-Inquart (appointed Deputy Governor General and Reichs Commissioner for Occupied Netherlands, convicted on the basis of his responsibility for ‘governing territories which had been occupied by aggressive wars and the administration of which was of vital importance in the aggressive war being waged by Germany’)142 demonstrated that those put in power to act as a puppet government could be held criminally responsible for crimes against peace. During the Cold War, puppet governments were less of a problem than the use of proxy States to wage conflicts. Today, more relevant still are the alliances and coalitions that are employed in order to garner legitimacy, share the burden and create reciprocal dependencies. In situations where one State is able to control the actions of another State (either by virtue of the establishment of a puppet government, or on the basis of the type of dependency that characterised some satellite States during the Cold War), it would be technically possible for the leaders of the controlling State to be held criminally responsible on the basis that they are able ‘to exercise control over or to direct’ the political or military action of the controlled State: there is nothing in the definition of the crime that requires perpetrators to be of the same nationality as, or otherwise reside in, or be part of the leadership structure of, the State committing the act of aggression. In the case of a genuine coalition (think of the Coalition of the Willing in the context of Iraq) there is little justification for disaggregating the force used such that the leader(s) of one State are characterised as the principal perpetrator and the leaders of other States characterised as aiders and abettors or even members of a joint criminal enterprise under Article 25(3)(d). Rather, each State in the coalition should be considered as having potentially used force that amounts to the State act element of the crime of aggression, such that the leader(s) of each coalition member could be characterised as principal perpetrators. The question of third State officials then, really only arises in situations in which one State has provided assistance to another 142

Nuremberg judgment, 520.

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State’s act of aggression, such as by providing it with assets necessary to carry out an armed attack or logistical support. Could the leader of the assisting State be held criminally responsible for aiding and abetting a crime of aggression (presuming the leader knew the purpose for which the assistance was being supplied)? Perhaps it is loose drafting but Article 25(3bis) only requires an individual to be in a position to exercise control over or to direct the political or military action of ‘a State’ – not ‘the State’ that committed the act of aggression. As such, a literal reading of Article 25(3bis) would allow a leader within the assisting State to be held individually criminally responsible for aiding, abetting or otherwise assisting (or any other form of participation that might arise on the facts) a leader in a second State to commit an act of aggression.143

Can you attempt to commit a crime of aggression? Considerable time was spent during the negotiations of the SWGCA deliberating on the question of whether attempted crimes of aggression should attract individual criminal responsibility.144 A majority of commentators, including those who played a key role in the drafting of the elements of the crime, have asserted that in requiring that ‘the act of aggression . . . was committed’, the third element of the crime makes it plain that the State act of aggression must have actually been committed in order for that conduct to amount to a crime under the Rome Statute.145 Thus, they argue, planning and preparation for an act of aggression gives rise to criminal responsibility only if the act of aggression in question takes place prior to prosecution. The logic employed in this argument is, however, flawed. There is nothing in the language of the third element that distinguishes the crime of aggression from other Rome Statute crimes – inchoate versions of which can be prosecuted under Article 25(3)(f). An examination of the elements of any crime demonstrates that all elements employ positive statements in the simple past tense. A close parallel can be found in one of the common elements of crimes against humanity: ‘[t]he conduct was 143 144

145

Heller makes a similar observation: ‘Retreat from Nuremberg’, 495. See June 2005 SWGCA Report, [33]–[43]; June 2006 SWGCA Report, [36]–[50]; June 2007 SWGCA Report, [13]. June 2005 SWGCA Report, [38]; Anggadi et al, ‘Negotiating the Elements’, 69. This logic has since been repeated by numerous commentators who have failed to give it any critical consideration: Kress & von Holtzendorf, ‘The Kampala Compromise’, 1200; Kemp, Individual Criminal Responsibility, 399; Reisinger, ‘Defining the Crime of Aggression’, 435; Petty, ‘Sixty Years in the Making’, 550.

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committed as part of a widespread or systematic attack directed against a civilian population’. I agree that States Parties demonstrated a relatively clear intent during the crime’s negotiation not to criminalise failed State acts of aggression. An interpretation that is consistent with this intent, however, would require the judges of the ICC to look to the travaux pre´paratoires in circumstances where there is no ambiguity or obscurity in the language of the elements of the crime, or a reading that is manifestly absurd or unreasonable. True, Article 32 of the VCLT allows an interpreter to resort to preparatory materials in order to confirm an interpretation arrived at by applying the principles in Article 31 of the Convention, but the golden rule is that treaties must be interpreted in good faith in accordance with the ordinary meaning of their terms – and there is nothing in either the definition of the crime or its elements that suggests that Article 25(3)(f) applies any differently to the crime of aggression compared with the other crimes under the Court’s jurisdiction. Indeed, the fact that the WGCA and SWGCA considered the applicability of Article 25(3) in some detail, and modified its application through the insertion of Article 25(3bis) but otherwise considered no revisions necessary, supports the view that Article 25(3)(f) can be applied to attempted State acts of aggression. The same commentators have argued that the matter of an ‘individual attempt’ is a separate question. A majority of those who have considered the question conclude that as unlikely as it may be that such a case would ever be prosecuted before the ICC, a situation where an individual attempts (but fails) to contribute to the planning, preparation, initiation or execution of a crime of aggression could be prosecuted under Article 25(3)(f).146 It is difficult, however, to reconcile such a view with the language in Article 25(3)(f). The article requires, first, that the perpetrator attempted to commit a crime ‘by taking action that commences its execution by means of a substantial step’. I fail to see how attempting (but failing) to make a contribution to the planning, preparation, initiation or execution of a crime of aggression meets this definition. Wishing to assist in aggressive preparations cannot by itself be characterised as 146

In agreement are Clark, ‘The Crime of Aggression’, 720 (see also Clark, ‘Negotiating Provisions Defining the Crime of Aggression’, 1109); Reisinger, ‘Defining the Crime of Aggression’, 435; Kemp, Individual Criminal Responsibility, 215 citing Gerhard Werle, Principles of International Criminal Law, 168; and Ambos, ‘The Crime of Aggression After Kampala’, 495.

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commencing the execution of either an act of aggression or its planning, preparation, initiation or execution. The efforts of a leader to join an inner circle responsible for the planning and preparation of an act of aggression or its execution equally could not be characterised as a ‘substantial step’ towards the execution of the crime. Those who assert that inchoate State acts cannot be prosecuted, but attempted individual conduct can, must pass a further hurdle. Article 25(3) specifies that it must be shown that ‘the crime does not occur because of circumstances independent of the person’s intentions’. Those who argue that the Article excludes attempted State acts must (presumably, for none have been explicit) mount an argument that the phrase ‘the crime does not occur’ means that the individual does not commit the crime – even though by definition (on the basis of the completed State act premise) someone else must have done so. This is, at best, a strained reading. Whether or not inchoate State acts are prosecutable, and whether the individual conduct elements of the crime can be separated from State act elements of the crime in the manner some commentators suggest, is likely to remain an academic concern: given the gravity threshold employed by the OTP, and the Rome Statute’s requirement that the Court’s jurisdiction be limited to the most serious crimes of concern, it is difficult to see the point ever coming before the judges of the Court to determine.

Conclusion As noted at the outset of this chapter, matters relating to individual conduct were the least contentious aspects of the crime. The crime of aggression has in large part been inserted into the Rome Statute without disturbing existing provisions. Thus, while the prospects of their application in practice are slim, Article 28 (at least insofar as it relates to superior responsibility), Article 32 (mistake of fact and mistake of law) and Article 33 (superior orders) are all applicable to the crime in the same manner as other Rome Statute crimes. While the application of Article 25(3) has been modified by the stipulation that the leadership requirement applies to all perpetrators (not only the principal perpetrator), within this (admittedly important) constraint, this Article too applies normally to the crime of aggression. This is perhaps the chapter’s most controversial conclusion: that despite the intent of States Parties to exclude inchoate State acts of aggression and to include

conclusion

203

failed attempts to contribute to the planning, preparation, initiation or execution of such crimes, this intent has not been captured by the language employed in the provisions adopted by States Parties in Kampala. Some attempt has been made in this chapter to illuminate the meaning of the individual conduct verbs ‘planning’, ‘preparation’, ‘initiation’ and ‘execution’. While any definitive view will be dependent upon judicial interpretation, it seems likely that the ordinary meanings of these terms will be employed, given the limited instruction provided by Nuremberg and Tokyo jurisprudence. The elements suggest the need for a causal nexus to be established. While there is little textual basis for asserting so, it further seems likely that the judges of the ICC will require the individual conduct to amount to a substantive contribution, especially in relation to conduct characterised as the ‘execution’ of an act of aggression. The special mental element applied to the crime of aggression requires a perpetrator to have been aware of the factual circumstances that established that the use of armed force was inconsistent with the UN Charter, as well as the factual circumstances that established that the act of aggression was a manifest violation of the Charter. This approach has excluded any need to demonstrate knowledge of the jus ad bellum, setting a relatively low threshold for the crime’s mental element. Given the high threshold created by the actus reus of the crime this is likely to be of relatively minor consequence, in that courtroom battles are likely to be fought over whether the prohibition of the use of force has been breached, and whether such breach amounts to a manifest violation of the Charter, rather than over evidence of an accused’s knowledge and intent. Perhaps the one aspect of the individual conduct elements of the crime that is contested and also of practical import is the scope of persons captured by the phrase ‘in a position to exercise control over or to direct the political or military action of the State’. This chapter has argued that the definition applies to de facto ‘leaders’ who are in a position to have a decisive say over, govern, instruct or command the deeds of the political or military establishments of a State aimed at achieving particular objectives. It has been further argued that this definition excludes business and religious leaders (unless they otherwise meet the leadership definition). This narrowing of the class of potential perpetrators compared with those tried in Nuremberg and Tokyo provides one aspect of clarity to a crime that is otherwise beset

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by a lack of specificity. Given the very close attention likely to be paid to prosecutions of the crime, this should be seen as a positive thing. As is the fact that the formulation targets prime movers rather than enablers. For too long, leaders have sent off the young, the uneducated, and those who otherwise have little choice to fight their battles for them. A crime, tailor-made for genuine ‘leaders’, will help ensure that such persons have pause for thought before risking the lives of such men and women – if only on the basis of self-interest.

6

The Court’s jurisdiction over the crime of aggression

In the years immediately prior to the Review Conference and in Kampala itself, the most furious debates were not over the definition of the crime of aggression but rather over who would be subject to the ICC’s jurisdiction and how that jurisdiction would operate. The biggest questions facing the ASP were whether any legal or political considerations required the Security Council to act as a gatekeeper to prosecutions for the crime of aggression, which provision under the Rome Statute properly governed the adoption of amendments relating to the crime, and the consequences of the choice of any particular amendment procedure. As outlined in Chapter 1, the parry and thrust of negotiations explored almost all possible answers to these questions, in addition to a range of creative measures aimed at bridging the divide between the various camps championing, respectively, an independent Court, the prerogatives of the Security Council, a requirement for State consent, and the application of the Court’s ordinary jurisdictional regime. The end product of the Review Conference’s negotiations is something of an inelegant compromise. In order to evade the prospect of the Security Council’s exclusive control over crime of aggression prosecutions, those championing an independent Court gave their support to a regime that allows States Parties to opt out of the crime of aggression provisions and insulates the nationals of non-States Parties from prosecution except in the case of Security Council referral. Moreover, as has become increasingly clear as States and commentators publish their views on the amendments, Article 15bis and 15ter are based on what might kindly be described as ‘constructive ambiguity’. In other words, States Parties walked away from Kampala with differing understandings as to how the jurisdictional and entry into force provisions reflected in the amendments will operate in practice. 205

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This chapter will explore the differing interpretations of the jurisdictional provisions offered by commentators and States to date with a view to expressing a preferred interpretation. First though, in order to lay to rest criticisms of the legality of the narrow role provided for the Security Council, the chapter will explore the legality of the jurisdictional regime adopted. The chapter will next analyse the meaning of Article 121(5) under which the amendments were adopted. The chapter will then examine the opt-out regime and the provision excluding nonStates Parties under Article 15bis. On the basis of these successive steps of analysis the chapter will offer a guide as to whom the Court will and will not be able to exercise jurisdiction over. In order to understand the practicalities of prosecuting crimes of aggression the chapter will then examine the opt-out declaration mechanism, the role of Security Council determinations and the Pre-Trial Division filter, in order to explore their scope. Finally, the chapter will consider the function of Security Council referrals under Article 15ter.

A regime consistent with international law1 One of the Rome Statute’s greatest successes, and one of the reasons so many States have enthusiastically given their support to the Court, is the fact that the Statute represents a challenge to the Security Council’s monopoly in terms of its past establishment of ad hoc international criminal tribunals and the P5’s pervasive attempts to assert their dominance over areas of international interaction outside the domain of collective security.2 Of particular note in this regard is Article 16 of the Statute. While the Article allows the Security Council to suspend an investigation or prosecution for a renewable period of twelve months, the Article’s formulation requires the affirmative vote (or abstention) of a nine-vote majority with the concurrence of all members of the P5. As others have noted, Article 16 was hotly debated during the Rome Statute’s negotiations. The ILC’s 1994 draft of what became Article 16 would have established the Council as a gatekeeper, with no prosecutions allowed in relation to situations being dealt with by the Security Council as a threat to, or breach of, the peace, or an act of aggression, 1

2

Much of this section was previously published in Carrie McDougall, ‘When Law and Reality Clash – The Imperative of Compromise in the Context of the Accumulated Evil of the Whole: Conditions for the Exercise of the International Criminal Court’s Jurisdiction Over the Crime of Aggression’ (2007) 7 International Criminal Law Review 277–333. See for example Schabas, ‘United States Hostility’, 720.

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unless the Council decided otherwise. A majority of States were, however, concerned that this would allow the veto power to be used without merit to halt proceedings. Thus, in the August 1997 session of the Preparatory Committee, Singapore proposed an amendment inverting the operation of Article 16 such that ‘[n]o investigation or prosecution may be commenced or proceeded with under this Statute where the Security Council has, acting under Chapter VII of the Charter of the United Nations, given a direction to that effect’.3 The proposal was added to by Canada, which suggested the notion of a renewable twelvemonth deferral period4 and Costa Rica, which proposed that a deferral require a formal and specific decision of the Council. British text formed the basis of Article 16’s final wording.5 The outcome was significant for, as Bergsmo and Pejic observe, ‘[b]ecause of the public nature of such a resolution and, most likely, the public nature of the crimes that the Court will be asked to desist from addressing, deferral will be politically more difficult to justify than approval’.6 It is against this backdrop that we must assess arguments that the granting of an ability for any one of the P5 to prevent investigations into crimes of aggression would enhance their disproportionate and largely unwarranted power. Those arguments, of course, ultimately prevailed. Under Article 15ter, the Court may exercise jurisdiction over a crime of aggression occurring within a situation referred to the Court by the Security Council under Article 13(b). Article 15bis, which governs States referrals and proprio motu investigations, is markedly more complicated. In relevant part it provides that the Prosecutor may proceed with an investigation in respect of a crime of aggression where the Security Council has made a determination of an act of aggression committed by the State concerned (paragraphs 6 and 7). If the Council fails to make such a determination within six months of the Secretary-General of the UN being notified of the situation before the Court, provided that the Pre-Trial Division authorises the commencement of the investigation and the Security Council has not deferred ICC action under Article 16, the Prosecutor may also proceed (paragraph 8). In the lead-up to Kampala, the P5 would have had us believe that jurisdictional provisions that provided for anything less than a Security 3 4 5

6

Proposal by Singapore on Article 23, Non-Paper/WG.3/No.16 (8 August 1997). Proposal submitted by Canada for Article 23, 11 August 1997. Morten Bergsmo & Jelena Pejic, ‘Article 16’ in Triffterer, Commentary on the Rome Statute, 595, 597. Ibid., 599.

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Council determination as a precondition to the exercise of the Court’s jurisdiction would contravene the UN Charter. Interventions made after the adoption of the amendments harked back to this view. France, for example, stated that it could not ‘associate itself with the draft text as it disregards the relevant provisions of the Charter of the United Nations enshrined in article 5 of the Rome Statute’ and specifically that Article 15bis (8) ‘contravenes the Charter of the United Nations under the terms of which the Security Council alone shall determine the existence of an act of aggression’.7 This begs the question: are the jurisdictional provisions consistent with international law?

Does the UN Charter give the Security Council a prerogative to identify acts of aggression? Article 5(2) of the Rome Statute as adopted in 1998 provided that any provision adopted setting out the conditions under which the Court shall exercise jurisdiction over the crime of aggression ‘shall be consistent with the relevant provisions of the Charter of the United Nations’. 7

Statement by France, Official Records, ICC Doc. RC/11 (2010), Annex VIII: Statements by States Parties in explanation of position after the adoption of resolution RC/Res.6 on the crime of aggression, 122. The UK was somewhat less strident (Annex VIII, 124): ‘In my delegation’s view, the text that has been adopted cannot derogate from the primacy of the United Nations Security Council in relation to the maintenance of international peace and security. In that respect, I would like to draw attention to Article 39 of the United Nations Charter.’ China said: ‘The Chinese delegation is of the view that [Articles 15bis and 15ter] failed to reflect the idea that, with respect to the issue of an act of aggression, it is necessary for the Security Council to make a determination of its existence first before the International Criminal Court could exercise jurisdiction over the crime of aggression. The existence of an act of aggression should be determined by the Security Council. This is not only what is provided by the United Nations Charter, but it is also what is required by article 5, paragraph 2, of the Rome Statute with regard to articles on the crime of aggression’ (Annex IX: Statements by Observer States after the adoption of resolution RC/Res.6 on the crime of aggression, 125). Somewhat more ambiguously, the Russian Federation said: ‘As in any consensus, not all the elements of the consensus decision satisfy everyone. In particular we do not consider that the consensus decision which was found here reflects to the full extent the existing system of maintenance of peace and security headed by the Security Council and first of all in the sphere of the Security Council prerogatives in defining the existence of an act of aggression. Anyway, the decision is taken and we will continue to work with it (126).’ And finally, the US said: ‘The United States associates itself with the critical point of principle expressed in the views just presented by the Governments of France and the United Kingdom regarding the primacy of the Security Council under article 39 of the United Nations Charter in determining the existence of an act of aggression and the Council’s primary responsibility with regard to matters of international peace and security (126).’

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In the final plenary meeting of the Rome Conference, after the adoption of the Statute, the UK stated that it interpreted this phrase ‘as a reference to the requirement of prior determination by the Security Council that an act of aggression had occurred’.8 This interpretation of Article 5(2) was widely shared.9 On the other hand, former US Ambassador-at-Large for War Crimes and head of the US Delegation to Rome, David Scheffer, referred to the ‘opacity’ of Article 5(2) on this point as one of the reasons why the US voted against the adoption of the Statute.10 Indeed, it seems clear that the last sentence of Article 5(2) was deliberately drafted to be ambiguous. It had to be in order to ensure that a sufficient number of States voted in favour of the adoption of the Statute. For Article 5(2) had to accommodate not only those States in favour of Security Council determination, but also the large number of States that opposed any special role for the Council in the prosecution of crimes of aggression.11 Consistency with the UN Charter is a basic principle underlying the whole of the Rome Statute and a notion no State is likely to object to. Proponents of Security Council determination and their opponents have, however, different interpretations of the Charter when it comes to the Security Council’s identification of State acts of aggression for the purpose of criminal prosecution. This issue will be addressed below. In the interim, it can be concluded that while the now deleted text of Article 5(2) can be invoked to support Security Council determination, it is by no means conclusive, or even compelling, on this point.

The Council’s pre-emptive right to identify acts of aggression Without doubt, Article 39 of the UN Charter grants the Security Council the power to identify acts of aggression. It states that: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or 8

9

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United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Summary Record of the 9th Plenary Meeting, UN Doc. A/ CONF.183/SR.9 (1999), 7. See also Berman, ‘The International Criminal Court’, 484. See for example Meron, ‘Defining Aggression’, 2; Paulus, ‘Peace Through Justice?’, 21; Schuster, ‘A Gordian Knot in Search of a Sword’, 14; Zimmermann, ‘Article 5’, 97, 139. L. N. Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium, Ardsley, NY: Transnational Publishers, 2002, 137. Lacanilao, ‘The International Criminal Court in the Balance’, 106, agrees with this interpretation.

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decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

According to some proponents of Security Council determination, the mandatory language of Article 39 gives the Council the exclusive ability to identify State acts of aggression.12 Others argued that respect for Article 39 requires the Council to confirm that an act of aggression has occurred before the ICC considers this issue in the context of international criminal law. The exclusive determination interpretation was generally underscored by an assertion that the identification of an act of aggression is a political question, not a legal one. During the ILC’s debates over the Draft Code, one member of the Commission articulated the extreme version of this view, asserting that the crimes of aggression and threat of aggression ‘were sui generis in that, by definition, they existed only if the Security Council characterized certain acts as such’.13 More specifically it was contended that: the question of whether a certain situation is a threat to the peace or a breach of the peace or involves an act of aggression is a non-justiciable question. It is a question that cannot be answered by recourse to legal reasoning as there are no legal standards by which to reach a decision. It involves a political decision as to factual matters and is in no way constrained by legal considerations.14

This, it was contended, is a job for a political, not a judicial, body.15 Some evidence was proffered (in an ad hoc manner) to support these views.16 Much was made of the fact that the term ‘act of aggression’ is

12

13 14

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16

See for example, Meron, ‘Defining Aggression’, 5; Benjamin B. Ferencz, ‘Can Aggression Be Deterred by Law?’ (1999) 11 Pace International Law Review 341, 355–356; Response of ˚ l Wrange on the Conditions for the the United Kingdom to Discussion Paper Prepared by Pa Exercise of the Court’s Jurisdiction over the Crime of Aggression, circulated informally to the SWGCA, June 2008, on file with author, 18; S. Sayapin, ‘A Great Unknown: The Definition of Aggression Revisited’ (2008–2009) 17 Michigan State Journal of International Law, 377, 385. 1991 ILC Yearbook, 92. Dapo Akande, ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations?’ (1997) 46 International and Comparative Law Quarterly 309, 338. Keith Harper, ‘Does the United Nations Security Council Have the Competence to Act as Court and Legislature?’ (1994–1995) 27 NYU Journal of International Law and Politics 103, 135. It should be noted that several of the supporting arguments outlined below have been submitted in the context of the debate on the judicial reviewability of Security Council decisions, rather than in relation to the jurisdictional debate surrounding the crime of aggression. Proponents of Security Council determination rarely advance their argument past an assertion of their own interpretation of Article 39. These supporting

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not defined in the Charter. The omission of a definition, it was noted, was deliberate. At the United Nations Conference on International Organisation (UNCIO) held in April 1945, several delegations called for the definition of the terms ‘threat to the peace’, ‘breach of the peace’ and ‘act of aggression’ in order to provide a minimum guideline for Security Council action.17 Proposals for a definition of ‘act of aggression’ were submitted by Bolivia and the Philippines.18 These were hotly debated, but ultimately both the specific proposals and the suggestion that the terms needed definition were rejected. The report of Mr PaulBoncour, Rapporteur for the Committee responsible for finalising the draft text of what would become Chapter VII of the Charter, explained that: ‘[t]he Committee . . . decided to adhere to the text drawn up at Dumbarton Oaks and to leave to the Council the entire decision as to what constitutes a threat to peace, a breach of the peace, or an act of aggression’.19 Thus it is argued that the travaux pre´paratoires support an interpretation of Article 39 that gives the Security Council the sole right to identify an act of aggression. Some obiter comments of individual judges of the ICJ can in addition be read as supporting the idea that the Council has an exclusive discretion to identify acts of aggression. The strongest example20 is found in the Dissenting Opinion of Judge Weeramantry in the Provisional Measures phase of the Lockerbie case. His Honour held that: the determination under Article 39 of the existence of any threat to the peace, breach of the peace or act of aggression, is one entirely within the discretion of the Council. It would appear that the Council and no other is the judge of the

17

18

19 20

arguments have been included so as to present the case for Security Council determination at its highest in order to properly test its merit. Report of Mr Paul-Boncour, Rapporteur on Ch VIII, Section B, Doc. 881, III/3/46 (1945) reproduced in Ferencz, Defining International Aggression, vol. 1, 349–352. See Proposals of the Delegation of the Republic of Bolivia for the Organisation of a System of Peace and Security and Proposed Amendments to the Dumbarton Oaks Proposals Submitted by the Philippine Delegation reproduced in Ferencz, Defining International Aggression, vol. I, 313–321 and 322–327. Report of Mr Paul-Boncour, 352. See also: Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Further Request for the Indication of Provisional Measures) ICJ Rep [1993] 325, Separate Opinion of Judge Lauterpacht, 439; and Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) (Preliminary Objections) ICJ Rep [1998] 115, Dissenting Opinion of President Schwebel, 171. See also the decision of the International Criminal Tribunal for Rwanda (ICTR) in Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96–15-T, Decision on the Defence Motion on Jurisdiction, 18 June 1997, [20].

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existence of the state of affairs which brings Chapter VII into operation. That decision is taken by the Security Council in its own judgment and in the exercise of the full discretion given to it by Article 39. Once taken, the door is opened to the various decisions the Council may make under that Chapter. Thus, any matter which is the subject of a valid Security Council decision under Chapter VII does not appear, prima facie, to be one with which the Court can properly deal.21

It has been asserted that the political nature of Article 39 determinations is further illustrated by the P5’s veto power, exercisable in relation to substantive questions,22 which certainly includes the characterisation of a situation or incident as an act of aggression. In this context it is argued that the ‘structural bias in favour of the major powers is a clear indication that decisions in the interest of peace and security will be based exclusively on (national) political considerations’.23 According to proponents of Security Council determination, the fact that the identification of an act of aggression would be for the purpose of enabling the ICC’s jurisdiction, rather than as a precursor to enforcement action under Chapter VII, is immaterial. It is asserted that any distinction drawn between the varying purposes of determinations is artificial.24 Of assistance in this context is Kelsen’s interpretation of Article 39, which he says allows the Council to make recommendations ‘of any kind’ after characterising a given event as a threat to, or breach of, the peace, or an act of aggression;25 in other words, the Council is not limited to taking enforcement measures under Articles 41 and 42, a view that has been confirmed by Security Council practice since 1945. At any rate, many agree that the identification of an act of aggression for the purpose of criminal prosecution before the ICC would fall under the ambit of Article 41. Article 41 lists several specific non-military enforcement measures open to the Council. It is widely accepted that this list is illustrative only and that the Council can, under this provision, take any measure not involving the use of force that it deems useful for the maintenance or restoration of international peace and 21 22 23

24

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Lockerbie case (Provisional Measures) ICJ Rep [1992] 3, 66. Article 27(3) of the UN Charter. Erika De Wet, The Chapter VII Powers of the United Nations Security Council, Portland: Hart Publishing, 2004, 134–135. Comments made by delegates to the June 2006 SWGCA Meeting, notes on file with author. Kelsen, The Law of the United Nations, 438.

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security.26 The link between international peace and security and the prosecution of international crimes was firmly asserted by the Council when it established the International Criminal Tribunal for the former Yugoslavia (ICTY). The validity of that link was confirmed by the Appeals Chamber of the ICTY in the Tadic case, which held that the Tribunal’s establishment fell ‘squarely within the powers of the Security Council under Article 41’.27

The Council’s right to identify acts of aggression is a primary one Proponents of Security Council determination generally bolster their case by reference to Article 24(1) of the Charter, which provides that: In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

Article 24 is used to argue that any measure contributing to the prosecution of international crimes, and particularly the prosecution of a crime directly concerned with the jus ad bellum, falls within the ambit of the maintenance of international peace and security, and that the express terms of the Charter outline the Council’s ‘primary responsibility’ in relation to such matters. In this context, reference has been made to Article 12(1) of the Charter28 under which the GA is, at least in theory, barred from making recommendations in respect of any dispute or situation while the Security Council is exercising its functions in respect of the same. ‘Thus’, Schuster, for example, asserts: if an intrinsic organ of the United Nations cannot act independently of the Security Council, it is unrealistic to assume that the International Criminal Court – being a treaty organization outside the Charter – can possess powers that are broader than those of such an organ.29 26

27 28

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Jochen Frowein & Nico Krisch, ‘Article 41’ in Simma et al, The Charter of the United Nations, 735, 740; Prosecutor v. Dusko Tadic, Case No. IT-94–1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 [Tadic case], [35]. Ibid., [36]. Article 12(1) provides that: ‘[w]hile the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.’ Schuster, ‘A Gordian Knot in Search of a Sword’, 15.

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Omitting a role for the Council would raise a conflict under Article 103 The final important element of the case argued by proponents of Security Council determination rests on Article 103 of the UN Charter. Article 103 states that: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

The first-string argument relating to Article 103 flows from the interpretation outlined above of Articles 24 and 39 of the Charter. It has been argued that any provision in the Rome Statute that grants the ICC jurisdiction to determine that a State act of aggression had occurred would conflict with Articles 24 and 39, which establish an obligation to respect the Security Council’s prerogative in this regard. A more sophisticated argument relates to any specific resolution that might be adopted by the Security Council that clearly identified an act of aggression. On the basis of Article 25 of the Charter it is claimed that such a resolution would be binding on Member States and therefore all States Parties to the Rome Statute.30 The thrust of this argument is that any ICC judgment that reached a different conclusion would create inconsistent obligations and therefore be unenforceable pursuant to Article 103. This is the case for Security Council determination at its highest. It relies on little authority beyond a self-asserted interpretation of Articles 39, 24 and 103 of the UN Charter. It will next be determined whether this interpretation is supported by legal analysis.

The Council’s prerogative does not extend to international criminal law In looking for the ordinary meaning of Article 39,31 the first thing that should be noted is that the Charter speaks of the Council identifying ‘the existence of ’ acts of aggression, not ‘the occurrence’ of such acts. The distinction is important in the context of the Articles that follow in Chapter VII, which outline the measures that may be taken by the 30 31

Ibid., 16. On the principles of the interpretation of the UN Charter, see Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) ICJ Rep [1950] 4, 8; Georg Ress, ‘The Interpretation of the Charter’ in Simma et al, The Charter of the United Nations, 13, 18–19.

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Security Council in order to maintain or restore international peace and security. In this setting, Article 39 appears to confine the Council’s ability to identify acts of aggression to those that are ongoing, or at least the after-effects of which are still causing a serious disruption to international peace and security. In other words, Article 39 does not appear to contemplate the Security Council’s identification of state acts of aggression,32 as would generally be the case of a criminal trial. More importantly, Article 39 is completely silent as to individual criminal responsibility. Indeed, the purpose of an Article 39 determination is to lay the basis for either Council recommendations, or the taking of enforcement measures aimed at the maintenance, or restoration, of international peace and security. As Nsereko observes, read in context, the verb ‘shall’ ‘should be understood to mean that the Council must make the determination as a prelude to making its recommendations or decisions on enforcement measures’.33 While it can be agreed that the mandatory language of Article 39 precludes other entities from identifying acts of aggression in order to trigger the Security Council’s responsibilities, it cannot be read as prohibiting all entities other than the Council from identifying acts of aggression for other purposes.34 Of relevance in this regard are the obiter ICJ comments referred to above, which indicated that the identification of an act of aggression is a non-justiciable question. Firstly, the comments cited lie at the heart of separate and dissenting opinions. This status is important in this instance, as the majority of the members of the Court at least left open the possibility of the incidental judicial review of Security Council decisions (even those made under Chapter VII) in the course of determining the legal rights between the parties to a dispute. Context is also imperative. The exclusive discretion discussed in the cases cited is the discretion to determine the existence of an Article 39 event for the purpose of taking enforcement action under Chapter VII. The identification of acts of aggression for other purposes is a distinct issue – and one that was not addressed in the judgments in question.

32

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34

Mark S. Stein, ‘The Security Council, the International Criminal Court, and the Crime of Aggression: How Exclusive is the Security Council’s Power to Determine Aggression?’ (2005) 16(1) Indiana International and Comparative Law Review 1, 5. Nsereko, ‘Aggression under the Rome Statute’, 506. See also Paulus, ‘Peace Through Justice?’, 21. Stein, ‘How Exclusive is the Security Council’s Power’, 5; Lacanilao, ‘The International Criminal Court in the Balance’, 110.

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Arguments relating to UNCIO’s failure to define the terms in Article 39 are no more convincing. The debate in San Francisco over the definition of the terms in Article 39 arose in the special context of the postwar period. Certain States hoped to ensure that the Security Council would come to the aid of victims of aggression. Thus, the argument was made that certain situations should be defined as constituting an act of aggression to ensure that Council action would be ‘automatic’.35 The suggested removal of the discretion to intervene was controversial. As outlined in the Report of Mr Paul-Boncour, there was a particular concern that it would be impossible to list all examples of acts of aggression, given the rapid development of techniques of war. The alternative suggestion of a non-exhaustive definition was considered equally problematic: it was believed the Council would tend to consider any act not specifically listed as less important and that omissions could advantage an aggressor or delay action by the Council. Conversely, disquiet was expressed that listed examples of aggression might cause the Council to apply collective sanctions prematurely.36 Thus the travaux pre´paratoires and the decision not to define an ‘act of aggression’ do not support an interpretation of the Charter that prohibits the identification of acts of aggression by other entities for purposes other than triggering Council action under Chapter VII. The lack of definition is equally no barrier to judicial interpretation: courts are commonly required to give meaning to vague or undefined terms.37 As De Wet notes: The application of vague legal terms on a particular set of facts is necessarily linked to a certain discretion, but the exercise thereof neither has to be evidence of an unlimited political discretion of a preclusive nature, nor that no definition for these terms should be attempted at all.38

Indeed, as De Wet goes on to note, ‘there is nothing inherently special about the terms used in Article 39 that would ab initio remove them from the ambit of legal interpretation’.39 De Wet in fact makes the compelling suggestion that: the mere fact that Article 39 distinguishes between three criteria that trigger binding resolutions of the Security Council, implies that it does not have an 35 36

37

De Wet, The Chapter VII Powers, 146, note 80. Report of Mr Paul-Boncour, 352. See also Umberto Leanza, ‘The Historical Background’ in Politi & Nesi, The International Criminal Court and the Crime of Aggression, 3, 4–5. De Wet, The Chapter VII Powers, 136. 38 Ibid., 136. 39 Ibid., 136–137.

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unbound discretion. If an unbound discretion had been intended, such a distinction would have been obsolete. The Charter would only have contributed to the Security Council the general power to adopt binding measures in the interests of international peace and security and nothing more.40

Moreover, if the terms used in Article 39 had no normative meaning, and the Security Council had complete discretion to declare the provisions of Chapter VII applicable at any time, the distinctions made in the Charter between Chapters VI and VII (both as to triggering events and the differing powers of the Council in response to such events) would become meaningless.41 If it is accepted that the terms have, or are capable of having, a legal meaning, there seems no reason why an entity other than the Security Council could not identify an act of aggression for purposes other than instituting Chapter VII measures. This interpretation is supported by a closer reading of Article 24 of the Charter. The ICJ has noted that the Council’s responsibility for the maintenance of international peace and security is conferred, as explicitly stated in the Article, ‘in order to ensure prompt and effective action’.42 This again favours an interpretation that the Council’s prime role is related to its prerogative to take action in respect of security crises, not to the making of decisions in relation to international criminal processes. Indeed, it can be argued that the Charter militates against the Security Council having the ability, let alone the exclusive ability, to make decisions that have the function of allocating responsibility, or that are an integral part of a judicial process. Chapter VI of the Charter relates to the Pacific Settlement of Disputes. Article 33 defines the disputes subject to the Chapter as those, ‘the continuance of which is likely to endanger the maintenance of international peace and security’. The Chapter is also concerned with ‘situation[s] which might lead to international friction’ (Article 34). Article 36(1) provides the Security Council with the ability to ‘recommend appropriate procedures or methods of adjustment’ in respect of such disputes and situations. Paragraph (3) states that:

40 42

Ibid. 41 Ibid., 137. Chapter VI of the Charter is addressed in further detail below. Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter) (Advisory Opinion) ICJ Rep [1962] 151, 163; Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America) (Jurisdiction and Admissibility) ICJ Rep [1984] 392 (Nicaragua (Jurisdiction)), 434.

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In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.

Article 37(2) provides that: If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate.

Finally, Article 38 provides that: Without prejudice to the provisions of Article 33 to 37, the Security Council may, if all the parties to any dispute so request, make recommendations to the parties with a view to a pacific settlement of the dispute.

The implication of Article 36(3) is that legal disputes are not the business of the Council.43 Articles 37 and 38, moreover, allow the Council to make ‘recommendations’ only – it gives the Council no judicial power in the sense of determining the rights and obligations of the parties to a dispute. The Council’s lack of judicial power is confirmed in Chapter VII. Article 40 states that the power of the Council to order provisional measures is ‘without prejudice to the rights, claims, or position of the parties concerned’. The manner in which the remaining Chapter VII powers are described further indicates that they are limited to shortterm measures for the purpose of peace enforcement. The implication is that it is not the role of the Council to determine finally the rights and obligations of Member States.44 According to Frowein and Krisch, the above-outlined interpretation is confirmed by the Charter’s travaux pre´paratoires, for at UNCIO, the US and the UK made a declaration to the effect that the Council could recommend terms of settlement under Article 37, but could not invoke Chapter VII to decide on them with obligatory effect.45 43

44 45

Derek Bowett, ‘The Impact of Security Council Decisions on Dispute Settlement Procedures’ (1994) 5 European Journal of International Law 89, 90. See Frowein & Krisch, ‘Article 41’, 742. Jochen Frowein & Nico Krisch, ‘Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’ in Simma et al, The Charter of the United Nations, 701, 705–706.

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In recent times the Council has of course ignored these limits and has acted on a quasi-judicial basis on occasion: after the second Gulf War the Council established subsidiary organs for the final demarcation of the Iraq-Kuwait border,46 as well as for the calculation of reparations due to Kuwait;47 during the conflict in the former Yugoslavia, the Council imposed sanctions on Bosnian Serbs48 when they failed to accept a specific plan for territorial settlement,49 and in addition enforced the final peace agreement through Chapter VII measures;50 the Council instituted sanctions to require Libya to comply with requests for the extradition of terrorist suspects after the Lockerbie bombing;51 and it determined that Israel had violated Article 49 of the Fourth Geneva Convention52 after Israel deported Palestinian civilians from the occupied territories to Lebanon.53 Most of these measures, however, met with criticism, which casts doubt on any argument that subsequent practice has altered the original interpretation of the Charter.54 The other measure instituted by the Council often cited as being quasi-judicial in nature is the establishment of the ICTY and the International Criminal Tribunal for Rwanda (ICTR). The decision of the Appeals Chamber in the Tadic Case is instructive in this regard: The establishment of the International Tribunal by the Security Council does not signify . . . that the Security Council was usurping for itself part of a judicial function which does not belong to it but to other organs of the United Nations according to the Charter. The Security Council has resorted to the establishment of a judicial organ . . . as an instrument for the exercise of its own principal function of [the] maintenance of peace and security, i.e., as a measure contributing to the restoration and maintenance of peace in the former Yugoslavia.55

The Tribunal drew an important parallel in this regard: The General Assembly did not need to have military and police functions and powers in order to be able to establish the United Nations Emergency Force in the Middle East (‘UNEF’) in 1956. Nor did the General Assembly have to be a judicial organ possessed of judicial functions and powers in order to be able to 46 49 51 52

53 54 55

S/RES/687 (1991). 47 S/RES/692 (1991). 48 S/RES/942 (1994). S/RES/1081 (1996). 50 S/RES/1022 (1995). S/RES/748 (1992) and S/RES/883(1993). Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950). S/RES/694 (1991). Frowein & Krisch, ‘Action with Respect to Threats to the Peace’, 706. Prosecutor v. Dusko Tadic, Case No. 17–94–1–AR 72 (2 October 1995), Decision on the Defence Motion for Interlocutory Appeal on Juridiction, [38].

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establish UNAT. In its advisory opinion in the Effect of Awards, the International Court of Justice, in addressing practically the same objections, declared: ‘[T]he Charter does not confer judicial functions on the General Assembly . . . By establishing the Administrative Tribunal, the General Assembly was not delegating the performance of its own functions: it was exercising a power which it had under the Charter to regulate staff relations.’ (Effect of Awards, at 61.)56

Thus, if the Tribunal’s findings are accepted, it can be concluded that the Council has never uncontroversially exercised judicial functions. This, taken with the general tenor of the Charter, which segregates legal matters to the purview of the ICJ and provides that the Council’s powers in relation to the settlement of rights and obligations are provisional only, indicates that it would in fact be inappropriate for the Security Council to make binding judicial determinations, as well as casting doubt on the need for Security Council determination as a precondition to the exercise of the ICC’s jurisdiction over the crime of aggression.

Other entities have the ability to identify acts of aggression The notion that the Security Council enjoys some sort of pre-emptive right in relation to the identification of acts of aggression is, in practice, illusory. The ICJ has stressed that the responsibility conferred by Article 24 in relation to the maintenance of international peace and security is only ‘primary’ – not exclusive and that other UN organs may identify acts of aggression.57 In the Certain Expenses case, the Court held that the Charter makes it ‘abundantly clear’ that the GA, as well as the Security Council, is to be concerned with international peace and security, and that, outside of the restrictions imposed by the last sentence of Article 11(2), the GA has the power under that Article to recommend the establishment of peacekeeping operations.58 In relevant part, Article 11(2) provides that ‘[a]ny such question [relating to the maintenance of international peace and security] on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion’. The Court found that the ‘action’ referred to means ‘coercive or enforcement action’ or ‘such action as is solely within the province of the 56 57

58

Ibid. Certain Expenses case, 163; Nicaragua (Jurisdiction), 434; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Rep [2004] 136 (Wall case), 148. Certain Expenses case, 163.

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Security Council’, which it described as ‘that which is indicated by the title of Chapter VII of the Charter, namely “Action with respect to threats to the peace, breaches of the peace and acts of aggression”’.59 According to the Court, the establishment, supervision and financing of the UN operations in question did not constitute ‘enforcement action’, as they involved only peace-keeping and were established with the consent of the States concerned.60 In an analysis of the Court’s interpretation of the term ‘action’ in Article 11(2), Pharand has written that: The only difficulty which results from this interpretation is that, admitting that a simple ‘threat to the peace’ demands ‘action’ by the Security Council, the kind of circumstance justifying ‘action’ by the General Assembly must be something less than a simple ‘threat to the peace’. More specifically, it must be only a ‘dispute’ or a ‘situation’, the latter being something less again.61

Pharand’s categorisation of events clearly draws a distinction between the events described in Articles 33 and 34 of the Charter on the one hand, and the triumvirate in Article 39 on the other. What is interesting about Pharand’s analysis is that it assumes either that: (i) if a threat to, or breach of, the peace, or an act of aggression is identified, the only type of action that can be taken in response is ‘enforcement action’; or (ii) the GA is prohibited by Article 11(2) from determining the existence of threats to, or breaches of, the peace, or acts of aggression, either because such a determination itself constitutes enforcement action or for some other reason that is not specified. These assumptions are incorrect. Firstly, although the identification of a threat to, or breach of, the peace, or an act of aggression under Article 39 entitles enforcement action under Articles 41 or 42 to be taken, the Security Council is separately empowered by Article 39 to ‘make recommendations’ to maintain or restore international peace and security. Neither Article 39 nor any other provision in the Charter directly limits the type of recommendation that may be made. In particular it is unquestionably within the power of the Council to establish a peacekeeping force at the request of an affected State or States after making a determination that a threat to, or breach of, the peace, or act of aggression exists. According to the ICJ, such action falls outside the 59 61

Ibid., 165. 60 Ibid., 171, 176–177. A. Donat Pharand, ‘Analysis of the Opinion of the International Court of Justice on Certain Expenses of the United Nations’ (1963) 1 Canadian Yearbook of International Law 272, 285.

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definition of ‘enforcement action’. Thus, the first possible assumption made by Pharand is demonstrably incorrect. It is difficult, moreover, to accept that the mere identification of a threat to, or breach of, the peace, or an act of aggression constitutes ‘enforcement action’ if the establishment of a peacekeeping force does not. Indeed, at least one of the resolutions before the ICJ in the Certain Expenses case characterised the situation in the Congo as a threat to the peace. Perambulatory paragraph 2 of Resolution 1600 (XV)62 stated that the GA was ‘[g]ravely concerned at the danger of civil war and foreign intervention and at the threat to international peace and security’. Thus, although not in an operative paragraph, there was evidence of a GA determination that a threat to the peace existed before the Court. The ICJ did not find that this determination constituted ‘enforcement action’ or was otherwise ultra vires or inappropriate. As such, overall, the case can be read as providing support for an assertion that it is within the power of the General Assembly to identify acts of aggression. This interpretation is borne out by UN practice. In 1950, the GA adopted the Uniting for Peace Resolution, which provides that: if the Security Council, because of a lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or an act of aggression the use of armed force when necessary, to maintain or restore international peace and security.63

The Resolution clearly suggests that the GA has the ability to identify acts of aggression. The fact that the Resolution has rarely been utilised in practice does not affect its illumination of the UN’s constitutional arrangements in relation to the identification of threats to, or breaches of, the peace and acts of aggression. A review of GA resolutions, moreover, demonstrates that the GA has identified acts of aggression on numerous occasions. A notable example is found in Resolution 498 of 1 February 1951 in which the GA found: that the Central People’s Government of the People’s Republic of China, by giving direct aid and assistance to those who were already committing 62

63

Resolution on the Situation in the Republic of the Congo, GA Res 1600, 15th Sess, 985th plen mtg, UN Doc. A/RES/1600 (1961). GA Res 377, 5th Sess, 302nd plen mtg, UN Doc. A/RES/377 (3 November 1950).

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aggression in Korea and by engaging in hostilities against United Nations forces there, has itself engaged in aggression in Korea.64

Other notable examples include:65 *

*

*

Resolution 2508 of 21 November 1969, which condemned the intervention of South African armed forces in Southern Rhodesia, which the Assembly held constituted ‘an act of aggression against the people and territorial integrity of Zimbabwe’, well before the Security Council adopted any resolution describing South Africa’s activities as acts of aggression;66 Resolution 36/27 of 13 November 1981, which described Israel’s attack on Iraqi nuclear installations as ‘an act of aggression’;67 and Resolution ES-9/1 of 5 February 1982, in which the GA declared that ‘Israel’s decision of 14 December 1981 to impose its laws, jurisdiction and administration on the occupied Syrian Golan Heights constituted an act of aggression under the provisions of Article 39 of the Charter of the United Nations and General Assembly resolution 3314 (XXIX)’.68

Thus the GA itself is clearly of the view that it has the ability to determine whether a use of force constitutes an act of aggression. In this context it is noted that the GA has departed from the text of Article 12(1) of the Charter and has made recommendations on issues with which the Council was dealing quite actively.69 In 1968, the Legal Counsel of the United Nations expressed the view that the GA had consistently interpreted the expression ‘is exercising the functions’ in Article 12(1) to mean ‘is exercising the functions at this moment’.70 There has been no recorded protest of the Security Council in relation to this practice71 and in the case concerning the Legal Consequences of the Construction of a Wall, the ICJ confirmed that ‘the accepted practice of the General Assembly, as has evolved, is consistent with Article 12, paragraph 1, of the Charter’.72 Thus, any argument as to the need for the ICC to be subservient to the Council based on an analogy drawn with Article 12(1) may be considered to be somewhat nullified by the interpretation of the provision in practice. 64 66 69

70

71

72

UN Doc. A/RES/498 (1951). 65 This list is by no means exhaustive. A/RES/2508 (1969). 67 A/RES/36/27 (1981). 68 UN Doc. A/Res/ES-9/1 (1982). Kay Hailbronner & Eckart Klein, ‘Article 12’ in Simma et al, The Charter of the United Nations, 287, 293. Summary Record of the Twenty-Third General Assembly, 3rd Committee, 1637th Meeting, UN Doc. A/C.3/SR.1637 (1968), [9]. Niels Blokker, ‘The Crime of Aggression and the United Nations Security Council’ (2007) 20 Leiden Journal of International Law 867, 883. Wall case, 150.

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A long line of authority, beginning with the Case Concerning United States Diplomatic and Consular Staff in Tehran,73 and including the Provisional Measures phases of both the Genocide case74 and the Armed Activities case,75 has established the ability of the ICJ to deal with legal questions arising from situations being simultaneously dealt with by the Security Council. The Court, moreover, in the Tehran Hostages case did not restrict the types of issues in respect of which the Court and the Council may have overlapping jurisdictions. Rather, the Court stated that it has the ability to decide ‘any legal questions’ that may arise between the parties to a dispute before it.76 Certainly, the decision does not deal with acts of aggression specifically. If, however, it is accepted that the identification of an act of aggression is capable of being assessed as a legal question, on the basis of the decision the prima facie assumption must be that the Court would have the ability to identify an act of aggression were this relevant to a dispute before it. The issue arose more directly in the pre-hearing challenge to admissibility and jurisdiction in the Nicaragua case. The United States argued that Nicaragua’s Application was inadmissible because it amounted to a claim that the US was engaged in an unlawful use of armed force, a breach of the peace, or an act of aggression against Nicaragua. Relying on Article 24 of the Charter, the US submitted that such a determination was committed ‘by the Charter and by practice to the competence of other organs, in particular the United Nations Security Council’.77 The US supported its submission by noting that the Council had acted and was continuing to act in respect of virtually identical claims placed before it by Nicaragua78 and outlined its concern that Nicaragua’s Application was in effect seeking to appeal an adverse decision of the Council.79 In rejecting the US’ submissions, the Court referred to its earlier decision in the Tehran Hostages case and held that ‘the fact that a matter is before the Security Council should not prevent it being dealt with by the Court and that both proceedings could be pursued pari passu’.80 73 74

75

76 79

(United States v. Iran) (Merits) ICJ Rep [1980] 3 (Tehran Hostages case), 21–22. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Provisional Measures) ICJ Rep [1993] 3, 18. (Democratic Republic of the Congo v. Uganda) (Provisional Measures) ICJ Rep [2000] 111, 126–127. Tehran Hostages case, [40]. 77 Nicaragua (Jurisdiction), 431. 78 Ibid., 432. Ibid., 432–433. 80 Ibid., 433.

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It then rejected the US’ construction of Nicaragua’s Application as invoking a charge of ‘aggression and armed conflict envisaged in Article 39’.81 While acknowledging that the matter had been discussed in the Security Council, the Court stated that: no notification has been given to . . . [the Security Council] in accordance with Chapter VII of the Charter, so that the issue could be tabled for full discussion before a decision were taken for the necessary enforcement measures to be authorized. It is clear that the complaint of Nicaragua is not about an ongoing armed conflict between it and the US, but one requiring, and indeed demanding, the peaceful settlement of disputes between two States. Hence, it is properly brought before the principal judicial organ of the Organization for peaceful settlement.82

While the Court’s statement is not without ambiguity, it appears to hold that Nicaragua’s Application raised a legal question separate to whether a breach of the peace or an act of aggression had been committed for the purpose of activating the Council’s powers under Chapter VII: namely, the question of whether or not the United States had breached the prohibition of the threat or use of force. The Court seems to say that the two questions cannot be equated. This could be because the Court viewed the constitutive elements of an act of aggression and a breach of the prohibition as qualitatively or quantitatively different, or it could be because the Court viewed the identification of an act of aggression as a question solely relevant to the institution of measures under Chapter VII. It is, unfortunately, not possible to do anything more than speculate about this on the basis of the Court’s written judgment. Neither interpretation, however, requires a power to be allocated to the Security Council to determine the existence of an act of aggression for the purpose of an international criminal law process.83 State responsibility undoubtedly does hinge on the identification of an inexcusable violation of the prohibition of the threat or use of armed force – not on the identification of one of the events in Article 39. This says nothing, however, about the Court’s ability to identify an act of aggression were that issue relevant. Indeed the Court stressed the overlapping jurisdictions of the Court and the Council in connection with uses of armed force. It noted again that the Charter ‘does not confer exclusive responsibility upon the Security Council’ for the maintenance of international 81

Ibid., 434.

82

Ibid.

83

See Schuster, ‘A Gordian Knot in Search of a Sword’, 19.

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peace and security and noted the absence of a provision parallel to Article 12 applying to the ICJ.84 In this respect the Court held that: The Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both organs can therefore perform their separate but complementary functions with respect to the same events.85

The Court noted that it had ‘never shied away from a case brought before it merely because it had political implications or because it involved serious elements of the use of force’.86 And in relation to the US’ contention that Nicaragua’s Application amounted to an appeal from an adverse decision of the Security Council, the Court held that it was: not asked to say that the Security Council was wrong in its decision, nor that there was anything inconsistent with law in the way in which the members of the Council employed their right to vote. The Court is asked to pass judgment on certain legal aspects of a situation which has also been considered by the Security Council, a procedure which is entirely consonant with its position as the principal judicial organ of the United Nations.87

Thus, while the Court failed to make any definitive statement, the emphasis placed on the differing roles of the Council and the Court suggests that, were the identification of an act of aggression relevant to a case before it, the Court would be competent to make such a determination. As is well known, at the merits stage of the Nicaragua case, the Court’s majority found that the United States had acted against Nicaragua in breach of its obligation under customary international law not to use force against another State.88 The Court made no finding as to whether or not the breach constituted an ‘act of aggression’. The question of the ability of the ICJ to identify acts of aggression was, however, addressed directly in the Dissenting Opinion of Judge Schwebel: 56. . . . I find myself unable to agree that it was the design of the drafters of the Charter and the Statute to exclude the Court from adjudicating disputes falling within the scope of Chapter VII of the United Nations Charter, and unable to agree that the practice of States in interpreting the Charter and the Statute confirms such a design. ... 84 87 88

Nicaragua (Jurisdiction), 434–435. 85 Ibid., 435. 86 Ibid. Ibid., 436. As to the question of justiciability see also Nicaragua (Merits), 27. Ibid., 123, 146.

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58. . . . nowhere in the text of the Statute of the Court is there any indication that disputes involving the continuing use of armed force are excluded from its jurisdiction. On the contrary, Article 36 of the Statute is cast in comprehensive terms . . . ... 60. Moreover, while the Security Council is invested by the Charter with the authority to determine the existence of an act of aggression, it does not act as a court in making such a determination. It may arrive at a determination of aggression – or, as more often is the case, fail to arrive at a determination of aggression – for political rather than legal reasons. However compelling the facts which could give rise to a determination of aggression, the Security Council acts within its rights when it decides that to make such a determination will set back the cause of peace rather than advance it. In short, the Security Council is a political organ which acts for political reasons. It may take legal considerations into account but, unlike a court, it is not bound to apply them.89

On the facts, Judge Schwebel found that Nicaragua had committed ‘acts of aggression’ against El Salvador.90 Thus, he held, without ambiguity, that the ICJ is able to identify acts of aggression. And while his dissent in the Nicaragua case is famously strident, there is nothing in the majority decision that contradicts Judge Schwebel’s findings on this point. Judge Schwebel’s position was confirmed by a number of the members of the Court in the Armed Activities case. The Democratic Republic of the Congo’s (DRC) Application requested the Court to, inter alia, adjudge and declare that Uganda was ‘guilty of an act of aggression’.91 By 16 votes to 1, the Court found that the principle of the non-use of force had been violated.92 The majority found that: ‘[t]he unlawful military intervention by Uganda was of such a magnitude and duration that the Court considers it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the Charter’.93 89

90 91

Ibid., Dissenting Opinion of Judge Schwebel, 289–290. In the course of his Dissenting Opinion, Judge Oda found that: ‘a dispute in which use of force is resorted to is in essence and in limine one most suitable for settlement by a political organ such as the Security Council, but is not necessarily a justiciable dispute such as falls within the proper functions of the judicial organ’ (240). Judge Oda continued, however, holding that: ‘I certainly am not suggesting any principle that, once a dispute has been brought before the Security Council . . . it cannot or should not be dealt with by the Court . . . Yet . . . the States Members of the . . . United Nations have always been aware that certain disputes are more properly resolved by a means other than judicial settlement, that is, by . . . the Security Council or the General Assembly . . . or by some other means’ (240). As such, Judge Oda’s findings are in essence concerned only with practicalities and do not go to the ability of the ICJ to determine the existence of an act of aggression. Nicaragua (Merits), Dissenting Judgment of Judge Schwebel, 344. See also 272, 390. Armed Activities Case, [23], [345]. 92 Ibid., [163]. 93 Ibid., [165].

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The majority stopped short, however, of finding that an act of aggression had been committed. Indeed, the majority judgment is completely silent on the issue of aggression. It equally failed to provide reasons for its omission. The majority may have considered it unnecessary to determine whether aggression had been committed for the purpose of establishing State responsibility. Or they may have avoided the issue because they were trying to maintain consistency with the language employed in earlier decisions about the use of force in order to avoid confusion, or because they did not wish to enter the difficult debate about the definition of an ‘act of aggression’. Alternatively, it could have been because the judges of the majority believed that only the Security Council can identify acts of aggression. It would be highly surprising, however, if this last reason was the explanation for the majority failing to discuss aggression. Given the centrality of the concept of aggression in the DRC’s Application, had the majority been of the view that the Court lacks jurisdiction to identify acts of aggression, it would be highly unusual, and arguably contrary to basic principles of natural justice, to dismiss the DRC’s Application and Prayer for Relief as being misplaced without so much as a single sentence stating this, let alone explaining why. As such, while the international community is left to ponder the reasons for the omission, it is not possible to draw support for the Security Council determination case from the omission. Indeed, the Separate Opinions of Judges Elaraby and Simma contradict any conclusion of this nature. Judge Elaraby opened his Separate Opinion by stating: While I fully concur with the Court’s findings that there were grave violations of the principle of the non-use of force in international relations, I believe the Court should have explicitly upheld the Democratic Republic of the Congo’s claim that such unlawful use of force amounted to aggression.94

Even more specifically, after making reference to Article 39 of the Charter, Judge Elaraby found that: It does not follow . . . that the identification of aggression is solely within the purview of the Security Council . . . it is clear that aggression – as a legal as well as a political concept – can be of equal concern to other competent organs of the United Nations, including the Court as ‘the principal judicial organ of the United Nations’. . . Although the term’s use in political and popular discourse is often 94

Ibid., Separate Opinion of Judge Elaraby, [1]. See also [9], [10], [20].

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highly charged, it nevertheless remains that aggression is a legal concept with legal connotations and legal consequences, matters which fall clearly within the remit of the Court, particularly when the circumstances of a case coming before the Court call for a decision thereon.95

Similar comments were made by Judge Simma, who associated himself with the criticism expressed by Judge Elaraby.96 ‘[W]hy not call a spade a spade?’, Judge Simma asked. ‘If there ever was a military activity before the Court that deserves to be qualified as an act of aggression, it is the Ugandan invasion of the DRC.’97 Simma also commented on the different roles of the Security Council and the Court vis-a`-vis aggression: It is true that the United Nations Security Council . . . has never gone as far as expressly qualifying the Ugandan invasion as an act of aggression, even though it must appear as a textbook example . . . The Council will have had its own – political – reasons for refraining from such a determination. But the Court, as the principal judicial organ of the United Nations, does not have to follow that course. Its very raison d’eˆtre is to arrive at decisions based on law and nothing but the law, keeping the political context of the cases before it in mind, of course, but not desisting from stating what is manifest out of regard for such non-legal considerations. This is the division of labour between the Court and the political organs of the United Nations envisaged by the Charter!98

The above analysis has demonstrated the ability of both the GA and the ICJ to identify acts of aggression for purposes other than triggering Chapter VII action by the Security Council. State courts are also, at least theoretically, able to identify acts of aggression for the purpose of prosecuting the crime of aggression at the national level.99 It cannot be suggested that States would be in contravention of the UN Charter if they proceeded with a prosecution of a crime in the absence of a determination by the Security Council identifying an act of aggression. In this light, it is contradictory to claim that the ICC is unable to do the same.

Article 103 is no barrier to independent ICC identification of acts of aggression It has been demonstrated that no provision of the Charter requires a special role for the Security Council in the prosecution of crimes of aggression. As such, it can be concluded that the first type of Article 103 95 97 99

Ibid., [11]. References omitted. 96 Ibid., Separate Opinion of Judge Simma, [2]. Ibid. 98 Ibid., [3]. A number of States have criminalised aggression at the domestic level, see Chapter 4, section entitled ‘Inconsistency with customary international law’.

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objection outlined above is misconceived. ICC decisions in relation to acts of aggression would have, moreover, no direct impact on the institution of measures of collective security. Thus, quite simply, the type of conflict envisaged in Article 103 cannot arise,100 as any obligations that fall on Member States by virtue of varying determinations by the Security Council and the ICC would not directly conflict.101

Policy arguments against a role for the Council in State referrals or proprio motu investigations Not only was there no legal requirement for a special role for the Security Council in prosecutions of crimes of aggression, policy considerations militated against it. It is widely acknowledged that the Council has a selective agenda, ‘heavily influenced by geopolitical and regional realities and preferences’ and a ‘differentiated means of addressing those crises it does take on’.102 There is little reason to believe that even-handedness would suddenly have characterised the Council’s conduct had it become responsible for identifying State acts of aggression as a precondition to the exercise of the Court’s jurisdiction. One does not have to be a critic of Security Council practices to comprehend the very real possibility of selective justice. It seems obvious that the Council has legitimate reasons from time to time for refusing to characterise a use of force as an act of aggression. Securing peace in the midst of a bloody conflict may simply be seen as more important than achieving criminal justice on occasions where the two goals appear to be mutually incompatible.103 A State branded an 100

101

102

103

Constantine Antonopoulos, ‘Whatever Happened to Crimes Against Peace?’ (2001) 6(1) Journal of Conflict and Security Law 33, 52. See also Bowett, ‘The Impact of Security Council Decisions’, 92 who argues more generally that a decision of the Security Council does not prevail over an inconsistent treaty right or obligation by virtue of Article 103. Bowett argues that it is incorrect to equate a Council decision with a treaty obligation, as opposed to the obligation to comply with Security Council decisions pursuant to Article 25 of the Charter. David M. Malone, ‘Conclusion’ in Malone, The UN Security Council, 617, 625. See also Sydney Bailey, The Procedures of the UN Security Council (2nd edn), Oxford: Clarendon Press, 1988, 245. A. D’Amato, International Law and Political Reality (1995) 208 cited in Justin HoganDoran & Bibi T. Van Ginkel, ‘Aggression as a Crime Under International Law and the Prosecution of Individuals by the Proposed International Criminal Court’ (1996) 43 Netherlands International Law Review, 321, 341; Allegra Carroll Carpenter, ‘The International Criminal Court and the Crime of Aggression’ (1995) 64 Nordic Journal of International Law 223, 237.

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aggressor may be less willing to negotiate for peace, particularly if the Council’s good offices are seen to have been undermined by an apportionment of blame, which may considerably limit the possibility of restoring peace.104 The selectivity under discussion is readily demonstrated by a survey of existing Security Council resolutions. The Council has characterised certain acts of Southern Rhodesia,105 South Africa106 and Iraq107 as ‘aggressive’, and has passed resolutions referring to the ‘acts of aggression’ of South Africa,108 Southern Rhodesia109 and Israel;110 the ‘aggression’ of South Africa111 and Israel;112 the ‘armed aggression’ of Israel113 and of mercenaries against Benin;114 and ‘mercenary aggression’ perpetrated against the Seychelles115 – with these terms sometimes being used interchangeably in the same resolution.116 Reading this list, it is evident that other uses of armed force widely viewed as being as serious, if not more serious, than the events referred to, are conspicuously absent. Council resolutions relating to the invasion and occupation of Kuwait by Iraq in 1990 did not refer to aggression, Resolution 660117 104

105 106

107 108

109

110 111

112 115 116

117

Antonopoulos, ‘Whatever Happened to Crimes Against Peace?’, 49–50; Mu¨ller-Schieke, ‘Defining the Crime of Aggression’, 421–422; Paulus, ‘Peace Through Justice’, 17. S/RES/326 (1973); S/RES/386 (1976). A/RES/387 (1976); Security Council Resolution 428, UN SCOR, 33rd Sess., 2078th mtg, S/RES/428 (1978); S/RES/527 (1982); S/RES/535 (1983). S/RES/667 (1990). S/RES/387 (1976); Security Council Resolution 418, UN SCOR 32nd Sess., 2046th mtg, S/RES/418 (1977) (this resolution refers only to persistent acts of aggression, rather than a specific act of aggression); S/RES/447 (1978); S/RES/454 (1979); Security Council Resolution 466, UN SCOR, 35th Sess., 2211th mtg, S/RES/466 (1980) (this resolution recalls past acts of aggression); S/RES/475(1980); S/RES/546 (1984); S/RES/567 (1985); S/RES/568 (1985); S/RES/571 (1985); S/RES/572 (1985); S/RES/574 (1985); S/RES/577 (1985); S/RES/580 (1985); Security Council Resolution 581, UN SCOR, 41st Sess., 2662nd mtg, S/RES/581 (1986); S/RES/602 (1987). S/RES/411 (1977); Security Council Resolution 423, UN SCOR, 33rd Sess., 2067th mtg, S/RES/423 (1978) (this resolution refers only to continuing acts of aggression generally as opposed to a specific act of aggression); S/RES/424 (1978); S/RES/445 (1979); S/RES/ 455 (1978). S/RES/573 (1985); S/RES/611 (1988). S/RES/387 (1976); S/RES/ 428 (1978); S/RES/447 (1978); S/RES/454 (1978); S/RES/475 (1980); S/RES/571 (1985); S/RES/574 (1985); S/RES/581 (1986). S/RES/573 (1985); S/RES/611 (1988). 113 S/RES/573 (1985). 114 S/RES/405 (1977). S/RES/496 (1981); S/RES/507 (1982). S/RES/387 (1976); S/RES/428 (1978); S/RES/447 (1978); S/RES/454 (1978); S/RES/475 (1980); S/RES/571 (1985); S/RES/573 (1985); S/RES/574 (1985); S/RES/581 (1986); and S/RES/611 (1988). Security Council Resolution 660, UN SCOR, 45th Sess., 2932nd mtg, UN Doc. S/RES/660 (1990).

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instead determining that there existed a breach of the peace. It was only when Iraq ordered the closure of diplomatic and consular missions in Kuwait and committed acts of violence against diplomatic missions and their personnel that the Council adopted Resolution 667, characterising these specific acts as ‘aggressive’.118 Whatever the reasons for its inconsistency, the selective approach that has characterised the Council’s practice would be unpalatable in a criminal justice context, having serious implications for the notion of equality before the law.119 All proposals discussed in the SWGCA or in Kampala that sought a role for the Security Council would have required the adoption by the Council of a Chapter VII resolution. In this context, it is important to note that it is unclear whether any of the resolutions cited constitute Article 39 determinations. The Council almost never refers to Article 39 explicitly in resolutions dealing with enforcement action.120 It is, however, now usual for the Council to state that it is acting under Chapter VII.121 Yet of all the resolutions referred to above, only Resolutions 418 and 667 state that the Council is acting under Chapter VII. And while Resolution 418 refers to South Africa’s ‘persistent acts of aggression’, it also states that the Council: Determines, having regard to the policies and acts of the South African Government, that the acquisition by South Africa of arms and related mate´riel constitutes a threat to the maintenance of international peace and security.

Indeed, of the thirty-one different resolutions referred to above, fifteen state that the situation in question constituted a threat to international peace and security122 or endangered international peace and security.123 While not identical to a determination that there exists a threat to the peace (as required by Article 39), the references make it difficult to conclude that the Security Council, in employing the terms aggression

118 119

120 121 123

S/RES/667 (1990). Article 67(1) of the Rome Statute; Article 14(1), ICCPR; Article 10, Universal Declaration of Human Rights, adopted by Resolution on an International Bill of Human Rights, UN Doc. A/Res/ 217A (1948). See below for a discussion of Article 16 of the Rome Statute. Frowein & Krisch, ‘Article 39’ in Simma et al, The Charter of the United Nations, 717, 727. Ibid. 122 Or refer to such a statement having been made in an earlier resolution. See Security Council Resolutions S/RES/326 (1973); S/RES/411 (1977); S/RES/418 (1977); S/RES/423 (1978); S/RES/424 (1978); S/RES/445 (1979); S/RES/447 (1978); S/RES/455 (1978); S/RES/475 (1980); S/RES/546 (1984); S/RES/567 (1985); S/RES/573 (1985); S/RES/ 574 (1985); S/RES/577 (1985); S/RES/602 (1987).

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and/or aggressive, was actually making Article 39 determinations.124 The only Resolution that seems possibly to qualify as such a determination is Resolution 667, which, in addition to referring to Chapter VII, states: Considering also that these actions by Iraq constitute aggressive acts and a flagrant violation of its international obligations which strike at the root of the conduct of international relations in accordance with the Charter of the United Nations.

Given the number of serious breaches of the prohibition of the threat or use of force that have taken place since the adoption of the UN Charter, opponents of a role for the Security Council were right to raise concerns that such a role could have in effect meant that the ICC was never, or almost never, able to exercise its jurisdiction over the crime. A further policy reason for excluding any special role for the Council in relation to the crime of aggression relates to the roles already provided for the Council under the Rome Statute. Under Article 13(b), the Security Council, acting under Chapter VII, can refer situations in which one or more crimes appear to have been committed to the Prosecutor. While the Security Council cannot require a prosecution by virtue of Article 13(b) (given that to proceed the Prosecutor must determine, pursuant to Article 53, that there is a sufficient basis for a prosecution) the Article provides the Council with the ability to ensure that all situations potentially involving the crime of aggression are properly investigated and prosecuted if warranted.125 As noted at the outset of this chapter, the Council also already has the existing ability to defer investigations and prosecutions for a renewable period of twelve months on the adoption of a Chapter VII resolution pursuant to Article 16 of the Statute. The Statute thus already provides for criminal prosecutions to be put to one side if they would frustrate the Council’s efforts to maintain or restore international peace and security. 124

125

A majority of authors in fact claim that the Council has never made a determination under Article 39 as to the existence of an act of aggression. See for example Schuster, ‘A Gordian Knot in Search of a Sword’, 16; Vera Gowlland-Debbas, ‘The Relationship between Political and Judicial Organs of International Organizations: The Role of the Security Council in the New International Criminal Court’ in L. Boisson de Chazournes, C. Romano and R. Mackenzie (eds.), International Organizations and International Dispute Settlement: Trends and Prospects, Ardsley: Transnational Publishers Inc., 2002, 210; De Wet, The Chapter VII Powers, 148–149; Antonopoulos, ‘What Ever Happened to Crimes Against Peace’, 48. If the Prosecutor decides not to proceed, the Security Council must be informed (Article 53(2)) and can request a review of that decision by a Pre-Trial Chamber (Article 53(3)(a)).

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Conclusion On the basis of the foregoing, it can be concluded that there is no support in law for the argument that the Security Council has an exclusive ability to identify acts of aggression or that it is necessary for the Security Council to make such a determination as a precondition to the exercise of the ICC’s jurisdiction. As Article 5(2) of the Rome Statute is inconclusive, any requirement for the Security Council to determine the existence of acts of aggression would have to be found in the UN Charter. An analysis of the Charter finds no such requirement. Certain provisions of the Charter, moreover, point to a conclusion that it would in fact be inappropriate for the Council to make determinations for the purpose of international criminal law. The Council’s decision-making track record and the existing roles provided for the Council under the Rome Statute further support a conclusion that the ASP made the right choice in deciding not to make the Council the gatekeeper of crime of aggression prosecutions.

The jurisdictional regime of the ICC In order to properly interpret the jurisdictional provisions contained in Articles 15bis and 15ter those provisions must be examined against the backdrop of the jurisdictional provisions governing other Rome Statute crimes. The scope of the Court’s jurisdiction ratione personae, or the ability of the ICC to exercise jurisdiction over a particular accused, was fiercely debated in the lead-up to, and during, the Rome Conference. Williams and Schabas describe Article 12 as a ‘make or break provision’ up until ‘the proverbial eleventh hour’.126 The ILC’s 1994 Draft Statute envisaged a strict system of State consent for all crimes other than genocide. The Draft Statute provided that, except in cases of Security Council referral, the custodial State and the State on whose territory the alleged crime was committed would have to have accepted the Court’s jurisdiction.127 While some States considered that respect for State sovereignty

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Sharon A. Williams & William A. Schabas, ‘Article 12’ in Triffterer, Commentary on the Rome Statute, 547. See also Young Sok Kim, ‘The Preconditions to the Exercise of the Jurisdiction of the International Criminal Court: With Focus on Article 12 of the Rome Statute’ (1999) 8 Michigan State University DCL Journal of International Law and Practice 47. Article 21, see Report of the ILC on the work of its 46th session, 41.

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was critical to securing State support for the proposed court,128 many others rejected such a narrow approach. This led to a range of proposals that at one end of the spectrum would have provided the court with universal jurisdiction129 and, at the other end, a proposal that a declaration of consent over specified crimes be required not only from the custodial and territorial State, but also the State of nationality of the accused, the State of nationality of the victim and the State that had requested extradition of the accused from the custodial State.130 The compromise reached in Rome requires either the territorial State, or the State of nationality of the accused, to have accepted the Court’s jurisdiction by becoming a State Party.131 This is not a precondition when the Security Council refers a situation to the Court under Article 13(b). The Court’s jurisdiction can in addition be accepted on an ad hoc basis. In the words of Article 12: (1) A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. (2) In the case of article 13, paragraph (a) or (c),132 the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national.

128 129 130

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Williams & Schabas, ‘Article 12’, 549. Proposal of Germany, UN Doc. A/AC.249/1998/DP.2 (1998). See further Williams & Schabas, ‘Article 12’, 548–555; Sok Kim, ‘The Preconditions to the Exercise of the Jurisdiction’, 56–69; Mortem Bergsmo, ‘Occasional Remarks on Certain State Concerns about the Jurisdictional Reach of the International Criminal Court, and Their Possible Implications for the Relationship Between the Court and the Security Council’ (2000) 69 Nordic Journal of International Law 87, 100; Daniel D. Nsereko, ‘The International Criminal Court: Jurisdictional and Related Issues’ (1999) 10(1) Criminal Law Forum 87, 103. Philippe Kirsch, Chairman of the Rome Conference’s Committee of the Whole, explained: ‘These jurisdictional bases were selected because they are the most firmly established in international law. In particular, the territorial basis is the primary jurisdictional link accepted in all domestic legal systems and confirmed in numerous conventions, including those on genocide, torture, hostage-taking and several forms of terrorism’. See ‘The Rome Statute of the International Criminal Court: A Comment’ ASIL Newsletter November/December 1998, 4. State Party referral or initiation of a proprio motu investigation. See David Scheffer, ‘How to Turn the Tide Using the Rome Statute’s Temporal Jurisdiction’ (2004) 2 Journal of International Criminal Justice 26.

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If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.133

According to the US and some other States, providing the ICC with jurisdiction over nationals of non-State Parties violates Article 34 of the VCLT, which provides that treaties cannot be binding on non-Party third States.134 The prevailing view, however, is that the Statute does not violate Article 34 as it does not impose obligations or create duties for third States, but only creates a mechanism to enforce the existing right to prosecute individuals.135 In response to such critiques, the US modified its argument. Former US Ambassador-at-Large for War Crimes, David Scheffer argued that a State cannot delegate its territorial jurisdiction to try an offender to a territorial-based international court without the consent of the State of

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Article 12(3) should be read together with Rule 44(2) of the Rules of Procedure and Evidence, which is aimed at excluding one-sided interpretations of the provision. It reads: ‘When a State lodges, or declares to the Registrar its intent to lodge, a declaration with the Registrar pursuant to article 12, paragraph 3, or when the Registrar acts pursuant to subrule 1, the Registrar shall inform the State concerned that the declaration under article 12, paragraph 3, has as a consequence the acceptance of jurisdiction with respect to the crimes referred to in article 5 of relevance to the situation and the provisions of Part 9, and any rules thereunder concerning States Parties, shall apply.’ See further Carsten Stahn, Mohamed El Zeidy and He´ctor Ola´solo, ‘The International Criminal Court’s Ad Hoc Jurisdiction Revisited’ (2005) 99 American Journal of International Law 421, 427–429; Steven Freeland, ‘How Open Should the Door Be? Declarations by non-States Parties under Article 12(3) of the Rome Statute of the International Criminal Court’ (2006) 75 Nordic Journal of International Law 211; Carsten Stahn, ‘Why Some Doors May Be Closed Already: Second Thoughts on a “Case-By-Case” Treatment of Article 12(3) Declarations’ (2006) 75 Nordic Journal of International Law 243. Kim, ‘The Preconditions to the Exercise of the Jurisdiction’, 48. During the final meeting of the Committee of the Whole, the US proposed a series of amendments to Article 12 that would have required the State of nationality to have provided consent. The proposals were resoundingly rejected under a no-action motion: UN Doc. A/ CONF.183/C.1/SR.42 (1998), [20]–[31]. Astrid Reisinger Coracini, ‘“Amended Most Serious Crimes”: A New Category of Core Crimes within the Jurisdiction but Out of the Reach of the International Criminal Court?’ (2008) 21 Leiden Journal of International Law 699, 703; Michael P. Scharf, ‘The ICC’s Jurisdiction Over Nationals of Non-Party States: A Critique of the US Position’ (2001) 64 Law and Contemporary Problems 67, 98; Dapo Akande, ‘The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits’ (2003) 1 Journal of International Criminal Justice 618, 620.

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nationality.136 This too has been rejected by an overwhelming majority of scholars. As Williams and Schabas note: When an alien commits a crime, whether a domestic common crime or an international crime such as hostage taking, on the territory of another State, a prosecution in the latter State is not dependent on the State of nationality being a Party to the pertinent treaty or otherwise consenting. It is not a case of a nonState Party being bound and the ICC overreaching its jurisdiction, but rather the individual being amenable to the jurisdiction of the ICC where crimes are committed in the territory of a State Party. There is no rule of international law prohibiting the territorial State from voluntarily delegating to the ICC its sovereign ability to prosecute.137

Indeed, it might be added that there is a precedent for such delegation: one of the accepted bases of the IMT’s jurisdiction was the fact that it had been established by occupying powers that had assumed the sovereign functions of Germany.138 The IMT is therefore an example of an international tribunal to which territorial jurisdiction was delegated without the consent of the State of nationality.139 In issue is the extent to which the jurisdictional provisions adopted under Article 15bis and 15ter depart from the jurisdictional regime provided for under Article 12. In order to understand how the jurisdictional provisions operate, especially in relation to the more complex Article 15bis, it is necessary to explore a number of issues related to the aggression amendments’ entry into force.140

Entry into force: the slow burn issue The dilemma: Article 121(4) or Article 121(5)? Operational paragraph 1 of Resolution RC/Res.6 under which the crime of aggression amendments were adopted makes it clear that Articles 136 137

138 139

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Scharf, ‘The ICC’s Jurisdiction Over Nationals of Non-Party States’, 70. Williams & Schabas, ‘Article 12’, 557. See also Nsereko, ‘The International Criminal Court: Jurisdictional’, 106–107; Jordan J. Paust, ‘The Reach of the ICC Jurisdiction Over Non-Signatory Nationals’ (2000) 33(1) Vanderbilt Journal of International Law 1, 2–7; Akande, ‘The Jurisdiction of the International Criminal Court over Nationals of NonParties’, 621. See further ‘Bases of domestic jurisdiction’ in Chapter 7. Scharf, ‘The ICC’s Jurisdiction Over Nationals of Non-Party States’, 105–106, 115; Paust, ‘The Reach of the ICC Jurisdiction Over Non-Signatory Nationals’, 3. The reference to entry into force is distinct from the provisions under the identical paragraphs (2) and (3) of Articles 15bis and 15ter, which delay the Court’s exercise of jurisdiction. These paragraphs are addressed in Chapter 7.

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8bis, 15bis and 15ter will ‘enter into force in accordance with article 121, paragraph 5’ of the Rome Statute.141 Thus, in one sense, the debate as to whether the entry into force of the amendments’ adoption was properly governed by Article 121(4) or Article 121(5) was settled at the Review Conference. Japan, however, at the time of the amendments’ adoption raised concerns as to the legality of the amendment procedures chosen.142 A number of commentators have also subsequently questioned whether it was for States Parties to decide how the amendments were to come into force and have speculated that future defendants charged with the crime could challenge the legality of the adoption procedure.143 As such, the debate over paragraphs (4) and (5) is of more than historical interest. Article 5(2) of the Rome Statute, the placeholder adopted in Rome for the future crime of aggression, states in relevant part that ‘[t]he Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123’. Article 123 relates to the convening of Review Conferences. Paragraph (3) of that Article provides that ‘the provisions of article 121, paragraphs 3 to 7, shall apply to the adoption and entry into force of any amendment to the Statute considered at a Review Conference’. Roger Clark, academic and representative of Samoa to the SWGCA and the Review Conference, noted that the text of Article 5(2) requires only ‘the adoption’ of a provision on aggression and on this basis satisfaction of Article 121(3) alone could be sufficient to bring the aggression amendments into force.144 Article 121(3) provides that ‘[t]he

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OP1 of Resolution on the Crime of Aggression, ICC Doc. RC/Res.6 (2010), refers to the amendments contained in Annex I of the resolution being subject to Article 121(5). Under OP2 and OP3, the Review Conference simply ‘decides to adopt’ the amendments to the Elements of Crimes contained in Annex II and the Understandings contained in Annex III. See Statements of Japan in Official Records, ICC Doc. RC/11 (2010), Annex VII: Statements by States Parties in explanation of position before the adoption of resolution RC/Res.6, on the crime of aggression (at 121) and Annex VIII: Statements by Observer States Parties in explanation of position after the adoption of resolution RC/Res.6, on the crime of aggression (at 122). Dapo Akande, ‘What Exactly Was Agreed in Kampala on the Crime of Aggression?’ 21 June 2010, www.ejiltalk.org at 11 July 2010; Robert L. Manson, ‘Identifying the Rough Edges of the Kampala Compromise’ (2010) 21 Criminal Law Forum 417, 436; Heinsch, ‘The Crime of Aggression After Kampala’, 736. Roger S. Clark, ‘Ambiguities in Article 5(2), 121 and 123 of the Rome Statute’ (2009) 41 Case Western Reserve Journal of International Law 413, 415, 417. Clark further queried: ‘8 bis and 15 bis obviously amend the Statute by adding new material to it, but are they

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adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties’. The SWGCA, however, was clearly of the view that the adoption of an amendment would be insufficient to bring the amendment into force, and that this required reliance on either Article 121(4) or (5). This interpretation is supported by the inter-related nature of the provisions of Article 121. Clark’s thesis hinged on the fact that Article 5(2) ‘does not use the noun “amendment”; it uses the verb “adopted”’.145 Such an argument melts away, however, when it is considered that Article 121 (3), and Article 123, refer to amendments. It seems clear that once an amendment ‘is adopted’ it must still be accepted by a certain number of States Parties before it becomes operative. As Kress and von Holtzendorf note, it would also be ‘astonishing’ if the ratification of the provisions on the crime of aggression by States was legally irrelevant ‘given the political importance of the matter’.146 Article 121, paragraphs 4 and 5 deserve to be cited in full. Article 121 (4) provides that: Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them.

Article 121(5) states that: Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.147

Article 5 was amended: Article 5(2) was deleted. This was claimed by some to satisfy the threshold of Article 121(5).148 Under the amendment package, however, the substantive amendments are the addition of three new Articles: 8bis, 15bis and 15ter, with consequential changes

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functionally amendments to Article 5?’ (at 416). See also June 2004 SWGCA Report, [14]; June 2005 SWGCA Report, [14]; February 2009 SWGCA Report, [10]. Clark, ‘Ambiguities in Article 5(2), 121 and 123’, 415. Kress & von Holtzendorf, ‘The Kampala Compromise’, 1196. Issues relating to the meaning of the second sentence of Article 121(5) are discussed below. June 2005 SWGCA Report, [11].

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made to Articles 9(1) and 20(3) and the addition of paragraph (3bis) to Article 25. The fact that the balance of the amendments adopted, including the substantive definitional and jurisdictional provisions, do not concern Articles 5, 6, 7 or 8 suggests that Article 121(5) does not apply. It was nevertheless argued by a significant number of States that a teleological interpretation required all substantive amendments to the Court’s subject-matter jurisdiction to be governed by Article 121(5).149 In response, Reisinger Coracini, academic and representative of Austria to successive meetings of the SWGCA and the Review Conference, argues that although there may be merit in accepting the teleological argument in respect of the definition of the crime, it is questionable whether such an argument can be extended to the jurisdictional provisions.150 After all, the existing jurisdictional provisions in the Statute (Articles 11 to 15) fall outside the ambit of Article 121(5). While this might suggest a double-headed approach would have been technically more correct, from the outset most States were of the view that for practical reasons, if nothing else, it was important for the definition and the jurisdictional provisions to enter into force at the same time for any given State.151 A late suggestion by the Chairman that the acceptance of the definition of the crime be separated from the acceptance of jurisdictional provisions152 was roundly rejected.153 Another proposal to blend the entry into force regimes, whereby the amendments would initially enter into force only for those States ratifying the amendments under paragraph (5), but once seven-eighths of States Parties had ratified, would enter into force for all under paragraph (4), suffered a similar fate,154 many arguing that paragraphs (4) and (5) are mutually exclusive.155 Further policy arguments were made in support of the application of paragraph (5). It was argued that the Court could be indefinitely prevented from exercising jurisdiction over the crime if just over 149 150

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June 2004 SWGCA Report, [17]; June 2008 SWGCA Report, [53]. Astrid Reisinger Coracini, ‘The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression – at Last . . . in Reach . . . Over Some’ (2010) 2(2) Goettingen Journal of International Law 745, 766. June 2004 SWGCA Report, [12]; June 2005 SWGCA Report, [16]; June 2008 SWGCA Report, [51]. November 2008 SWGCA Report, Appendix I: Informal Note on the Work Programme, [1]. November 2008 SWGCA Report, [18]. 154 February 2009 SWGCA Report, [7–8]. Ibid., [8].

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one-eighth of States Parties failed to ratify the amendments.156 Concern was also expressed as to the effect the application of Article 121(4) would have on the universalisation project. Article 121(6) allows a State Party that has not accepted an amendment to withdraw from the Statute once such amendment has entered into force for all States Parties under Article 121(4).157 Controversies attached to the crime of aggression, it was argued, could result in States withdrawing from the Statute, which would negatively impact on the reputation of the Court and the prospect it offers of ending impunity for other Rome Statute crimes.158 In favour of Article 121(4) it was claimed that there were benefits in having a unified, rather than a patchwork, regime, to protect the integrity of the Statute.159 It was further argued that as the crime of aggression was already included in the Statute, States Parties had accepted it by becoming parties thereto, meaning that the opt-in approach under Article 121(5) was contrary to the Statute,160 and that, read in this light, Article 121(5) applies only to new crimes.161 Resort to the travaux pre´paratoires of Article 121(5) provides little guidance.162 By 11 June 1998, the draft of the entry into force procedure read: ‘any amendment to Article 5 shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance [, unless the Assembly of the Conference has decided that the amendment shall come into force for all States Parties once it has been accepted by [5/6][7/8] of them]’.163 At the time the content of current Articles 5 to 8 was contained wholly in draft Article 5. In the final days of the Conference, the

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June 2008 SWGCA Report, [54]. One question that was never settled in this regard was whether the seven-eighths under Article 121(4) is a moving target – in other words, does the number of States required to satisfy the seven-eighths threshold continue to grow as the number of ratifications increases? Article 121(6) reads: ‘If an amendment has been accepted by seven-eighths of States Parties in accordance with paragraph 4, any State Party which has not accepted the amendment may withdraw from this Statute with immediate effect, notwithstanding article 127, paragraph 1, but subject to article 127, paragraph 2, by giving notice no later than one year after the entry into force of such amendment.’ June 2008 SWGCA Report, [53]. June 2005 SWGCA Report, [8]; June 2008 SWGCA Report, [57]; November 2008 SWGCA Report, [17]. June 2005 SWGCA Report, [8]. June 2005 SWGCA Report, [12]; June 2008 SWGCA Report, [57]. See a detailed explanation of the drafting history of Article 121(5) in Clark, ‘Ambiguities in Article 5(2), 121 and 123’. Ibid., 422.

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Bureau separated the crimes into separate articles. On the last day in Rome what had become Article 121(5) still only contained a reference to Article 5. As Clark explains, this led some to think that paragraph 5 applied only to the addition of new crimes and not to the amendment of Articles 6, 7 or 8. This prompted the Chair of the Committee of the Whole to correct what he said was a ‘technical error’, changing the reference to Articles 5, 6, 7 and 8.164 Importantly, at the time of the drafting of Article 121 the compromise on aggression had not been presented,165 meaning that Article 121 was not drafted with aggression in mind. The last-minute decisions on the Rome Statute package that affected both Articles 5 and 121 were made by the Bureau directly, and not accompanied by any explanation.166 Thus while it can be argued that the travaux pre´paratoires provide some support for the view that it was the intent of the drafters for Article 121(5) to govern the amendment of all substantive crimes,167 the truth is that there is a genuine ambiguity in the Statute resulting from last-minute drafting changes. It is true that the dilemma facing States Parties could have been avoided by the adoption of an amendment to Article 121(5) or the introduction of an aggression specific amendment procedure – and both possibilities were floated during the work of the SWGCA.168 There was little appetite to pursue such suggestions, however, given that such amendments would likely have required ratification by seven-eighths of States Parties before the aggression amendments could have been considered again. Have then the aggression amendments been legally adopted? It is unclear why, once consensus had been reached on the application of Article 121(5), States Parties did not insert the aggression amendments under Article 5 to avoid such arguments. Given the outstanding issues on the table until after midnight on the final day of the Conference, perhaps no thought was given to the matter. Or perhaps States Parties considered that, given the amendment of the Statute is exclusively within their purview, they also have the ability to interpret the amendment provisions definitively. I would suggest that the latter represents the better view of the matter. 164 167

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Ibid., 422–423. 165 Ibid., 423–424. 166 Ibid., 424. Andreas Zimmermann, ‘Amending the Amendment Provisions of the Rome Statute: The Kampala Compromise on the Crime of Aggression and the Law of Treaties’ (2012) 10 Journal of International Criminal Justice 209, 216. In relation to the former see June 2008 SWGCA Report, [56]. As to the latter see Clark, ‘Ambiguities in Article 5(2), 121 and 123’, 426.

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Dapo Akande has written that: Arguably, all that was done in Kampala was to adopt a text (to use the language of Art. 9 of the Vienna Convention on the Law of Treaties) and the adoption of a text does not usually create legal obligations on States or indeed for the Court and will not allow bypassing of the binding text of Art. 121 as it exists.169

Contrary to this suggestion, I would argue that the VCLT itself provides that in interpreting the terms of a treaty ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’ must be taken into account.170 The consensus adoption of the aggression amendments by States Parties under Article 121(5) is likely to be highly persuasive were the ICC ever asked to consider this issue. The lone objection of Japan is unlikely to raise serious doubt, particularly given its concerns are based solely on its own interpretation of the entry into force provisions. Furthermore, as will be outlined below, the thesis of this book is that Article 121(5) has been applied in a unique manner consistent with the powers given to States in relation to the crime of aggression under Article 5(2).

The second sentence of Article 121(5) The outline of the debate over the applicability of paragraphs (4) or (5) of Article 121 provided above deliberately omitted a significant issue that arose in the course of the SWGCA’s deliberations. This was the matter of the proper interpretation of the second sentence of Article 121(5). I deliberately isolated an examination of this argument for, as will be demonstrated below, the outcome to this debate has significant consequences for how the jurisdictional provisions under Article 15bis are to be interpreted, and, therefore, the identification of the individuals over which the ICC will be able to exercise jurisdiction. The second sentence of Article 121(5) can be understood in two ways. The first interpretation was termed ‘the positive interpretation’ in the SWGCA. It asserts that the second sentence clarifies the meaning of the paragraph’s first sentence such that non-ratifying States Parties take the position of non-States Parties with regard to crimes covered by such amendments. In other words, the fact a crime was committed by a national of a State Party that has not accepted the amendment, or on its territory, does not confer jurisdiction on the Court. This would not, however, preclude the exercise of the Court’s jurisdiction where there 169

Akande, ‘What Exactly Was Agreed in Kampala’.

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VCLT, Article 31(3)(b).

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was a relevant Security Council referral at play, or, in accordance with Article 12(2), the national of a non-ratifying State Party committed the crime in question on the territory of a ratifying State Party, or the national of a ratifying State Party committed the crime in question on the territory of a non-ratifying State Party. In contrast, ‘the negative interpretation’ reads the second sentence as limiting the Court’s jurisdictional reach over perpetrators of crimes covered by an amendment when committed by a national or on the territory of a State Party that has not accepted the amendment – regardless of whether the amendments have been accepted by another State whose nationals or territory are involved, thereby amounting to a derogation from the jurisdictional regime established in Article 12. Although the negative interpretation would appear to provide a blanket exclusion of liability given that it does not distinguish between the different trigger mechanisms under Article 13,171 the SWGCA widely agree that the Court should be able to exercise jurisdiction over crimes otherwise excluded where there had been a relevant Security Council referral.172 The argument was thus accepted that the second sentence of paragraph (5) was formulated exclusively in relation to Article 12(2), which is inapplicable to Security Council referrals.173 Proponents of the negative interpretation asserted that it better reflected the ordinary meaning of the sentence.174 It was argued that the fact that Article 121(5) does not provide for States Parties not accepting the amendment to withdraw from the Statute with immediate effect was because ‘their legal position is in no way modified’.175 The absence of a minimum number of ratifications required to bring an amendment into force under the paragraph (5) procedure was justified on the basis of the procedure’s reciprocal nature. The argument most frequently relied upon by proponents of the negative interpretation, however, was the policy argument that the Statute had to ‘respect the sovereign decision of States to be bound by the amendment or not’.176

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November 2008 SWGCA Report, [9]. 172 Ibid., [10]. 173 Ibid., [8]. Kress & von Holtzendorf, ‘The Kampala Compromise’, 1198. A. Pellet, ‘Entry into Force and Amendment of the Statute’ in Cassese et al, The Rome Statute of the International Criminal Court, 145, 182. See also Reisinger Coracini, ‘Amended Most Serious Crimes’, 705. June 2008 SWGCA Report, [53].

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In relation to this last argument, the UK sought to rely on the Monetary Gold principle,177 arguing that State consent to the ICC’s jurisdiction was required.178 The Monetary Gold principle indicates that an international court should not decide a case in which the legal interests of a non-consenting third State would be the very subject matter of the decision. According to Akande, the ICC: may not only be required to determine the responsibility of an alleged aggressor State for an unlawful use of force, but also whether the alleged victim State had itself committed an armed attack against the alleged aggressor State which would justify a response in self-defence. The Court would thus find itself acting in a manner which was practically no different to determining an inter-State dispute.179

Proponents of the positive interpretation rejected the applicability of the Monetary Gold principle – rightly in my view. Akande argues that ‘the ICC will not be engaged in making determinations about a State’s legal responsibility, nor will it need to do so, in order to convict an individual for war crimes, crimes against humanity or genocide. However, the position is different with respect to aggression.’180 This argument cannot be sustained. The perpetration of crimes against humanity or war crimes or genocide against the nationals of one State by agents and officials of a neighbouring State could be the basis of a claim for compensation under principles of State responsibility. Determining the status of the individual perpetrators as agents or officials could well arise indirectly in the context of superior responsibility, or directly in the course of determining whether an international armed conflict was in existence, or whether the State or organisational policy element of crimes against humanity has been satisfied. In terms of the ‘consequences’ for States of ICC findings, it is, therefore, not possible to distinguish the crime of aggression from other Rome Statute crimes. More importantly, there is no precedent for arguing that the Monetary Gold principle applies to international criminal tribunals that do

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Head of the UK Delegation, Chris Whomersley, referred to the principle on numerous occasions in Kampala, including in the Plenary debate. Notes on file with author. Monetary Gold Case (Italy v. France, United Kingdom and United States) ICJ Rep [1954] 19. See also East Timor Case (Portugal v. Australia) (Merits) ICJ Rep [1995] 90. Akande, ‘Prosecuting Aggression’, 17. Akande, ‘The Jurisdiction of the International Criminal Court over Nationals of NonParties’, 635.

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not assert jurisdiction over States.181 Indeed, as noted above, Article 25(4) of the Rome Statute expressly provides that ‘no provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law’. It is true that it cannot be ignored that there may be political, as opposed to legal, consequences for States as a result of aggression rulings,182 but this falls outside the Monetary Gold principle. The inapplicability of the Monetary Gold principle, however, does not resolve the interpretation question. In support of the positive interpretation it was argued that the second sentence of paragraph (5) clarifies the position of a State Party that has not accepted the amendment but does not provide any indication of the status of other States. On this basis it was argued that the paragraph should be understood as a specific rule with regard to the general rule of amendments contained in Article 121(4) but should not be seen as a specific rule with regard to Article 12(2).183 More broadly it was argued that the positive interpretation is consistent with the Rome Statute’s object and purpose.184 It was also argued that the positive interpretation ‘gives due respect to the fact that the will of a state party not to be bound by an amendment may not be given more weight than the will of another state party to submit its territory and nationals to the jurisdiction of the court’.185 It should be noted that the travaux pre´paratoires of paragraph (5)’s second sentence offer no assistance to a determination of its meaning. The language was inserted into the final text of the Statute on the basis of unpublished oral debates and informal consultations: as such there is no record of the intention of the drafters.186 This means that a view on the sentence’s meaning must be formed on the basis of a textual construction employing the principles outlined in Article 31 of the VCLT. Before a view on the proper interpretation can be offered, however, it is necessary to consider a number of factors that impact on that assessment, at least insofar as Article 121(5) has been applied to the crime of aggression’s jurisdictional provisions. First is the fact that the SWGCA disagreed with certain consequences of the negative interpretation. Second is the question of whether the application of Article 121(5) has been modified by the enabling resolution under which the aggression 181 183 185

Van Schaack, ‘Negotiating at the Interface’, 581. 182 Ibid., 582. Reisinger Coracini, ‘Amended Most Serious Crimes’, 707. 184 Ibid., 714. Ibid., 708. 186 Ibid., 714.

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amendments were adopted or Article 15bis, paragraphs (4) and (5). These two factors will be addressed in turn.

The negative interpretation and non-States Parties Initially the negative interpretation outlined above was understood as requiring the cumulative ratification by the territorial State and the State of nationality. States Parties, however, were uncomfortable with the consequences of this reading when they realised how it would relate to non-States Parties. The reference to ‘States Parties’ in the second sentence of Article 121(5) appears to exclude non-States Parties. This would favour States Parties over non-States Parties, who would by default be governed by the usual jurisdictional regime provided by Article 12(2). While this might have been sold as an incentive to accede to the Rome Statute, the SWGCA was nearly unanimous in the view that on the basis of the principle of non-discrimination, non-States Parties should not be worse off than non-accepting States Parties with regard to the aggression amendments.187 The issue was highlighted in November 2008 when the Chairman produced an illustrative chart to assist the SWGCA’s consideration of the interpretation of Article 121(5)’s second sentence.188 May the Court exercise jurisdiction over the crime of aggression?

Victim: State Party, accepted CoA

Victim: State Party, Victim: Nonhas not accepted State Party CoA

Aggressor: State Party, accepted CoA

1

2 Yes

Aggressor: State Party, 4 has not accepted CoA Aggressor: Non-State Party

3 ?

5 ?

7

6 No

8 Yes

Yes No 9

No

No

This led the Chairman to propose a series of understandings that could be adopted in order to clarify States Parties’ interpretation of Article 121(5) and reflect the view that non-accepting States Parties and non-States 187

188

November 2008 SWGCA Report, [13]. See also [15] and February 2009 SWGCA Report, [31]. November 2008 SWGCA Report, Appendix II: Jurisdiction Scenarios regarding Article 121(5), second sentence.

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Parties should not be treated differently.189 The first was focused on achieving non-discrimination between victim States: [Acceptance by the victim State not required where the aggressor State has accepted jurisdiction] It is understood that article 121, paragraph 5, second sentence, of the Statute does not prevent the Court from exercising jurisdiction in respect of an act of aggression committed by a State Party that has accepted the amendment on aggression.190

The second understanding consisted of two alternative proposals, reflecting the unresolved issue of whether the positive or negative interpretation would prevail. Both alternatives had the effect of ensuring that aggressor States Parties not accepting the amendments and aggressor non-States Parties were treated equally, but left for decision the issue of whether the Court could or could not exercise jurisdiction where a victim State Party only had accepted the amendments: [Alternative 1 – ‘positive’ understanding: jurisdiction without acceptance by the aggressor State] It is understood that article 121, paragraph 5, second sentence, of the Statute does not prevent the Court from exercising jurisdiction in respect of an act of aggression committed against a State Party that has accepted the amendment. [Alternative 2 – ‘negative’ understanding: no jurisdiction without acceptance by aggressor State] It is understood that article 121, paragraph 5, second sentence, of the Statute prevents the Court from exercising jurisdiction in respect of an act of aggression committed by any State that has not accepted the amendment.

These discussions are important for three reasons. First, they demonstrate that those States Parties supporting a negative interpretation were unwilling to apply it without modification. Second, they demonstrate that there was a strong policy concern that non-accepting States Parties and non-States Parties be treated equally under the amendments. Third, neither understanding was ultimately adopted. Whether this signals that a special regime for the crime of aggression has been employed, rather than either the positive or the negative interpretation, will be explored as part of the examination of Article 15bis in the next section. 189

190

February 2009 SWGCA Report, Appendix II: Non-paper on other substantive issues on aggression to be addressed by the Review Conference. This is the text as it appeared in the Conference Room Paper on the Crime of Aggression, ICC Doc. RC/WGCA/1 (2010), which was circulated ahead of the Review Conference on 25 May 2010. The text differs from the February 2009 proposal of the chairman only by the addition of the square bracketed explanatory text.

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The exclusions under Article 15bis The jurisdictional provisions relating to the crime of aggression are divided into two separate articles. Article 15bis deals with the exercise of the Court’s jurisdiction when triggered by a State Party referral (Article 13(a) of the Statute) and proprio motu investigations (Article 13(c)). Article 15ter deals with the exercise of the Court’s jurisdiction when triggered by Security Council referral (Article 13(b)). The common elements in the two Articles that concern their delayed entry into force are dealt with in Chapter 7. The modalities of declarations lodged under Article 15bis (4), issues arising in relation to Security Council determinations (Article 15bis (6), (7) and (9)), and the role of the Pre-Trial Division (Article 15bis (8)) are considered below. Also considered below will be Article 15ter. Of interest for the moment are the enabling resolution and Article 15bis, paragraphs (4) and (5). Preambulatory paragraph 1 (PP1) of RC/Res.6 reads: ‘Recalling paragraph 1 of article 12 of the Rome Statute’. Preambulatory paragraph 2 (PP2) of the Resolution recalls Article 5(2) of the Statute. Under operational paragraph 1 (OP1), the Review Conference: Decides to adopt, in accordance with article 5, paragraph 2, of the Rome Statute of the International Criminal Court (hereinafter: ‘the Statute’) the amendments to the Statute contained in annex I of the present resolution, which are subject to ratification or acceptance and shall enter into force in accordance with article 121, paragraph 5; and notes that any State Party may lodge a declaration referred to in article 15bis prior to ratification or acceptance.

Article 15bis (4) reads: The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years.

Article 15bis (5) reads: In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.

The plain and ordinary meaning of Article 15bis (4) provides that a State Party to the Rome Statute does not need to ratify the aggression

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amendments before being subject to the Court’s jurisdiction over the crime. The paragraph authorises the Court to exercise jurisdiction over acts of aggression committed by ‘a State Party’ (i.e. any State Party); nothing in Article 15bis (4) suggests that the Court’s jurisdiction is limited to States Parties that have accepted the amendment.191 And yet such an interpretation would seem to be at odds with Article 121(5), under which the amendments were adopted. Thus, the interpretation of Article 15bis (4) requires us to address a further series of questions: *

*

*

*

*

Does the reference to adoption in accordance with Article 5(2) in OP1 of the enabling resolution have an effect on the interpretation of the operation of Article 15bis (4)? What is the effect of the reference to Article 12 in PP1 and Article 15bis (4)? Can States not accepting the amendments lodge an opt-out declaration? If so, what is the significance of this? What is the significance of the employment of language from Article 121(5) in Article 15bis (5)? What is the significance of the omission of an understanding relating to the second sentence of Article 121(5)?

The answers to these questions will clarify the effect of Article 121(5) in relation to the amendments and thereby in practice determine whether the Court will be able to exercise jurisdiction over a crime of aggression committed on the territory of a State Party that has accepted the amendment by a national (or on the territory) of a State Party that has not accepted the amendment, but also not lodged an opt-out declaration. This is because States Parties agreed that although the conduct of a perpetrator responsible for the crime of aggression typically occurs on the territory of the aggressor State, a crime can equally be said to have been committed on the territory of the victim State, where the consequences of that conduct are felt. As such, the reference in Article 12(2)(a) to ‘the State on the territory of which the conduct in question occurred’ is understood to apply to the territory of both the aggressor and victim States.192

191 192

Milanovic, ‘Aggression and Legality’, 180. November 2008 SWGCA Report, [28]–[29] and February 2009 SWGCA Report, [38]–[39]. An understanding confirming this interpretation was contemplated (ibid. [28] and Appendix II, Non-paper on other substantive issues on aggression to be addressed by the Review Conference, Annex II, June 2009 SWGCA Report, [12]), but ultimately was considered unnecessary. See Kress et al, ‘Negotiating the Understandings’, 82; Clark, ‘Amendments to the Rome Statute of the International Criminal Court’, on file with author.

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The Article 5(2) reference As quoted above, the enabling resolution specifies that the amendments are adopted in accordance with Article 5(2) of the Statute. This could be read as a simple reference to the placeholder provision.193 The fact, however, that PP2 recalls Article 5(2) militates against such an interpretation. Moreover, the reference to Article 5(2) in OP1 was only introduced into the 10 June 23:00 version of the Non-Paper by the President of the Assembly. Earlier drafts of the resolution simply provided that the Review Conference ‘decides to adopt the amendments’. The 10 June 23:00 paper was the first194 President’s paper published after the incorporation into the President’s text of the references to Article 121(5) and Article 12.195 The timing of the addition suggests that the statement that the amendments are adopted in accordance with Article 5(2) might have been added to make clear how the references to Articles 121(5) and 12 are to be reconciled.196 Article 5(2) allowed States Parties to adopt a provision, inter alia, ‘setting out the conditions under which the Court shall exercise jurisdiction’ with regard to the crime of aggression. The second sentence of Article 121(5) refers to exercise of jurisdiction. By adopting the provisions under Article 5(2) – rather than Article 121(3), which is the provision on adoption that relates directly to Article 121(5) – have States Parties indicated that they are adopting a special regime on the exercise of jurisdiction, revising the operation of the second sentence of Article 121(5)?197 In this context it is noted that OP1 only refers to the 193

194

195

196

197

Cf. Zimmermann, ‘Amending the Amendment Provisions’, 212–221, who argues that Article 5(2) has no substantive effect but fails to consider the enabling resolution under which the aggression amendments were adopted. Another paper was circulated (Non-Paper by the President of the Assembly, 10 June 12:00) but this paper merely included a footnote relating to Article 15ter, which had been inadvertently omitted from the 10:00 paper. The text of the omitted footnote was read out by the President as the 10:00 paper was being circulated. There is no new text as such contained in the 12:00 paper so it is discounted for present purposes. Non-Paper by the President of the Assembly, 10 June 10:00. As to the significance of the reference to Article 12, see below. See in this regard Barriga, ‘Negotiating the Amendments’, 53 in which Barriga, chief drafter of the President’s texts, writes ‘operative paragraph 1 of the enabling resolution now explicitly referred to article 5(2) of the Statute as the basis for the adoption of the amendments’. Reisinger Coracini, ‘The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression – at Last’, 765; American Branch of the International Law Association International Criminal Court Committee, The Crime of Aggression: The New Amendment Explained, Question and Answers, 6 December 2010, on file with author, 9–10.

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amendments entering into force in accordance with Article 121(5). Does this further signify that only the first sentence of Article 121(5) has operative effect for the crime of aggression?198 On this view, the purpose of the reference to Article 121(5) would be to make clear the time frame for ratifications to become effective, ‘thus setting up’ the identical paragraphs (2) of Articles 15bis and 15ter, which provide that the Court can exercise jurisdiction one year after thirty States have ratified the amendments.199 Manson has argued that OP1 cannot permit the Court to ignore the second sentence of Article 121(5). He says the reference in OP1 to entry into force in accordance with Article 121(5) ‘comes together with “the baggage” of the second sentence, to which it is tied in the Statute, whether welcome or not’.200 As the next section will demonstrate, however, if Article 121(5) is not understood as applying to the crime of aggression as a matter of law, there is no legal impediment to the severing of the second sentence.

The Article 12 reference As noted above, PP1 of the enabling resolution recalls Article 12(1). Paragraph (4) of Article 15bis further provides that the Court may exercise jurisdiction ‘in accordance with article 12’. These references to Article 12 have two apparent consequences. First, under Article 12(1) States Parties accept the jurisdiction of the Court with respect to the crimes referred to in Article 5. Article 5 includes the crime of aggression. This suggests that there is a basis for treating the crime of aggression differently given that it was listed as a crime in the original text of the Statute and had therefore already been accepted by States Parties.201 Second, to give the reference to ‘exercising jurisdiction in accordance with Article 12’ any meaning, it would seem that it has to import the ordinary jurisdictional regime of the ICC. This could be viewed either as being consistent with the positive interpretation of Article 121(5) (merely confirming the applicability of Article 12), or, as building on the references to Articles 5(2) and 12(1) by establishing a special

198 199 200 201

Kress & von Holtzendorff, ‘The Kampala Compromise’, 1213–1214. Clark, ‘Amendments to the Rome Statute’. Manson, ‘Identifying the Rough Edges’, 426. This argument is suggested in Barriga, ‘Negotiating the Amendments’, 39.

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exception to a negative interpretation of the second sentence specific to the crime of aggression – a lex posterior lex specialis if you will.202

The rationale of the opt-out declaration Article 15bis (4) allows the Court to exercise jurisdiction over a crime of aggression arising from an act of aggression committed by a State Party ‘unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar’. OP1 clarifies that ‘any State Party may lodge a declaration referred to in article 15bis prior to ratification or acceptance’. The clarification provided in OP1 suggests that States Parties can lodge an opt-out declaration without ratifying the aggression amendments. In this respect it is emphasised that OP1 refers to ‘any State Party’ (i.e. not just a State Party accepting the amendments) and to the lodging of a declaration ‘prior to’ ratification or acceptance, suggesting that while the lodging of a declaration should be an incentive to ratify, it is not a necessary step. On this point Reisinger Coracini concludes that: It is my understanding that only states parties that ratify the amendments may lodge a declaration of non-acceptance. The legal basis for the opt-out declaration is set forth in the amendments, which only enter into force for those states that have ratified them. A declaration of non-acceptance by a state party that does not ratify the amendments and remains party to the unamended treaty would be difficult to justify in light of the prohibition of reservations according to Art 120.203

Lodging declarations under the provisions of a treaty not in force for a particular State is not, however, unusual. Article 12(3) of the Rome Statute, allowing non-States Parties to accept the jurisdiction of the Court on an ad hoc basis is one such example.204 As Reisinger Coracini 202

203

204

Similar arguments are advanced by Reisinger Coracini, ‘The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression – at Last’, 768–769; Van Schaack, ‘Negotiating at the Interface’, 551; and Ambos, ‘The Crime of Aggression After Kampala’, 505–506. Astrid Reisinger Coracini, ‘More Thoughts on “What Exactly was Agreed in Kampala on the Crime of Aggression”’, 2 July 2010, www.ejiltalk.org, at 11 July 2010. Reisinger Coracini shares the interpretation that Article 12 (2) governs the Court’s exercise over jurisdiction but argues that an opt-out declaration must be lodged alongside an instrument of ratification. Email from Stefan Barriga to various participants of the Review Conference, including the author, 10 July 2010, on file with author.

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acknowledges in a later article, the provision of rights for third States is also consistent with Article 36 of the VLCT.205 Lodging an opt-out declaration without ratifying the aggression amendments only makes sense if the Court can exercise jurisdiction over a State Party that has not ratified the amendments on the basis of a jurisdictional link under Article 12(2) created by another State’s acceptance of the amendments.206 As noted above, this interpretation is confirmed by the plain language of Article 15bis (4). As Clark observes, the phrase the Court may ‘exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party’ is unlimited in scope: it refers to States Parties generally without any suggestion that the Court’s jurisdiction is limited to State Party aggressors that have ratified the aggression amendments.207 Commentators reaching the opposite conclusion have had to explain why a State Party would opt in (by ratifying the amendments) and then opt out (by lodging an Article 15bis (4) declaration), if opting out in the absence of ratification is unnecessary to avoid the Court’s jurisdiction. It has been argued that despite not wanting to be subject to Article 15bis, a State Party may wish prosecutions of crimes of aggression triggered by Security Council referrals to be possible and may therefore ratify the amendments in order to constitute one of the thirty ratifying States required to activate the Court’s ability to exercise jurisdiction over the crime (Articles 15bis (2) and 15ter (2)) (see further Chapter 7).208 Alternatively, it has been argued that a State Party that ratifies the amendments and then opts out receives the benefit of protection

205

206

207 208

Reisinger Coracini, ‘The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression – at Last’, 778. Article 36 of the VCLT provides: ‘1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides. 2. A state exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty.’ A similar conclusion is reached by Kress & von Holtzendorff, ‘The Kampala Compromise’, 1179; Clark, ‘Amendments to the Rome Statute’; Reisinger Coracini, ‘The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression – at Last’, 745; William Schabas, ‘The Kampala Review Conference: A Brief Assessment’, 17 June 2010, http://humanrightsdoctorate.blogspot.com/2010/06/ kampala-review-conference-brief-assessment at 30 June 2010. Clark, ‘Amendments to the Rome Statute’. Van Schaack, ‘Negotiating at the Interface’, 586.

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against acts of aggression committed against it, in that a crime of aggression committed against an opting-out State Party by the national of a ratifying State Party (that has not lodged an Article 15bis (4) declaration) will fall within the Court’s jurisdiction.209 The latter argument, however, ignores the fact that this benefit itself represents an abrogation of the negative interpretation of Article 121 (5), which would have exempted the nationals and the territory of nonaccepting States Parties whether those States Parties were the victim or aggressor. As such, the argument provides little proof of the applicability of the second sentence of Article 121(5), or a negative interpretation thereof. Indeed, it defies all logic that States Parties opposed to a negative interpretation of Article 121(5) would not only have agreed to its application, but to additional provisions that provide even greater benefits to non-accepting aggressor States. Indeed, all arguments looking for reasons why a State might ratify the amendments and then opt out overlook the fact that the opt-out declaration was conceived in order to bridge the gap between proponents of the application of the jurisdictional regime provided by Article 12(2) and those who required entry into force to be based on consent – at least of the aggressor State. The breakthrough in Kampala and the first clear articulation of the opt-out declaration was found in the CABS paper – a compromise brokered by the authors of competing proposals.210 Article 4bis of the CABS proposal articulates the matter clearly: ‘[t]he Court may exercise its jurisdiction over the crime of aggression committed by a State Party’s nationals or on its territory in accordance with article 12, unless that State Party has filed a declaration of its non acceptance of the jurisdiction of the Court under paragraph 4 of this article’. As Kress and von Holtzendorff observe, not requiring ratification by the alleged aggressor State Party, but granting that State the ability to opt out, amounts to a ‘softened consent-based regime’, a compromise between two stark alternatives.211 The benefit of protection extended to ratifying States Parties that opt out is thus better seen as part of the compromise attached to the application of Article 12(2) and an incentive to ratify the Statute, rather than proof of the purpose of the opt-out declaration.212 209

210 212

Manson, ‘Identifying the Rough Edges’, 431; Kevin Jon Heller, ‘Opt-Ins and Opt-Outs’ (21 June 2010), www.opiniojuris.org/2010/06/21/opt-ins-and-opt-outs/, last accessed 21 July 2011. See Chapter 1. 211 Kress & von Holtzendorff, ‘The Kampala Compromise’, 1213. Several commentators reaching a contrary conclusion are, by their own admission, at a loss to explain the opt-out declaration, declaring it to have been ‘hastily inserted’,

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A comparison with Article 15bis (5) Article 15bis (5), relating to non-States Parties, provides further instruction. The language used to exclude the Court’s jurisdiction over nonStates Parties is almost a replication of the text of the second sentence of Article 121(5).213 The clear intent behind Article 15bis (5) is to exclude crimes of aggression involving non-States Parties whether such States are victims or aggressors. That this is so was made clear by discussions at the Review Conference.214 This conclusion has not been questioned by commentators. Indeed, the number of commentators lamenting the fact that non-States Parties have completely eluded the jurisdiction of the Court confirms that this is, for all intents and purposes, a universal understanding.215 Given the replication of the language from the second sentence of Article 121(5), this suggests that a negative interpretation of the second sentence prevailed.216 It is emphasised in this regard

213

214 215

216

without thought given as to ‘how it would fit’: Heinsch, ‘The Crime of Aggression After Kampala’, 739; Dapo Akande, Chris Hall, Akbar Khan, Chris Whomersley & Elizabeth Wilmshurst, The International Criminal Court: Reviewing the Review Conference, 24 June 2010, Chatham House, 8. The only changes being the substitution of ‘a State that is not a party to this Statute’ for ‘a State Party that has not accepted the amendment’, the substitution of ‘over the crime of aggression’ for ‘regarding a crime covered by the amendment’ and the substitution of ‘that State’s nationals or on its territory’ for ‘that State Party’s nationals or on its territory’. Notes on file with author. Clark, ‘Amendments to the Rome Statute’, 17–18; Van Schaack, ‘Negotiating at the Interface’, 593; Stahn, ‘The “End”, the “Beginning of the End” or the “End of the Beginning”?’, 878; Kress & von Holtzendorf, ‘The Kampala Compromise’, 1215–1216; Reisinger Coracini, ‘The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression – at Last’, 779–781; Ambos, ‘The Crime of Aggression After Kampala’, 505. A similar view is put forward by Zimmermann, ‘Amending the Amendment Provisions’, 219. It is noted that Article 121(5) was employed in relation to the war crimes weapon amendment that was also adopted at the Review Conference. The text of the enabling resolution (ICC Doc. RC/Res.5 (2010)), however, provides little instruction in and of itself as to how Article 121(5) is to be interpreted. The second preambular paragraph merely states: ‘Noting article 121, paragraph 5, of the Statute which states that any amendment to articles 5, 6, 7 and 8 of the Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance and that in respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party’s nationals or on its territory, and confirming its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted the amendment applies also in respect of States that are not parties to the Statute’. By replicating the language of Article 121(5) without an understanding as to whether jurisdiction should be exercised on the basis of

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that, in my view, this has no effect on how Article 15bis (4) is to be interpreted. As argued above, and as argued further below, a special regime has been established with regard to aggression such that the second sentence of Article 121(5) has not been applied. Nonetheless the employment of the language from the second sentence of Article 121(5) in Article 15bis (5) suggests that future amendments governed by the Article will have the negative interpretation applied. A comparison between Article 15bis paragraphs (4) and (5), moreover, provides support for the argument that a special regime governs crimes of aggression. First, the exclusion of non-States Parties from the jurisdiction of the Court is an abrogation of Article 121(5)’s second sentence, which, as outlined above, only makes an exception for non-accepting States Parties. This provides further evidence of the fact that Article 121(5) has not been applied at face value. Second, and more importantly, the very fact that Article 121(5) language has been employed with regard to non-States Parties but not in relation to States Parties not accepting the amendments suggests that a distinction must be made between the paragraphs’ operation. Article 15bis (5) provides that the Court ‘shall not exercise its jurisdiction’ over non-States Parties and provides no exceptions thereto. In contrast, under Article 15bis (4) the Court ‘may . . . exercise jurisdiction over’ a State Party ‘unless’ that Party has lodged an opt-out declaration. The variances between the two paragraphs highlight the difference between Article 15bis (4) and Article 121(5)’s second sentence. Finally, it was demonstrated above that the SWGCA had a clear policy desire to treat non-accepting States Parties and non-States Parties alike. Paragraphs (4) and (5) of Article 15bis achieve this goal. While the default may be that the Court has jurisdiction over States Parties (unlike nonStates Parties), a non-accepting State Party has the option of opting-out in order to avoid the Court’s jurisdiction in cases where its nationals might be accused of having committed a crime of aggression, or where its territory was used to commit a crime of aggression, which is the scenario about which States were most concerned.

The absence of an understanding As outlined above, going into the Review Conference the Chairman of the SWGCA suggested a series of understandings aimed at clarifying the interpretation of Article 121(5). Ultimately, no understanding on the amendments’ entry into force was adopted by the Review Conference. Article 12(2), the resolution itself cannot be read as endorsing a negative understanding (cf. Kress & von Holtzendorff, ‘The Kampala Compromise’, 1214–1215).

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The absence of any understandings on this subject points to the fact that the issue of the proper interpretation of the second sentence of Article 121(5) is not relevant under the jurisdictional provisions adopted.217 This conclusion is supported by comments made by the President of the Review Conference, Christian Wenaweser, who has stated that ‘[t]he final version of the Understandings no longer contained language on a “positive” or “negative” understanding of Art. 121(5), as this issue was addressed in the opt-out regime introduced in the text’.218

Over whom can the Court exercise jurisdiction? Of the interpretation put forward in this chapter, Beth Van Schaack has written: This view – which was not presented in Kampala or in any prior negotiation – depends on the piecing together of various statutory snippets through interpretive sleights of hand that should not fool the judges when confronted with the plain text of the Statute in light of standard principles of treaty interpretation.219

I disagree – violently. The view was presented in Kampala that it was the raison d’eˆtre of the compromise solution to the jurisdictional impasse. The details of the interpretation were not discussed during prior meetings of the SWGCA for the simple reason that Article 15bis (4) did not materialise until after the conclusion of the SWGCA’s work. Yet elements of the proposal had been under consideration for some time. It will be recalled that in the early days of the SWGCA, Roger Clark queried whether the simple adoption of the amendment might be sufficient on the basis of the wording of Article 5(2) of the Statute. While the provisions governing the entry into force of the aggression amendments differ materially from what Clark proposed, one can see the genesis of the regime there. The idea of an opt-out declaration was also identified as a possible means of overcoming difficulties associated with Article 121 in June 2009.220 This idea might not have crystallised until the pressure of the ending of the Review Conference loomed large, and it is admitted that constructive ambiguity played a part in pushing through the consensus, but to pretend that the interpretation is a post-Kampala construction is 217

218 219

220

Reisinger Coracini, ‘The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression – at Last’, 768. Wenaweser, ‘Reaching the Kampala Compromise’, 886, fn. 10. Van Schaack, ‘Negotiating at the Interface’, 598. See also Van Schaack, ‘Points of Consensus and Dissension’ 4–5. June 2009 SWGCA Report, [40]–[41].

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disingenuous. Van Schaack argues that only her preferred interpretation would be consistent with Article 40(4) of the VCLT,221 which provides that an amending agreement does not bind States party to a treaty that do not become party to the amending agreement.222 In making this argument, she conveniently ignores paragraph (1) of the Article, which provides that the regime set out under Article 40 only governs the amendment of a multilateral treaty ‘unless the treaty otherwise provides’. In this case, the Rome Statute has provided its own regime, meaning resort to the amendment provisions of the VCLT is unnecessary. Van Schaack further suggests that ordinary principles of statutory interpretation favour her preferred interpretation. Yet she offers no analysis of the different parts of Article 15bis in support of this conclusion. In contrast, this chapter has offered a careful analysis of the ordinary meaning of RC/ Res.6 and Article 15bis, paragraphs (4) and (5). The analysis undertaken points to a conclusion that the Court’s jurisdiction can be exercised over State Party aggressors unless they opt out by lodging a declaration under Article 15bis (4). While no one factor considered in isolation may be definitive, the enabling resolution and the text of 15bis considered as a whole point to a clear conclusion. A conclusion that is supported by what records we have of the intention of the drafters. In introducing what became Article 15bis (4), the President of the Assembly of States Parties stated: Under this approach, this would not constitute an “opt-out” of the amendment, much rather it would be a declaration that would affect a State Party’s acceptance already given under article 12(1). So this approach is very strongly based on article 12 of the Rome Statute and the very specific manner in which the crime of aggression is already reflected in the Rome Statute. Following from that . . . [Article 15bis (5)] makes it clear that there is no exercise of jurisdiction with respect to an act of aggression committed by a non-State Party. In connection with these two new provisions, in 15 bis, you have to read also the changes in the enabling resolution, namely first a specific reference to article 12(1) of the Rome Statute, which foreshadows the approach that I have outlined, namely to base this very strongly on article 12. And then of course you have operative paragraph 1, where we have the reference to article 121(5). And

221 222

Van Schaack, ‘Points of Consensus and Dissension’, 2. Article 40(4) further references Article 30(4)(b) of the VCLT, which in effect provides that as between States party to the original treaty and the amendment, and States party to the original treaty only, the original treaty will govern their mutual rights and obligations.

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the hope, of course, is that this would be able to bring us much closer together on the issue of modalities for entry into force.223

Weanweser has subsequently written that: I presented it to the plenary as a sui generis solution on the basis of the acceptance already given by states under Article 12 of the Rome Statute,224 which was possible due only to the specific placement of the crime of aggression in the Statute.225

Andreas Zimmermann has suggested that the informal acceptance of the amended amendment procedure can only apply to the eighty-four States Parties who presented credentials for the Review Conference.226 He further argues that the amendment procedure cannot apply to States such as Japan or France who disassociated themselves from the text.227 Such an argument is premised, however, on the notion that the amendment procedures were informally ‘amended’. The interpretation set out above is premised instead on an argument that the Statute provides for the amendment procedure that was utilised. That some creativity was employed is beyond doubt. But it is equally beyond doubt that the amendment provisions were not a neat fit for aggression and that no solution (short of formally amending the amendment provisions – an unpalatable solution clearly rejected by the overwhelming majority of States Parties) could have escaped the charge of invention. As discussed above, the main consequence of the foregoing interpretation is that the Court’s jurisdiction may be exercised on the basis of the ratification of the amendments by a victim State, regardless of whether or not an aggressor State has ratified the amendments, so long as the aggressor State has not lodged an opt-out declaration. The table below (based on that produced by the Chairman of the SWGCA to highlight jurisdictional dilemmas that was reproduced above) sets out the operation of the Court’s jurisdiction in this and other conceivable scenarios.228 223

224

225

226 228

Introductory Remarks by the President, 10:00am, 10 June 2010, cited in Barriga & Kress (eds.), The Travaux Pre´paratoires, 779, 780. This was also reflected in the new preambular paragraph 1 of the enabling resolution, which makes reference to Article 12(1) of the Rome Statute. Wenaweser, ‘Reaching the Kampala Compromise’, 885–886. See also Barriga, ‘Negotiating the Amendments’, 52. Zimmermann, ‘Amending the Amendment Provisions’, 225. 227 Ibid. This table is based on the foregoing analysis. A table differing in presentation but reaching the same general conclusions can be found in Reisinger Coracini, ‘The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression – at Last’, 782.

May the Court exercise Victim: State Party jurisdiction over the crime that has not ratified of aggression? the amendments or lodged an opt-out declaration Aggressor: State Party that has not ratified the amendments or lodged an opt-out declaration Aggressor: State Party that has not ratified the amendments but has lodged an optout declaration Aggressor: State Party that has ratified the amendments but has not lodged an optout declaration Aggressor: State Party that has ratified the amendments and lodged an opt-out declaration Aggressor: Non-State Party

1

Victim: State Party that has not ratified the amendments but has lodged an opt-out declaration

Victim: State Party that has ratified the amendments but has not lodged an opt-out declaration

Victim: State Party who has ratified the amendments and lodged an opt-out declaration

Victim: NonState Party

2

3

4

5

No

6

No

7 No

11

8 No

12 Yes

16

18

23 No

10 No

Yes

15 Yes

19 No

20 No

24 No

No

No

14 Yes

No

22 No

9

13

17

Yes

No

Yes

No

21

Yes

No

25 No

No

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In adapting the Chairman’s table to reflect the amendments as adopted, it is important to make a note about the ‘aggressor/victim’ dichotomy employed therein. While the handles ‘aggressor’ and ‘victim’ are undoubtedly convenient labels, it is recalled that, as outlined in Chapter 2, an aggressor/victim dynamic does not always apply. Exchanges of inter-State armed violence could involve dual or multiple aggressive acts giving rise to multiple crimes of aggression. For example, the armed forces of State A could launch a premeditated offensive bombing attack on the territory of State B involving five aircraft and resulting in the destruction of an important munitions factory owned by State B and the deaths of nearly 200 people. Let us presume that State A’s attack was neither authorised by the UN Security Council nor properly described as a humanitarian intervention or one of the other possible exceptions to the prohibition of the use of force, but was aimed simply at sending a political message and at setting back the defence capabilities of State B. In other words, State A is prima facie an ‘aggressor’ and State B is a ‘victim’. State B could certainly respond in self-defence without losing its victim status. If, however, State B’s actions exceed what was necessary or proportionate to defend itself, and extended to a large-scale invasion of State A, resulting in the occupation of part of State A’s territory, State B will have committed a second aggressive act. Events such as these would have implications for scenarios 4, 12 and 14 in the table above. In each of those scenarios the ‘victim’ State is presumed to have lodged an opt-out declaration – but for the purpose of determining whether the Court had jurisdiction, it was presumed to be of no effect, because under Article 15bis (4) the opt-out declaration only has effect when lodged by the State Party that committed the act of aggression in question. Where the ‘victim’ becomes a second ‘aggressor’ the terms of Article 15bis (4) would be brought into effect, meaning that in situations 4, 12 and 14, the Court would not be able to exercise jurisdiction – at least in relation to State B’s actions (Article 15bis (4)’s operation is limited to individual crimes of aggression rather than situations involving multiple crimes of aggression). As set out in the table, there would be nothing to prevent the Court from exercising jurisdiction over the acts of State A in this scenario – as inequitable as this may seem. Two additional questions are raised by Article 15bis, paragraphs (4) and (5). What are the consequences for a crime of aggression prosecution of a non-State Party accepting the Court’s jurisdiction under Article 12(3)? Will future States Parties be bound by the aggression amendments? Each of these issues is addressed in turn.

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The applicability of Article 12(3) In issue is the interaction between Articles 12(3) and 15bis (5). Given that the jurisdictional provisions contain no express exclusion, an argument could be made that non-States Parties can accept the jurisdiction of the Court over a crime of aggression under Article 12(3). In this context it is noted that Rule 44 of the Rules of Procedure and Evidence provides that ‘the declaration under article 12, paragraph 3, has as a consequence the acceptance of jurisdiction with respect to the crimes referred to in article 5 of relevance to the situation’. As noted above, the crime of aggression falls under Article 5. The better interpretation, however, would seem to be that Article 12 (3) declarations cannot be applied to crimes of aggression committed by the nationals, or on the territory, of non-States Parties. Heading into the Review Conference, a draft understanding provided that: It is understood, in accordance with article 11, paragraph 2, of the Statute, that in a case of article 13, paragraph (a) or (c), the Court may exercise jurisdiction only with respect to crimes of aggression committed after the entry into force of the amendment for that State, unless that State has made a declaration under article 12, paragraph 3.

The draft understanding was, however, ultimately abandoned. According to those most intimately involved in the drafting process the deletion of this draft understanding was explicitly requested by a number of States Parties that were concerned that an ability of nonStates Parties to accept the jurisdiction of the Court on an ad hoc basis would unfairly advantage such States, which would be able to decide after the fact whether to allow the Court to investigate a crime of aggression or not.229 This account is in keeping with the blanket exception understood to attach to Article 15bis (5), which must be viewed as a lex specialis, an interpretation shared by other commentators.230 As such, while nothing will prevent non-States Parties from accepting the Court’s jurisdiction on an ad hoc basis in relation to a ‘situation’ that involves a crime of aggression, this will not enable the Court to exercise jurisdiction over such crime: rather, the Court’s jurisdiction would be limited to genocide, crimes against humanity and war crimes committed in the context of that situation (that this is so is made clear by Article 229 230

Kress et al, ‘Negotiating the Understandings’, 88. Kress & von Holtzendorff, ‘The Kampala Compromise’, 1213, fn. 113; Manson, ‘Identifying the Rough Edges’, 441.

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15bis (10), which provides that Article 15bis ‘is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5’). The question has also been asked as to whether a State Party can use Article 12(3) with respect to an act of aggression committed by a State Party that has not accepted the amendments against another State Party that has not accepted the amendments where neither has opted out.231 While Kress and von Holtzendoff consider this possible,232 I do not believe this to be the case. First, the scope of Article 12(3) is limited by its plain language to ‘a State which is not a Party to this Statute’. Second, in accordance with Article 12(2), the ad hoc declaration of acceptance is aimed at providing the Court with jurisdiction in a situation where a State is not a Party to the Statute. The requirement that the aggression amendments must have been ratified by a State Party to enter into force under the first sentence of Article 121(5) is not remedied by an Article 12(3) declaration. Finally, the carefully balanced lex specialis regime established under Article 15bis militates against the application of Article 12(3).

Future States Parties The question of whether future States Parties would be bound by the Statute as amended was canvassed by the SWGCA in their deliberations on the meaning of the second sentence of Article 121(5).233 It was not, however, discussed in the context of the amendments as adopted. This caused some concern for Japan, which said in explaining its position after the adoption of the amendments in Kampala: How can we be certain that such a newly acceding country will be bound by the amended Rome Statute, while we see no provisions stipulating about the entry into force of the amendments per se? This is an issue that should be squarely addressed, if we are genuinely serious about enhancing the universality of the International Criminal Court.

During SWGCA negotiations emphasis was placed on Article 40(5) of the VCLT by some States supporting a positive interpretation of the second sentence of Article 121(5).234 It provides that:

231

232 233 234

Reisinger Coracini, ‘The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression – at Last’, 775. Kress & von Holtzendorff, ‘The Kampala Compromise’, 1214. June 2008 SWGCA Report, [55]; November 2008 SWGCA Report, [17]. June 2004 SWGCA Report, [16]; November 2008 SWGCA Report, [17].

the when and what of art. 15bis (4) declarations

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Any State which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a different intention by that State: (a) be considered as a party to the treaty as amended; and (b) be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement.

This they argued was consistent with Article 121(5), which gives both current and future States Parties the ability to ‘opt in’ to the amendments. Article 40(5) of the VCLT, however, is subject to the chapeau found in its paragraph (1), which makes it clear that this is a default rule, applicable only if a treaty does not provide otherwise. In my view, the Rome Statute has provided otherwise. As noted above, Article 12(1) states that any State that becomes a Party to the Statute ‘thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5’ – which as demonstrated, includes the crime of aggression. Given this is the basis on which the aggression amendments were adopted, a strong argument can be made that future States Parties will be bound by the aggression amendments. This conclusion is supported by the fact that under Article 120 of the Statute, reservations are prohibited, which would make the type of expression contemplated by Article 40(5) of the VCLT ultra vires. A conclusion that future States Parties are bound by the aggression amendments places them at no disadvantage. The opt-out declaration under Article 15bis (4) is an inherent part of those amendments. As such, like existing States Parties, future States Parties will be able to exercise their right to opt out of provisions that enable crimes of aggression to be investigated and prosecuted by means of the State referral and proprio motu jurisdictional triggers.

The when and what of Article 15bis (4) declarations Having established how the entry into force provisions operate, it is necessary to examine some of the details of the opt-out declaration mechanism. It may be quickly noted that under Article 15bis (4) we are told that declarations must be lodged with the Registrar of the Court. It is unclear why the Registrar was chosen – particularly in light of the fact that the Secretary-General of the United Nations is the depository of instruments of accession under Article 125(3), and also the depository of any accompanying declarations States make on becoming party to the Statute to opt out of the Court’s jurisdiction over war crimes for a period of seven years under Article 124. In this context, Reisinger Coracini has

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made the valid point that the lodging of a declaration with the Registrar, as opposed to the UN Secretary-General, could be untransparent235 – certainly there are no provisions within Article 15bis for the publishing of declarations. Given the import that political and diplomatic pressure will play in encouraging States to ratify the aggression amendments and not opt out (see further Chapter 7), it will be important, as Reisinger Coracini suggests, for the ASP to consider means by which any declarations lodged may be published.236 Another point quickly made is that the withdrawal of a declaration must be considered by the State Party lodging it within three years. The review clause was inserted in response to concerns raised by the Africa Group. Their specific proposal was that an opt-out declaration ‘shall remain valid for a period of no more than seven (7) years’.237 The final review clause is clearly a much watered-down version of what African States Parties sought: arguably there is no way for this procedural requirement to be enforced in any way by the ASP. In order to exert gentle diplomatic pressure on States to withdraw their declarations it might be possible, however, for the President of the ASP to write to States Parties on the third anniversary of the lodging of their declaration to enquire whether it has been reviewed. Of greater issue is the question of the permissible timing of the lodgment of an opt-out declaration relative to the commission of an act of aggression giving rise to an alleged crime of aggression. Article 15bis (4) refers to a State Party having ‘previously declared’ that it does not accept the Court’s jurisdiction over the crime of aggression. The intention is clearly to exclude the lodging of an opt-out declaration upon commission of a crime of aggression. Given that the definition of the crime includes the planning of, and preparation for, an act of aggression, a strong argument could be made that any declaration lodged during the planning or preparing period would be invalid. Such an argument can be based on the ordinary meaning of the phrase ‘previously declared’. It can also be argued that such a declaration would constitute part of the planning or preparation itself, and would therefore be a criminal act.238 235

236 237

238

Reisinger Coracini, ‘The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression – at Last’, 779. Ibid. Africa Group’s Response to the Non-Paper by the President of the Assembly of the 10th June 2010, on file with author. In relation to this argument see Reisinger Coracini, ‘The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression – at Last’, 777.

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Also in issue is the permissible form that opt-out declarations may take. Van Schaack raises the interesting question of whether States may seek to opt out of specific scenarios, such as with respect to NATO operations, or in relation to a particular conflict or adversary. She concludes that ‘presumably, if a State can opt out altogether, it can also declare only a partial opt out pursuant to the principle that the greater includes the lesser’.239 This seems to be the only logical conclusion. The prospect of specific opt-outs raises a further interesting question, namely whether States could use the opt-out mechanism to address some of the deficiencies identified in Chapter 3 regarding the definition of the State act element of the crime. For example, might a State seek to opt out of Article 15bis with regard to uses of armed force aimed at avoiding the commission of Rome Statute crimes in another State? Or in relation to uses of force aimed at the rescuing of nationals? The application of the logic outlined above would suggest this is possible, but such an approach would raise a host of complexities for a Pre-Trial Chamber seeking to determine whether the Court has jurisdiction in a given case. If States do adopt such an approach, we can certainly expect to see such declarations challenged on the basis that Article 15bis (4) cannot be interpreted in a manner that enables States to amend the definition of the crime of aggression unilaterally. Another interesting point raised by Van Schaack is whether a defendant who is a national of a State Party that has lodged an opt-out declaration can take advantage of that declaration if he or she acted on behalf of a State Party that has not opted out.240 As Van Schaack notes, the scenario is not far-fetched: current ICC defendant, Jean-Pierre Bemba Gombo is a national of the Democratic Republic of the Congo but is being prosecuted for crimes allegedly committed by his Mouvement de Libe´ration du Congo when it intervened in the Central African Republic at the invitation of its then President. In my view, the ordinary meaning of Article 15bis (4) suggests that Van Schaack’s defendant would not be able to take advantage of the declaration. It clearly states that the Court can exercise jurisdiction ‘over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept the jurisdiction of the Court’. In this way it can be seen

239

Van Schaack, ‘Negotiating at the Interface’, 589.

240

Ibid.

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that an opt-out declaration has a more nuanced effect than blocking the operation of Article 12(2) altogether: it is the aggressor State itself that must opt out in order for the Court’s jurisdiction to be blocked.

Security Council determinations Article 15bis (6) provides that: Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the SecretaryGeneral of the United Nations of the situation before the Court, including any relevant information and documents.

Article 15bis (7) states that ‘[w]here the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression’. Paragraph (8) determines what happens where the Security Council fails to make a determination ‘within six months after the date of notification’ and will be dealt with in the next section. In essence, these provisions allow an investigation triggered by a State referral or the exercise of the Prosecutor’s proprio motu powers to proceed where the Security Council determines that a relevant act of aggression has been committed. Also of relevance is paragraph (9), which states that ‘[a] determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute’, and paragraph (10), which provides that ‘this article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5’. These provisions raise three key questions: what amounts to a determination? What is the effect of a determination that an act does not amount to an act of aggression? What is the relationship between these provisions and Article 15 of the Statute governing proprio motu investigations? Each issue will be addressed in turn.

What amounts to a Security Council determination? As detailed in the first section of this chapter, the Security Council has employed the terms ‘aggressive’, ‘acts of aggression’, ‘aggression’, ‘armed aggression’ and ‘mercenary aggression’ in various resolutions. As explained, however, it is unclear whether any of the resolutions cited

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amounted to a determination under Article 39 of the UN Charter that an act of aggression has occurred. This begs the question of the requirements of ‘a determination’ under Article 15bis, paragraphs (6) to (8). Unlike Security Council determination proposals put forward in the early days of the WGCA and SWGCA, or the green light model, Article 15bis (6) does not specify that the Council must be acting under Chapter VII of the UN Charter in making such a determination. Is a Chapter VII resolution (implying that the Council is making the determination under Article 39 of the Charter) required? The travaux pre´paratoires reveal that the Security Council’s powers under Article 39 lie at the heart of the arguments put forward as to why the Security Council should play a role, which might be said to suggest a Chapter VII resolution may be required. This is, however, unlikely to trump the ordinary meaning of the text of Article 15bis (6) which makes no mention of Chapter VII, particularly given that the Article 39 argument was inherently rejected by the majority of States Parties, consistent with the better interpretation of the Charter outlined in this chapter. While it is not a requirement, there is, of course, nothing to prevent the Council from making its determination under Chapter VII. Other relevant questions were raised in a 2005 Discussion Paper entitled. The Conditions for the Exercise of Jurisdiction with Respect to the Crime of Aggression, authored by Pa˚ l Wrange of Sweden, but never addressed by the SWGCA or the ASP.241 Must a ‘determination’ be made in an operative paragraph? Is an explicit decision required or will an implicit determination, such as characterising a State as ‘aggressive’ suffice? If the former, must the Council ‘decide’ that an act of aggression has been committed by the State concerned, or is it sufficient for the Council to ‘determine’ the existence of such an act? The answer to each of these questions is unclear and may have to be determined by the ICC on a case-by-case basis through exercise of its kompetenz-kompetenz jurisdiction, which will enable the Court to review Security Council resolutions for the purpose of determining whether or not the Council has made a relevant ‘determination’.242 For example, a general reference to the ‘aggressive acts’ of

241

242

Discussion Paper 2: The Conditions for the Exercise of Jurisdiction with Respect to the Crime of Aggression’, Annex II. C, Report of the Special Working Group on the Crime of Aggression, ICC Doc. ICC-ASP/4/SWGCA/1 (2005). Tadic ( Jurisdiction), 18. For a parallel argument in relation to ICC review of the legality of Security Council resolutions deferring an investigation or prosecution under Article

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a State would arguably fail to amount to a determination ‘of an act of aggression committed by the State concerned’ given the degree of specificity that phrase implies. On the other hand, it is difficult to envisage the Court ignoring a Council resolution that ‘notes the act of aggression committed by State X’ in a preambulatory paragraph. Of course, given P5 sensitivities in relation to the crime of aggression, we might expect the Security Council to avoid employing any kind of reference to aggression unless it clearly means to trigger the Prosecutor’s ability to proceed with an investigation under Article 15bis (7), meaning that such questions may remain academic abstractions.

Does a ‘negative determination’ have any effect? Another potential question that could arise is the effective of a ‘negative determination’. While it seems unlikely that the Council would adopt a resolution explicitly declaring that a use of force did not amount to an ‘act of aggression’, history tells us that it is very likely that the Council will adopt resolutions characterising a use of force in which a Prosecutor may be interested as a threat to, or a breach of, the peace. Such a resolution could be interpreted as a determination that the use of force in question did not amount to an act of aggression. Would such a resolution prevent the Prosecutor from proceeding with an investigation in respect of a crime of aggression? The better view would appear to be that such determinations would have no effect on the operation of Article 15bis, in the sense that a conclusion would have to be made that the Security Council had not made the requisite determination under Article 15bis, paragraphs (6) and (7). Unless a further determination was forthcoming, paragraph (8) and the requirement that the Prosecutor seek the Pre-Trial Division’s authorisation would come into play after the expiry of six months. This interpretation is confirmed by the last clause in paragraph (8) which authorises the Prosecutor to proceed so long as such authorisation is obtained, ‘and the Security Council has not decided otherwise in accordance with article 16’. This implies that the only means of the Security Council blocking an investigation is through the use of its pre-existing powers under Article 16. 16 or the referral of situations under Article 13(b), see Luigi Condorelli & Santiago Villalpando, ‘Referral and Deferral by the Security Council’ in Cassese et al, The Rome Statute, 627, 637, 641, 648, 650. Cf. Dan Sarooshi, ‘The Peace and Justice Paradox: The International Criminal Court and the UN Security Council’ in Dominic McGoldrick, Peter Rowe & Eric Donnelly (eds.), The Permanent International Criminal Court: Legal and Policy Issues, Oxford: Hart Publishing, 2004, 95, 115.

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The Pre-Trial Division Filter Article 15bis (8) provides that: Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15, and the Security Council has not decided otherwise in accordance with article 16.

The use of the full Pre-Trial Division to authorise crime of aggression investigations in the absence of a Security Council determination was first suggested by Belgium in January 2007. It was aimed at providing greater scrutiny of proposed crime of aggression investigations, thereby providing some comfort to those who wished the Security Council to act as gatekeeper. The Pre-Trial Division consists of all Pre-Trial Chamber judges and must be constituted by not less than six judges (Article 39(1)). The Court itself is responsible for assigning judges elected by the ASP to the PreTrial Division, the Trial Division and the Appeals Division. Article 39(1) provides that: The assignment of judges to divisions shall be based on the nature of the functions to be performed by each division and the qualifications and experience of the judges elected to the Court, in such a way that each division shall contain an appropriate combination of expertise in criminal law and procedure and in international law. The Trial and Pre-Trial Divisions shall be composed predominantly of judges with criminal trial experience.

Judge Hans-Peter Kaul, writing extra judicially, has said ‘[h]aving the Pre-Trial Division act as an adjudicating body is a totally new system which will entail some organizational challenges for the judicial divisions of the Court’.243 For the Court, the main challenge will be ensuring that the judges of the Pre-Trial Division have competence in the jus ad bellum.244 As confirmed by Pre-Trial Chamber II in Decision pursuant to Article 15 of the Rome Statute on the Authorisation of the Investigation into the Situation in the Republic of Kenya, the test set out in Article 15 requires the 243

244

Hans-Peter Kaul, ‘Kampala June 2010 – A First Review of the ICC Review Conference’ (2010) 2 Goettingen Journal of International Law 649, 665. David Scheffer, ‘Adoption of the Amendments on Aggression to the Rome Statute of the International Criminal Court’ 12 June 2010 at http://iccreview.asil.org, last accessed 30 June 2010.

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Court to ‘consider whether the requirements set out in article 53(1)(a) to (c) of the Statute are satisfied for the sake of meeting the “reasonable basis to proceed” test’.245 This will require the Pre-Trial Division to ‘be satisfied that there exists a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court has been or is being committed’.246 This means that among other things ‘an examination of the necessary jurisdictional prerequisites under the Statute must be undertaken.’247 Second, the Pre-Trial Division will have to consider whether one or more potential cases within the context of a situation248 is or would be admissible under Article 17.249 Finally, the Pre-Trial Division will have to consider whether ‘taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice’.250 Thus, at the early stage, the Court will need to form preliminary views regarding issues such as whether there is a reasonable basis to believe that an act meeting the definition of the crime under Article 8bis has been met, and whether the Court has jurisdiction under Article 15bis (4) and (5). As noted above, Article 15bis, paragraphs (4) and (5) require the putative aggressor to be identified. As such, expressing a view, even in a preliminary manner, on these issues will require a deep understanding of the law relating to the use of force. The Pre-Trial Division currently consists of the minimum six judges. This raises an issue of the requisite quorum for the authorisation of an investigation. Arguably, either the presiding judge will have to be given a deciding vote under the Regulations of the Court, or the Court will need to increase the number of judges assigned to the Pre-Trial Division to an odd number.251 Comment must also be made on the six-month delay. While, admittedly, it may take some time for members of the Security Council to negotiate the text of a resolution, six months would appear to be excessive. While it is conceivable that the Council may choose to characterise a use of armed force as an act of aggression in the context of an escalating conflict some months after force was first used, the types of acts that are listed in paragraphs 8bis (2)(a) to (e) should, in most cases, be instantly recognisable – and it is unlikely that the Council would adopt a resolution concerning a completed act of aggression. 245 248 251

Decision dated 31 March 2010, [24]. 246 Ibid., [35]. 247 Ibid., [37]. Ibid., [48]. 249 Ibid., [40]. 250 Ibid., [63] and Article 53(1)(c). See further Chapter 7.

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The reason this is of concern is that it provides perpetrators with a window of at least six months252 to destroy evidence that might be necessary to secure a conviction. While evidence of an inter-State use of force will, of course, not be easy to hide, particularly in an era of 24/7 media coverage, the type of evidence I have in mind is that which might establish the individual criminal responsibility of those in a position effectively to exercise control over or to direct the political or military action of a State. The trial records of the IMT disclose the fact that an extraordinary volume of primary materials played a key role in establishing that particular defendants were, for example, present at key meetings. Such evidence is likely to be equally critical to establishing that a perpetrator was aware of the factual circumstances that established that an act of aggression was inconsistent with the UN Charter and a manifest violation of the same.

What is the relationship between Article 15bis and Article 15? In the case of a State referral it is quite clear that once a Security Council determination is made, or Pre-Trial Division authorisation is secured, the Prosecutor may proceed with an investigation. In relation to proprio motu investigations, however, is there an additional requirement that the Prosecutor complete the procedure laid out in Article 15 of the Statute? Logic would suggest that, if the Pre-Trial Division has authorised an investigation, which it must do in accordance with Article 15bis, there is no requirement to separately consult the Pre-Trial Chamber. Where, however, the Prosecutor concludes that there is a reasonable basis to proceed with an investigation for other crimes, Article 15bis (10)’s stipulation that Article 15bis ‘is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes’ suggests that, strictly speaking, the Prosecutor would need to seek authorisation from the Pre-Trial Chamber in respect of those other crimes and the PreTrial Division in relation to the crime of aggression. Requiring the Prosecutor to seek two separate authorisations smacks of inefficiency. The alternative, however, of having the entire

252

The actual time period is likely to be longer, given that the six months only starts running from the time the Prosecutor notifies the UN Secretary-General of the situation before the Court. Presumably, in most cases it will take the Prosecutor some time to assemble the necessary information – especially in early prosecutions of the crime of aggression when the OTP can be expected to be on a steep learning curve.

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Pre-Trial Division dedicated to the authorisation of other Rome Statute crimes arising in a situation that involves an alleged crime of aggression could in practice be unnecessarily cumbersome and thereby also result in inefficiencies. The Court may be best to develop new Rules allowing Pre-Trial Chambers to take judicial notice of any findings of the Pre-Trial Division made in the course of authorising an investigation into a crime of aggression, such as a finding that there is a reasonable basis to believe that an accused occupies a particular position, which would be relevant to a finding that there is a reasonable basis to believe that one of the modes of liability listed under Article 25(3) can be established. Article 15bis (7) states that where the Security Council has made a determination ‘the Prosecutor may proceed with the investigation in respect of a crime of aggression’. Does this mean that a Security Council determination is a substitute for the Pre-Trial Chamber’s authorisation of a proprio motu investigation under Article 15, or is it an additional hurdle that must be passed? The plain meaning of paragraph (7) suggests that no further authorisation would be required. The text authorises the Prosecutor to ‘proceed with the investigation’. In a chronological sense, this overtakes Article 15, which requires the Pre-Trial Chamber to consider whether ‘there is a reasonable basis to proceed with an investigation’ and if satisfied requires the Chamber to ‘authorize the commencement of the investigation’. Pre-Trial Chamber authorisation into investigations of other crimes arising from the same situation would, however, still need to be sought on the basis of Article 15bis (10).

Article 16 The reference to the Pre-Trial Division being able to authorise the commencement of an investigation in respect of a crime of aggression so long as the Security Council has not decided otherwise in accordance with Article 16 is strictly unnecessary. It adds nothing to the text of Article 16 itself. It was inserted only to emphasise the relationship between crimes of aggression and the Council’s role with regard to the maintenance of international peace and security. It will be interesting to watch whether the Security Council uses its powers under Article 16 to defer investigations and prosecutions in relation to crimes of aggression while allowing investigations and prosecutions of other Rome Statute crimes to proceed.253 Read literally, the 253

Van Schaack, ‘Negotiating at the Interface’, 577.

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reference to ‘investigation or prosecution’ should be understood as applying to the totality of the Prosecutor’s investigatory or prosecutorial activities with regard to a particular situation or case. In practice, however, the Security Council has already purported to use Article 16 to carve out specific exceptions. Under Resolution 1422,254 the Council used Article 16 to prevent the Court exercising jurisdiction over troops of non-State Parties carrying out peacekeeping operations. The resolution was adopted after the US used its veto to stop the renewal of the UN Mission in Bosnia and Herzegovina and the International Police Task Force until the resolution was adopted.255 On the basis of this precedent and the maxim a majore ad minus the better view would appear to be that the selective use of Article 16 would be a lawful use of the Council’s powers. Article 16, therefore, may provide a means for the P5 to secure control of aggression prosecutions. Of course, it would require the affirmative vote (or abstention) of a total of at least nine members of the Council including the P5. And the P5 would be aware of the potential political consequences of such a move: it is difficult to think of a situation in which a plausible case could be made that the interests of peace require the delay or denial of international criminal justice in relation to a crime of aggression, but not other crimes. This raises the stark possibility that investigations or prosecutions could be blocked altogether by the Council because of a possible investigation or prosecution of a crime of aggression: at least a possibility in any situation involving cross-border violence. As will be outlined in detail in Chapter 7, much work will need to be done by supporters of the crime and the Court before 2017 to ensure that the ICC’s work is not stymied by the Council because of irrational fears regarding the crime of aggression, or unsustainable claims regarding the Security Council’s exclusive ability to determine the existence of acts of aggression under Article 39 of the UN Charter.

254

255

Security Council Resolution 1422, UN SCOR, 57th Sess., 4572nd mtg, UN Doc. S/RES/ 1422 (2002). The resolution was renewed in 2003 (Security Council Resolution 1487, UN SCOR 58th Sess., 4772nd mtg, UN Doc. S/RES/1487 (2003) (12 June 2003)). See Mohamed El Zeidy, ‘The United States Dropped the Atomic Bomb of Article 16 of the ICC Statute: Security Council Power of Deferrals and Resolution 1422’ (2002) 35 Vanderbilt Journal of Transnational Law 1503; M. Weller, ‘Undoing the Global Constitution: UN Security Council Action on the International Criminal Court’ (2002) 78(4) International Affairs 693, 706–708.

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Security Council referrals Article 15ter governs the Court’s exercise of jurisdiction over a crime of aggression occurring in a situation referred to the Court by the UN Security Council. Paragraph (1) simply provides that ‘[t]he Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraph (b), subject to the provisions of this article’. No special procedures are provided for, however, in the balance of the Article. The idea that no special jurisdictional provisions were needed in the event of an Article 13(b) referral by the Security Council was first mooted in 2001 in the Preparatory Commission in a proposal submitted by Bosnia and Herzegovina, New Zealand and Romania.256 The proposal did not gain real traction, however, until the jurisdictional triggers were separated into two articles during the Review Conference. Importantly, in the case of a Security Council referral, the Court may exercise jurisdiction over any crime of aggression, regardless of whether or not the States involved have ratified the amendments (or lodged opt-out declarations). This is confirmed by Understanding 2, which provides that: It is understood that the Court shall exercise jurisdiction over the crime of aggression on the basis of a Security Council referral in accordance with article 13, paragraph (b), of the Statute irrespective of whether the State concerned has accepted the Court’s jurisdiction in this regard.

This is premised on the general acceptance that under Chapter VII of the UN Charter the Council has the ability to establish ad hoc tribunals for the prosecution of crimes absent the consent of the States involved. This was clearly a policy decision made sometime in advance of Kampala, or even Rome. Article 15ter is nonetheless arguably inconsistent with the ordinary meaning of the second sentence of Article 121(5) – providing further evidence of the inapplicability of that sentence to the amendments adopted. Article 15ter applies in respect of all situations referred to the Security Council – there is no means provided for the Security Council to single out referrals relating to the crime of aggression. Indeed, in order to

256

Proposal Submitted by Bosnia and Herzegovina, New Zealand and Romania. See also Blokker, ‘The Crime of Aggression’, 889–893.

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protect prosecutorial discretion, Article 13(b) only allows the Security Council to refer ‘situations’ to the Court, and not particular crimes or individuals. Despite this, in Resolutions 1593257 and 1970258 the Security Council purported to restrict the scope of its referrals. Under operative paragraph 6 of Resolution 1593 referring the situation in Darfur, the Council decided: that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State.

This language was replicated in paragraph 6 of Resolution 1970 referring the situation in the Libyan Arab Jamahiriya to the Court. When Uganda referred the situation concerning the Lord’s Resistance Army to the Court, the Prosecutor took a firm stance in stating that the Rome Statute prohibited one-sided referrals and announced a decision to open an investigation into the ‘situation in northern Uganda’.259 The Prosecutor has not, however, publicly voiced any objection in relation to the Security Council’s conditional referrals, although somewhat ambiguously in his May 2012 report to the Security Council in relation to the situation in Libya, the former Prosecutor stated that ‘[t]he Office has no jurisdiction to evaluate the proper scope of the NATO mandate in relation with UN Security Council Resolution 1973, but the Office is requesting further information about . . . five incidents identified by the Commission of Inquiry’.260 Clearly, if the Council sought to refer a situation to the Court but decided that crimes of aggression shall be subject to the exclusive jurisdiction of relevant States, the Prosecutor would be faced with a difficult situation. In this context, Williams and

257

258

259

260

Security Council Resolution 1593, UN SCOR, 60th Sess., 5158th mtg, UN Doc. S/RES/ 1593 (2005) (31 March 2005). Security Council Resolution 1970, UN SCOR, 66th Sess., 6491st mtg, UN Doc. S/RES/ 1970 (2011) (26 February 2011). Prosecutor of the International Criminal Court Opens Investigation into Northern Uganda, press release, ICC Doc. ICC-OTP-20040729–65 (2004). ICC Prosecutor Statement to the United Nations Security Council on the situation in the Libyan Arab Jamahiriya, pursuant to UNSCR 1970 (2011), 16 May 2012.

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Schabas have suggested that paragraph 6 of Resolution 1593 is ultra vires and ask whether the offending paragraph could be severed for the purpose of the referral, and, if so, whether the referral would remain valid.261 In this context, the lack of a special procedure in relation to Council referred crimes of aggression poses a potential threat to the effective functioning of the Court. If any member of the Council wishes to avoid any potential investigation or prosecution of a crime of aggression and is uncertain of achieving the requisite support for the use of Article 16 (or wishes to avoid expending the political capital associated therewith), all that a member needs to do is either garner the support of other members of the Council to prevent the adoption of a referring resolution or, in the case of the P5, exercise a veto. This could have a chilling effect on Security Council referrals. It is disappointing indeed that proponents of an independent Court were so focused on excluding any special role for the Council that they refused to canvass the addition of a green light model in the context of Article 15ter.262 Requiring the Council to authorise the commencement of an investigation of crimes of aggression arising from situations referred to the Court by the Council would have ensured that Council referrals of situations involving other Rome Statute crimes do not suffer by association with what the P5, unfortunately, still regard as a controversial crime. A final word on Article 15ter (4), which provides that ‘a determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute’. This paragraph should not be taken to mean that Security Council resolutions determining that an act of aggression has occurred will be of no material effect in the Court reaching its own conclusion as to whether the definition of an act of aggression under Article 8bis (2), or indeed the crime of aggression under Article 8bis (1), has been met. A Security Council resolution characterising a use of force as an act of aggression would be of determinative effect in establishing whether or not a use of force was authorised by the Council. It is also likely to be of persuasive value in the Court’s consideration of whether a use of force amounts to a ‘manifest’ violation of the UN Charter.

261

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Sharon A. Williams & William A. Schabas, ‘Article 13’ in Triffterer, Commentary on the Rome Statute, 563, 572. Something this author tried to champion in Kampala for precisely this reason.

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Conclusion The arguments outlined at the beginning of this chapter regarding the fact that there is no legal requirement for the Security Council to play a special role in the prosecution of crimes of aggression (and many policy considerations militating against it) were first published in an article in 2007. At that time, I could see no possibility of States Parties reaching agreement in relation to a jurisdictional model that did not provide a special role for the Council. Thus, on the basis of a belief that Council support for the Court and for prosecutions of crimes of aggression was critical, I thought efforts were best directed at devising a model that limited the role the Council would play, resulting in my proposal of a green light model. Happily, States Parties surpassed my expectations. They agreed to limit the role the Council plays in the exercise of the Court’s jurisdiction over the crime. While there remains, as outlined above, the possibility that as a result the Council will overuse Article 16 or hesitate to use Article 13(b), the jurisdictional provisions represent, as outlined in Chapter 2, a significant win for international law over international politics. The other major positive is the outcome in relation to entry into force. The agreement reached that States Parties have already accepted the Court’s jurisdiction over crimes of aggression, requiring States that wish to avoid the scrutiny of the Court to take the step of opting out of the Court’s jurisdiction with respect to State referrals and proprio motu investigations, flips ‘the power of inertia in favour of jurisdiction’.263 Against these success stories must be balanced the blanket exclusion of non-States Parties from the Court’s jurisdiction absent a Security Council referral. This in effect grants immunity to nationals of the US, Russia and China and likely also their closest non-State Party allies. Anomalies associated with the exclusion – such as the fact that the Court will have no jurisdiction even when a State Party does not opt out and commits a crime of aggression against a non-State Party – are particularly unwelcome. That said, this anomaly will hopefully at least encourage non-States Parties to ratify the Rome Statute in order to benefit from the protections offered in relation to crimes of aggression. The entry into force and jurisdictional outcomes certainly demonstrate creativity on the part of the ASP. Are they consistent with the powers afforded to States Parties in relation to the adoption of 263

Van Schaack, ‘Negotiating at the Interface’, 587.

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provisions setting out the conditions under which the Court shall exercise jurisdiction over the crime? In my view, they are. In the first place, I would argue that the interpretation of the Statute adopted, on which the amendments are based, is a reasonable one. On the basis of Article 31(3) of the VCLT the amendments can be seen to reflect a subsequent agreement between the parties regarding the interpretation of the Statute or the application of its provisions. In the event such an argument was not accepted, I would contend that given the ambiguities associated with Article 121, paragraphs (4) and (5), and the wide powers conferred on States Parties by Article 5(2), States Parties must be viewed as acting within the scope of their powers under the Statute in devising a special jurisdictional regime.264

264

Kress & von Holtzendorff, ‘The Kampala Compromise’, 1215.

7

2017 and beyond

The elation in Kampala produced by the adoption of the aggression amendments was tempered for some by the fact that the exercise of the Court’s jurisdiction has been delayed until 2017 at the earliest. This chapter will look towards 2017, first by assessing the prospects of the Court’s jurisdiction over the crime of aggression being activated, and being extended to the leaders of those States likely to commit acts of aggression. I will then analyse a range of practical issues associated with the future prosecution of the crime including the need to consider the crime in the context of judicial elections and the staffing of the Court; the issues raised by the victims’ provisions under the Rome Statute; and the special issues that are likely to arise in relation to cooperation. The chapter will next consider complementarity and the issues likely to arise in the context of domestic prosecutions of the crime of aggression. The chapter will also canvass the scheduled review of the amendments and suggest proposals for reform. The chapter will conclude by examining the possible geo-political impact of the crime of aggression amendments.

Activating the Court’s jurisdiction In November 2008, States began discussing the idea of a minimum number of ratifications needed to activate the Court’s subject-matter jurisdiction over the crime of aggression. The issue arose in the context of discussions on Article 121(5), which does not provide for a minimum number of ratifications. Those interested in the introduction of a minimum requirement argued that requiring a minimum would ‘be consistent with international treaty law and practice and would avoid a situation where only a single ratification of the amendment on 281

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aggression would activate the Court’s jurisdiction with respect to Security Council referrals’.1 Such proposals, however, lacked sufficient support, with a number of delegations more attracted to the idea of activating the Court’s subject-matter jurisdiction over the crime of aggression by the virtue of adoption of the amendments at the Review Conference.2 As an alternative, immediately before the Review Conference, the Chairman of the SWGCA proposed additional text for the jurisdictional provisions that would ‘not as such affect the timing of the entry into force of the amendments, but would effectively delay the Court’s exercise of jurisdiction’ for a specified period of years following the entry into force of the amendments.3 Ultimately, as part of the package of amendments on jurisdiction, States Parties adopted two cumulative provisions that have the effect of delaying the exercise of the Court’s jurisdiction over the crime of aggression. Paragraphs (2) and (3) of Articles 15bis and 15ter are identical.4 They provide that: 2.

3.

The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.

Understandings 1 and 3 clarify the operation of these provisions: 1.

3.

1 3

4

It is understood that the Court may exercise jurisdiction on the basis of a Security Council referral in accordance with article 13, paragraph (b), of the Statute only with respect to crimes of aggression committed after a decision in accordance with article 15ter, paragraph 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later. It is understood that in case of article 13, paragraph (a) or (c), the Court may exercise jurisdiction only with respect to crimes of aggression committed after a decision in accordance with article 15bis, paragraph 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later.

November 2008 SWGCA Report, [37]. 2 February 2009 SWGCA Report, [30]. Non-Paper by the Chair: Further Elements for a Solution on the Crime of Aggression, ICC Doc. RC/ WGCA/2 (2010), [2]. The Chairman had proposed that there be no delay in the Court’s exercise of jurisdiction in relation to Security Council referrals but this was rejected by States who opposed the distinction.

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The requirements The thirty ratifications requirement has raised the question of whether, one year following the requisite number of ratifications, the amendments enter into force for all States.5 I do not think such an interpretation is warranted. Firstly, paragraph (2) of Articles 15bis and 15ter is not related to entry into force but rather is a restriction on the ability of the Court to exercise its jurisdiction. There is nothing in the wording of paragraph (2) or the travaux pre´paratoires to support an alternative interpretation. Furthermore, as discussed in Chapter 6, OP1 of the enabling resolution under which the amendments were adopted clearly provides that the aggression amendments ‘are subject to ratification or acceptance and shall enter into force in accordance with article 121, paragraph 5’. Under the first, operative, sentence of Article 121(5), the amendments will only enter into force for those States Parties that have accepted them one year after the deposit of their instrument of ratification or acceptance. To give the first sentence of Article 121(5) any meaning, it must require ratification by individual State Parties. Paragraph (3) requires a further decision to be made by the Assembly of States Parties to activate the Court’s jurisdiction. The decision requires ‘the same majority of States Parties as is required for the adoption of an amendment to the Statute’. Article 121(3) provides that ‘[t]he adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties’. As such, a decision will require the support of two-thirds of States Parties at the time the vote is taken. If the number of new States Parties each year continues on its current trajectory, we can expect the number of States that would need to support the activation of the Court’s jurisdiction over the crime to be approaching 100. In his intervention after the adoption of the aggression amendments, Harold Koh, Head of the US Delegation, said ‘[d]ecisions regarding organic amendments to the Rome Statute should take place in periodic, constitutional gatherings such as the Review Conference’ not alongside the ‘ordinary decision-making that occurs at regular meetings of the Assembly of States Parties, where there are many distractions, and 5

Such a reading has been canvassed by Stefan Barriga, email to author and certain other participants at the Review Conference, 10 July 2010, on file with author, and is asserted by Tom Ruys, ‘Defining the Crime of Aggression: the Kampala Consensus’ (2010) 49 Military Law and the Law of War Review 95, 132.

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complex questions of constitutional architecture cannot be as fully and thoughtfully evaluated’. He further indicated that the US understood that there was ‘broad support’ for the paragraph (3) decision to be considered at a review conference.6 The convening of a review conference is not required as a matter of law. Under Article 123(2), at any time after the convening of the first Review Conference, the UN Secretary-General can convene another review conference at the request of a State Party, so long as the approval of a majority of State Parties is secured – but the convening of a review conference is stated to be ‘for the purposes set out in paragraph 1’. Paragraph (1) refers only to the consideration of amendments to the Rome Statute. The activation of the Court’s exercise of jurisdiction under Articles 15bis (3) and 15bis (4) does not require any amendment to the Statute. It may be that by 2017 States Parties have identified other amendments that it would be desirable to make to the Statute and decide to convene a review conference7 and consider that this would be an ideal environment in which to consider the activation of the Court’s jurisdiction over aggression – but this is not a requirement; the decision could be made at an ordinary meeting of the ASP. This point was made forcefully by Brazil in an intervention made after the adoption of the amendments in Kampala.8 Presumably the US sees a review conference as potentially providing a setting similar to Kampala in which it can lobby delegations intensely over a prolonged period and where delegations may be unable to secure clear voting instructions in relation to issues that emerge during such a conference. If, however, 6

7

8

Statement of the US in Statements by States Parties in explanation of position after the adoption of amendments, ICC Doc. RC/11 (2010). The ASP has convened a Working Group on Amendments (Resolution on the Review Conference, ICC Doc. ICC-ASP/8/Res.6 (2009), OP4). The Group is in the process of agreeing on its working methods. The Hague Working Group’s Study Group on Governance has also started considering whether amendments to the Statute and Rules of Procedure and Evidence may help enhance the efficiency and effectiveness of the Court. It is fair to say that at present there is a reluctance among a majority of States Parties to consider the addition of new crimes to the Statute (in order to ensure the Court is not overburdened and to ensure the Court’s jurisdiction is restricted to crimes of most serious concern to the international community as a whole, and because of amendment fatigue following the enormous investment of resources in relation to the crime of aggression). States Parties may, however, be willing to support technical amendments aimed at improving the Court’s functioning – at least after the completion of a full judicial cycle. Another possible amendment for consideration in 2017 would be the deletion of Article 124 – which was considered but rejected in Kampala. See in this regard, Statement of Brazil in Statements by States Parties in explanation of position after the adoption of amendments, ICC Doc. RC/11 (2010).

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there are no other amendments on the table to consider, and if sufficient support for the activation of the Court’s jurisdiction appears to be in hand, it is difficult to see States Parties agreeing to the convening of a review conference for the sole purpose of the paragraph (3) vote, if only because of the enormous costs associated with such a conference and the current tight budgetary situation facing the Court and foreign ministries alike. Thus far, ‘the decision’ singular has been referred to, but the fact that decisions are technically required under both Articles 15bis and 15ter means that the Articles could be subject to separate decisions. Thus, while it is highly unlikely that States Parties would agree to activate Article 15bis and not Article 15ter, the opposite is not implausible (see further below in the section entitled ‘The prospects of an active jurisdiction’). In this context, it is also interesting to consider whether an attempt might be made to alter the jurisdictional provisions at the time of the making of the paragraph (3) decisions. Such a prospect was hinted at by the US when it said after the adoption of the amendments that, at the time the decision is taken: States Parties should be allowed to consider any related amendments proposed for the Statute with the aim of strengthening the Court. We read the wording of paragraphs 3 of new articles 15bis and 15ter to allow for this sensible approach.9

Article 5(2) gave States Parties the authority to adopt provisions on the crime. Those amendments have now been adopted, however, and Article 5(2) was deleted from the Statute as part of the package of amendments. As such, a strong argument can be made that any amendment to Articles 8bis, 15bis and 15ter as adopted in Kampala would require States Parties to follow the appropriate procedures set out in Articles 121(4) and (5) as applicable, which would obviously complicate any attempt to amend the aggression amendments. A policy argument could also be made that under OP4 of the enabling resolution, States Parties decided to review the amendments seven years after the beginning of the Court’s exercise of jurisdiction, which suggests that it would be inappropriate to review the amendments before this time. Given the delicate compromise involved, it would also seem highly unlikely that States would be willing to risk the potential adverse consequences of a reopening of negotiations. 9

Statement by the US in Statements by States Parties in explanation of postion after the adoption of amendments, ICC Doc. RC/11 (2010).

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The relationship between paragraphs (2) and (3) of Articles 15bis and 15ter is interesting. The stipulation in paragraph (2) that the Court may exercise jurisdiction over crimes of aggression committed one year after ratification or acceptance by thirty States Parties is seemingly independent from the ASP decision requirement in paragraph (3). Thus, on the face of these paragraphs, if thirty States Parties ratify the provisions before the ASP activates the Court’s jurisdiction, it would appear that the Court’s temporal jurisdiction would extend back to the date on which the requirements in paragraph (2) were met – even though the OTP would not be able to commence an investigation until after the decision referred to in paragraph (3) had been made. Understandings 1 and 3, on the other hand, indicate that the requirements in paragraphs (2) and (3) are cumulative and that to be subject to the jurisdiction of the Court, crimes of aggression must have been committed not only one year after thirty ratifications, but also after the ASP decision. As such, presuming the Understandings will be given effect by the Court,10 crimes of aggression committed after the ratification of the amendments by thirty parties, but before the ASP has made a decision to activate the Court’s jurisdiction will not be able to be investigated or prosecuted.11 As outlined above, there would seem to be no basis on which a State Party could utilise Article 12(3). This rules out the possibility of an individual State Party giving the amendments retrospective effect.

The prospects of an active jurisdiction To date, States have shown very little interest in discussing the possible outcomes of a 2017 decision, likely due in part to aggression fatigue and a feeling of a need to ‘get on with other ICC business’, as well as a desire to let the amendments settle and let some of the urgency seep out of the outstanding concerns held by some States. As a result, there is scarce evidence that one can point to in order to demonstrate the level of support likely to be shown in favour of the amendments’ activation. This said, in mid-2012, Liechtenstein became the first State to deposit its instrument of ratification in relation to the amendments. A number of other States are known to be quite advanced in their consideration.

10 11

See Chapter 3, section entitled ‘Understanding the Understandings’. See further Reisinger Coracini, ‘The International Criminal Court’s Exercise of Jurisdiction’, 771; Kress & von Holtzendorff, ‘The Kampala Compromise’, 1211–1212, fn 108.

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Liechtenstein has also now partnered with the Global Institute for the Prevention of Aggression12 to promote States’ ratification of the aggression amendments, and the technical support available through the partnership will likely assist at least smaller States to ratify sooner. As such, while it may seem somewhat speculative, I think there is good reason to consider that the goal of thirty ratifications will be reached sooner rather than later. Likely to be of greater determination is the decision to be taken by the ASP in 2017 or later. The delaying mechanisms were in part aimed at addressing concerns that the Court was not, in 2010, yet ready for the crime of aggression and might benefit from a delay in its exercise of jurisdiction over the crime, such as to enable it to develop further practice, procedure and jurisprudence in relation to existing crimes before being confronted with new challenges. By 2017, the Court will likely have completed a number of trials and appeals. This will have provided ample opportunity for the Office of the Prosecutor and the judges of the ICC to have considered a range of different Rome Statute crimes, thereby beginning to define the contours of the Court’s subjectmatter jurisdiction. It will also have cemented the place of the ICC in the international landscape and presumably have demonstrated the capacity of the Court to make a meaningful contribution to international criminal justice. The judicial divisions and OTP will have further developed practices and procedures. As such, barring unforeseen hiccups in the operation and functioning of the Court it would seem unlikely that States Parties would be reluctant, by 2017, to activate the Court’s jurisdiction over the crime of aggression on the basis of a lack of maturity on the Court’s part. The delay was also seen as having the benefit of providing States Parties with time to amend their domestic implementing legislation to meet the requirements of being able to cooperate with the Court in relation to the prosecution of the crime, as well as possibly implementing domestic versions of the crime. As will be discussed later in this chapter, the domestic prosecution of crimes of aggression raises a range of difficult issues, which will likely take States some time to work through. In this light, the delaying provisions might be considered favourably in that they will give States the necessary time to develop appropriate legislative models. Again, however, the development of implementing legislation should be possible for most States Parties by 12

Established by Ben and Don Ferencz.

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2017: as such, this is unlikely to be a factor that deters States from considering the activation of the Court’s jurisdiction favourably. Of course the delaying provisions were also inserted in order to capture the support of those States that, until the last moment, opposed the adoption of the aggression amendments. The decision required under paragraph (3) provides such States with a further opportunity to prevent the activation of the Court’s jurisdiction. That this opportunity may be exercised was foreshadowed by the UK immediately after the adoption of the amendments: after outlining its outstanding concerns in relation to the Security Council’s prerogatives, it indicated that ‘the UK looks forward to continuing the discussion of these issues, whether in 2017 or thereafter’.13 This said, on the basis of general impressions of States’ positions at the Review Conference and in ASP meetings since then, I feel confident in predicting that States supporting the aggression amendments will easily secure the support of the required two-thirds of State Parties to activate the Court’s jurisdiction if it comes to a vote. The difficulty, of course, is that States are likely to wish the decisions to be made on the basis of consensus – just as they did in Kampala. States will be cognisant of the fact that pushing through a vote without the backing of the P5 – or at least the very vocal P3 – and their closest allies may negatively impact on the ICC’s ability to prosecute crimes of aggression given that in relation to this crime, more than any other crime under its jurisdiction, the Court is likely to rely on Security Council assistance in terms of evidence gathering and the arrest and surrender of accused persons. Security Council action in relation to an allegedly aggressive act is, moreover, likely to serve as important evidence of the (il)legality of the act – a cooperative rather than hostile relationship may ensure that resolutions are drafted by the Council with future prosecutions in mind. More broadly, a lack of support from key international players for one of the four umbrella crimes under the ICC’s jurisdiction may undermine the Court as a whole and States Parties will likely be hesitant to risk ‘politicising’ the Court in this way. The outcome may, therefore, depend on the approach taken by traditional allies of the P3 when it comes to use of force questions. If like-minded States, such as coalition allies, ratify the aggression amendments before 2017 and are supportive of the activation of the Court’s 13

Statement of the UK in Statements by States Parties in explanation of position after the adoption of amendments, ICC Doc. RC/11 (2010).

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jurisdiction, the P3 may be hesitant to attempt to build support for a ‘no vote’ for fear of risking a second ‘loss’ on the aggression question. As such, great efforts should be made to encourage those moderate likemindeds that worked towards the successful outcome of the aggression negotiations to ratify the amendments in the hope that this will have the effect of isolating the P3 on this question. Ideally, efforts should be made to ensure that both Article 15bis and 15ter are simultaneously activated. While P3 support for 15ter might be more readily secured, one could expect the activation of 15ter alone to face principled opposition from those States that rejected Security Council control of the crime. Fortunately, such States will be in a strong position to argue that the jurisdictional provisions outlined in the Articles must be activated simultaneously in order to preserve the delicate balance reflected in the jurisdictional provisions.

Prosecuting a crime of aggression before the ICC Surprisingly little attention was devoted throughout the SWGCA’s negotiations or at the Review Conference to the many practical issues that will likely arise in the course of any aggression prosecution. Most were of the view that provisions governing the crime of aggression should be inserted into the Statute with as little disturbance as possible to the Statute’s existing provisions and on the basis of an understanding that Court processes as already defined would apply in like manner to the prosecution of the crime. Whether this was a deliberate attempt to keep a Pandora’s box closed,14 or whether States Parties were genuinely of the view that the prosecution of crimes of aggression will occasion no special considerations, I would argue that the latter is far from what is likely to be the reality.

Judicial elections and staffing the Court Chapter 4 outlined the fact that the definition of the crime of aggression adopted will require the judges of the ICC to make difficult decisions regarding the contours of the prohibition of the use of force. This raises the issue of how to ensure that the judges of the Court will be adequately equipped to make such decisions. Article 36 (3)(a) of the Rome Statute currently requires judges to, inter alia ‘possess the qualifications required in their respective States for 14

Van Schaack, ‘Negotiating at the Interface’, 601.

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appointment to the highest judicial offices’. In addition, under subparagraph (b) judicial candidates must either: (i)

(ii)

Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings [List A]; or Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court [List B].

Under paragraph (5), there must be elected at least nine judges from List A, and at least five from List B. There is arguably room within these provisions for the eighteen judges of the Court to include a jus ad bellum expert or two. Clearly, however, the bench will need to be balanced by experts in other areas of the law and judges familiar with criminal proceedings – a lack of experience in relation to which has been a source of criticism of many of the judges of the ICC to date. To understand the extent of the issue it is necessary to consider the fact that difficult jus ad bellum questions are likely to need to be decided by the Pre-Trial Division and individual Pre-Trial Chambers, as well as the Trial Chamber and the Appeals Chamber of the Court in any crime of aggression proceeding. For example, to determine whether it has jurisdiction under Article 15bis, the Pre-Trial Division (if in the context of an authorisation of an investigation) or a Pre-Trial Chamber (if in the context of the confirmation of charges or a challenge to admissibility) will need to determine whether there is a reasonable basis to believe that an act of aggression has taken place and by which State it was committed.15 Such decisions will involve complex issues. Take the example of contested territory. On 11 March 2010, the UK notified the UN Secretary-General that it wished its ratification of the Rome Statute to extend to a list of named territories ‘for whose international relations the United Kingdom is responsible’. The list included the Falkland Islands. This prompted Argentina to deposit a declaration in response on 18 May 2010, which stated, inter alia, that: The Argentine Government recalls that the Islas Malvinas, Georgias del Sur and Sandwich del Sur and the surrounding maritime areas are an integral part of the 15

Reisinger Coracini, ‘The International Criminal Court’s Exercise of Jurisdiction’, 773.

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Argentine national territory and are illegally occupied by the United Kingdom of Great Britain and Northern Ireland, being the subject of a sovereignty dispute between both countries which is recognised by several international organizations . . . Therefore, the Argentine Government objects and rejects the British attempt to extend the application of the Rome Statute of the International Criminal Court to the Islas Malvinas. The Argentine Government reaffirms its legitimate sovereign rights over the Islas Malvinas, Georgias del Sur and Sandwich del Sur and the surrounding maritime area.

Article 29 of the VCLT provides that ‘unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory’. This provides little assistance, however, in relation to areas that are claimed to be part of the sovereign territory of two separate States. For the sake of argument, assume that Argentina ratifies the aggression amendments and the UK does not, but also has not opted out. Were the UK to use force against the territory of the Falkland Islands, and were Argentina to refer the situation to the ICC, the Court would face a difficult sovereignty issue in order to determine whether it had jurisdiction over a leader of the UK responsible for the use of force on the basis of Argentina’s ratification of the amendments under Articles 12(2) and 15bis (4). It is true that this issue is not specific to aggression, but it is particularly relevant in the context of the crime given that contested territory often lies at the heart of unlawful uses of inter-State armed force. The point, of course, is that it seems fairly clear that genuine expertise will be spread thin. This suggests a need for States to consider electing more than the minimum of five judges from List B to take into account the need for jus ad bellum expertise. This issue is addressed further under the ‘Review of the amendments’ section below. The Office of the Prosecutor will also require staff with deep understandings of the jus ad bellum. The crime of aggression is unique compared with the other crimes under the Court’s jurisdiction and this should be reflected in the recruitment of staff to the OTP as the activation of the Court’s ability to exercise jurisdiction over the crime draws near. External expert advisers on the issue of the use of force will also presumably need to be heavily relied upon.16 The need for genuine expertise will be underscored by the fact that we can expect any investigations or prosecutions of crimes of aggression to be subjected to exacting scrutiny by the international community. While the adoption 16

Article 42(9) of the Rome Statute.

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of the aggression amendments signals an acceptance of the attachment of individual criminal responsibility to the use of force, it is undeniable that traditional detractors of the crime and the Court will look to the first aggression prosecution for evidence that the aggression amendments are defective, or that the Court has become politicised. Opening the door to genuine criticism through the demonstration of a lack of subject-matter expertise on the part of the OTP could have very serious consequences for support for the Prosecutor going forward. Of course, the recruitment of staff with such knowledge should not be at the expense of the recruitment of staff with expertise in relation to the international humanitarian and human rights law on which other crimes are based, or criminal laws and processes, given that it might be expected that other crimes will constitute the majority of the Court’s work going forward.17 As David Scheffer has observed, ultimately such considerations will become a budget issue for the Court.18 Ensuring that appropriate staff are recruited, adequate training is provided, and necessary resources are procured will require a significant investment – one States Parties must be prepared to support through the approval of the Court’s annual budget at yearly meetings of the ASP.

Victims of crimes of aggression Rome Statute provisions providing for the protection of victims, for victims’ participation, and for victims to be awarded reparations, have been hailed as an historic breakthrough in victims’ rights. They represent a recognition that victims have an integral role to play in the international criminal justice process.19 The provisions were given little 17 18

19

See below, the section entitled ‘Conclusion: a crime in name only?’. David Scheffer, ‘Adoption of the Amendments on Aggression to the Rome Statute of the International Criminal Court’ 12 June 2010, http://www.mediafire.com, last accessed 16 May 2012, 4. See for example, Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results, The Hague: Kluwer Law International, 1999, 427; Schabas, An Introduction to the International Criminal Court, 323; Miriam Cohen, ‘Victims’ Participation Rights Within the International Criminal Court: A Critical Overview’ (2008–2009) 37(3) Denver Journal of International Law and Policy 351; Sam Garkawe, ‘Victims and the International Criminal Court: Three Major Issues’ (2003) 3 International Criminal Law Review 345, 345–352; Christodoulos Kaoutzanis, ‘Two Birds with One Stone: How the Use of the Class Action Device for Victim Participation in the International Criminal Court Can Improve Both the Fight Against Impunity and Victim Participation’ (2010) 17 UC Davis Journal of International Law and Policy 111, 117; Brianne N. McGonigle, ‘Bridging the Divides in International Criminal Proceedings: An Examination into the Victim Participation Endeavour of the International Criminal Court’ (2009) 21(1) Florida Journal

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consideration during the negotiation of the crime of aggression: an assumption was made that existing provisions would apply equally to the crime. It is unclear, however, whether the participation and reparation provisions can be sensibly applied in a crime of aggression context. First, it might be questioned whether the Rome Statute’s understanding of a ‘victim’ can be extended to crimes of aggression. In a crime of aggression context the term ‘victim’ is typically applied to the State that is the target of an act of aggression, not to the individuals who suffer harm within that State. The notion of a ‘victim State’, however, sits uneasily with the Rome Statute, given Article 25(4)’s stipulation that no provision in the Statute relating to individual criminal responsibility shall affect the responsibility of States under international law. States are, moreover, excluded from the definition of ‘victims’ under Rule 85 of the Rules of Procedure and Evidence: For the purposes of the Statute and the Rules of Procedure and Evidence: (a) ‘Victims’ means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; (b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.

The ICC Appeals Chamber has held that: The harm suffered by a natural person is harm to that person, i.e. personal harm. Material, physical and psychological harm are all forms of harm that fall within the rule if they are suffered personally by the victim. The issue for determination is whether the harm suffered is personal to the individual. If it is, it can attach to both direct and indirect victims.20

This broad definition could capture a vast number of persons in a target State who have suffered harm as a result of an act of aggression, such as those who have sustained physical or mental injuries, those who have suffered mental anguish caused by the death or injury of a loved one or prolonged deprivations caused by sustained attack, and

20

of International Law 93, 94; Christine H. Chung, ‘Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?’ (2008) 6(3) Northwestern Journal of International Human Rights 459. The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04–01/06 OA 0 OA10, Judgment on the Appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, 11 July 2008.

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those whose livelihoods have been depleted or destroyed as a result of the consequences of an act of aggression, in addition to organisations or institutions responsible for property dedicated to the purposes listed in Rule 85(b), which has been damaged or destroyed. Such examples, however, are deceptively simple. In reality, difficult questions will inevitably arise relating to the nexus required between an act of aggression and the individual harm suffered. Say, for example, that an act of aggression committed by State A against State B results in State B exercising its right of self-defence, leading to a prolonged international armed conflict. At what point does the crime of aggression end? Reference to ‘execution’ in addition to planning, preparation and initiation suggests that the temporal scope of the crime mirrors the period taken to complete the relevant act of aggression. Is an act of aggression then complete at the conclusion of the initial attack or only when the international armed conflict is brought to an end by military subjugation or the conclusion of an armistice? Article 8bis (2) is, unfortunately, somewhat inconsistent. The literal text of sub-paragraph (b) suggests that an act of aggression would be complete upon the conclusion of an act of bombardment or the use of any weapons by a State against the territory of another State. Sub-paragraph (a), on the other hand, in referring to both invasion and military occupation suggests that an act of aggression can be ongoing. The latter better reflects the jus ad bellum, under which an act of aggression can be said to continue for as long as the force being used amounts to a serious violation of the UN Charter. Also in issue is whether the definition of ‘victims’ will be exclusively applied to persons and organisations/institutions located within the target State(s). Could a foot soldier, conscripted into the armed service of the aggressor State and forced (perhaps as a result of a refusal to fight being subject to a penalty of punishment of some kind) to participate in an act of aggression, exposing him or her to the horrors of armed violence, also claim to have personally suffered physical and/or psychological harm as a result of the actions of the leaders of that State in planning, preparing, initiating and executing a crime of aggression? Whatever the outcome to such questions, it is clear that the definition of victims provided by the Rules casts an extremely wide net in the context of the crime of aggression. As signalled above, the import of the definition of victims under the Rules of Procedure and Evidence is that it is a threshold test for being afforded the right to participate in ICC proceedings, or being awarded reparations (as well as being provided with protection).

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The Rome Statute allows victims to participate in proceedings ‘in their own right and for their own interests’.21 The Statute allows victims to make representations in respect to applications for the authorisation of proprio motu investigations (Article 15(3)), to submit observations to the Court in proceedings with respect to jurisdiction or admissibility (Article 19(3)), to present their ‘views and concerns’ where their ‘personal interests are affected’ (Article 68(3)) and to make representations in relation to reparations orders (Article 75(3)). At the Rome Conference it was recognised that the nature of the crimes under the Statute could involve considerable numbers of victims. The drafters thus attempted to devise a realistic system that would give satisfaction to victims without jeopardising the fair trial rights of accused persons, or the ability of the Court to proceed without being overwhelmed by the numbers of victims wishing to participate.22 This balancing act is reflected in the discretion afforded to the judges of the ICC to determine how victims can participate. Article 68(3) provides in full that: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.

The Rules flesh out the operation of Article 68(3). In order to present their views and concerns, victims must make a written application to the Registrar, who will transmit it to the relevant Chamber (Rule 89(1)). Multiple applications may be considered together in order to ensure the effectiveness of the proceedings (Rule 89(4)). In practice, the ICC has adopted a multiple-staged test – a practice of which commentators have been critical.23 In essence, once the Prosecutor has commenced an investigation, victims of the underlying acts being investigated can file a standardised application form with the Victim Participation and 21

22

23

Gilbert Bitti & Ha˚ kan Friman, ‘Participation of Victims in the Proceedings’ in Lee, The International Criminal Court, 456. Ferna´ndez de Gurmendi, ‘Definition of Victims’ in Lee, The International Criminal Court, 427, 429; Garkawe, ‘Victims and the International Criminal Court’, 360; Cohen, ‘Victims’ Participation Rights’, 371. Chung, ‘Victims’ Participation at the International Criminal Court’, 521.

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Reparation Section of the Victims and Witnesses Unit in the Registry to be certified as a victim in the situation.24 At the investigative stage this requires satisfaction of a four-limbed test: (1) the identity of the applicant as a natural person is duly established; (2) the facts asserted by the applicant constitute a crime within the Court’s jurisdiction; (3) the applicant claims to have suffered harm (material, physical or psychological); and (4) such harm appears to have arisen as a result of the event constituting a crime within the jurisdiction of the Court for situations.25 The Court has held that the last criterion of causality is satisfied if ‘the spatial and temporal circumstances surrounding the appearance of the harm and the occurrence of the incident seem to overlap, or at least appear compatible rather than clearly inconsistent’.26 A review of ICC jurisprudence shows that so far the overwhelming majority of applicants have been granted victim status – those applications that fail largely do so as a result of procedural deficiencies. Satisfaction of this test allows victims to participate in proceedings at the investigative stage – something that was arguably not contemplated by the Statute or the Rules, but was an innovation of the judges of the ICC. A second assessment is made at the pre-trial stage. The fourth criterion differs at this stage in that the harm suffered must be linked with the charges confirmed against a particular accused.27 In order to be able to participate, a victim must show how their personal interests will be affected by the proceedings. The Court has found that the personal interest test is generally met whenever the proceedings relate to the crime in which the victim was allegedly involved.28 The Court must also determine what participation is appropriate and not prejudicial to, or inconsistent with, the rights of the accused and a fair and impartial trial. Victims are free to choose a legal representative (Rule 90(1)); the Chamber, however, may request victims, or particular groups of victims, 24 25 26

27

28

Kaoutzanis, ‘Two Birds with One Stone’, 119. McGonigle, ‘Bridging the Divides’, 117. The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05–01/08, Fourth Decision on Victim Participation, Pre-Trial Chamber III, 12 December 2009, [75]. Prosecutor v. Lubanga, Judgment on Appeals against Decision on Victims’ Participation, 11 July 2008, [2]. The Prosecutor v. Joseph Kony, ICC-02/04–125, Decision on Victims’ Application for Participation a/0010/06, a/0064/06 to a/0070/06, a/008/06 to a/0104/06 and a/0111/06 to a/ 0127/06, Pre-Trial Chamber II, Single Judge, 14 March 2008, [9–12]; The Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui, ICC-01/04–01/07–474, Decision on the Set of Procedural Rules Attached to Procedural Status of Victims at the Pre-Trial Stage of the Case, Pre-Trial Chamber I, Single Judge, 13 May 2008.

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to choose a common legal representative or representatives, if necessary with the assistance of the Registry, for the purpose of ensuring the effectiveness of the proceedings (Rule 90(2)). The Court has held that if the number of victims is high, individual victim representation must be balanced against ‘the important practical, financial, infrastructural and logistical constraints faced by the Court’.29 If victims are unable to make a choice within a specified time limit, the Chamber may request the Registrar to appoint one or more legal representatives (Rule 90(3)), which may entail financial assistance from the Registry if the victims in question lack the means to pay for such a representative (Rule 90(5)). Under Rule 91(2), the legal representative of a victim ‘shall be entitled to attend and participate in the proceedings in accordance with the terms of the ruling of the Chamber’. The default rule allows for participation in hearings, ‘unless, in the circumstances of the case, the Chamber concerned is of the view that the representative’s intervention should be confined to written observations or submissions’. Witnesses, experts or accused persons can be questioned by legal representatives, but only with the Chamber’s approval of an application submitted by the representative (Rule 91(3)). In general, the ICC Chambers have, to date, allowed the relatively expansive participation of victims, despite opposition by the defence in the relevant cases, and, on occasion, the Prosecutor.30 Already, the ability of the ICC to manage victims’ participation has been cause for concern. Chung, for example, notes that: The filing of mere hundreds of applications to participate in ICC proceedings has overburdened the participation framework. The pace of adjudicating the applications is glacial and side litigation over the application process is flourishing.31

In a similar vein, Kaoutzanis raises concerns that ‘the delays caused by the current system of victim certification are so significant that they preclude the Court from effectively dealing with other parts of the proceedings’.32 He also notes that every order relating to victims’ 29

30 31

32

The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04–01/07, Order on the Organisation of Common Legal Representation of Victims, Trial Chamber II, 22 July 2009, [11]. Kaoutzanis, ‘Two Birds with One Stone’, 124–125. Chung, ‘Victims’ Participation at the International Criminal Court’, 497. See also McGonigle, ‘Bridging the Divides’, 138. Kaoutzanis, ‘Two Birds with One Stone’, 128–129.

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participation requires the resources, not only of the Chambers and Registry (especially the Victims Participation and Reparations Section), but also of the OTP and the Defence.33 In this context it is important to note that in proceedings to date, the number of applications of persons to be recognised as victims represents only a small proportion of the number of persons likely to be victims of each of the accused’s alleged crimes. Reasons for this include a lack of knowledge of the ICC proceedings, an inability to file an application, and a fear of reprisal from the accused, or his or her accomplices.34 Such factors may not inhibit the registration of victims of crimes of aggression to the same degree, especially when it is considered that the ‘victim’ State could be motivated to devote considerable resources to enabling interested persons to participate in proceedings as victims. Indeed, the point to be made is that the number of persons or organisations and institutions falling within the definition of ‘victims’ in the context of the crime of aggression could completely overwhelm the Court’s victim management processes. The number of persons falling within the Rule 85 definition of victims in the context of a crime of aggression will very much depend on the type of act of aggression under consideration. A bombing raid, for example, might capture several dozen survivors grappling with physical and psychological injuries, families of persons killed by the bombing raid, a wider circle of natural persons who have suffered financial hardship as a result of their livelihood being destroyed, and organisations that owned hospitals or churches destroyed by the raid. In such a scenario the number of victims might be expected to be similar to the number of victims that might be involved in the commission of any number of war crimes. It will be immediately apparent though that the application of the definition to a large-scale act of aggression at the other end of the spectrum (such as the aggressive use of a nuclear weapon) could capture literally millions of natural persons and organisations. Several commentators have suggested that there is a need for general reform of the victims’ participation system. It has been suggested that the judges of the ICC have failed to prioritise the prosecution of those accused of crimes as the Court’s primary goal and have made determinations about victims’ participation without reference to the purpose of

33

Ibid.

34

Ibid., 131.

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such participation.35 Such commentators suggest that there would be great benefit in a more rigorous assessment of proceedings that affect victims’ interests and, on this basis, that the right to participate should be restricted to those proceedings most closely connected with the establishment of the guilt or innocence of an accused.36 A tightening of the system would certainly better position the Court to cope with the potential large numbers of crime of aggression victims, but it may not go far enough. The point is underscored by the provisions in the Rome Statute relating to reparations. Under Article 75(1): The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.37

The Court can make orders directly against convicted persons in respect of reparations or can order that the award of reparations be made through the Trust Fund for Victims, provided for in Article 79(1) (Article 75(2)). Where ‘the number of victims and scope, forms and modalities of reparations makes a collective award more appropriate’ the Court can order the award for reparations also to be made through the Trust Fund (Rule 98(3)). The Court has the discretion to award individualised or collective reparations (or both), taking into account the scope and extent of any damages, loss or injury (Rule 97(1)). The Court can order that an award for reparations be made through the Trust Fund to an intergovernmental, international or national organisation approved by the Trust Fund following consultations with interested States and the Trust Fund (Rule 98(4)). At the timing of writing the Court has yet to develop principles with respect to the awarding of reparations, although this is imminent in the context of the Lubanga case. The obvious questions raised in a crime of aggression context, however, are what type of awards would be

35

36 37

McGonigle, ‘Bridging the Divides’, 144–145; Chung, ‘Victims’ Participation at the International Criminal Court’, 522. Ibid., 522, 531. Requests for reparations must be made in writing and filed with the Registrar (Rule 94(1)).

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appropriate and how would either an individual defendant or the Trust Fund fund anything more than a tokenistic reparations payment in the face of a large-scale crime of aggression. Provisions relating to collective awards to intergovernmental, international or national organisations appear to be immediately relevant. Carsten Stahn, however, has raised concerns that this could transform the reparations regime of the ICC into a ‘surrogate forum for interstate reparations’, which may ‘run against the purpose and mandate of the court’.38 In the final analysis the question is whether restorative or reparative justice is a good fit with the crime of aggression. Without wanting to diminish in any way the experiences and suffering of the individual victims of crimes of aggression, it might be suggested that special provisions may be needed, if only to enable the Court to function effectively in relation to aggression prosecutions. In the first place, thought needs to be given as to whether the definition provided for in Article 85(a) is appropriate or feasible. Particular focus needs to be directed toward the interpretation of the causal link found within the definition and how expansively or narrowly this should be read. In relation to participation more specifically, there would appear to be a clear need to develop special procedures both for assessing the appropriateness of victims’ participation and for facilitating such participation in respect of crimes of aggression that involve a critical number of victims, whatever that number might be. One alternative that it has been suggested could be used in relation to all mass atrocity crimes is a form of class action.39 A more stark alternative would be to establish a mechanism to allow the victim State to speak on behalf of the individual victims of the crime – perhaps through the modification of the existing mechanism in Rule 103, which allows a Chamber to invite or grant leave to, inter alia, a State to make submissions on any issue the Chamber deems appropriate if it considers this desirable for the proper determination of the case. Finally, in relation to reparations, existing rules probably entail sufficient discretion to enable the Court to devise workable principles. That said, the reparations regime in respect to the crime of aggression should match the concept of victims applied to crime of

38

39

Stahn, ‘The “End”, the “Beginning of the End” or the “End of the Beginning”?’, 881. Cf. Friedrich Rosenfeld, ‘Individual Civil Responsibility for the Crime of Aggression’ (2012) 10 Journal of International Criminal Justice 249–265. Kaoutzanis, ‘Two Birds with One Stone’, 116; Stahn, ‘The “End”, the “Beginning of the End” or the “End of the Beginning”?’, 881.

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aggression cases. As such, there may be a need to develop specific principles that recognise the special nature of the crime and the limited nature of reparations that will necessarily need to be applied as a consequence.

Cooperation in the investigation and prosecution of crimes of aggression It seems there is no case to be made for the cooperation provisions under the Rome Statute to be modified to meet the needs of future investigations and prosecutions of crimes of aggression. Rather, it is important to highlight some of the difficulties likely to be encountered in the course of such investigations and prosecutions. It is widely acknowledged that the ability of the Court to try persons for any of the crimes under its jurisdiction depends to a very significant extent on the cooperation of States. The arrest and surrender of accused persons, effective investigations in-country, the preservation and provision of evidence, the travel of witnesses to The Hague to testify, and the enforcement of sentences are just some examples of steps in the ICC process that are dependent on the cooperation of external stakeholders, particularly States. Requests for cooperation under Part 9 of the Statute are confidential (Article 87(3)), meaning that there is no publicly available data on which an assessment can be made as to the extent to which such cooperation is provided. That said, while there have been some very public examples of non-cooperation (namely the failure of States Parties to execute arrest warrants), the Court has reported that in general terms cooperation requests are generally complied with.40 The cooperation of States in gathering evidence pertaining to crimes of aggression is likely to be particularly critical. Evidence of the State act element of the crime might be readily available – it might be so largescale and so evident as to have been captured blow-by-blow by the international media. Evidence of the individual conduct elements of the crime, however, may be less accessible. Without the cooperation of the aggressor State it may be extremely difficult for the Prosecutor to establish an individual’s role in the planning, preparation, initiation or execution of an act of aggression, and that individual’s awareness of the factual circumstances establishing that a use of armed force was

40

Report of the Court on Cooperation, ICC Doc. ICC-ASP/10/40 (2011), [2].

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inconsistent with the UN Charter, and that the act of aggression was a manifest violation of the same. Specifically, it may be difficult to satisfy the Court beyond a reasonable doubt that these elements of the crime have been met in the absence of documentary evidence (such as cabinet minutes) or first-hand accounts of other persons during crucial decisionmaking meetings. Another means by which such evidence might be acquired is through intelligence gathered by the victim State or third States. This highlights, however, what are likely to be three particularly important provisions in the crime of aggression context: Article 72 relating to the protection of national security information, Article 73 relating to confidential third party information and Article 93(4) relating to the denial of requests for assistance involving the disclosure of evidence relating to national security. Under the national security provisions in the Rome Statute if a State is of the opinion that a disclosure of information would prejudice its national security interests, it must take reasonable steps working with the relevant Court actor to resolve the matter by cooperative means, such as by obtaining information from an alternative source, or attaching conditions under which assistance can be provided (such as redactions, summaries, or in camera disclosure) (Article 72(5)). If the matter cannot be resolved, the State in question is to notify the Prosecutor or the Court of the specific reasons for its decision (unless this would itself prejudice national security interests) (Article 72(6)). If the Court determines that the evidence is relevant and necessary to the establishment of the guilt or innocence of the accused, and the information is sought under Part 9 of the Statute or a person has been requested to provide information or evidence, the Court may refer the matter to the ASP (or to the Security Council if the relevant situation was referred by the Council) if it concludes that the State is not acting in accordance with its obligations under the Statute (Article 72(7)(a)(ii)). The Court may also make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances (Article 72(7)(a)(iii)). In other words, the Court has no power to order the disclosure of the information.41

41

As to the operation of the national security provisions see: Donald K. Piragoff, ‘Protection of National Security Information’ in Lee, The International Criminal Court, 270; Asa W. Markel, ‘The Future of State Secrets in War Crimes Prosecutions’ (2007–2008) 16 Michigan State Journal of International Law 411.

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Article 73 relating to third party information is equally deferential to national security interests in the sense that it recognises that if the secrecy of information provided confidentially is not maintained by the State it is provided to, entities may be hesitant to share information with that State in future, which could undermine the national security interests of that State. It provides: If a State Party is requested by the Court to provide a document or information in its custody, possession or control, which was disclosed to it in confidence by a State, intergovernmental organization or international organization, it shall seek the consent of the originator to disclose that document or information. If the originator is a State Party, it shall either consent to disclosure of the information or document or undertake to resolve the issue of disclosure with the Court, subject to the provisions of article 72. If the originator is not a State Party and refuses to consent to disclosure, the requested State shall inform the Court that it is unable to provide the document or information because of a preexisting obligation of confidentiality to the originator.

Reliance on these provisions could greatly inhibit the ability of the Court to prosecute crimes of aggression. A third State with advanced intelligence capabilities may, for example, have intercepted telephone calls from the president or prime minister of the aggressor State informing the minister of defence of aggressive action to be taken and may have shared such information with the victim State – but the third State may be unwilling for the victim State to share such information with the OTP: maintaining the secrecy of its intelligencegathering capabilities could be seen as critical to its future defence. Of course, intelligence information is unlikely to be the only type of information that States will seek to protect under the Articles listed above. Victim States may be unwilling to share information not in the public domain relating to exchanges of the use of force on the basis that this would reveal information about defence capabilities. And perhaps most obviously, aggressor States are likely to rely on national security provisions in relation to their uses of force in order to avoid adverse judgments. Of course, evidence is unlikely to be the only aspect of an investigation or prosecution of a crime of aggression that will pose particular challenges for the OTP. Perpetrators of crimes of aggression are by definition restricted to, effectively, the leaders of States. The execution of arrest warrants against such persons will depend on the cooperation of other States visited by such leaders, or aggressor States themselves – perhaps realistically only after a change of leadership.

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This will likely pose particular challenges in relation to the Heads of States and Government of non-States Parties. The question of whether Sudan’s President Omar Al-Bashir enjoys Head of State immunity vis-a`-vis the ICC has been a vexed issue for the Court. In issuing the first arrest warrant against President Al-Bashir, the Pre-Trial Chamber stated that ‘the current position of Omar Al-Bashir as Head of a State which is not a party to the Statute has no effect on the Court’s jurisdiction over the present case’.42 The argument employed to reach this conclusion was, however, decidedly thin. The Pre-Trial Chamber referred to the fact that one of the core goals of the ICC, according to the Statute’s Preamble, is to end impunity for serious international crimes.43 It noted that under Article 27(2) ‘[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law shall not bar the Court from exercising jurisdiction over such a person’.44 It noted the limited circumstances in which other sources of law can be relied on under Article 21 of the Statute, and then stated that: by referring the Darfur situation to the Court, pursuant to article 13(b), the Security Council of the United Nations has also accepted that the investigation into the said situation, as well as any prosecution arising therefrom, will take place in accordance with the statutory framework provided for in the Statute, the Elements of Crimes and the Rules as a whole.45

Not addressed in the Court’s reasoning was the operation of Article 98(1), which provides that: The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

The Pre-Trial Chamber’s scant reasoning resulted in much academic criticism and, perhaps more importantly, a series of resolutions adopted by the African Union (AU) stating that Member States shall not

42

43

Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05–01/09, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, [41]. Ibid., [42]. 44 Ibid., [43]. 45 Ibid., [45].

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cooperate with the Court,46 resulting in Bashir being able to visit a number of African States Parties without consequence.47 In late 2011, the Pre-Trial Chamber handed down two decisions relating to Malawi and Chad’s failure to arrest Al-Bashir in which it finally addressed Article 98(1).48 Holding that the Court has the sole authority to decide whether immunities are applicable in a particular case,49 the Pre-Trial Chamber recited examples of the jurisdiction of international courts and tribunals being extended to Heads of State under statutory instruments,50 cited examples of Heads of State being prosecuted,51 noted that the 120 States Parties to the Rome Statute had accepted that Heads of State enjoy no immunity under Article 27(2),52 and stated that it would be ‘facially inconsistent for Malawi to entrust the Court 46

47

48 49

African Union, Assembly, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Tribunal [sic] (ICC), Doc. Assembly/AU/13 (XIII), 3 July 2009, Assembly/AU/Dec.245 (XIII) Rev.1; African Union, Assembly, Decision on the Progress Report of the Commission on the Implementation of Decision, Assembly/AU/Dec.270 (XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC), Doc. Ass/AU/10 (XV), 22 July 2010, Assembly/AU/Dec.296 (XV); African Union, Assembly, Decision on the Implementation of the Decisions of the International Criminal Court (ICC), Doc.EX. CL/630 (XVIII), 30–31 January 2011, Assembly/AU/Dec.334 (XVI); African Union, Assembly, Decision on the Implementation of the Assembly Decisions on the International Criminal Court, Doc. EX.CL/670 (XIX), 30 June–1 July 2011, Assembly/AU/Dec.366 (XVII). Bashir has visited Kenya, Chad, Djibouti and Malawi. The Court has referred the noncooperation of these States Parties to the ASP and to the Security Council, but aside from some diplomatic pressure exerted through the ASP (which was likely to have been responsible for the scuttling of a further planned visit to Kenya) to date there has been little consequence for the States involved. See Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05–01/09–107, Decision informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya, 27 August 2011; Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05–01/09–109, Decision informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad, 27 August 2011; Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05–01/09–129, Decision informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti, 12 May 2011; Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05–01/09, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, 12 December 2011 (Malawi Non-Cooperation Decision); Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05–01/09, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Chad to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, 13 December 2011 (Chad NonCooperation Decision). Malawi Non-Cooperation Decision; Chad Non-Cooperation Decision. Malawi Non-Cooperation Decision, [11]. 50 Ibid., [38]. 51 Ibid., [39]. 52 Ibid., [40].

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with the mandate to prosecute serious international crimes and then refuse to surrender a Head of State charged with orchestrating genocide, crimes against humanity and war crimes’.53 On this basis it concluded that: ‘customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes’.54 The obvious corollary is that a State Party would not be acting inconsistently with its legal obligations in arresting and surrendering the Head of State of a non-State Party to the ICC, thus Article 98(1) is not engaged. The Pre-Trial Chamber specifically held that ‘the unavailability of immunities with respect to prosecutions by international courts applies to any act of cooperation by states which forms an integral part of those prosecutions’.55 Soon after the decisions were handed down, the AU issued a press release expressing disappointment that the Pre-Trial Chamber had purported to change customary international law regarding immunity ratione personae, had rendered Article 98 meaningless, and had made a decision per incuriam by ignoring Article 23(2) of the Constitutive Act of the African Union, which requires Member States to comply with the decisions and policies of the Union.56 At the 18th Ordinary Session of the Assembly of the African Union, the Heads of State and Heads of Government requested ‘the Commission to consider seeking an advisory opinion from the International Court of Justice regarding the immunities of State officials under international law’.57 Article 119(1) of the Rome Statute provides that ‘disputes concerning the judicial functions of the Court shall be settled by the decision of the Court’. Under paragraph (2), other disputes between two or more States 53 54

55 56

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Ibid., [41]. Ibid., [43]. See also [36] where the Pre-Trial Chamber held that ‘the principle in international law is that immunity of either former or sitting heads of state cannot be invoked to oppose a prosecution by an international court’. In relation to the immunities enjoyed by Heads of State and other officials see ‘Foreign State immunities’ under the section entitled ‘Domestic prosecutions’ in this chapter. Malawi Non Cooperation Decision, [44]. On the Decisions of Pre-Trial Chamber I of the International Criminal Court (ICC) pursuant to Article 87(7) of the Rome Statute on the Alleged Failure by the Republic of Chad and the Republic of Malawi to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of President Omar Hassan Ahmad Al-Bashir of the Republic of the Sudan, Press Release No. 002/ 2012, 9 January 2012, at www.au.int/en/sites/default/files/PR-%20002-%20ICC%2English.pdf, last accessed 1 April 2011. Decision on the Progress Report of the Commission on the Implementation of the Assembly Decisions on the ICC, Doc. EX.CL/710 (XX), Assembly/AU/Dec.397 (XVIII), 29–30 January 2012, [10].

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Parties relating to the interpretation and application of the Statute can be referred to the ASP, which can seek to settle the dispute or make recommendations regarding further means of settlement, including referral to the ICJ in accordance with the ICJ’s Statute. The term ‘judicial functions of the Court’ is not defined, but the Pre-Trial Chamber itself was clearly convinced that the Court alone had the ability to decide questions of the applicability of immunities under customary international law. Even if a contrary reading prevailed, Article 119(2) would only allow the ASP to recommend that the parties to a dispute submit their dispute to the ICJ. It would be surprising if the AU could muster the political will in the GA or the Security Council for an advisory opinion. Sudan could bring a contentious case against Chad or Malawi (or another State Party), but according to Christopher Gevers, ‘Sudan has expressed some doubt regarding this approach for fear that it might not get the response it wants from the Court and would be bound by it’.58 The Pre-Trial Chamber’s decision is deeply flawed. The principle criticism has been that the majority of the evidence relied upon by the Pre-Trial Chamber establishes that official capacity does not exclude criminal responsibility.59 It does not establish that such persons are not immune from the jurisdiction of international courts: indeed, in relation to the majority of examples relied upon, the States concerned were bound by the international instruments that allowed Heads of States to be tried for their crimes, meaning that immunity could not be contested.60 The claim that prosecutions of Heads of State has ‘gained widespread recognition as accepted practice’ might be questioned on the basis that only five examples are cited (Milosevic, Taylor, Gaddafi, Gbagbo and Bashir) and two of these might be discounted given that Gaddafi was

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Christopher Gevers, Africa’s ICC Gripes Heading to the ICJ?, 2 February 2012, http:// warandlaw.blogspot.com.au, last accessed 1 April 2012. With the exception of the oft-criticised decision of the Special Court of Sierra Leone: Prosecutor v. Charles Taylor, Decision on Immunity from Jurisdiction (SCSL-2003–01-I), Appeals Chamber, 31 May 2004. Dapo Akande, ‘ICC Issues Detailed Decision on Bashir’s Immunity (. . . At Long Last . . .) But Gets the Law Wrong’, 15 December 2001, www.ejiltalk.org, last accessed 1 April 2011; Claus Kress & Kimberly Prost, ‘Article 98’ in Triffterer, Commentary on the Rome Statute 1601, 1613. Kress and Prost note that the ICJ’s statement in the Arrest Warrant case (at para. 61) that Foreign Ministers may be subject to proceedings before an international tribunal can be read as providing support for such an assertion, but recognise that this is subject to speculation given the scant nature of the obiter dicta comment (‘Article 98’, 1609–1610).

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killed before being brought to justice, and the contested nature of the Bashir case hardly constitutes supportive State practice. Indeed, given that Serbia was bound to apply the Statute of the International Criminal Tribunal for the former Yugoslavia by decree of Security Council resolution, Taylor was no longer Head of State at the time of his arrest and Coˆte d’Ivoire might be said to have waived Gbagbo’s immunity in accepting the Court’s jurisdiction under Article 12(3) or in transferring him to the ICC, none of the cited examples provide evidence of the rule the Pre-Trial Chamber held to exist. The Pre-Trial Chamber’s reliance on the Rome Statute’s provisions have also been criticised as being circular: as Gevers argues, Article 27 is a problematic indicator of a customary rule removing immunity as it presumes that there exists an immunity that needs to be waived.61 The Pre-Trial Chamber’s interpretation, moreover, renders Article 98(1) devoid of meaning, an approach clearly at odds with the usual rules of treaty interpretation.62 Its purposive argument, that the immunity would frustrate the work of the Court, is weak, in that whatever the importance of this goal, it cannot serve as a basis for immunities to be disregarded.63 Finally, and perhaps most importantly, even if there is a rule under customary international law that Head of State immunity does not apply to a criminal prosecution before an international court, the Pre-Trial Chamber failed to explain how this means that as a matter of customary international law States are entitled to execute an arrest warrant in support of a request from an international court.64 As Akande has argued, another route could have been taken by the PreTrial Chamber. Prior to the handing down of the decision, a number of commentators argued that the apparent tensions between Article 27(2) and Article 98(1) could be resolved by making a distinction between States Parties and non-States Parties in the context of Article 98(1). As the Rome Statute cannot create obligations for third States, it cannot remove Head of State immunities in relation to non-States Parties. Article 98(1) must, therefore, be read as allowing States Parties to give effect to immunity obligations owed to non-States Parties (as between States Parties, the immunities of officials are removed by Article 27).65 61

62 65

Christopher Gevers, ‘The International Criminal Court’s Pre-Trial Chamber’s NonCooperation Decision on Malawi’, 17 February 2012, www.warandlaw.blogspot.com. au, last accessed 1 April 2012. Ibid. 63 Ibid. 64 Ibid. Dapo Akande, ‘The Legal Nature of Security Council Referrals to the ICC and the Impact on Al Bashir’s Immunities’ (2009) 7 Journal of International Criminal Justice 333, 339.

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This interpretation is supported by provisions in the domestic legislation of several States Parties, including the UK, Canada, Ireland, Malta, New Zealand, Samoa, South Africa and Switzerland.66 Following on from this premise, Akande argues that non-States Parties can be placed in a position analogous to that of a State Party by virtue of a Security Council referral. In adopting Resolution 1593 (which referred the situation in Darfur to the Court), the Security Council must be deemed, it is argued, to have expected the Rome Statute to provide the governing framework for any prosecutions in relation to the situation in Darfur, as evidenced by the references to the Statute in the Resolution. The Court must act in accordance with the Rome Statute. As such, the Resolution indirectly subjects Sudan to the Rome Statute. At the very least this must include all provisions that define how jurisdiction is to be exercised – which includes Article 27. As such, Akande concludes that Sudan is bound by Article 25 of the UN Charter and Resolution 1593 to accept the decisions of the ICC, which puts Sudan in an analogous position to a State Party.67 This argument has not been accepted by all commentators. Gaeta argues that the referral of a situation by the Security Council under Article 13(b) is simply a mechanism designed to trigger the jurisdiction of the ICC. It does not vest requests of the ICC with the binding force of a Security Council decision under Chapter VII. The obligations of States Parties to cooperate with the Court remain ‘only’ treaty obligations.68 This might be different if the Security Council provided that perpetrators of crimes committed in the situation shall not enjoy immunity in relation to arrest and surrender.69 Paragraph 2 of Resolution 1593, however, provides only that Sudan and all other parties to the conflict shall cooperate fully with the Court. Otherwise the resolution ‘recognises that States not party to the Rome Statute have no obligation under the Statute’ and ‘urges all States and concerned regional and other international organisations to cooperate fully’. As such, nothing in

66

67 68

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Ibid.; Dapo Akande, ‘International Law Immunities and the International Criminal Court’ (2004) 98 American Journal of International Law 407, 413. Akande, ‘The Legal Nature of Security Council Referrals’, 340–342. Paola Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’ (2009) 7 Journal of International Criminal Justice 315, 324. Ibid., 330. Gaeta refer to requirements to ‘cooperate’ with the ICC but arguably the abstract obligation to cooperate is insufficient to overcome the provisions of Article 98(1).

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Resolution 1593 removes the obligation of States Parties to respect the immunities of non-States Parties pursuant to Article 98(1).70 The OTP has argued that because Article 27 applies, a Head of State whose arrest is sought by the Court cannot claim immunities before it. The OTP further argues that because Al-Bashir has no immunity before the ICC, there is no immunity to be claimed by the Government of Sudan towards a third State implementing a request by the Court for his arrest and surrender. According to the OTP, even if such immunity were thought to exist, the Government of Sudan would be obliged under Resolution 1593 to waive it. The latter is perhaps the best argument that has been put forward to date, overcoming as it does the silence of Resolution 1593 with regard to the obligation to respect the immunities enjoyed by the nationals of non-States Parties. For completeness it might be noted that Article VI of the Genocide Convention contains obligations relevant to the arrest and surrender of Heads of States of non-States Parties indicted for genocide. Article VI provides that ‘[p]ersons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the state in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’. According to the ICJ in the Bosnian Genocide Convention case, Serbia violated its obligation to punish genocide, as contained in Article I of the Genocide Convention, by failing to arrest and surrender to the ICTY persons wanted by the Tribunal in connection with the genocide in Srebrenica.71 According to the Court, this obligation existed because Serbia was obliged to accept the jurisdiction of the ICTY and to cooperate with it by virtue of the Security Council resolution that established the Tribunal. Article IV of the Convention further provides that ‘[p]ersons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals’. As such, on the basis of the ICJ’s decision a strong argument can be made that States Parties to the Genocide Convention have an obligation to cooperate with the ICC when a Head of State has been charged with genocide, including an obligation to waive relevant immunities. 70 71

Ibid., 330–331. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) ( Judgment) ICJ Rep [2007] 43.

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In summary, the question of the proper interpretation of Article 98(1) is not clear cut and is likely to remain contentious as far as States are concerned notwithstanding the Pre-Trial Chamber’s decisions in relation to Chad and Malawi – not least because of the poor reasoning employed in those decisions. The better argument would appear to be that non-States Parties under an obligation by virtue of a Chapter VII Security Council resolution to cooperate with the Court are obliged to waive any immunities enjoyed by Heads of State (or other officials). Similarly, States Parties to the Genocide Convention have separate obligations under that Convention to cooperate with the ICC (including by waiving immunities) where nationals are accused of genocide. Difficulties, of course, will arise when such non-States Parties refuse to waive such immunities. In these situations it is arguable that States Parties to the Rome Statute must respect immunities unless and until they are waived by an indictee’s State of nationality, in accordance with Article 98(1). Likely to be equally important in the investigation and prosecution of crimes of aggression is Security Council cooperation. The Court will clearly benefit from a cooperative Security Council that has borne future prosecutions in mind in framing relevant resolutions, which could serve as key evidence in relation to whether the definition of the crime has been met. Security Council determinations that uses of force amount to acts of aggression pursuant to Article 15bis (7) would, moreover, alleviate some of the political pressure that the Prosecutor may face in seeking to investigate a crime of aggression. The Security Council’s enforcement muscle – could it be marshalled to support ICC prosecutions – may also be the only realistic means of prosecuting nationals of non-cooperating States.72

Domestic prosecutions Domestic prosecutions under the aggression amendments The ICC is a court of last resort. Complementarity, or the notion that a case will be inadmissible before the ICC if the case is being investigated or prosecuted by a State with jurisdiction over it (unless that State is unwilling or unable genuinely to carry out the investigation or

72

Ferencz, ‘Some Personal Reflections on Kampala’, 907. See also Bergsmo, ‘Occasional Remarks’, 110; Ruys, ‘Defining the Crime of Aggression’, 126.

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prosecution),73 is a basic principle on which the Court rests. The OTP has, to date, been active in encouraging States to prosecute Rome Statute crimes. There are several advantages in doing so – evidence might be more readily obtained by domestic authorities, proceedings may carry greater resonance for victims and affected communities, and of course, the ICC will only ever have capacity to try a small number of perpetrators and only those deemed most responsible: the efforts of domestic courts are essential to ending impunity for other crimes that fall within the ICC’s jurisdiction. And yet, despite the widespread acceptance of these considerations in relation to other Rome Statute crimes, there are lingering questions over the desirability and possibility of prosecuting crimes of aggression at the domestic level. The crime of aggression has, for some time, been characterised as something of a ‘special case’. The ILC’s 1996 draft Code of Crimes against the Peace and Security of Mankind provided that only the proposed International Criminal Court, and States trying their own nationals should be able to prosecute crimes of aggression.74 The choice was based, according to the ILC, on both legal and policy considerations: The determination by a national court of one state of the question of whether another state had committed aggression would be contrary to the fundamental principle of international law par in parem imperium non habet.75 Moreover, the exercise of jurisdiction by the national court of a state would have serious implications for international relations and international peace and security.76

The SWGCA did not consider these issues in any detail. In 2004 when the application of Articles 17, 18 and 19 (governing complementarity and admissibility) was considered, the Group readily agreed that ‘no problems seemed to arise from the current provisions being applicable to the crime of aggression’77 and that the complementarity and admissibility provisions were applicable in their current wording.78 In early 2010, the US delegation raised concerns in relation to the domestic prosecution of crimes of aggression, reminding States of the

73 75 76

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Article 17(1)(a). 74 Article 8, 1996 ILC Yearbook, 28. An equal has no authority over an equal. Draft Code of Crimes against the Peace and Security of Mankind, 1996 ILC Yearbook, paragraph 14 of commentary to draft Article 8. June 2004 SWGCA Report, [21]. Ibid., [27]. The SWGCA agreed that the point merited being revisited once agreement had been reached in relation to the definitional and jurisdictional provisions but did not return to the issue.

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ILC’s conclusions on the matter.79 This prompted the Chair of the SWGCA to canvass the issue of domestic jurisdiction in his non-paper ‘Further Elements for a Solution on the Crime of Aggression’, circulated immediately before the Review Conference.80 The non-paper noted that concerns had been raised ‘that the consequences of adopting the amendments on the crime of aggression for the domestic exercise of jurisdiction over this crime are unclear, thus raising questions regarding the application of the principle of complementarity’.81 Noting the Group’s 2004 conclusion that no amendment of Article 17 was necessary, the Chair observed that this conclusion: does not address the question whether the amendments on the crime of aggression would, legally or effectively, require or encourage States to exercise domestic jurisdiction over the crime of aggression with respect to acts of aggression committed by other States, based on either the passive personality principle (as a victim State) or based on an assumption of universal jurisdiction. In fact, article 17 of the Rome Statute merely refers to ‘a State which has jurisdiction’ over crimes, but does not address the question as to when States should establish such jurisdiction.82

The Chair proposed that the issue be addressed through an understanding. The Chair’s suggested text was amended in Kampala, but not significantly: the only material alteration was to break the text into two suggested paragraphs, ultimately adopted by the Review Conference as Understandings 4 and 5: 4.

5.

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It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.

Kress et al, ‘Negotiating the Understandings’, 91. The US Delegation repeated its concern in Kampala. In his 4 June 2010 statement, Harold Koh asked how, if at all, the principle of complementarity would apply, saying ‘[s]uch domestic prosecutions would not be subject to any of the filters under consideration here, and would ask the domestic courts of one country to sit in judgment upon the state acts of other countries in a manner highly unlikely to promote peace and security’. Statement by Harold Hongju Koh. Koh’s statement elaborated on a number of concerns raised in the Statement by Stephen J. Rapp. ICC DOC. RC/WGCA/2 (25 May 2010). 81 Ibid., 2. 82 Ibid.

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The meaning of Understanding 4 was canvassed in Chapter 3. It appears to add little to Article 10 of the Statute, the language of which is repeated in the Understanding’s final sentence. Understanding 5 presents a more difficult challenge. The ordinary meaning of the text seems unremarkable, in that while Article 88 of the Rome Statute requires States Parties to ‘ensure that there are procedures available under their national law for all of the forms of cooperation’ listed in Part 9, the Statute does not establish a right for domestic courts to prosecute any of the crimes under the Court’s jurisdiction, or an obligation to do so, despite the fact that the Preamble to the Statute recalls ‘that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. The concerns that gave rise to this Understanding point to it being read as underscoring the fact that the Rome Statute does not create a right for States to exercise jurisdiction over crimes of aggression – that any such right must be found under conventional or customary international law.83 In this context it is important to emphasise that Understanding 5 does not purport to create a bar to State courts prosecuting crimes of aggression. Indeed, the aggression amendments adopted in Kampala also had the effect of amending Article 20(3). The effect of this is to include the crime of aggression in the Article, which provides that ‘no person who has been tried by another court for conduct prescribed under articles 6, 7, 8 or 8bis shall be tried by the Court with respect to the

83

A similar conclusion is reached by Kress & von Holtzendorff, ‘The Kampala Compromise’, 1216; and Beth Van Schaack, ‘Par in Parem Imperium Non Habet: Complementarity and the Crime of Aggression’ (2012) 10 Journal of International Criminal Justice 133, 135, 160–161. In her Dissenting Judgment in the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (Merits) ICJ Rep [2002] 25, [66], Judge Van Den Wyngaert found that ‘[t]he Rome Statute does not establish a new legal basis for third States to introduce universal jurisdiction. It does not prohibit it but does not authorise it either. This means that, as far as crimes in the Rome Statute are concerned (war crimes, crimes against humanity, genocide and in the future perhaps aggression and other crimes), pre-existing sources of international law retain their importance.’ The other members of the Court did not disagree with Judge Van Den Wyngaert on this point. Indeed, the examination of customary international law undertaken in the Joint Separate Opinion of Judges Higgins, Kooijmans and Burgenthal suggests their agreement with this statement. Cf. Jennifer Trahan, ‘The Rome Statute’s Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference’ (2011) 11 International Criminal Law Review 49, 77, who adopts a slightly different interpretation asserting that the amendments do not create an obligation to prosecute.

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same conduct’.84 Thus, the Statute explicitly contemplates domestic prosecutions of crimes of aggression. Understanding 5, therefore, will have no impact on the operation of Article 17 of the Rome Statute per se. Of course, this is a separate question to whether a victim or third State purporting to investigate or prosecute a leader of an aggressor State has jurisdiction for the purpose of Article 17.

Bases of domestic jurisdiction Domestic courts could rely on one of a number of different bases of jurisdiction in trying a crime of aggression. The first two possible bases of jurisdiction are relatively uncontroversial. The SWGCA agreed that a crime of aggression is committed both in the aggressor State (where the planning, preparation and initiation of an act of aggression usually occurs) and in the victim State (where the execution of the act of aggression typically occurs – or at any rate where the consequences of the crime will be felt).85 This is undoubtedly correct. As a result, both the aggressor and the victim State may exercise jurisdiction on the basis of the territorial principle of jurisdiction.86 This is consistent with basic understandings of the territorial principle, which provide that jurisdiction may be validly invoked by a State where an offence is committed only in part within its territory.87 Presuming that the person ‘in a position effectively to exercise control over or to direct the political or military action of a State’ is a national (or possibly resident) of the 84

85

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The Article provides for exceptions where proceedings in the other court were for the purpose of shielding the person concerned from criminal responsibility, or were not conducted independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner inconsistent with an intent to bring the person concerned to justice. February 2009 SWGCA Report, [38]–[39]; November 2008 SWGCA Report, [28]–[29]. This is consistent with China’s exercise of jurisdiction over crimes against peace committed against it by Japan in World War II (Trial of Takashi Sakai, Chinese War Crimes Tribunals of the Ministry of National Defence, Nanking, 29 August 1946, Laws Relating to War Crimes Trials, Vol XIV, 1–2) and Poland’s exercise of jurisdiction over Artur Greiser (a citizen of the Free City of Danzig) for his role in Germany’s aggression against Poland during World War II (Trial of Gauleiter Artur Greiser, Supreme National Tribunal of Poland, 21 June–July 1946, in Laws Relating to the Trials of War Crimes, Vol XIII, 74–78, 104–105). Nicolaos Strapatsas, ‘Complementarity and Aggression: A Ticking Time Bomb?’ in Carsten Stahn & Larissa van den Herik (eds), Future Perspectives on International Criminal Justice, The Hague: TCM Asser Press, 2010, 450, 453 citing Case of the SS Lotus [1927] PCIJ Rep (Ser A) No. 10 at 20; Reisinger Coracini, ‘Evaluating Domestic Legislation’, 750. Ivan Shearer, ‘Jurisdiction’ in S. Blay, R. Piotrowicz and B. M. Tsamenyi (eds.), Public International Law: An Australian Perspective, Oxford University Press, 1997, 161, 167.

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aggressor State, the aggressor State could also try that person on the basis of the nationality principles of jurisdiction. In effect, this basis of jurisdiction gives a State jurisdiction over its own citizens in respect of offences committed anywhere in the world. More contested is the passive personality principle of jurisdiction. It can be applied where the victim of an offence is a national of the prosecuting State. The validity of the principle has been questioned in the past, but it now finds a degree of acceptance.88 Of course, in the context of the crime of aggression the principle raises questions as to how to define the victims of the crime.89 Ultimately, however, the principle is unlikely to be of little practical utility in the context of the crime of aggression, given its likely coincidence with territorial jurisdiction. Another possible basis of jurisdiction is the protective principle. It permits a State to grant extraterritorial effect to legislation criminalising conduct damaging to national security or other central State interests.90 It is generally viewed as a residual basis of criminal jurisdictional, relevant to conduct carried out abroad by a non-national, which would not be captured by the territorial or nationality bases of jurisdiction. The protective principle has been accepted in many civil law jurisdictions.91 With the exception of the US, common law jurisdictions have been slower to accept the principle. Only in a small number of exceptional cases have Commonwealth courts exercised jurisdiction on this basis.92 Nonetheless, the protective principle is widely recognised as a general principle of law, despite the fact it has not been accepted by all States and is only rarely exercised. There are uncertainties as to the types of acts it potentially covers,93 but at least in civil law States the principle is applicable to crimes clearly destructive of the political or financial security of the forum State.94 Examples of crimes that have been prosecuted on this basis include espionage and acting against the life of the sovereign. On the basis of analogy, a strong argument could 88

89 90

91 92

93 94

See for example its application in Article 5(1)(d) of the International Convention Against the Taking of Hostages, signed New York, 18 December 1979, 1316 UNTS 205, entered into force 3 June 1983. See the section above entitled ‘Victims of the crime of aggression’. Iain Cameron, The Protective Principle of International Criminal Jurisdiction, Aldershot: Dartmouth Publishing Company, 1994, 2. Ibid., 341. See for example Joyce v. Director of Public Prosecutions [1946] AC 347; R v. Neumann [1949] ADIL 239. Malcolm Shaw, International Law (6th edn), Cambridge University Press, 2008, 667. Ibid., 341.

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be made that those States that recognise the protective principle could exercise jurisdiction over crimes of aggression where they have been the target of aggression.95 Again, however, this is likely to be of little practical import given the likely overlap with the territorial basis of jurisdiction. The burning question is of course whether universal jurisdiction (which requires no particular link between the conducting and the prosecuting State but instead asserts it is the duty of all States to investigate and prosecute those crimes that threaten the interests of all States) applies to the crime of aggression. Whether or not the IMT and IMTFE, or the military tribunals operating under Control Council Law No. 10, were purporting to exercise universal jurisdiction is not clear. Bassiouni has asserted that the States that established the Tribunals were exercising the de facto sovereign prerogatives of the occupied territories where the Tribunals were established,96 which enabled them to exercise the territorial and national jurisdiction that would otherwise have been enjoyed by Germany and Japan. This view appears to have been adopted by the IMT. It held that, as the making of its Charter ‘was the exercise of the sovereign legislative power by countries to which the German Reich unconditionally surrendered’, it was not ‘strictly necessary to consider whether and to what extent aggressive war was a crime before the execution of the London Agreement’.97 This argument is, however, problematic in the case of the IMT for, as Schick notes, legislative power was vested in the Control Council, which did not enact the IMT’s Charter. Moreover, the Charter actually provides jurisdiction over not just Germans, but the major war criminals of all European Axis countries – and the Allied governments were never in possession of 95

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The criminal codes of a number of States in fact already provide for this; see: Article 15(3)(2) Armenian Criminal Code; Article 132 Bosnian Criminal Code (Brcko district); Article 9 Estonian Criminal Code; Article 5(3) Georgian Criminal Code; and Article 6(4) Kazakh Criminal Code, cited in Reisinger Coracini, ‘Evaluating Domestic Legislation’, 750. M. Cherif Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’ (2001) 42(1) Virginia Journal of International Law 81, 91. See also Strapatsas, ‘Complementarity and Aggression’, 455 citing Declaration regarding the defeat of Germany and the Assumption of Supreme Authority over Germany, Berlin, 5 June 1945, British Command Paper (1945) Cmd. 6648; LRTWC vol. XV at 37; Kenneth C. Randall, ‘Universal Jurisdiction Under International Law’ (1988) 66 (4) Texas Law Review 785, 805–806. Nuremberg Judgment, 461. As to the validity of this argument see Pompe, Aggressive War, 239–241.

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the power to enact legislation for Axis States other than Germany.98 Such an arrangement would also arguably have been in violation of the law of occupation, which prevents an occupying State assuming jurisdiction over crimes committed before the occupation.99 As a result, other scholars place emphasis on a passage in the IMT’s judgment, following on directly from the passage quoted above, which says ‘[t]he Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the Trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law.’ This school of thought argues that the reference to ‘any nation’ is a reference to universal jurisdiction.100 If it is, it is an incredibly vague reference. The better view would seem to be that the Tribunal left something to be desired in establishing the basis for the exercise of its jurisdiction – providing little evidence one way or the other as to whether universal jurisdiction attaches to the IMT crimes. At least ten States assume universal jurisdiction over crimes against peace under their domestic legislation.101 In Pinochet, Lord Millet held that crimes against peace attract universal jurisdiction,102 a conclusion

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Franz B. Schick, ‘The Nuremberg Trial and the International Law of the Future’ (1947) 41 American Journal of International Law 770, 780–781. See also William B. Simons, ‘The Jurisdictional Bases of the International Military Tribunal at Nuremberg’ in G. Ginsburgs and V. N. Kudriavtsev (eds.), The Nuremberg Trial and International Law, Dordrecht: Martinus Nijhoff Publishers, 1990; Madeline H. Morris, ‘Universal Jurisdiction in a Divided World: Conference Remarks’ (2001) 35 New England Law Review 337, 342–344. Cf. Quincy Wright, ‘The Law of the Nuremberg Trial’ (1947) 41 American Journal of International Law 38, 49–51. R. Woetzel, The Nuremberg Trials in International Law, New York: Praeger, 1960, 76–83. Henry T. King, ‘Universal Jurisdiction: Myths, Realities, Prospects, War Crimes and Crimes Against Humanity: The Nuremberg Precedent’ (2001) 35 New England Law Review 281, 283. More generally see Michael Scharf, ‘Remarks’, American Society of International Law, Proceedings of the 105th Annual Meeting: Harmony and Dissonance in International Law, Washington DC 23–26 March 2011, 10, 12–13. Article 6(1) Bulgarian Criminal Code; Article 14(4) Croatian Criminal Code; Article 11 Moldovan Criminal Code; Section 4(1)(c) Hungarian Criminal Code; Article 5(1)(b) Portuguese Criminal Code; Article 15(3)(1) Armenian Criminal Code; Article 8 Estonian Criminal Code; Article 5(2) and (3) Georgian Criminal Code; Article 6(4) Kazakh Criminal Code; and Article 15(2) Tajik Criminal Code: cited in Reisinger Coracini, ‘Evaluating Domestic Legislation’, 751. Bartle & the Commissioner of Police for the Metropolis & Ors, ex parte Pinochet; R v. Evans & Anor and the Commissioner of Police for the Metropolis & Ors, ex parte Pinochet, R v. [1999] UKHL 17 (24 March 1999), [34].

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that is consistent with Principle 2(1) of the Princeton Principles on Universal Jurisdiction, which provides for universal jurisdiction over crimes against peace.103 Several authors also claim that universal jurisdiction extends to the crime.104 Other commentators, however, express a more cautious view, stating that the answer to the question is not clear.105 The commentary to the Princeton Principles also discloses an uneasiness on the part of some with the inclusion of crimes against peace in the list of crimes attracting universal jurisdiction: ‘Crimes against peace’ were also discussed at length. While many argue that aggression constitutes the most serious international crime, others contend that defining the crime of ‘aggression’ is in practice extremely difficult and divisive. In the end, ‘crimes against peace’ were included, despite some disagreement, in part in order to recall the wording of Article 6(a) of the Nuremberg Charter.106

Crimes against peace, or the crime of aggression are, moreover, more often than not absent from the lists of crimes said to attract universal jurisdiction in leading commentaries.107 Notably in this regard, none of the separate judgments in the ICJ Arrest Warrant case that attempt to

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Available at http://lapa.princeton.edu/hosteddocs/unive_jur.pdf, last accessed 6 November 2011. The Cairo-Arusha Principles on Universal Jurisdiction in Respect of Gross Human Rights Offences: An African Perspective (www.kituochakatiba.org, last accessed 6 November 2011) implies that universal jurisdiction attaches to all Rome Statute crimes. Marjorie Cohn, ‘Bush & Co. Fear Prosecution in the International Criminal Court’ 25 September 2003 at http://globalresearch.ca/articles/COH309B.html, last accessed 23 October 2011; Dalila V. Hoover, ‘Universal Jurisdiction not so Universal: A Time to Delegate to the ICC’ (2011) Cornell Law School Inter-University Graduate Student Conference Papers, Paper 52, http://scholarship.law.cornell.edu/lps_clacp/52, 23, last accessed 23 October 2011. Roger Clark, ‘Defining the Crime of Aggression, its Elements and the Conditions for ICC Exercise of Jurisdiction Over it’ (2010) 20(4) European Journal of International Law 1103, 1108; Zuppi, ‘Aggression as an International Crime’, 34–35; Bartram S. Brown, ‘The Evolving Concept of Universal Jurisdiction’ (2001) 35 New England Law Review 383, 384. Commentary to the Princeton Principles on Universal Jurisdiction, 47. Hoover, ‘Universal Jurisdiction not so Universal’, 5; Leila Nadya Sadat, ‘Redefining Universal Jurisdiction’ (2001) 35 New England Law Review 244; Morris, ‘Universal Jurisdiction in a Divided World’, 337; Bruce Broomhall, ‘Toward the Development of an Effective System of Universal Jurisdiction for Crimes under International Law’ (2001) 35 New England Law Review 399, 404–405. See also Restatement (Third) of the Foreign Relations Law of the United States (1986) [404]; AU-EU Expert Report on the Principle of Universal Jurisdiction, 16 April 2009, EU Doc. No. 8672/1/09, REV. 1, [9].

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identify the crimes to which universal jurisdiction attaches include the crime of aggression, or crimes against peace, as such a crime.108 In the Lotus case, the Permanent Court of International Justice held that: Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.109

As noted in the Separate Opinion of Judges Higgins, Kooijmans and Buergenthal in the Arrest Warrant case, the Lotus case represents something of a ‘high-water mark’.110 It no longer seems to represent good law,111 as most domestic courts seek evidence of permission to exercise criminal jurisdiction rather than presuming such jurisdiction in the absence of a prohibition. As such, at this stage it can only be concluded that an exercise of universal jurisdiction over the crime of aggression would be controversial.112 For even if it were accepted that under customary international law crimes against peace attract universal jurisdiction, it is not possible to point to any State practice or opinio juris that would establish universal jurisdiction over the crime of aggression, which, as outlined in Chapter 4, is not representative of the customary crime. Nonetheless, at least on the basis of territorial jurisdiction, there is a solid foundation in international law for at least victim States, in addition to aggressor States, assuming jurisdiction over crimes of aggression. This is not to say, however, that the exercise of such jurisdiction would not be problematic.

Foreign State immunities The law relating to foreign State immunities as they apply to serious international crimes tried before national courts might be said to be in a 108

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Arrest Warrant case, Separate Opinion of President Guillaume, [12]; Declaration of Judge Ranjeva, [6]; Separate Opinion of Judge Koroma, [9]; Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, [51], [52]. France v. Turkey, 1927 PCIJ Series A, No. 10, 19. 110 Arrest Warrant case, [50]. Rosanne Van Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law, Oxford University Press, 2008, 211. Van Schaack, ‘Par in Parem Imperium Non Habet’, 144 is also of the view that ‘current law does not provide strong support for the exercise of domestic jurisdiction over the crime of aggression, a fortiori pursuant to universal jurisdiction’.

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state of flux. The criticisms directed toward the judgment of the ICJ in the Arrest Warrant case indicate that many commentators believe the judgment to be out of step with the move to end impunity for serious international crimes.113 That said, the judgment is a strong statement that Heads of State, diplomatic representatives, ministers for foreign affairs and (by implication) Heads of Government114 enjoy immunity from criminal proceedings in foreign domestic jurisdictions during their term in office in respect of both ‘official’ and ‘private’ acts, committed during or prior to that term of office, even when accused of serious international crimes.115 This correlates in broad terms with traditional understandings of immunity ratione personae, which provides that complete immunity attaches to the person of the Head of State and diplomatic agents, rendering such persons immune from all prosecutions whether or not such actions relate to acts done for the benefit of the State. According to the majority judgment in the Arrest Warrant case, once leaving office, ministers for foreign affairs can be prosecuted in the national courts of a foreign State with jurisdiction for acts committed prior or subsequent to his or her term of office, and acts committed in a private capacity during his or her period in office.116 This is consistent with the traditional immunity ratione materiae, which applies to the official acts of any de jure or de facto State agents – former and incumbent alike. Some commentators are of the view that the ICJ’s obiter finding should be understood as implying that war crimes and crimes against humanity can never be committed in a private capacity,117 despite the fact that 113

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See for example Antonio Cassese, ‘When May Senior State Officials be Tried for International Crimes? Some Comments on the Congo v Belgium Case’ (2002) 13(4) European Journal of International Law 853; Steffan Wirth, ‘Immunity for Core Crimes? The ICJ’s Judgment in the Congo v Belgium Case’ (2002) 13(4) European Journal of International Law 877; Kress & Prost, ‘Article 98’, 1608–1610. The majority’s conclusion that foreign ministers enjoy personal immunity has been criticised. Commentators assert that the immunity is only enjoyed by Heads of Government and foreign ministers while on official visits abroad: Van Alebeek, The Immunity of States and Their Officials, 188. See also Robert Jennings and Arthur Watts (eds.), Oppenheim’s International Law (9th ed.), Oxford University Press, 2008, 1046. Arrest Warrant case, [54]–[55]. Cf. Dissenting Opinion of Judge Van Den Wyngaert. Arrest Warrant case, [61]. Marina Spinedi, ‘State Responsibility v Individual Responsibility for International Crimes: Tertium Non Datur?’ (2002) 13(4) European Journal of International Law 895, 896–897; Wirth, ‘Immunity for Core Crimes?’, 891. Cf. Cassese, ‘When May Senior State Officials be Tried for International Crimes?’, 868.

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the majority give no positive indication of whether or not this is the case. Judge Van den Wyngaert’s Dissenting Opinion is critical of the majority on this point. She found that the majority ‘could and indeed should have added that war crimes and crimes against humanity can never fall into this category’.118 She appears to reject, however, that the distinction is a valid one, going on to say that: Some crimes under international law (eg certain acts of genocide and of aggression) can, for practical purposes, only be committed with the means and mechanisms of a State and as part of a State policy. They cannot, from that perspective, be anything other than ‘official’ acts. Immunity should never apply to crimes under international law, neither before international courts nor national courts.119

The Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal gives little away on this point. Their Honours held that: It is now increasingly claimed in the literature . . . that serious international crimes cannot be regarded as official acts because they are neither normal State functions nor functions that a State alone (in contrast to the individual) can perform . . . The same view is gradually also finding expression in State practice, as evidenced in judicial decisions and opinions.120

While this statement is not clear, it appears that their Honours, as in other parts of their judgment, were merely noting that the law is in the process of development. A conclusion that serious international crimes are never acts committed in an official capacity and that therefore functional immunity does not apply, could arguably be extended to crimes of aggression. It is, however, clearly something of a stretch to claim that a use of force authorised by the leader(s) of a State is not an ‘official act’.121 There is some authority on which it can be argued that the status of an act as official or not is to be determined by means akin to the rules governing the attribution of acts for the purpose of State responsibility.122 As it seems likely that an act of aggression will, by definition, entail State responsibility, a conclusion that crimes of aggression are 118 121 122

Arrest Warrant case, [36]. 119 Ibid. 120 Ibid., [85]. Van Alebeek, The Immunity of States and Their Officials, 223. See for example Jones v. Saudi Arabia [2006] UKHL 26, where Lord Hoffman stated that ‘the circumstances in which a state will be liable for the acts of the official in international law mirror the circumstances in which the officials will be immune in foreign domestic law’ [74]. See also Van Alebeek, The Immunity of States and Their Officials, 133.

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committed in a leader’s official, rather than personal, capacity seems almost inevitable.123 Alternatively, as Judge Van den Wyngaert suggests, it could be argued that there is a customary law exception to functional immunity for serious international crimes regardless of whether or not they are committed in an official capacity.124 The ICTY in Blaskic held that ‘those responsible for [war crimes, crimes against humanity and genocide] cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity’.125 In a more limited conclusion, a number of the separate decisions in the House of Lords decision in Pinochet found that an exception to the immunity exists in respect of prohibitions that have acquired the status under international law of jus cogens and in respect of which there is an obligation to prosecute or extradite.126 Whether or not such an exception would extend to the crime of aggression is up for debate. As outlined in Chapter 4, the definition of the crime of aggression adopted under the Rome Statute criminalises a range of conduct that goes well beyond its customary definition. Moreover, the absence of any convention that creates universal jurisdiction over the crime, or an obligation to prosecute or extradite, arguably distinguishes the crime from torture on the basis of the reasoning of several of the judges in Pinochet. In summary, it is clear that the domestic courts of States will be unable to exercise jurisdiction over persons who enjoy personal immunity (Heads of State and diplomatic agents and arguably also foreign ministers and Heads of Government) during their term of office. It is more difficult 123

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Cassese reaches the same conclusion in relation to crimes against humanity and genocide: Cassese, ‘When May Senior State Officials be Tried for International Crimes?’, 868. See also J. C. Barker, ‘The Future of Former Head of State Immunity After Ex Parte Pinoceht’, (1999) 48 International and Comparative Law Quarterly 937, 943. Arthur Watts, ‘The Legal Position in International Law of Heads of State, Heads of Government and Foreign Ministers, (1994) 247 Recueil des Cours 13, 82, 84; Van Alebeek, The Immunity of States and Their Officials, 157, 241; Paola Gaeta, ‘Official Capacity and Immunities’ in Cassese et al, The Rome Statute of the International Criminal Court, 975, 982–983; Barker, ‘The Future of Former Head of State Immunity’, 943–944. Prosecutor v. Timohir Blaskic, Case No. IT-9–14-A, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, [41]. Pinochet case, [1999] UKHL 17, Lord Browne-Wilkinson, [47]–[53]; Lord Hope of Craighead, [180]–[195]; Lord Phillips of Worth Matravers, [359]–[364]. This should not be read as a summary of the findings of Pinochet: it is notoriously difficult to find a ratio decidendi in the case.

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to be definitive in relation to the current status of functional immunity under international law. At this stage in the law’s development, however, it is at least questionable whether a foreign domestic court could lawfully exercise jurisdiction over State officials for crimes of aggression committed as part of a State’s sanctioned foreign or military policy.127 While the ‘leadership elements’ of the crime of aggression do not require a perpetrator to be a State official, it seems likely that the majority of perpetrators will be, given that in very many States those in a position to exercise control over or to direct the political or military action of a State will be de facto or de jure State officials.

Other potential barriers to domestic prosecutions of crimes of aggression It is beyond the scope of this work to examine the varying interpretations of different jurisdictions of the Act of State doctrine (the notion that one sovereign should not sit in judgment of another) or the political questions doctrine (referring to the non-justiciability of certain executive privileges). It is, however, noted that these doctrines have been considered by some authors who have written on the topic of complementarity in the context of the crime of aggression.128 As concluded by both authors who have studied the question in depth, neither doctrine is likely to act as a bar to the exercise of jurisdiction over the crime of aggression by a domestic court. I would add that in most jurisdictions it is inconceivable that a court would refuse to exercise jurisdiction in respect of a crime enacted under domestic legislation by a State’s legislature. It is also worth observing that such concerns do not appear to have been raised by commentators in relation to crimes against humanity, which, depending on the factual circumstances involved, may also require consideration of State policies. Quite aside from considerations of law, a number of practical obstacles are likely to inhibit domestic prosecutions in victim and third States.129 Most obviously, such States will not easily secure the

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A similar conclusion is reached by Reisinger Coracini, ‘Evaluating Domestic Legislation’, 728–729. Strapatsas, ‘Complementarity & Aggression’ and Pa˚ l Wrange, ‘The Crime of Aggression and Complementarity’, paper presented at the Torino Conference on International Criminal Justice, Torino, Italy, 15 May 2007. Similar issues are briefly discussed by Van Schaack, ‘Par in Parem Imperium Non Habet’, 153 and Teresa McHenry, ‘Complementarity Issues’, American Society of International Law, Proceedings of the 105th Annual Meeting: Harmony and Dissonance in International Law, Washington DC 23–26 March 2011, 5–8.

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presence of the accused. Unlikely to travel to a State that has issued an arrest warrant against them, potentially immune from extradition processes,130 and likely to be shielded by their State of nationality (either because they still enjoy the support of their government, or because, despite having been deposed, the State of nationality is still not content for a foreign State to sit in judgment of its acts), it would be a fortuitous set of circumstances that led to the former leader of one State being captured by another state. Trials in absentia are available in some domestic jurisdictions but they inevitably lack the credibility of a trial at which an accused has presented his or her defence. Even if they are able to secure the presence of an accused person, States wishing to investigate and prosecute the leaders of foreign States will likely encounter significant difficulties obtaining the requisite evidence to sustain a criminal prosecution.131 While evidence that a use of force took place might be readily available, it may be difficult to establish that such use of force was in manifest violation of the Charter in the absence of information in possession of the putative aggressor that could be relevant to, for example, a claim of an exercise of selfdefence. More difficult yet may be obtaining evidence sufficient to establish the individual elements of the crime. It might be argued that the same evidential difficulties are faced by foreign States wishing to prosecute other Rome Statute crimes. It is certainly true that the prosecution of crimes that have no connection with the territory of the forum State is always challenging in the absence of the cooperation of the territorial State, where the majority of evidence is usually located. Extra difficulties are, however, likely to be encountered in prosecuting crimes of aggression. Much probative evidence will take the form of governmental documents, as was the case in the Nuremberg trial.132 Such evidence is unlikely to fall into the hands of a foreign law enforcement agency. Key witnesses may also enjoy immunities, preventing them from being compelled to provide evidence. Given the scrutiny that crime of aggression proceedings are likely to be subject to, prudent prosecutors may be wary of proceeding with a case based largely on circumstantial evidence against an individual accused.

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132

See the section above entitled ‘Foreign State immunities’. Broomhall, ‘Toward the Development of an Effective System of Universal Jurisdiction’, 412. Wrange, ‘The Crime of Aggression and Complementarity’, 5.

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In the limited circumstances in which victim States may be in a position to prosecute the leaders of a foreign State, it will, of course, be difficult for such proceedings to escape the taint of victor’s justice, or the reverse, victim’s revenge, in political, if not legal, circles. Third States are equally unlikely to be perceived as acting in a wholly disinterested manner in prosecuting crimes of aggression. Given the repercussions that uses of inter-State armed force can have on international relations extending well beyond the target of such force, it is possible that any third State hoping simply to end impunity for such actions will have difficulty convincing the international community that it is free from other motivations, be they political (vindicating an ally, criticising an enemy, sidelining an opponent of forum State policies) or legal (hoping to secure a pronouncement of the illegality of certain types of uses of force).133 Finally, given the problems associated with the definition of the crime, particularly in relation to the discretion it affords to judges identified in Chapter 4, it might also be undesirable to have domestic criminal courts, unlikely to be familiar with the jus ad bellum, interpreting that definition. Of course States may, in their domestic criminal legislation, depart from the Rome Statute definition. As Triffterer concludes, States are likely bound by Rome Statute definitions when cooperating with the Court (and perhaps also in the exercise of universal jurisdiction over at least some crimes), but are otherwise free to decide the scope and notion of the definition of crimes.134 Narrower definitions may not be cause for concern: broader definitions, however, will only multiply the concerns outlined in Chapters 3 and 4.

Conclusion International criminal law must be enforced to act as a deterrent. One of the theories that underlies the principle of complementarity is that the ICC cannot act alone in prosecuting international crimes, but must work alongside domestic courts in order to truly end impunity. While this might be a self-evident truth in relation to the other three categories of crimes under the Court’s jurisdiction, it is questionable whether the exercise of jurisdiction by domestic courts over the crime 133

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Gergana Halpern, ‘Punishing Aggressors in US Courts: Will the Act of State Doctrine Bar National Prosecution of the Crime of Aggression?’ (2008–2009) 7 Cardozo Public Law, Policy and Ethics Journal 239, 269–270 and Wrange, ‘The Crime of Aggression and Complementarity’, 5–6, reach similar conclusions. Otto Triffterer, ‘Article 10’ in Triffterer, Commentary on the Rome Statute, 531, 533.

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of aggression, particularly by victim and third States, would in fact be a help or a hindrance. Domestic prosecutions tainted by controversy might undermine the fragile consensus that enabled the adoption of provisions in Kampala and encourage a view that uses of inter-State armed force are not a suitable subject-matter for the criminal law. This would be a very unfortunate, and unwarranted, backwards step. For all the reasons set out in this section, I see merit in the view that this is one category of crime that would be appropriately dealt with exclusively by the ICC – at least until the contours of the crime are more firmly established.135

Review of the amendments Operational paragraph 4 of the resolution under which the aggression amendments were adopted provides that seven years after the beginning of the Court’s exercise of jurisdiction, the amendments on the crime of aggression shall be reviewed. Such a review is some time away: at the soonest it will not take place before 1 January 2024. It nonetheless acted as a sweetener, creating a concrete opportunity to review, in particular, the jurisdictional provisions, thereby providing some comfort to those States Parties who would have preferred to avoid the use of the opt-out regime and the Security Council/Pre-Trial Division filter. The suggestion, of course, is that if there are no disasters in the Court’s exercise of jurisdiction during the first seven years, States Parties might be more relaxed about applying the ordinary jurisdictional regime of the Court to the crime of aggression. Whether or not this is a likely outcome is a matter of pure speculation. While it seems a remote prospect at the time these words are being written, few thought we would have a crime of aggression more than a decade before it was adopted; indeed, only a slightly larger majority would have predicted the adoption of the Rome Statute a decade before its birth, such is the speed with which international criminal law has moved. A prudent soothsayer would therefore hedge her bets by declaring the prospect impossible to predict. A more pragmatic realist might suggest that a review conference might more likely be used as a catalyst to encourage States to review and withdraw any opt-out declarations that have been lodged – a prediction based on the hypothesis that 135

A similar conclusion is reached by Wrange, ‘The Crime of Aggression and Complementarity’, 12.

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within seven years we are unlikely to see more than one or two cases of aggression prosecuted (if any), so, failing a dramatic shift in international relations based on unforeseeable future international events, this would seem unlikely to constitute sufficient evidence to convince reluctant States to change their minds. I am more comfortable predicting that there will be little political appetite to reopen the definition of the crime, as disappointing as this might be. In my view, its faults could only be remedied by a narrowing of its language. It is not foreseeable that any State that supports the crime, having secured a win in successfully shepherding the definition through the negotiation process, will call for its improvement in this manner – and such a call would in all probability be fiercely resisted if made by one of the crime’s traditional detractors. As such, attention is likely to be focused on whether any supplementary technical amendments are needed to improve the efficiency and effectiveness of the prosecution of the crime. A number of such amendments have been identified in this book. Article 39(1) provides that not less than six judges may be assigned to the Pre-Trial Division. Currently, the Pre-Trial Division consists of exactly six judges. This poses the risk of the Pre-Trial Division being equally divided when sitting as a Division for the purpose of deciding whether or not to authorise the commencement of the investigation of a crime of aggression under Article 15bis (8). There is some flexibility under Article 39(1): once the assignment of the minimum number of judges to the Trial Division (six judges) and Appeals Division (five judges) is taken into account, one of the eighteen judges who comprise the Court’s judiciary is in theory able to be allocated to the Pre-Trial Division.136 The assignment of that additional judge would in the usual course of things be driven by the workload demands of the Court, however, so it does not serve as a satisfactory solution to the issue raised by Article 15bis (8). As such, it would be preferable for States Parties to either amend Article 39(1) of the Statute to alter the minimum number of judges to be assigned to the Pre-Trial Division, or add a new rule to the Rules of Procedure and Evidence to stipulate that the most senior member of the Pre-Trial Division is to have the deciding vote in the 136

From time to time there may be more than eighteen judges of the ICC in situations where the term of an individual judge assigned to a Trial or Appeals Chamber is extended in order to enable him or her to complete a trial or appeal that had already commenced before that Chamber in accordance with Article 36 (10). This would not, however, enable additional judges to be assigned to the Pre-Trial Division.

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case of an evenly divided Division. The latter would require the addition of provisions for the identification of ‘the most senior member of the Pre-Trial Division’. Under Article 39(1) of the Statute, the President is assigned to the Appeals Chamber. Until 2012, by convention one VicePresident has sat on the Trial Division, while the other sat on the PreTrial Division. This precedent was abandoned in early 2012 when two of the Vice-Presidents were assigned to the Pre-Trial Division. As such, the convention would appear to be insufficient, indicating a need for it to be formalised or for the Presidency to be tasked with identifying, for the purpose of Article 15bis (8) proceedings, the senior judge who is to have the casting vote in the case of a split bench. Article 36(3)(b) relating to the qualification of judges is ripe for review – not only as a result of the introduction of the jus ad bellum to the Court’s subject-matter jurisdiction, but also because of a countervailing tension, namely that the ASP seems to be increasingly of the view that persons trained as prosecutors, defence advocates or judges are better positioned to preside over ICC trials than diplomats or academics. As international criminal law matures, we have seen that increasingly there are persons who have served at the ad hoc international and hybrid courts and tribunals who are able to bring a wealth of experience to the ICC. As a result, there is already a strong impetus to amend Article 36(5) of the Statute, which requires a minimum of nine ‘List A’ candidates and five ‘List B’ candidates as defined by Article 36(3)(b). Viewed solely in the context of the other Rome Statute crimes, there are good reasons for amending Article 36(3)(b) to require that all candidates for election to the Court as judge have practical criminal trial experience and demonstrated knowledge of international criminal law, or international humanitarian and human rights law.137 Such an amendment, however, would pose difficulties in relation to the crime of aggression. The dearth of guiding jurisprudence from other courts and tribunals, coupled with a definition that is going to be demanding of the judges, means that there will be a genuine need for subject-matter 137

It has been suggested in international criminal law circles that preference should in fact be given to candidates with criminal courtroom experience (regardless of international law knowledge). The danger in such an approach is obvious. While at this early stage of the Court’s lifespan it might be easy to measure success in terms of efficiency, increasingly we will be able to examine not only the number of judgments handed down but also the degree to which those judgments are convincing. Given the number of decisions handed down to date that are easy marks for criticism, it would be unwise to rush to disregard the need for subject-matter expertise.

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experts on the bench. Yet there will be few who will possess both such expertise as well as the requisite criminal trial experience. As such, there are good reasons for retaining the List B requirement, at least for the foreseeable future. Indeed, there may be merit in including a specific reference to the jus ad bellum in Article 36(3)(b) to underscore the importance of attracting such expertise to the Court once the ICC’s ability to exercise jurisdiction over the crime has been activated. In this context it is necessary to examine the final sentence of Article 39(1), which stipulates that ‘the Trial and Pre-Trial Divisions shall be composed predominantly of judges with criminal trial experience’. There are sensible reasons for such a provision. It (at least in theory) ensures that subject-matter experts are assigned to the Appeals Division, which will have the final say on the verdicts of the Court. It also ensures that expertise in running criminal trials is located in those Divisions that will have to make the vast bulk of procedural decisions. That said, as outlined in Chapter 6, the requirements of Article 15bis (4) will mean that the Pre-Trial Division will need the competence to identify the putative aggressor for the purpose of making a determination under Article 15bis (8), and will have to have at least a basic understanding of the jus ad bellum in order to determine whether there is a reasonable basis to proceed with an investigation and that the case appears to fall within the jurisdiction of the Court in accordance with Article 15(4). It may not be strictly necessary for the final sentence of Article 39(1) to be amended, given its provision is not absolute, but it will be necessary for the Court to be cogniscent of the demands that will face the Pre-Trial Division in relation to proprio motu investigations and State referrals of crimes of aggression. Chapter 6 also highlighted the fact that the result of a literal reading of Article 15bis (10) is that when exercising his or her proprio motu powers the Prosecutor will potentially need to seek the authorisation of the Pre-Trial Division in relation to the crime of aggression and, separately, the authorisation of a Pre-Trial Chamber in relation to other Rome Statute crimes. As suggested above, the best way of addressing this situation may be to make provision under the Rules of Procedure and Evidence to enable Pre-Trial Chambers to take judicial notice of relevant findings of the Pre-Trial Division where an accused is charged with having committed multiple crimes, to ensure the authorisation process is not unnecessarily cumbersome. This chapter has outlined the difficulties the Court is currently facing in relation to the participation and reparation of victims and the likely

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escalation of such problems in relation to the crime of aggression as a result of the sheer number of potential victims such crimes may entail. It was suggested that special provisions will be needed to create a role for victims that is workable in a crime of aggression context. It may be that mounting pressures on the operation of the current provisions force a change in respect to the victims’ provisions generally. In this context it is noted that the ASP, in December 2011, adopted a resolution that requested the Court to complete the review of its Victims’ Strategy, and requested the Court to review the victims’ participation system with a view to ensuring its sustainability, effectiveness and efficiency.138 In the absence of system-wide change, however, three aggressionspecific alternatives can be identified. Existing provisions could be excluded from application to the crime of aggression. This would be a dramatic step, one likely to be unpalatable to victims’ advocates. Alternatively then, existing provisions could be substituted for a class action model allowing for more centralised and coordinated participation of victims. Even a class action model, however, may not be feasible, given that the range of victims of a crime of aggression could be located across national borders from one another and may have vastly differing experiences of the crime. Decisions, under such a model would presumably have to be made with reference to the lowest common denominator, which could make participation all but meaningless. Perhaps then, the only feasible participation model is for victims to be represented by the ‘victim State’. Such a provision would need to be carefully crafted to ensure that the distinction between individual accountability and State responsibility is maintained, but given that the core of the crime of aggression is a use of force by one State against another, there is sense in allowing the State to speak on behalf of individual victims in holding individual perpetrators to account. Either the class action or State representative model could be coupled with restricted reparations provisions, excluding, for example, individual awards of reparations, but allowing collective awards to an intergovernmental, international or national organisation. The discretion afforded to the Court in relation to the making of reparations payments arguably obviates the need to introduce amendments in relation to reparations payments. This is nevertheless a good illustration of why it would be desirable for the Court to establish principles in the abstract in relation to reparations payments for crimes of aggression (as 138

Resolution ICC-ASP/10/Res.5 (2012), [48]–[49].

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contemplated by Article 75(1) of the Statute), rather than waiting to develop such principles via individual decisions (which may possibly be made by a single judge). An outstanding question is the mode by which such amendments to the Statute should be made. While this book has argued that the Kampala amendments were adopted under a lex specialis, there is no basis on which to argue that any special rules would govern subsequent amendments that are linked to the activation of the Court’s jurisdiction over the crime. This is underscored by the deletion of Article 5(2) as part of the package of amendments. As such, Article 121(4) would govern the amendments to the Statute contemplated in this section, with the exception of any amendment of Article 39(1) which, as an amendment of an institutional nature as defined by the Rome Statute,139 would be governed by Article 122, which allows amendments to be proposed at any time by any State Party, with amendments to be adopted by consensus, or, failing that, a two-thirds majority of States Parties, with amendments entering into force six months after their adoption.

Conclusion: a crime in name only? As we look towards 2017, it is clear that there is still work to be done to activate the Court’s jurisdiction, to ensure that all Court organs are equipped to handle the crime, to encourage State cooperation, to engage in conversations about the appropriateness of domestic prosecutions and to ensure that we pursue the technical amendments necessary to ensure the effective and efficient prosecution of the crime of aggression. In many ways, however, these issues are subsidiary to the biggest question hovering over the crime of aggression: namely, will it remain a crime in name only? Will the Court, as some commentators have quipped, only have personal jurisdiction when Liechtenstein attacks Switzerland? Will those States that typically use force aggressively either remain outside the Rome Statute, or lodge opt-out declarations? The pessimism reflected in these questions brings to mind Myres McDougal and Florentino Feliciano’s warning that: legal scholars unfortunately still much too often speak from one or the other of two contrasting attitudes . . . The first of these attitudes, expressed in the accents of ultrasophistication and disenchantment, affirms that man’s destructive

139

Article 122(1).

conclusion: a crime in name only?

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impulses and instruments of violence have escaped all bounds and that little or nothing can be done by law . . . to control international coercion . . . The contrasting attitude . . . affirms an excess of faith in technical concepts and rules, divorced from contexts and procedures, as determinants of decision and exhibits much too little concern for the clarification of policies in detailed contexts and for the search for new policies and procedures.140

Although others will no doubt consider my views a prime example of an ‘excess of faith’ in the aggression amendments, I think there is room to hope that the crime of aggression will be a meaningful addition to the Court’s jurisdiction, for the reasons outlined below. First, the hard won gains made to date should not be underestimated. The crime’s inclusion under the Court’s jurisdiction has been cemented and definitional and jurisdictional provisions have finally been agreed. The definition is far from perfect, but it represents a firm commitment to criminalise a broad spectrum of inter-State uses of force. In preserving the independence of the Court, the jurisdictional provisions are more flexible than most commentators expected, even with the optout mechanism and the exclusion of non-States Parties. These achievements signal two things. First, like many conventional law rules that restrict State sovereignty, achieving the full implementation and broad application of the rules is a process, the success of which should not be evaluated in the short term. Second, although the aggression negotiations have been difficult, the degree to which this difficulty has been overcome in itself demonstrates the commitment of the majority of States to ensuring the ICC has jurisdiction over the crime. This suggests that a critical mass of States are willing to stand up and have their actions examined by the Court. While that critical mass may currently be made up of a majority of States that have historically abided by the Charter’s rules on the use of force, the greater the number of States willing to ratify the amendments and refrain from opting out, the greater the political cost of remaining outside the system will be. One factor that will assist in the mounting of such political pressure is the default operation of the jurisdictional provisions. The fact that leaders will be potentially subject to the Court’s jurisdiction unless their State opts out (regardless of whether or not that State ratifies the amendment) creates an impetus to remain within the system. A failure 140

Myres S. McDougal and Florentino P. Feliciano, ‘International Coercion and World Public Order: The General Principles of the Law of War’ (1958) 67 Yale Law Journal 771, 772.

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to ratify could be read as an unwillingness to subject a State’s leaders to the jurisdiction of the Court for the crime of aggression, but it could equally be excused on the basis of a lack of capacity to consider and draft domestic legislation to enable ratification, or competing domestic priorities, or a hostile legislative body. The lodging of an opt-out declaration on the other hand will entail a definite reputational cost. Opting out will be read as an announcement of a State’s desire to ensure that its leaders cannot be held criminally responsible for inter-State uses of armed force. This will undermine a State’s ability to claim that its uses of force are lawful – something that, as discussed in Chapter 2, is still demonstrably important to States. It will weaken the legitimacy of those States when they wish to police the use of inter-State armed force. And it will expose such States to criticisms from international and domestic civil society. Many States will not wish to pay this political cost. At the Review Conference, former UN Secretary-General, Kofi Annan said: questions of credibility will persist so long as three of the five permanent members of the Security Council refuse to reconsider their position and join those who have taken the courageous step to become parties to the Statute. The same is valid for countries that aspire to permanent membership. Indeed, the problem is not limited to the Security Council. Six of the G20 have not ratified the Rome Statute. The States Parties to this historic Statute must therefore pose the question, ‘What kind of leadership is this which would absolve the powerful from the rules they apply to the weak?’ A laggard leadership is no excuse. The States Parties to the Rome Statute are on the right side of history. You are in the majority.141

The same sentiment applies to the crime of aggression. And it is motivation for States to join what commentator and long-time participant in the crime of aggression negotiations, Robbie Manson, has dubbed ‘a circle of the virtuous’.142 Membership of an exclusive but growing group of States prepared to have their inter-State military actions judged by an independent court will entail political kudos by demonstrating the commitment of members to the rule of law, and their commitment to peace. 141

142

Address by H.E. Mr Kofi Annan, Review Conference of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Kampala, Uganda, 31 May 2010, available at www.icc-cpi.int, last accessed 3 October 2011. See also Bergsmo, ‘Occasional Remarks’, 112. Manson suggested this notion during discussions with a close group of colleagues in Kampala.

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Another argument that should be utilised as a lever by civil society to encourage ratification and restraint in relation to opting out, is the disparity that may otherwise be created between the leaders of States party to the Rome Statute and their soldiers on the front line. If a State’s leaders are prepared to hold the men and women fighting for their country responsible for crimes against humanity, genocide and, most particularly in this context, war crimes, but are not prepared to subject to scrutiny those decisions that endanger the lives of such combatants, there will be a significant inequality at play. States that expect their citizens to put their lives on the line for the defence of the State should be prepared to offer proof of that State’s intention to make such a request only in genuine cases of self-defence or where force is authorised by the UN Security Council or recommended by the GA. Of course the reality is that there will be cases of aggression in respect of which the ICC will not have jurisdiction – either because it involves a non-State Party, or the aggressor State has opted out, or neither the aggressor or the victim have ratified the amendments. In these cases, however, the crime of aggression provisions will still serve a very important purpose. The court of public opinion will be able to point to the definition of the crime. This will create pressure, even without the spectre of the trial and imprisonment of a State’s leaders. The adoption of the definition of the crime by States Parties transformed an amorphous idea into a legislative reality, which, although subject to interpretation, will provide a benchmark against which all States will be measured in one way or another. The hope, of course, is that such judgment by the ICC, by domestic courts or by the court of public opinion, will have a deterrent effect, thereby helping to ensure that the death and destruction occasioned by acts of aggression is lessened. It would be remiss to think that the crime of aggression amendments are going to miraculously put a stop to acts of aggression. It is inevitable that the rules regulating the use of force will continue on occasions to be broken. This said, I am convinced that there is genuine potential for the aggression amendments to have a real and lasting impact on international relations. And for that reason, one is right to conclude that the aggression amendments are both important and remarkable.

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Index

3314 Definition of Aggression basis in Rome Statute, 62–63, 96–97 context in UN Charter, 63–70 critiques, 75–79, 89–95, 97, 100–101 definitional issues, 70–82 frontier incidents, 72 ILC drafts, 6–9 indirect use of force, 71 interpretations, 75, 76, 78, 79, 80–81, 82 and jus ad bellum General Assembly practice, 87–89 generally, 82 ICJ decisions, 89–95 Security Council practice, 83–87 summary of issues, 95–96 limitation to armed aggression, 71 list of illustrative acts, 103–105 options, 70–71 priority principle, 72 proof of an aggressive intent, 72 Resolution 3314, 5–6, 95–96, 98–101, 151 revision issues, 105–106 Rome Conference, 9–12 self-defence, 72–73 Special Working Group negotiations, 14–16, 97–103, 124–125 terminology, 63–70 threat of force, 71–72 Understandings see Understandings act of aggression ‘aggressor/victim’ dichotomy, 262 armed attack distinguished, 68–69 crime of aggression distinguished, 62 cyber operations, 110–112 determination proposals as to, 16–18 by Security Council see UN Security Council

374

and jus ad bellum 3314 Definition of Aggression, 95–96, 294 General Assembly practice, 87–89 ICJ decisions, 89–95 Security Council practice, 83–87 ‘manifest violation’ threshold see ‘manifest violation’ threshold by non-State actors, 106–110 as State act element of crime of aggression see crime of aggression, State act element summary of issues, 122–123 use of term, 63, 65, 67–68, 70 see also 3314 Definition of Aggression aggression act of see act of aggression crime of see crime of aggression aggressive intent inclusion in 3314 Definition of Aggression, 72 amendments to Rome Statute activation of ICC jurisdiction delay effect of provisions, 281–282 prospects for active jurisdiction, 286–289 requirements, 283–286 choice of provisions, 237–243 domestic prosecutions bases of domestic jurisdiction, 315–320 immunities as barrier, 320–324 other potential barriers, 324–326 provisions generally, 311–315 summary of issues, 326–327 Monetary Gold principle, 245–246 review, 327–332 State Parties and see State Parties text of amendments, xv–xxi Armed Activities Case, 18, 36–38, 47–48, 57, 92–96, 227–229

index ‘armed attack’ act of aggression distinguished, 68–69 ‘frontier incident’ distinguished, 68 scope of term, 68–69 use of term, 63, 65 ‘armed force’ use of term, 63, 65 Assembly of States Parties (ASP) approach to drafting, 136, 137, 279–280 commencement, 13 decisions, 30, 51, 96, 98, 101–102, 105, 108–109, 110, 119, 130–131, 159, 234, 286–287 election of ICC judges, 271, 329, 330–331 enforcement powers, 266 Review Conference, 1–2 attempted crimes as mode of participation, 200–202 ‘breach of the peace’ use of term, 63, 67–68 Certain Expenses case, 220–222 Charter of the UN see UN Charter Code of Offences Against the Peace and Security of Mankind (Draft Code) and crime of aggression, 4–5, 6–9, 81, 140–141, 142, 151–153, 210–211, 312 command and superior responsibility application of, 245–246 principles of, 183–185 computer network attacks acts of aggression by, 110–112 Conference on International Organisation see UN Conference on International Organisation (UNCIO) crime against peace aggression as, 80, 81 crime of aggression compared, 149–150 as customary international law, 39–40, 150–153 definition, 2–3, 139, 140 domestic law provisions, 140, 142, 145, 146–147, 318–319 individual criminal responsibility, 2–3 leadership requirement, 168–183 mental elements, 193–196 non-prosecution after 1945, 39–40 Nuremberg Principles, 140–141, 142 rejection of traditional definition, 127–128 State act element, 3, 139, 140 Third State officials, 199 translation into crime of aggression, 3–5 treaty provisions, 139, 140

375

universal jurisdiction, 318–320 see also Code of Offences Against the Peace and Security of Mankind (Draft Code) crime of aggression act of aggression distinguished, 62 adoption of criminalisation provisions, 1–2, 24–31 amendments see amendments to Rome Statute Code of Offences Against the Peace and Security of Mankind (Draft Code), 4–5, 6–9, 81, 140–141, 142, 151–153, 210–211, 312 complexity of, 5, 23 consistency with customary international law, 137–155 definition of, 6–7, 10, 12, 14–16, 24–25 deterrence of, 43–45, 132–133, 186 domestic jurisdiction over, 8, 312–320 early history, 2–6 elements of, 62 exclusion of criminal responsibility, grounds for, 163–164 exclusion of lesser violations, 132–137 harm caused by, 40–41 ICC jurisdiction over see International Criminal Court (ICC) incorporation of elements of the 3314 Definition of Aggression, 6–7, 10, 14–16, 25, 96–97 individual conduct elements executed, 173–174, 186–187, 188–189 initiated, 186–187, 188 ‘leadership’ requirement applicability of Rome Statute provisions, 183–185 development, 168–183 mental elements mistake of fact / mistake of law defences, 196–197 Rome Statute provisions, 189–196 superior orders defence, 197–198 modes of participation attempted crimes, 200–202 Rome Statute provisions, 198–199 Third State officials, 199–200 perpetrator’s contribution, 185–189 planned, 173–174, 186, 187–188 prepared, 186, 187–188 scope of inclusion, 167–168 summary of issues, 202–204 international politics and, 49–53 and jus ad bellum, 54–56 ‘manifest violation’ threshold see ‘manifest violation’ threshold pre-Rome Conference, 6–9

376

index

crime of aggression (cont.) prosecutions see domestic prosecutions; International Criminal Court (ICC) restriction to grave violations, 132–137 Rome Conference, 9–12 State act element content of chapter, 124 debate on definition, 151–153, 154 and nullum crimen sine lege principle, 130–132 and prohibition of interpretation by analogy, 130–132 as qualifying threshold, 124–130 summary of issues, 164–166 summary of issues, 332–335 and transitional justice, 43 see also 3314 Definition of Aggression; criminalisation of aggression; Special Working Group on the Crime of Aggression (SWGCA); use of force; Working Group on the Crime of Aggression (WGCA) criminal law elements of deterrence, 43–44 criminal responsibility grounds for exclusion, 163–164 criminalisation of aggression arguments as to, 34, 56–59 effect on international coalition actions, 59–60 practicality of prohibition, 39–49 scope of prohibition, 34–39 summary of issues, 60–61 customary international law 3314 Definition as, 15, 24–25, 89–95, 323 crime against peace as, 39–40, 150–153 crime of aggression as, 2–3, 137–155 exception to functional immunity, 323 exception to Head of State immunity, 305–308 exclusion of criminal responsibility, 164 Nuremberg Principles as, 142 permission to use force, 157 prohibition of use of force, 38–39, 136, 226 Rome Statute and, 206–208 rules on use of force, 55 as to unauthorised humanitarian interventions, 161–162 universal jurisdiction over crime of aggression, 314, 320 violation creating new law, 36 cyber operations acts of aggression by, 110–112 Definition of Aggression see 3314 Definition of Aggression domestic prosecutions

domestic jurisdiction over crime of aggression, 8, 312–320 immunities as barrier, 320–324 other potential barriers, 324–326 Rome Statute amendments generally, 311–315 summary of issues, 326–327 Draft Code see Code of Offences Against the Peace and Security of Mankind (Draft Code) ‘force’ use of term, 65–66 Friendly Relations Declaration, 80, 89, 151 frontier incidents armed attack distinguished, 68 inclusion in Definition of Aggression, 72 future States Parties SWGCA negotiations as to, 264–265 General Assembly see UN General Assembly genocide rulings as to, 57–58, 310, 323 Genocide Case, 57–58, 224, 310 Germany crime of aggression cases, 40 domestic prosecution provisions, 139, 142–143, 147–148 Nuremberg Trials, 169–175, 178, 186–189, 193–194, 196, 199, 317 Review Conference, 25, 50–51 Rome Conference, 11–12 ‘green light’ model for ICC proceedings operation of, 20–21, 26, 27 resistance to proposal, 19–20, 278 Head of State immunity national practice, 169, 304–311 non-State Parties, 304–311 Heads of State prosecutions of, 168–169, 304–311 humanitarian intervention exclusion for, 120, 127, 155, 161–162, 164 use of force, 54–55, 60 humanitarian law see international humanitarian law (IHL) illustrative acts, list of closed or open, 97, 99, 103–105 provision of, 5–6, 73–74, 105 use of, 14–15, 70–71, 136, 212–213 illustrative chart of jurisdictional scenarios development of, 23, 247 indirect use of force inclusion in Definition of Aggression, 71 individual victims

index Rome Statute provisions, 292–301 International Court of Justice (ICJ) and 3314 Definition, 82, 89–95 action brought in, 44–45, 133–134 conflict with Security Council, 56–59 determination of acts of aggression, 10, 16–18, 20–21, 26 determination of State responsibility, 48 distinction between levels of use of force, 67–68 foreign state immunities, 320–324 identification of crimes attracting universal jurisdiction, 319–320 prohibition of use of force, 36–38, 47 referral to, 306–307 remit, 220 ruling as to obligation to prevent genocide, 310 rulings as to Security Council’s role, 211–212, 215, 220–229 International Criminal Court (ICC) conflict with Security Council, 56–59 determination of acts of aggression, 16–17, 18 establishment see Rome Conference judgement of State acts, 48 jurisdiction over crime of aggression activation delay effect of Statute provisions, 281–282 prospects for active jurisdiction, 286–289 requirements, 283–286 exclusions absence of Understanding, 257–258 adoption of amendments, 251–252 applicability of provisions, 263–264 comparison of provisions, 256–257 exercise of jurisdiction, 252–253 future States Parties, 264–265 generally, 249–250 rationale of opt-out declaration, 253–255 scope of jurisdiction, 258–262 issue of interpretation, 205–206 and jurisdictional regime generally, 234–237 operation (table), 261 opt-out declaration operation, 265–268 rationale, 253–255 politicisation of, 48–49 Pre-Trial Division Filter comparison of provisions, 273–274 operation generally, 271–273 Security Council powers, 274–275 scope of, 258–262

377

and Security Council prerogative, 229–230, see also UN Security Council, determination of acts of aggression Security Council referrals, 23–24, 97, 138, 154–155, 234–235, 244, 249, 254–255, 276–278 summary of issues, 279–280 Preparatory Committee Draft Statute, 10 Final Report, 9 session, 207 prosecutions cooperation provisions, 301–311 generally, 289 judicial appointments, 289–292 staff appointments, 289–292 victims of crimes of aggression, 292–301 see also amendments to Rome Statute, Rome Statute international criminal law 3314 Definition within, 10, 78–80, 81, 96, 186 basis in consensus, 158–159 determination of acts of aggression within framework of, 5, 70 deterrent effectiveness, 43–44, 183, 326–327 and ICC jurisdiction, 160–161, 163, 210 individual focus of, 46–47, 108–109, 168 interpretation issues compared with international humanitarian law, 55–56 judges’ demonstrable knowledge, 329–330 and jus ad bellum, 55–56, 121, 158, 163 leadership immunity, 169 need for certainty, 121–122 Security Council prerogative as to, 214–220, 225–226 Security Council’s role, 8 speed of change, 327–328 International Criminal Tribunal for the former Yugoslavia (ICTY) establishment, 212–213, 219–220 obligation to accept jurisdiction of, 310 ruling as to immunity, 323 ruling as to obligation to prevent genocide, 57–58, 310 international humanitarian law (IHL) binding force, 133 interpretation issues compared with international criminal law, 55–56 judges’ demonstrable knowledge, 329–330

378

index

International Law Commission (ILC) Code of Offences Against the Peace and Security of Mankind (Draft Code), 4–5, 6–9, 81, 140–141, 142, 151–153, 210–211, 312 International Military Tribunal (IMT) basis of jurisdiction, 237 definition of crime against peace, 2–3, 139, 140 definition of war of aggression, 139 leadership requirement rulings, 169–175, 178, 186–189, 193–194, 196, 199, 317 International Military Tribunal for the Far East (IMTFE) leadership requirement rulings, 176–178, 186–189, 194, 195–196, 317 Japan domestic prosecution provisions, 139 Review Conference, 29, 30–31, 50–51, 237–238 war crimes trials, 176–178, 186–189, 194, 195–196, 317 jurisdiction see International Criminal Court (ICC); universal jurisdiction jurisdictional filter see International Criminal Court (ICC) jus ad bellum and act of aggression see act of aggression and crime of aggression generally, 54–56 development, 4 ICC as arbiter, 155–163 ICC jurisprudence, 59, 61 and international criminal law, 119, 158, 159, 163 judicial disagreement as to, 57–58 jus in bello distinguished, 41–42 violation of, 46–47 jus in bello jus ad bellum distinguished, 41–42 Kampala Review Conference 2010 see Review Conference (Kampala 2010) Kuwait Iraq invasion, 84–85, 219, 231–232 ‘leadership’ requirement see crime of aggression, individual conduct elements legitimate uses of force see use of force list of illustrative acts see illustrative acts, list of Lockerbie Case, 211–212, 219 ‘manifest violation’ threshold act of aggression, 62, 124–130, 186, 191–193, 203, 273

armed force, use of, 196, 278, 294 character, gravity and scale, 12, 25, 41, 65, 76, 104–105, 124–130, 131–132, 136, 191–192 determination, 159, 207–208 nullum crimen sine lege principle, 130–132 requirement for proof of, 41, 159, 301–302 scope of, 132–137 Understandings, 118, 120 mental elements see crime of aggression, individual conduct elements mistake of fact / mistake of law defences scope of, 196–197 modes of participation see crime of aggression, individual conduct elements Monetary Gold principle applicability, 245–246 negative interpretation see amendments to Rome Statute Nicaragua Case, 36–38, 57–58, 67–68, 89, 91, 92, 94–95, 224–227 non-cooperation of State Parties see State Parties non-State actors acts of aggression by, 106–110 non-State Parties crimes committed within territory of, 27–28, 138, 154–155 exclusion of, 256–257, 279, 333 Head of State immunity, 304–311 ICC jurisdiction, 22–23, 253–254, 259, 262, 263–264, 275, 335 prosecution of nationals of, 205, 236, 237 Review Conference, 31 nullum crimen sine lege principle incorporation into Rome Statute, 105 and State act element of crime of aggression, 130–132 violation of, 103, 124, 154–155 Nuremberg Principles agreement on, 140–141 authority of, 141–142 as customary international law, 142 Nuremberg Trials leadership requirement rulings, 169–175, 178, 186–189, 193–194, 196, 199, 317 opt-out declarations complexities of, 97 idea for, 258–259 lodgement of, 250, 257, 259, 260, 261, 262, 265–268, 276 non-use, 279

index proposals for, 24 rationale of, 253–255 regime for, 258 right to exercise, 265 permanent members of Security Council (P5) crime of aggression negotiations, 52–53 defence of arbitration role, 50, 60, 206–208, 270, 275 and ICC jurisdiction, 162–163 ‘manifest violation’ threshold, 15 non-parties to Rome Statute, 334 Review Conference, 23, 50–51, 52–53 Rome Conference, 10 veto, 212, 278 voting, 162–163, 288–289 positive interpretation see amendments to Rome Statute Pre-Trial Division Filter see International Criminal Court (ICC) Preparatory Committee on the Establishment of an International Criminal Court see International Criminal Court (ICC) Princeton Process description of, 13–14 Principles on Universal Jurisdiction, 318–319 priority principle and Definition of Aggression, 72 prohibition of aggression see criminalisation of aggression prohibition of interpretation by analogy and State act element of crime of aggression, 130–132 prohibition of use of force see use of force proof of an aggressive intent inclusion in Definition of Aggression, 72 prosecutions see domestic prosecutions; Heads of State; International Criminal Court (ICC) R v. Jones, 148–150, 153 red light proposal resistance to, 20 Review Conference (Kampala 2010) adoption of amendments, provision for, 249, 251, 281–282 convening, 238–239, 284–285 international politics and, 49–53 parties, 260 preparations for, 12 presentations, 21, 153–154, 258–259, 334 proceedings, 1–2, 24–31, 275, 276, 289 results, 205, 237–238 review of amendments, 327–332

379

status of Understandings, 113, 115–116, 118–119, 127, 128–130, 257–258, 263–264, 312–315 Rome Conference negotiations during, 9–12, 133, 151–153, 208–209, 234–235, 295 negotiations prior to, 6–9, 39, 178–179, 234–235 Rome Statute Article 5(1), 11–12, 22, 134–136 Article 5(2), 11–12, 79, 80–81, 82, 98, 151, 208–209, 234, 238–240, 243, 249, 250, 251–253, 258, 285, 332 Article 8bis, 62–63, 82, 96–97, 98–99, 100–101, 102–105, 106, 110, 111, 113, 114, 118, 119, 120, 121–123, 124, 125, 126–128, 131, 134, 136–137, 139, 154, 155, 160–161, 165, 167–168, 178–179, 181–182, 184, 186–187, 197, 237–238, 239–240, 272, 278, 285, 294, 314–315 Article 10, 54, 119–120, 313, 314 Article 12, 22–23, 26, 27–28, 112, 138, 154–155, 213, 223, 225–226, 234–235, 235–236, 237, 243–244, 246, 247, 249, 250, 251, 252–254, 255, 259–260, 263–264, 265, 267–268, 286, 308 Article 15, 271–272, 273–274, 295, 330 Article 15bis, 207–208, 237, 243, 246–247, 249–250, 252, 253, 254–255, 256–257, 258–262, 263–264, 265–268, 269, 270, 271–272, 273–274, 282, 285, 289, 290, 311, 328–329, 330 Article 15ter, 207, 237, 249, 254–255, 275, 276–277, 278, 282, 285, 289 Article 16, 20, 29–30, 133–134, 162–163, 206–207, 233, 270, 271, 274–275, 278 Article 22, 100, 105, 121–122, 131, 154–155 Article 25, 48, 54, 167–168, 185–186, 198–202, 239–240, 246, 273–274, 293 Article 27, 168, 304, 305–306, 308–309, 310 Article 28, 183–185 Article 31, 163–164 Article 32, 196–197 Article 36, 227, 289–290, 329 Article 98, 304–306, 308–309, 309–310, 318 Article 121(5), negative interpretation abrogation of, 255 application of, 23, 24, 256–257 arguments for, 244

380

index

Rome Statute (cont.) disagreement with, 246–247 meaning of, 22–23, 244 Monetary Gold principle, 245–246 and non-State Parties, 247–248 special exception to, 252–253 Understandings, 257–258 Article 121(5), positive interpretation arguments for, 245–246 consistency with, 252–253 meaning of, 22–23, 243–244 Monetary Gold principle, 245–246 and non-State Parties, 248 support for, 264–265 Understandings, 257–258 Article 123, 238–239, 284–285 consistency with customary international law, 206–208 see also amendments to Rome Statute; International Criminal Court (ICC); State Parties Security Council see UN Security Council self-defence need for definition, 72–73 Special Working Group on the Crime of Aggression (SWGCA) adoption of amendments, 238–239, 243–244, 247 Definition of Aggression, 96, 97–103, 124–125 Review Conference, 24–25, 26 Security Council determinations, 268–270 State act element, definition of, 151–153, 154 status of Understandings, 113, 118–119, 257–258 see also Working Group on the Crime of Aggression (WGCA) State Parties acceptance of amendments, 22–23, 27–28, 30, 235, 238–239, 241, 243–244, 249, 253, 260, 283 activation of ICC jurisdiction, 29–30 adoption of amendments, 51, 237–238, 242–243, 279–280, 282, 283 amending agreement binding on, 259 cooperation in investigations and prosecutions, 301–311 crimes committed by, 267–268, 279 crimes committed within territory of, 237, 239, 244, 250 and criminalisation of attempted acts of aggression, 201

disagreement between, 150 domestic prosecutions see domestic prosecutions effect of amendments, 332–335 execution of arrest warrants, 301 future States Parties, 26–28, 262, 264–265 humanitarian interventions, understanding as to, 161–162 and ICC jurisdiction, 251–253, 258–262, 285, 286–289 and modes of participation, 198 non-acceptance of amendments, 23, 27–28, 239, 243–244, 246, 249, 257, 264 non-cooperation of, 301 opt-out declaration, 205, 253–255, 257, 262, 265–268 proposal of amendments, 332 ratification of amendments, 26–27, 28–29, 240–241, 243–244, 249–250 referral to ICC, 28–29, 249, 268 request to convene review conference, 284–285 retrospective effect to amendments, 286–287 at Review Conference, 51 review of amendments, 327–332 and Security Council determinations, 269 support for amendments, 52–53, 288 and terminology issues, 186 Understandings, 113–119, 161–162, 263–264 withdrawal, 22, 240–241, 244 see also Assembly of States Parties (ASP); non-State Parties superior orders defence applicability of, 197–198 superior responsibility see command and superior responsibility Tadic Case, 57–58, 212–213, 219–220 Tehran Hostages Case, 224–225 Third State officials participation by, 199–200 ‘threat or use of force’ inclusion in Definition of Aggression, 71–72 use of term, 65–66, 70 ‘threat to the peace’ use of term, 63, 65, 66, 67, 70 transitional justice crimes of aggression and, 43

index UN Charter 3314 Definition of Aggression, 11–12, 25, 63–70, 71–72, 75–76, 77–79, 82, 88–89, 91–92, 100–102, 119, 120–121 Article 1(1), 66, 67–68 Article 2(4), 4, 10, 14–15, 34–35, 36–38, 55, 57, 65–66, 68, 71–72, 75, 85–86, 109, 111, 120–121, 127–128, 136, 148, 152 Article 24, 213, 217, 220, 224 Article 39, 8, 18–19, 34–35, 65, 66, 67–68, 71–72, 78–79, 83, 88–89, 209–212, 221–222, 223, 224–226, 228–229, 232–233, 268–269, 271, 275, 276, 328–329, 330, 332 Article 51, 35, 65, 69, 72, 77, 157 Article 103, 214, 229–230 authorised use of force, 155 Chapter VI, 216, 217 Chapter VII, 20, 96–97, 207, 210, 211–212, 215, 216, 217, 218, 219, 220–221, 225, 226, 229, 232–233, 249, 276, 309–310, 311 computer network attacks, 110–111 determination of acts of aggression, 8, 10, 16, 208–230, 234, 268–269, 275, 276 inter-State armed violence, 3–6, 7, 39–40 interpretations of, 31 manifest violation see ‘manifest violation’ threshold prohibition of use of force, 10, 34–40, 41, 55, 93–94, 97–98, 190–191 UN Conference on International Organisation (UNCIO) definitional issues, 211, 216 Security Council judicial powers, 218 UN General Assembly act of aggression and just war doctrine, 87–89 definition of act of aggression, 77 determination of acts of aggression, 16–18, 20–21, 26 identification of acts of aggression, 220–223 peacekeeping operations, establishment of, 219–220 recommendations, 192–193, 335 Resolution 3314, 5–6, 92–95, 98–101, 151 see also 3314 Definition of Aggression resolutions, 4–5, 17–18, 65, 73, 78–79, 133–134, 140–142, 151, 222–223 use of terminology, 66 UN Security Council act of aggression, 83–87

381

authorisation for interventions, 47, 59–60, 65, 161, 164, 192–193, 335 conflict with ICC and ICJ, 56–59 and definition of act of aggression, 75–76, 77, 78–79, 82, 97–98, 99–100 determination of acts of aggression arguments against role, 230–233, 288 automatic decisions, 70–71 definition, 268–270 definition of act of aggression, 99–100 effect of, 96–97, 147 effect of ‘negative determination’, 270 exclusiveness of right, 31, 205 existence of prerogative, 10, 16, 52, 208–213 and ICC jurisdiction, 30, 162–163, 205, 206–208, 229–230, 271, 274–275, 276–278, 281–282, 288–289, 304, 309–310, 311, 327–328 and international criminal law, 214–220 non-monopoly as to, 220–229 non-referral to ICC, 54–55 omission of role, 214 primacy of right, 8, 52–53, 213 referral to ICC, 23–24, 97, 138, 154–155, 234–235, 244, 249, 254–255, 276–278 Rome Statute provisions generally, 268 State referral, 273 summary of issues, 234 SWGCA proposals as to, 16–21 enforcement powers, 55–56, 133–134 referral from ICC, 302 resolutions, 307–308, 310, 311 see also permanent members of Security Council (P5) Understandings absence of, 257–258 adoption of, 54, 113, 128–130 drafting of, 25, 153–154, 263–264 proposals of, 25, 127, 247–248, 312–315 provisions as to, 119–122, 276 purposes of, 282, 286–287 rejection of, 161–162 scope of, 162 status of, 97, 113–119, 120, 121–122, 161–162 United Nations see entries at UN universal jurisdiction crime against peace, 318–320 crime of aggression, 317–320 domestic prosecutions, 312–313, 323, 326

382

index

universal jurisdiction (cont.) ICC’s exercise of, 7–8, 234–235, 240–241, 264 identification of crimes attracting, 319–320 Princeton Principles, 318–319 use of force distinction between levels of, 67–68 indirect use, 71 legitimate uses, 155 prohibition of customary international law and, 38–39, 136, 226 ICJ jurisprudence, 36–38, 47 UN Charter provisions, 10, 34–40, 41, 55, 93–94, 97–98, 190–191 rules on, 55 use of term, 63, 65 see also ‘threat or use of force’ victim states ‘aggressor/victim’ dichotomy, 262 application to ICC, 125, 133–134 approach to defining aggression, 50, 68–69, 71 assistance to, 3, 139, 216 attack against aggressor, 245 consent to ICC jurisdiction, 7–8, 22–23, 234–235, 247, 248, 255, 261 danger to territory, 192–193 exclusion of non-States Parties from ICC jurisdiction, 256–257, 279, 333

non-discrimination between, 248 ratification of amendments, 260 Rome Statute provisions, 292–301 violation of territory, 85–86, 250 victims of aggression see individual victims; victim states Rome Statute provisions, 292–301 violation of territory, 85–86, 250 Vienna Convention on the Law of Treaties (VCLT) amending agreements, 259, 279–280 definition of ‘manifest violation’, 127 interpretation rules, 201, 243, 246–247, 264–265, 291 nullum crimen sine lege principle, 154–155 status of Understandings, 113–119, 121–122 violation of, 236 ‘war’ use of term, 63–64, 65–66 Working Group on the Crime of Aggression (WGCA) approach to drafting, 185 attempted crimes provisions, 201 determination proposals, 269 replacement by SWGCA, 13 work of, 12 see also Special Working Group on the Crime of Aggression (SWGCA)