NOTE
Exempting Humanitarian Intervention from
the ICC’s Definition of the Crime of
Aggression: Ten Procedural Options for 2017
Leslie Esbrook*
At the ICC’s first review conference in Kampala in June, 2010, states parties and
observer nations made significant strides to codify a final piece of the Rome Statute:
incorporating the crime of aggression into the Court’s jurisdiction. By consensus, the
delegations passed the Kampala Outcome Document, which provides a definition of the
crime of aggression, and the delegations agreed to vote on the crime’s entry into force after
January 1, 2017. This paper will detail why the current definition of aggression is
untenable and why it is in the interest of all nations to consider strategies for limiting the
definition adopted by the Kampala Outcome Document. The paper focuses on the
definition’s strict interpretation of aggression that does not recognize the possibility for an
emerging exception to the UN Charter’s Article 2(4) prohibition on the use of force
without Security Council authorization. Part I will describe the historical development of
the crime of aggression and outline what was agreed upon at the Kampala conference.
Part II will lay out the most preferred policy option for limiting the definition – a
partial opt-out declaration under Article 15bis(4) – and will respond to concerns that
an opt-out 1) is a reservation prohibited under Article 120, 2) will promote military
options over diplomatic avenues, and 3) will fracture the Kampala consensus. Part III
will outline nine other procedural strategies for limiting the definition of aggression,
ranking them by their ability to legally bind the Court to a more narrow application of
the crime, as well as their political achievability. The Conclusion suggests that all
nations will be affected by the 2017 decision and advocates for a direct strategy of
deliberation in order to approach 2017 with sufficient preparedness.
* Many thanks go to Professors Harold Hongju Koh and Oona Hathaway for their help and
support on previous drafts, to TAs Julia Brower and Michael Shih, and to everyone at the
Department of State Office of the Legal Adviser and Department of Justice Office of International
Affairs for their encouragement and background on the crime of aggression.
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INTRODUCTION ................................................................................................. 792
I. THE STATE OF AFFAIRS: AGGRESSION’S PAST, PRESENT, AND
FUTURE ............................................................................................................... 794
A. How We Got Here: 70 Years of Debate and Outstanding Questions .......... 794
B. Where We Are: The Kampala Document and the Emerging Doctrine of
HI .............................................................................................................. 798
C. Where We Want to Go: Preparing for 2017 ............................................... 805
II. THE MOST PREFERRED OPTION—OPTION 1: AN OPT-OUT
DECLARATION .............................................................................................. 808
A. Is an Article15bis(4) Opt-out a Reservation? .............................................. 810
B. Does an Opt-out Encourage Additional Uses of Force? ................................ 813
C. Do Individual Opt-outs Fracture the Kampala Consensus? .......................... 814
III. NINE OTHER PROCEDURAL OPTIONS..................................................... 815
A. Off the Spectrum: Endpoints ....................................................................... 815
B. Option 2: Limiting Language in the Understandings .................................... 816
C. Option 3: Opt-out Domestic Legislation for Complementarity ....................... 817
D. Option 4: Additional Prosecutorial Guidelines............................................. 817
1. Development of Prosecutorial Guidelines and Mechanisms for Change ....... 818
2. Lessons from Domestic Guidelines ............................................................ 819
3. Substantive Recommendations to the Guidelines and Code of Conduct ....... 820
4. Conclusion ................................................................................................ 822
E. Option 5: Higher Evidentiary Standards ..................................................... 823
F. Option 6: An Affirmative Defense for Humanitarian Intervention ............... 826
1. Development of Affirmative Defenses at the Court ..................................... 827
2. Means of Expanding Article 31 to Include HI ......................................... 827
3. Conclusion ................................................................................................ 830
G. Option 7: A Stricter Mens Rea Requirement ............................................... 831
H. Option 8: Repeated Invocation of Article 16 ................................................ 833
I. Option 9: Use of Article 12(3) Declarations ................................................. 835
J. Option 10: Failure to Ratify the Kampala Document .................................... 837
CONCLUSION ...................................................................................................... 839
INTRODUCTION
At the International Criminal Court’s (ICC) first review conference in
Kampala in June, 2010, states parties and observer nations made
significant strides to codify the last outstanding piece of the Rome Statute:
incorporating the crime of aggression into Article 5. 1 The group at
Kampala produced an outcome document2 of four amendments for states
1. Rome Statute of the International Criminal Court art. 5, July 1, 2002, 2187 U.N.T.S. 90
[hereinafter Rome Statute] (Crimes Within the Jurisdiction of the Court).
2. International Criminal Court [ICC], The Crime of Aggression, Resolution RC/Res. 6., ICC Doc.
RC/11 (June 11, 2010).
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793
parties to adopt. In order for the Court to implement the four proposed
amendments, thirty states parties3 must ratify the Kampala document by a
vote no earlier than January 1, 2017.” After 30 states parties have ratified it,
an affirmative decision to accept the amendments must also be made by
the same majority of states parties that was required for the adoption of
the amendments.4 To date, twenty-three countries have ratified, and forty
others are in the process of ratifying these amendments. 5 At this rate,
achieving thirty ratifications appears likely.6 If there are any parts of the
Kampala document that nations would like to further clarify, a meeting
convened before the Assembly of States Parties (ASP) vote is perhaps the
only time for such clarifications before the crime becomes a permanent
feature of the Rome Statute.
Up to this point, very little public discussion has been given to the ways
in which countries could pursue strategies to limit the crime’s definition of
aggression. The only suggestion considered in academic literature is the
possibility of configuring an “opt-out” provision under Article 15bis (4) to
allow States to opt out of the crime’s jurisdiction in a partial manner.7 This
type of opt-out provision could be structured to make it flexible for use by
a variety of actors. This would include the possibility of opting out of
humanitarian intervention (HI). Concerns over humanitarian intervention
were first raised by the United States, 8 but the concern applies to all
3 . Out of a total possible 123 states parties. “The states parties to the Rome Statute,”
INTERNATIONAL CRIMINAL COURT, available at http://www.icccpi.int/en_menus/asp/states%20p
arties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx.
4. ICC Resolution RC/Res.6, supra note 2, Annex I, Art. 15 ter, ¶¶ 2-3.
5. THE GLOBAL CAMPAIGN FOR RATIFICATION AND IMPLEMENTATION OF THE KAMPALA
AMENDMENTS ON THE CRIME OF AGGRESSION (1 Aug. 2015), available at
http://crimeofaggression.info/the-role-of-states/status-of-ratification-and-implementation
[hereinafter THE GLOBAL CAMPAIGN]. 23 States Parties have now ratified, with 32 States Parties
currently actively working on ratification of the amendments on the crime of aggression and 8 further
States Parties in the early stages of the ratification process. The most recent one to ratify was the
Czech Republic as of 12 March 2015. See http://crimeofaggression.info/the-role-of-states/status-ofratification-and-implementation.
6. Id.
7. See Robbie Manson, Identifying the Rough Edges of the Kampala Compromise, 21 CRIM. L. FORUM 417
(2010); Carsten Stahn, The ‘End’, the ‘Beginning of the End’ or the ‘End of the Beginning’? Introducing Debates
and Voices on the Definition of ‘Aggression’, 23 LEIDEN J. INT’L L. 875 (2010); Beth Van Schaack, The
Aggression Amendments: Points of Consensus and Dissension, 105 AM. SOC’Y INT’L L. PROC. 154 (2011);
Andreas Zimmerman, Amending the Amendment Provisions of the Rome Statute: The Kampala Compromise on
the Crime of Aggression and the Law of Treaties, 10 J. INT’L CRIM. JUST. 209 (2012) (discussing possible
loopholes and outstanding questions on the Kampala Outcome document, including the meaning of
Article 15 bis(4)).
8 . See Cedric Ryngaert, The understandings regarding the amendments to the Rome Statute of the
International Criminal Court on the crime of aggression, in FROM ROME TO KAMPALA: THE FIRST TWO
AMENDMENTS TO THE ROME STATUTE I(f)-(g) (Gerard Dive et al. eds., 2013); David Scheffer, States
Parties Approve New Crimes for International Criminal Court, ASIL INSIGHT, vol. 14, issue 16 (June 22,
2010),
http://www.asil.org/insights/volume/14/issue/16/states-parties-approve-new-crimesinternational-criminal-court.
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nations that maintain active military operations, that are part of regional
bodies that conduct joint military operations (such as New Zealand), or
that are at risk of suffering under leaders who commit grave human rights
abuses with impunity.
This paper will detail why the current definition of aggression, as
codified in the Kampala document, is untenable for the international
community and why it is in the interest of all nations to consider strategies
for limiting the definition. The paper will argue that an opt-out declaration
for humanitarian intervention under Article 15bis(4), as addressed in Part
II, is the most sensible policy option, as it maximizes the two coefficients
nations should be most concerned with: achievability and acceptability. It
will also describe nine other procedural options that achieve a measure of
limiting the crime’s definition. Part I will give an overview of the status of
aggression up to 2014, the current state of the ratification process, and
academic reflections on the crime’s outstanding definitional questions. Part
II will detail the preferred procedural strategy, the opt-out declaration, and
will respond to concerns that the opt-out declaration: 1) is illegal under
Article 120, 2) will promote military options over diplomatic avenues, and
3) will fracture the Kampala consensus. Part III will outline different
procedural strategies that could be implemented, particularly in reference
to an exemption for acts carried out with HI purposes, assessing each
possible solution by its political achievability and acceptability. The
Conclusion will suggest that all nations will be affected by the crime, and it
will advocate for a direct strategy of deliberation to approach 2017 with
sufficient preparedness.
I. THE STATE OF AFFAIRS: AGGRESSION’S PAST, PRESENT, AND FUTURE
A. How We Got Here: 70 Years of Debate and Outstanding Questions
Like most negotiations on international standards for criminal
prosecution, debates over the crime of aggression span back to the 1950s.9
Although parallel deliberations on international crimes such as terrorism
and drug trafficking failed to achieve consensus, the crime of aggression
made it into international law. Debates in the United Nations General
Assembly on the definition of terrorism produced a working draft
definition of terrorism in 1999, along with specific conventions on various
types of terrorism such as terrorist bombings,10 terrorist financing,11 and
9. KIRSTEN SELLARS, ‘CRIMES AGAINST PEACE’ AND INTERNATIONAL LAW 150 (2013).
10. See International Convention for the Suppression of Terrorist Bombings, G.A. Res. 52/164,
U.N. Doc. A/RES/52/164 (Jan. 9, 1998).
11. See International Convention for the Suppression of the Financing of Terrorism, G.A. Res.
54/109, U.N. Doc. A/RES/54/109 (Feb. 25, 2000).
2015] HUMANITARIAN INTERVENTION AND CRIME OF AGGRESSION
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taking of hostages, 12 but the debates failed to result in an umbrella
definition. 13 Similarly, initial ICC debates contemplated the inclusion of
drug crimes in the Rome Statute’s jurisdiction, but this idea did not gain
traction absent a consensus on the crime’s umbrella definition 14
Aggression, however, made it into the Rome Statute because it had
previously proven successful in prosecuting perpetrators in the Tokyo
tribunals and the Nuremberg tribunals, and because drafting committees in
the UN had been collecting States’ suggestions for the crime’s universal
application and slowly honing the definition of aggression since the end
of World War II.15 While aggression made it into the Rome Statute, it is
the least applied and most controversial of all of the crimes within the
Court’s jurisdiction. The Court’s highly visible position at the center of
international criminal justice presses political concerns into the
prosecutor’s discretion, for better or worse.16 To proceed with prosecution
for a crime that has very little case law,17 cases must be chosen that present
no doubt as to the manifest violation of the UN Charter, as required by
the statutory definition of the crime.18
12. International Convention against the Taking of Hostages, Dec. 17, 1979, 22 Stat. 1641, 1316
U.N.T.S. See Text and Status of the United Nations Conventions on Terrorism, UNITED NATIONS TREATY
COLLECTION,
https://treaties.un.org/Pages/DB.aspx?path=DB/studies/page2_en.xml
(last
accessed Aug. 1, 2015), for a list of all 13 terrorism-related conventions.
13. See Antonio Cassese, The Multifaceted Criminal Notion of Terrorism in International Law, 4 J. INT’L
CRIM. JUST. 933 (2006); Michael Lawless, Terrorism: An International Crime?, 9 CANADIAN MIL. J. 27
(2008). See also Comprehensive Convention Against International Terrorism art. 2, Ad Hoc
Committee
on
Terrorism,
U.N.
Doc.
A/59/894,
available
at
http://www.ilsa.org/jessup/jessup08/basicmats/unterrorism.pdf for a draft definition on
comprehensive terrorism (Draft). In 2011, the UN’s Special Tribunal for Lebanon delivered an
interlocutory ruling that stated the crime of terrorism had achieved enough international consensus
to be prosecutable. See Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy,
Homicide, Perpetration, Cumulative Charging at 4 (U.N. Special Tribunal for Lebanon Feb. 16, 2011)
STL-11-01/I.
14 . On how older International Law Commission Drafts contemplated the court having
jurisdiction over drug crimes, see Kai Ambos, Establishing an International Criminal Court and an
International Criminal Code, 7 EJIL 519, 524 (1996); Rome Statute of the International Criminal Court, U.N.
LEGAL (1998), http://legal.un.org/icc/general/overview.htm. For an account of how the absence of
drug crimes has led to certain complementary jurisdictions imputing drug crime charges as crimes
against humanity, see Juan Carlos Sainz-Borgo, The International Criminal Court, Drug Trafficking and
Crimes Against Humanity: A local interpretation of the Rome Statute, 15 J. JURISPRUDENCE 373, 375-80
(2012).
15. SELLARS, supra note 9, at 260–87.
16. DAVID BOSCO, ROUGH JUSTICE: THE INTERNATIONAL CRIMINAL COURT IN A WORLD OF
POWER POLITICS 12-20 (2014).
17. Four defendants were convicted on only the charge of crimes against the peace at the
Nuremberg Tribunals and twenty-four defendants were convicted on only crimes against the peace at
the Tokyo Tribunal. See Historical Review of Developments relating to Aggression, UNITED
NATIONS
47-53,
196-222
(2003),
http://legal.un.org/cod/books/HistoricalReview
-Aggression.pdf; Roger S. Clark, Nuremberg and the Crime Against Peace, 6 WASH. U. GLOBAL STUDIES
L. REV. 527, 544-48 (2007)).
18. ICC Resolution RC/Res.6, supra note 2, Annex I, Art. 8 bis, ¶ 1.
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Negotiations over the Rome Statute left the bulk of the definition of
the crime to be agreed upon at a later date, including questions such as
who would be prosecuted, how the crime would interact with the Court’s
jus in bello criminal acts,19 or what past incidents could be cited as examples
of a model crime of aggression.20 It was clear that many of the developed
nations wanted some type of exemption for their leaders to have adequate
discretion to conduct military operations that were not territorial
annexation of the type prosecuted at Nuremberg. Some delegations
opposed the inclusion of aggression precisely because, in their opinions, a
prospective definition would have to tackle the “difficult issue of possible
justifications such as self-defense or humanitarian intervention.” 21 For
instance, Japan suggested an opt-out allowing states to join the court
without immediately conferring jurisdiction. 22 The United States, along
with the other P5 members, suggested an opt-out for “official actions” of
nonmember states. 23 France pushed for a seven-year opt-out for war
crimes jurisdiction,24 hoping to delay any remote possibility of prosecution
while the court worked through growing pains. The Court has never
before adjudicated jus ad bellum offenses like aggression. If a significant
amount of nations agree that the legality of certain actions, such as HI,
remains disputed, this should be codified in writing before prosecutions
begin and threaten to undermine the important work that the Court has
already completed.25
19. See CARRIE MCDOUGALL, THE CRIME OF AGGRESSION UNDER THE ROME STATUTE OF
INTERNATIONAL CRIMINAL COURT 168-180 (2013) (discussing the proposed “leadership
requirement” for the crime of aggression that is absent from the Court’s jus in bello jurisdiction and
the ultimately nuanced language of the wording of Article 8bis(1) that brings into question the
requirement).
20. The only case repeatedly cited as a clear example of a crime of aggression is the Iraqi
invasion of Kuwait in 1990, and this was deemed a “breach of international peace and security,”
rather than aggression by the UN Security Council. Beth Van Schaack, Negotiating at the Interface of
Power and Law: The Crime of Aggression, 49 COLUM. J. TRANSNATIONAL L. 505, 567 n.233 (2011). See
also S.C. Res. 660, U.N. Doc. S/RES/660 (Aug. 2, 1990). For a sense of the number of drafts of the
crime proposed by various interested nations, see “Proceedings of the Preparatory Commission at its
fifth session” (12-30 June 2000), PCNICC/2000/L.3/Rev.1 (July 6, 2000).
21. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court,
U.N.G.A. 50th Session, Supplement No. 22, A/50/22 (1995), para 64. For more on views related to
jurisdiction of the court as expressed by state delegations, see UN Diplomatic Conference of
Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June – 17 July
1998, Official Records, Vol. II, Summary records of the plenary meetings and of the meetings of the
Committee
of
the
Whole
183-191,
UN
DIPLOMATIC
CONFERENCES,
http://legal.un.org/diplomaticconferences/icc-1998/vol_II_e.html.
22. BOSCO, supra note 16, at 49.
23. Id.
24. Id. at 50.
25. From 2002-2015, the Court has investigated 22 cases in 9 situations and has handed down
two convictions, in the cases of Prosecutor v. Thomas Lubanga Dyilo & German Katanga and Prosecutor v.
Germain Katanga and Mathieu Ngudjolo Chui. See “Situations and Cases,” INTERNATIONAL CRIMINAL
COURT, available at http://www.icccpi.int/en_menus/icc/situations%20and%20cases/Pages/situati
THE
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797
The Kampala Review Conference was preceded by more than seven
years of informal negotiations between willing parties, with the goal of
agreeing on a working definition for the crime of aggression.26 Although
the bulk of working group meetings took place in America, at Princeton
University,27 the United States never sent a delegation. 28 Fast-forward to
2010: with President Obama in power and his appointment of more ICCfriendly policy makers and counselors,29 the U.S. made a strong showing at
the ten-day Kampala conference. 30 The comparatively large U.S.
delegation31 voiced many of its concerns, aware that United States foreign
policy would be most at-risk by the vagaries of an unbounded definition
of aggression.32 The U.S. delegation succeeded in having the committee
adopt by consensus several limits to the broad definition of
“aggression,” 33 including postponement of the amendments’ entry into
force for at least seven years and inclusion of several paragraphs to the
Understandings that cabin the definition’s reach. 34 The Understandings
now state that aggression shall not be interpreted as customary law, shall
not be interpreted as creating a right to universal jurisdiction, and shall be
evaluated in “consideration of all the circumstances of each particular
ons%20and%20cases.aspx (last accessed Aug. 1, 2015).
26 . STEFAN BARRIGA, WOLFGANG DANSPECKGRUBER, & CHRISTIAN WENAWESER, THE
PRINCETON PROCESS ON THE CRIME OF AGGRESSION: MATERIALS OF THE SPECIAL WORKING
GROUP ON THE CRIME OF AGGRESSION, 2003-2009 (2009).
27. Id.
28. Stefan Barriga and Leena Grover, A Historic Breakthrough on the Crime of Aggression, 105 AM. J.
INT’L L. 517, 519 (2011).
29. BOSCO, supra note 16, at 154 (“The change in administration brought [previously convened
informal] interactions into the daylight and engaged the U.S. government as a whole with the court in
a new way.”)
30. Although the U.S. is not a member of the ICC, as its former Legal Advisor, Harold Koh
stated in an address, “[T]he United States should be judged by its actions, not just its words. Those
actions . . . reveal an impressive record of U.S. leadership since Nuremberg in the international
criminal justice arena.” Harold Hongju Koh, International Criminal Justice 5.0 (Address), 38 YALE J.
INT’L L. 525, 541 (2013). See also Diplomacy in Action, June 15, 2010, U.S. Engagement with the ICC and
the
Outcome
of
the
Recently
Concluded
Review
Conference,
http://www.state.gov/j/gcj/us_releases/remarks/2010/143178.htm (“we have reset the default on
the U.S. relationship with the court from hostility to positive engagement”).
31. The U.S. delegation was comprised of 30 members, compared to 10 on the UK team, and 11
each on the Canadian and German teams. MCDOUGALL, supra note 19, at 50. For more on the draft
revisions to the Kampala conference submitted by the U.S. delegation, see “History of the Kampala
Conference,” in TRAVAUX PREPARATOIRES OF THE CRIME OF AGGRESSION 79, 91-92 (STEFAN
BARRIGA AND CLAUS KRESS, EDS. 2011).
32. See William K. Lietzau, International Criminal Law After Rome: Concerns From a U.S. Military
Perspective, 64 LAW & CONTEMP. PROBS. 119, 124 (2001); 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, 35
VAND. J. TRANSNAT’L L. 1503, 1508 (2002)(“The United States felt that proponents of the ICC had
an inherent goal to restrain U.S. forces”).
33. Legal Advisor Koh and Ambassador Rapp Report on US Success in Kampala, AMICC, (June 18,
2010), http://amicc.blogspot.com/2010/06/legal-advisor-koh-and-ambassador-rapp.html.
34. ICC Resolution RC/Res.6, supra note 2.
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case, including the gravity of the acts concerned and their
consequences.” 35 While some of the larger safeguards, like mandatory
Security Council referral, continued to find little support amongst a
majority of states parties, the measures adopted were a first step in
emphasizing the unique and novel nature of the crime nonetheless,
encouraging states parties to consider further means of codifying limits to
the working definition during the seven-year period before the
amendments’ first possible entry into force on January 1, 2017.
B. Where We Are: The Kampala Document and the Emerging Doctrine of HI
The United States’ concerns for the crime’s jurisdictional application
were not without merit: Annex I of the Resolution defines the crime in the
broadest of brushstrokes: it equates planning and preparation for a “crime
of aggression” with initiation or execution. 36 It distinguishes an “act of
aggression” from the “crime of aggression” by defining the crime as any
act which “by its character, gravity, and scale, constitutes a manifest
violation of the Charter of the United Nations.”37 Thus, only certain acts
of aggression will rise to the level of criminality. There is no further
instruction on how to balance the three components of character, gravity,
and scale, nor on how to assess a “manifest” violation. The proposed
definition does not tell the Court whether to assess the three elements of a
“manifest” violation (character, gravity and scale) in a manner that is
proportional to the resources used and to the comparable size of the
alleged perpetrator nation, or in an in toto manner that is proportional to
the size and scale of attacks by other nations, regardless of size
differentials.
Paragraph 2, which lists examples of “acts of aggression,” invites a
similar possibility of overreach and misuse of the crime.38 Lifted from the
1974 UN General Assembly Resolution 3314, the examples were written
with an eye toward identifying acts of aggression to be addressed by the
Security Council, not for identification by an outside body for prosecution
of individual criminal liability. 39 Moreover, Resolution 3314 was pushed
through the assembly in large part by the Soviet Union, a country whose
successor has arguably engaged in present day acts or crimes of
aggression. 40 The Soviet Union and satellite puppet governments at the
35. Id. at ¶ 6.
36. ICC Resolution RC/Res.6, supra note 2, Annex I, Art. 8 bis, ¶ 1.
37. Id.
38. See ICC Resolution RC/Res.6, supra note 2, Annex I, Art. 8 bis, ¶ 2.
39. Harold Hongju Koh, Statement at the Review Conference of the International Criminal
Court (June 4, 2010), http://www.state.gov/s/l/releases/remarks/142665.htm.
40. See Will Dunham, Kerry Condemns Russia’s ‘Incredible Act of Aggression’ in Ukraine, REUTERS
(Mar. 2, 2014), http://mobile.reuters.com/article/idUSBREA210DG20140302?irpc=932.
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799
time wanted to solidify their influence and restrict threats posed by
nuclear-armed countries, for example, by limiting defensive action.41 The
3314 examples of acts of aggression were drafted at a specific point in
history and have not evolved with the passage of forty years of
developments in technology and warfare.42 Paragraph 2 may be the ‘least
worst option’ for clarifying examples of aggression, but the Court should
take caution when translating those acts into criminal prosecution.
Aggression is significantly different than other crimes within the
jurisdiction of the Court. Most notably, it is a crime at the state level,
committed against another state. This creates complicated questions of
accountability and means of reparation. The crime has a sparse history of
prosecution, with only a few cases successfully prosecuted by the Allies in
World War II at the Nuremberg Tribunal and the International Military
Tribunal for the Far East.43 Basic questions of jurisdictional interpretation
remain, such as when non-signatory states parties are bound by the
amendments if their nationals commit crimes on signatory territory, or if
signatory nationals commit crimes on non-signatory territories. 44 These
cast a further pall of uncertainty over the crime’s future application and its
impact on the Court’s trajectory as a law-making institution in the
international order.
The current definition’s potential reach is far too broad for prosecution
by an independent body that has little experience in prosecuting cases.45
The types of actions that could be considered crimes of aggression may
be stretched to a point of absurdity. For example, may Cambodia’s
accusations that small groups of Thai troops have crossed the disputed
border area near the Preah-Vihear temple and fired on Cambodian troops
41. SELLARS, supra note 9, at 265.
42. For example, the definition does not address cyber warfare.
43. SELLARS, supra note 9, at 170, 255, 257 (twelve people found guilty of crimes against peace at
Nuremberg, twenty-two at the Far East Tribunal before it stopped prosecuting the crime by judicial
notice). Some prosecutors at those tribunals later had conflicting feelings about their participation in
the prosecution of such a politically charged crime. See Letter from Robert Jackson to Harry S.
Truman (12 Oct. 1945), in ROBERT E. CONOT, JUSTICE AT NUREMBERG (1983) (“[T]he Allies ‘have
done or are doing some of the very things we are prosecuting Germans for. The French are so
violating the Geneva Convention in the treatment of prisoners of war that our command is taking
back prisoners sent to them [for reconstruction work]. We are prosecuting plunder and our Allies are
practicing it. We say aggressive war is a crime and one of our allies asserts sovereignty over the Baltic
States based on no title except conquest.’”); see also “Behind the Scenes at Nuremberg,” Daily Telegraph
19 (London), Jan. 27, 1977 (“The British government eventually had to admit that Britain and France
were themselves guilty of the same ‘crime [against the peace]’ in preparing a military invasion of
Norway, code-named ‘Stratford,’ before the German move. And in August 1941, Britain and the
Soviet Union jointly invaded and occupied Iran, a neutral nation”).
44. See, e.g.,Van Schaack, supra note 7, at 156.
45. The ICC has had 2 convictions since it opened in 2002, and it has used a budget of over $1
billion. See David Davenport, International Criminal Court: 12 year, $1 billion, 2 convictions, FORBES (Mar.
12, 2014), http://www.forbes.com/sites/daviddavenport/2014/03/12/international-criminal-court12-years-1-billion-2-convictions-2.
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dozens of times since 2008 be considered a crime of aggression?46 Even
one soldier crossing a border one time fits the definition of an act of
aggression under Paragraph 2(a), 47 and one soldier (or one battalion of
soldiers) crossing a border repeatedly and continuously may be interpreted
by some as a manifest violation of the UN Charter. What about a limited
strike inside a nation that has not publicly given its consent for the
targeting state to act on its territory, where the strike is aimed at a member
of a terrorist group with whom the targeting nation is at war and has
obtained international and national legal authority?48
On its face, one could argue that the elements of the act of aggression
are satisfied under Paragraph 2(b) by the use of a single troop contingent
to target a single enemy combatant.49 One could also argue that the direct,
stealth nature of an unmanned aerial attack, unjustified in the eyes of the
international community because of its use without the consent of the
targeted nation, and repeated multiple times (or perhaps even if used only
once) would rise to the level of an act of aggression that by its character,
gravity, and scale constitutes a manifest violation of the UN Charter. 50
Would states want all of these actions to be subject to prosecution by an
independent prosecutor with enormous discretion to decide what
constitutes the crime of aggression? In the wake of aggression
prosecutions for blatant annexation of multiple states with millions of
citizens,51 these actions are on an entirely different scale. In the example of
one limited offensive attack, the International Court of Justice (ICJ) and
other international arbitration mechanisms have attempted to reach a
resolution;52 in the example of aerial strikes, technological advances within
the next decade will make this type of tactic more widely used. Nations
might want to consider collectively beneficial rules of engagement.
46. See Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the
Temple of Preah Vihear (Cambodia v. Thailand) ¶¶ 1, 48, Judgment, Nov. 11, 2013, http://www.icjcij.org/docket/files/151/17704.pdf; Cambodia rejects Tha PM’s statement on Preah Vihear temple,
XINHUANEWS (Feb. 14, 2011) (statement by Cambodia press office that Thailand had waged a ‘war
of aggression’ against Cambodia).
47. ICC Resolution RC/Res.6, supra note 2, Annex I, Art. 8 bis, ¶ 2(a).
48. Greg Miller and Bob Woodward, Secret Memos Reveal Explicit Nature of U.S., Pakistan Agreement
on Drones, WASHINGTON POST (Oct. 23, 2013), http://www.washingtonpost.com/world/nationalsecurity/top-pakistani-leaders-secretly-backed-cia-drone-campaign-secret-documents-show/2013/10
/23/15e6b0d8-3beb-11e3-b6a9-da62c264f40e_story.html.
49. See ICC Resolution RC/Res.6, supra note 2, Annex I, Art. 8 bis, ¶ 2(b).
50. One might imagine the character of the attack, it being a newly developed technological
means of warfare that presents a host of unknown risks and potential collateral effects, would be a
strong factor weighing in favor of labeling this a crime of aggression.
51. Historical Review of Developments Relating to Aggression, supra note 17, at 70-80.
52. For background on the conflict and the ICJ’s recent ruling in favor of Cambodia, see Request
for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah
Vihear (Cambodia v. Thailand), supra note 46.
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Individual criminal prosecution would thwart both of these potentially
peaceful avenues for resolution and evolution of international law.
The bigger issues are whether actions that are used to further the goals
of the UN Charter but do not fit the current definitions of legal uses of
force may be prosecuted as crimes of aggression, and how that affects the
international community long-term. Humanitarian interventions (HIs)
authorized by Chapter VII Resolutions will not fall under the definition of
aggression, 53 but what about unauthorized collective or unilateral
interventions? The most widely cited example is the humanitarian
intervention conducted by multilateral forces in Kosovo, that an
independent international commission report deemed to be “illegal but
legitimate.”54 Since the middle of the twentieth century, an emerging body
of literature has developed in support of the responsibility to protect and
the uses of force of limited and targeted duration in order to put an end
to crimes against humanity and acts of genocide. 55 The failure of the
international community to intervene in Rwanda is constantly cited to
encourage proactive measures in HI policy, with or without explicit
Chapter VII authorization.56 Other military operations now falling under
the umbrella of HI are diverse and show a widespread use of HI.
Examples include the Economic Community of West African States’
(ECOWAS) intervention in Liberia in 1990, the intervention in Haiti in
1994, and the Australian-led intervention in East Timor in 1999.57
53. Chapter VII’s authorized interventions would not constitute a manifest violation of the
Charter of the United Nations, required as an element of the crime under Article8 bis (1). Examples
of Chapter VII authorized interventions include the mission to Haiti under Resolution 940
(S/RES/940), or the establishment of UNAMIR to monitor security and humanitarian assistance in
the aftermath of the Rwandan civil war (S/RES/872).
54 . INDEPENDENT INTERNATIONAL COMMISSION ON KOSOVO, THE KOSOVO REPORT 4
(2000) ("The Commission concludes that the NATO military intervention was illegal but legitimate").
55 . See SEAN MURPHY, HUMANITARIAN INTERVENTION: THE UNITED NATIONS IN AN
EVOLVING WORLD ORDER 366 (1996); Ryan Goodman, Humanitarian Intervention and Pretexts for War,
100 AM. J. INT'L L. 107, 107-112 (2006); Jane Stromseth, Rethinking Humanitarian Intervention: The Case
for Incremental Change, in HUMANITARIAN INTERVENTION: ETHICAL, LEGAL AND POLITICAL
DIMENSIONS 232-33 (J.L. Holzgrefe and Robert O. Keohane, Eds. 2003). For a good history of uses
of force under the umbrella of humanitarian intervention before the term was coined, see Thomas
M. Franck and Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force,
67 AM. J. INT’L L. 275, 277-89 (1973).
56. See Evan Harris, Clinton Cites Rwanda, Bosnia in Rationale for Libya Intervention, ABC NEWS (Mar.
27,
2011),
http://abcnews.go.com/blogs/politics/2011/03/clinton-cites-rwanda-bosnia
-in-rationale-for-libya-intervention (Secretary of State Hillary Clinton emphasizing the need to
intervene in Libya came in part from the failure to intervene in Rwanda). For scholarly treatment of
Rwanda, see HUMANITARIAN INTERVENTION: ETHICAL, LEGAL AND POLITICAL DILEMMAS (J.L.
Holzgrefe and Robert O. Keohane, eds., 2003); ALAN J. KUPERMAN, THE LIMITS OF
HUMANITARIAN INTERVENTION: GENOCIDE IN RWANDA (2001).
57. JAMES PATTISON, HUMANITARIAN INTERVENTION AND THE RESPONSIBILITY TO
PROTECT: WHO SHOULD INTERVENE? 1-2 (2010) (also citing as examples the French, British and
U.S. invasion of Iraq in 1991 to set up humanitarian corridors, the U.S.-led intervention in Somalia in
1992, the NATO bombing of Bosnia-Serbia areas in 1995, ECOWAS’s intervention in Sierra Leone
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Although the doctrine of HI remains controversial and its contours
have yet to be defined with any precision, 58 leading members of the
international community acknowledge it as a valid means of resolving
humanitarian disasters. As recently as 2014, a diverse group of
governments supported the right to a legitimate use of force to protect
civilians subjected to grave human rights abuses under the Assad regime.
Examples include the United Kingdom, the United States, France,
Denmark, and Turkey.59 Yet these uses of force could be considered acts
or crimes of aggression under the current working definition.
Over the past few decades, human rights advocates have raised growing
concerns about the need to further develop and consider HI. 60 The
potential for prosecution, or even investigation, of an alleged crime could
create a “chilling effect” and dissuade nations from joining multilateral
operations similar to the operations in Kosovo and those envisioned in
Syria. 61 This is a concern for any country that wants to preserve an HI
option as a legal possibility in its military operations. Signatories to the
Rome Statute, even if not signatories to the amendments, might not risk
the potential for prosecution or investigation with the ambiguous
jurisdictional reach of the new amendments and may foreclose HI as a
legal policy option. In that case, it becomes much more difficult for
nations still in favor of HI to contemplate a unilateral operation; indeed,
such an operation has never been attempted. Even the fear of
in 1997, and the French and UN led intervention in the Cote d’Ivoire in 2003). See also CHRISTINE
GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 99 (2004).
58. For current debates, see “The Responsibility to Protect,” U.N. OFFICE OF THE SPECIAL
ADVISER ON THE PREVENTION OF GENOCIDE, http://www.un.org/en/preventgenocide/adviser
/responsibility.shtml (last accessed Aug. 1, 2015); Gareth Evans and Ramesh Thakur, Correspondence:
Humanitarian Intervention and the Responsibility to Protect (R2P), 37 INT’L SECURITY 199 (2013); Ramesh
Thakur, R2P After Libya and Syria: Engaging Emerging Powers, 36 WASH. QUARTERLY 61 (2013). For a
historical look at the former U.S. Ambassador for War Crimes’ perspective, see David J. Scheffer,
Toward a Modern Doctrine of Humanitarian Intervention, 23 U. TOL. L. REV. 253 (1991).
59. Syria Crisis: Where Key Countries Stand, BBC NEWS (Feb. 18, 2014),
http://www.bbc.com/news/world-middle-east-23849587. See also Barack Obama, President of the
United States, Statement by the President on Syria (Aug. 31, 2013), http://www.whitehouse.gov/thepress-office/2013/08/31/statement-president-syria; Henry Chu, British Parliament Rejects Use of Force
in Syria, L.A. TIMES (Aug. 29, 2013), http://www.latimes.com/world/worldnow/la-fg-wn-britainsyria-parliament-20130829-story.html (stating that the proposal for use of force Prime Minister
Cameron sent to Parliament was “watered down” from a previous version); Letter from The Rt Hon
Hugh Robertson MP to Rt Hon Sir Richard Ottaway MP (Jan. 14, 2014), http://justsecurity.org/wp
-content/uploads/2014/01/Letter-from-UK-Foreign-Commonwealth-Office-to-the-House-of
-Commons-Foreign-Affairs-Committee-on-Humanitarian-Intervention-and-the-Responsibility
-to-Protect.pdf (outlining the UK government’s position on the legality of the use of force without
UN authorization); Peter Stanners, Søvndal: “Syrian needs to deliver on its promise,” THE COPENHAGEN
POST
(Sept.
11,
2013),
http://cphpost.dk/news/soevndal-syria-needs-to-deliver-on-itspromise.6814.html.
60. See also supra note 55.
61 . On the chilling effect and its potential to actually encourage greater UN Authorized
interventions, see MCDOUGALL, supra note 19, at 59-60.
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investigation at the ICC may have the effect of foreclosing HIs before
governments and practitioners have a chance to debate and theorize the
doctrine in full. While two-thirds of the world’s military remains outside
the jurisdiction of the ICC62 because many nations with larger armies have
not signed the Rome Statute, broad fears of the new amendments’ reach
and fears of a stigma attached to association with nations under
investigation for aggression may wreak havoc on the current state of all
nations’ military and security policies, limiting all acts of force regardless
of their legal status and leaving the world without defense operations to
combat nations that do not follow the international world order and
respect territorial integrity, international human rights, or other
international covenants. Smaller nations whose foreign policies are largely
coterminous with larger neighbors will also be overly cautious. 63
Militarized nations such as the United States or China may be deterred
from consideration of signing at a later date, which is an option currently
available and used as a means of projecting support and alliance with the
Court, even if a nation has not officially joined.64 It is therefore imperative
to narrow the current definition of the crime of aggression in order to: 1)
ensure that the crime is used to prosecute only the worst and clearest
forms of aggression, a desire shared by many members of the Court,65 2)
ensure that legitimate uses of force designed to further the goals of the
UN Charter are not stymied, and 3) extinguish perverse incentives that do
not allow nations to prevent the very crimes that would be prosecutable
under the Rome Statute.
A more formal clarification of the crime’s boundaries is necessary
because the current draft and court procedure do not protect nations’ right
to limited use of force in the form of HI. First, although many competing
62. BOSCO, supra note 16, at 15.
63. International Non-Aggression and Lawful Use of Force Bill 2009 62-1 (N.Z.), available at
http://www.legislation.govt.nz/bill/member/2009/0062/latest/whole.html#DLM2252903 (“Small
states often use armed force as part of a larger coalition; in such situations their freedom to make
independent, objective judgment on the legality of a proposed action is constrained.”).
64. In particular, China, Russia, and the Arab nation states (who have recently expressed
consideration in joining the ICC). See Denis Fitzgerald, The ICC Gains Ground in the Arab World,
WORLD POLICY BLOG (July 7, 2011, 2:09 PM), http://www.worldpolicy.org/blog/2011/07/07/iccgains-ground-arab-world; David Kaye, Some Thoughts on Russia and the International Criminal Court,
COUNCIL AND Court (2012), http://councilandcourt.org/files/2012/11/Russia-and-ICC.pdf
(suggesting that Russia shares an underlying commitment to accountability through the Court); Joel
Wuthnow, China and the ICC, THE DIPLOMAT (Dec. 7, 2012),
http://thediplomat.com/2012/12/china-and-the-icc (“[T]he PRC claims to hold an ‘open attitude’
about the Court.”). For their comments in relation to the drafting of the aggression amendments, see
TRAVAUX PREPARATOIRES OF THE CRIME OF AGGRESSION, supra note 31, at 814-17.
65. For example, Germany has stated that it wants the definition to cover “only the obvious and
indisputable cases.” See TRAVAUX PREPARATOIRES OF THE CRIME OF AGGRESSION, supra note 31, at
234-35.
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theories of interpretation are circulating in academic literature,66 the Court
has the final interpretive say under Article 119(1). 67 The Court’s
determination on most questions would come from just one person—the
Prosecutor herself—or from judges in the Pre-Trial Chamber evaluating
opened investigations. The Prosecutor’s high levels of independence and
discretion to select which cases to investigate, untethered to any other
international organization’s oversight are troublesome. In many ways, the
interpretation of the crime of aggression in the pantheon of international
law will come from choices made by one person. Since the Court’s
inception, countless reports have expressed fear that discretion may lead to
“arbitrary, discriminatory, politically motivated or politically insensitive
decision-making.” 68 Others have proposed mechanisms of internal
oversight modeled on the UN and external oversight.69 Instead of relying
on proposals for greater prosecutorial oversight that have lain dormant for
years, the crime of aggression should be narrowly tailored by any means
possible before it enters into force.
Second, it is preferable to clarify the definition of the crime earlier,
before using individual test cases as subjects. Earlier clarification would
allow a greater number of voices to be included in the debate and would
imbue final interpretations with greater legitimacy. While the
Understandings of Annex III currently do much to narrow the definition
of aggression, there is doubt as to whether these are authoritative or
legally binding on the Court.70 Third, the current text makes no reference
to emerging exceptions to the Article 2(4) prohibition on the use of force
without Security Council authorization. Given the UN’s continued
requirement for Security Council authorization of military engagement, it
is unlikely that unauthorized HI is currently exempted from the possible
realm of investigations. But any proposed change would not come at a
cost to the UN or the ICC’s mandates—states must reiterate that the
proposed change would not detract from the Court’s powers to prosecute
clear violations of the crime, such as Iraq’s invasion of Kuwait in 1990 or
66. See supra note 7.
67. Rome Statute, supra note 1, art. 119(1) (“Any dispute concerning the judicial functions of the
Court shall be settled by the decision of the Court.”).
68. Dapo Akande, Is There Still a Need for Guidelines for the Exercise of ICC Prosecutorial Discretion?,
EJIL: TALK! (Oct. 28, 2009), http://www.ejiltalk.org/is-there-still-a-need-for-guidelines-for-the
-exercise-of-icc-prosecutorial-discretion; See also Alexander K.A. Greenawalt, Justice Without Politics?
Prosecutorial Discretion and the International Criminal Court, 39 INT’L L. AND POLITICS 583, 585-86 (2007)
(asserting that the Prosecutor’s “decisions will fundamentally define the Court’s role and purpose”).
69. Agata Porter, An Independent Oversight Mechanism for the International Criminal Court, THE
AMERICAN NON-GOVERNMENTAL ORGANIZATION COALITION FOR THE INTERNATIONAL
CRIMINAL COURT, (Feb. 6, 2008), available at http://www.amicc.org/docs/Oversight.pdf.
70. See Kevin Jon Heller, The Uncertain Legal Status of the Aggression Understandings, 10 J. INT’L CRIM.
JUSTICE 229 (2012) (arguing that the Understandings should be understood as preferred interpretive
readings of the amendments).
2015] HUMANITARIAN INTERVENTION AND CRIME OF AGGRESSION
805
possibly Turkey’s invasion of Cyprus in 1974. 71 A clarification of the
amendments’ scope will bolster the Court’s legitimacy and provide a much
stronger foundation for success of the Court’s future legacy and
reputation in the international legal order.
At the committee sessions of Resolution 3314, the New Zealand
delegate summed up the proceedings by describing the definition as “a
very small mouse to emerge from beneath such a mountain of work.”72
The rushed nature of the Kampala conference,73 along with the preferred
policy of consensus, would have also met the New Zealand delegate’s
critique. Without a doubt, any subsequent changes to the 2010 definition
will take more “mountains of work” to convince states parties to adopt
new language after consensus was once narrowly achieved.74 However, as
the Kampala conference showed, both states parties and non-states parties
can have a major influence on the final document if they engage
respectfully and offer creative, smart solutions on the path to compromise.
Most of the United States’ recommendations at Kampala, which ultimately
resulted in a substantial departure from the originally-conceived definition,
came in a document circulated with less than one day remaining in the
conference. 75 For that reason, larger proposals, including a proposed
inclusion of an HI exception to the crime,76 did not have adequate time
for debate given their contentious nature and hearty content, and were
tabled rather than rejected. 77 It is with this background in mind that all
nations concerned with the autonomy of their military decisions should
prepare for the mandatory review of the Kampala document with
sufficient time and care to achieve desired outcomes in 2017.
C. Where We Want to Go: Preparing for 2017
Knowing that change is possible, nations must ask themselves if there
are worthwhile objectives to seek prior to 2017. The answer is, simply, yes.
There are plenty of outstanding questions in addition to the issue of
71. On Kuwait, see S.C. Res. 660, supra note 20. On Cyprus, see S.C. Res. 353, paras. 3–4, U.N.
Doc. S/RES/353 (July 20, 1974) (demanding an end to foreign intervention in Cyprus and the
withdrawal of foreign troops).
72. SELLARS, supra note 9, at 287 (citing NZ UN Mission (New York) to External Affairs
(Wellington) (Oct. 9, 1974) (ABHS 950 W5422 Box 169 111/29/1 Part 1, NANZ)).
73. The conference lasted a total of 11 days.
74. William A. Schabas, Success!!!, THE ICC REVIEW CONFERENCE: KAMPALA 2010,
http://iccreviewconference.blogspot.com (last accessed Aug. 1, 2015) (“‘Do I take it there is
consensus on the adoption of this text.’ We all held our breaths. Japan asked to take the floor . . . ‘It
is with a heavy heart . . . ’ he began, and we all thought that we were headed for a train wreck”).
75. William A. Schabas, Kampala Diary 10/6/10, THE ICC REVIEW CONFERENCE: KAMPALA
2010, http://iccreviewconference.blogspot.com (last accessed Aug. 1, 2015).
76. Jennifer Trahan, The Rome Statute’s Amendment on the Crime of Aggression: Negotiations at the
Kampala Review Conference, 11 INT’L CRIM. L. REV. 49, 78 [- this should be page 78] (2011).
77. Schabas, supra note 74, see 9/6/10 and 7/6/10 entries.
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limiting the scope of the definition of the crime of aggression.78 Leading
public international law experts, many of whom attended the conference,
have parsed out what was left unwritten—entry into force procedure,
necessity of acceptance of the amendments by a majority or piecemeal
voting (the debate over entry into force by means of Article 121(4) or
121(5)), Article 15’s “opt out” procedure effects, the Court’s view on
complementarity, the possibility of further amendments, and the
applicability of the crime to acts committed after 2017 but before
ratification by non-immediate ratifying states parties. 79 These debates
heated up in 2010 at the conclusion of the conference, but have fizzled
five years later, with many of the outstanding issues left unanswered. With
so much up for debate, it is in the interest of all willing nations to gather at
least once more to discuss the outstanding concerns left unaddressed in
Kampala.
What type of meeting should be held, and when? The text of Article 15
merely states that “a decision” must be taken after the requisite thirty
states parties ratify the Kampala amendments no earlier than 2017.80 From
accounts of the 2010 conference and the fatigue that followed,81 nations
may not want to convene another large conference to re-hash old debates,
nor does it seem that the agreement requires them to do so. 82 In fact,
Article 15 only contemplates states parties deciding on the entry into
jurisdiction, leaving out a majority of the world’s military power, notably
the U.S., China, Saudi Arabia and Russia.83
However, as evidenced by the above discussion of the shortcomings of
2010 Review Conference, there is a great need for another review session.
As the U.S. delegation stated in its closing remarks, questions “regarding
organic amendments to the Rome Statute should take place in periodic,
constitutional gatherings . . . where the precedents set by [Kampala]
strongly indicate that the rule of decision is consensus,”84 lest competing
78. See MCDOUGALL, supra note 19, at 49-50 (as Canadian Advisory to the SWCGA Joanna
Harrington stated, “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”).
79. See, e.g., sources cited supra note 7.
80. ICC Resolution RC/Res.6, supra note 2, Annex I, Art. 15 bis, ¶ 3.
81. Interview with Harold Hongju Koh, former Legal Advisor, U.S. Dept. of State; Mary
Warlow, Director, Offices of International Affairs Criminal Division, U.S. Dept. of Justice; and
Brittan Heller, Attorney, U.S. Dept. of Justice (Apr. 8, 2014) (Participants at ICC Kampala Review
Conference on the U.S. Delegation, D.C.).
82. Astrid Reisinger Coracini, The International Criminal Court’s Exercise of Jurisdiction Over the Crime
of Aggression-at Last . . . in Reach . . . Over Some, 2 GOETTINGEN J. INT’L L. 745, 770 (2010), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1678420.
83. See Defense Budget by Country, GLOBAL FIRE POWER (Apr. 24, 2014),
http://www.globalfirepower.com/defense-spending-budget.asp. These four countries are the nations
with the highest total defense spending budgets.
84. Harold Hongju Koh, Closing Intervention at the Review Conference of the International Criminal Court,
U.S. DEPARTMENT OF STATE DIPLOMACY IN ACTION (June 11, 2010),
2015] HUMANITARIAN INTERVENTION AND CRIME OF AGGRESSION
807
readings of the aggression amendment’s text lead to international
dissension and crisis. It would be difficult to arrange for the ASP to
condone this type of non-mandated review conference open to observers,
and then to attract delegates interested in re-opening the 2010 debates on
the most contentious points. The work to convince states of the benefits
of this type of conference would have to start well before any substantive
textual discussions.
The conference should be held at the earliest possible date in 2017 to
prepare countries for another session of negotiations and prevent a
possible vote in the ASP without non-states parties’ contributions.
Convening a conference sooner rather than later will capitalize on the
positive momentum of the thirty ratifications, and will allow the Court to
exercise its jurisdiction shortly thereafter, in line with the will of the
delegations that gathered in 2010. It should be held on the territory of a
states party that wants to support the Rome Statute but also envisions it
might use HI, such as Australia. The conference may discuss substantive
changes to the Kampala Document, but would more likely engage
international lawyers on creative solutions limiting the definition of the
crime. Memory is short; seven years after the original conference, delegates
may not remember all of the detailed debates and methods of
interpretation proposed at Kampala. The decision taken in 2017 thus
should not be a simple vote, but rather a reinvigorated discussion of what
is to become the only prosecutable jus ad bellum crime.
http://www.state.gov/s/l/releases/remarks/143218.htm.
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II. THE MOST PREFERRED OPTION —
OPTION 1: AN OPT-OUT DECLARATION
There are multiple options that nations may choose from when deciding
how to limit the definition of “aggression.” These options can be mapped
onto a matrix measuring the two variables traditionally important to
countries’ legal and foreign policy thinkers: achievability and acceptability.
Certain policy options, like ratification with no alterations, rank so low on
the acceptability axis that they cannot be valid options for countries that
are serious about supporting the Rome Statute, but also seek to reserve the
right to use HI. Other options, like a carve-out amendment to Kampala,
are too difficult to achieve to be seriously considered. 85 Countries may
choose to pursue or support those options in the middle in whatever
combination they deem most desirable. As the achievability rankings are to
a certain extent unknown, their estimates will carry a finite amount of
weight—the more important axis is acceptability, measured in terms of
how concretely and legally binding each limit is to the definition of
aggression. Therefore, the matrix is configured as a list of the most-toleast preferable options, with the most preferable options falling at the
higher end of the acceptability axis.
Options to Amend the Crime of Aggression
12"
Ratification with
no Alterations
Achievability
10"
6"
Opt out domestic
legislation
for complementarity
Article 12(3)
declarations
8"
Failure to reach 30
states to ratify
Article 16
affirmation by UNSC
Higher mens
rea requirement
4"
Affirmative
defense
Carve out language
in Understandings
Prosecutorial
guidelines
OR
Higher evidentiary
standards
Opt out declaration
under Article15bis4
2"
Carve out amendment
to Kampala
0"
0"
1"
2"
3"
4"
5"
6"
7"
8"
9"
10"
Acceptability
From both an achievability and acceptability perspective, the opt-out
declaration is the best of all ten procedural strategy options. Article
85. See infra Part III for a more detailed explanation.
2015] HUMANITARIAN INTERVENTION AND CRIME OF AGGRESSION
809
15bis(4) provides that the Court may exercise jurisdiction unless a state
party “has previously declared that it does not accept such jurisdiction by
lodging a declaration with the Registrar.”86 Many questions abound as to
the intent and interpretation of this clause. To what does the word
“previously” refer? May a states party opt out only partially, rather than
opting out of the entire jurisdiction? How does this phrase interact with
the requirement that States opt in to the crime under Article 15bis(3)?
All of these questions deserve lengthy explanations. Assuming that a
declaration may be lodged on the basis of a partial opt-out, perhaps
through a mechanism anticipated in the Kampala review document under
Article 15bis(4), States could opt out of the Court’s jurisdiction over the
crime on its territory for any acts that are determined to be HIs. This is the
preferred option of those presented. It sends a strong message of
approval for acts of HI, and it is much more achievable than requiring a
redrafting of text or adoption of another consensus vote, as it would be
enacted individually by each State. Although this option runs the risk of
having states adopt non-uniform opt-outs, there is a strong chance that the
development of a template and adoption of the same or similar language
by each State exempting HI actions from investigation by a majority of
ratifying states parties would expand the interpretation of the opt-outs to
include any action that appears to have HI motivations.
As with the other options that require a crystallization of what exactly is
exempted, defining the term “HI” would require a high level of
deliberation and debate. It may be left as-is, to be defined at a later date. In
the alternative, it may be defined as “proportionate, limited actions taken
to alleviate suffering due to a State’s commission of genocide, war crimes,
or crimes against humanity” (tracking the language of the ICC’s current
mandate), or it may expand on the ICC’s mandate to include actions taken
in response to grave breaches of the Geneva Conventions. This language,
preferably including responses to genocide, would be the clearest form of
an opt-out. Legitimate instigation of use of force could be interpreted in
line with ICC precedents for what actions constitute grave breaches of
international criminal law. 87 Alternatively, it may be defined as actions
taken to defend the people of a nation state from widespread and
internationally recognized deprivations to their rights to life, liberty, and
security of person (Article 3 of the UDHR,88 article 6 of the ICCPR).89
86. ICC Resolution RC/Res.6, supra note 2, Annex I, Art. 15bis, ¶ 4.
87. For the most recent example of the Court’s jurisprudence, see Prosecutor v. Germain Katanga,
Case No. ICC-01/04-01/07, Judgment (March 7, 2014), http://www.icccpi.int/en_menus/icc/situat
ions%20and%20cases/situations/situation%20icc%200104/related%20cases/icc%200104%200107/
Pages/democratic%20republic%20of%20the%20congo.aspx.
88. Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. Doc. A/RES/217(III)
(Dec. 10, 1948).
89 . International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (Dec. 16,
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These all instantiate the substantive purposes of an HI exception, but they
differ in the ways that they track the language of recognized international
treaties and conventions.
However one chooses to define HI for purposes of an Article15bis(4)
opt-out, the use of the opt-out provision will need to respond to weighty
counterarguments. There are three that Part II will address: A) whether a
partial opt-out masks a reservation, outlawed under Article 120; B)
whether an opt-out would perversely incentivize greater use of force in
ambiguous situations; and C) whether individual opt-outs would fracture
the consensus reached at Kampala.
A. Is an Article15bis(4) opt-out a reservation?
Article 120 of the Rome Statute reads, “No reservations may be
made to this Statute.”90
Although its brevity may at first glance indicate definitive rigidity, in
practice Article 120 has not excluded nations from making bold
interpretive declarations about other articles that leave room for additional
explanation.91 A reservation is defined in the Vienna Convention on the
Law of Treaties (VCLT) as “a unilateral statement [that] . . . .purports to
exclude or to modify the legal effect of certain provisions of the treaty in
their application to that State.”92 Article 19 of the VCLT clarifies that in
situations where the treaty is not specific about the types of acceptable
reservations, a reservation shall be unlawful when it “is incompatible with
the object and purpose of the treaty.” 93 This underlying premise—that
whether a reservation or an interpretive declaration, nations’ individual
statements must ultimately comport with the treaty’s purposes for their
ratification to be upheld—still controls treaty interpretation. 94 It is not
uncommon for human rights treaties to include a strict no-reservation
clause, for the purpose of upholding the treaty’s normative force and
moral authority.95 Even with a strict no-reservations clause, nations have
1966), 138
Cong.
Rec.
S4781-01,
999
U.N.T.S.171,
available
at
http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. See also Murphy, supra note 55, at
11-12.
90. Rome Statute, supra note 1, art. 120.
91. For information on how Article 120’s rigidity inspired more flexible language in other parts
of the statute to garner support of more states parties, see Dwight G. Newman, The Rome Statute,
Some Reservations Concerning Amnesties, and a Distributive Problem, 20 AM. U. INT’L L. REV. 293, 322-23
(2005), available at
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1136&context=aui-lr.
92. Vienna Convention on the Law of Treaties, art. 2, ¶ 1(d), May 23, 1969, 1155 U.N.T.S. 331,
available at http://www.refworld.org/docid/3ae6b3a10.html.
93. Id. at art. 19(c).
94 . OTTO TRIFFTERER, COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL
CRIMINAL COURT: OBSERVERS’ NOTES, ARTICLE BY ARTICLE 1738 (2d ed. 2008).
95. Id. at 1738.
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continued to enter declarations to treaties with the understanding that
declarations are at times a necessary and useful means of garnering
national support for ratification of an international instrument.96
At the ICC, seventy-three states parties made declarations at the time of
ratification, none of which were contested.97 The legal status of some of
these declarations was questionable, given the fact that the Rome Statute
bans any reservations that purport to change the substance or meaning of
the text. Certain states parties’ declarations went so far as to facially curtail
the Court’s jurisdiction over certain territories of the states parties,98 yet
they ultimately have not obstructed the workings of the Court and have
instead helped elicit 122 states parties’ commitment to pursuing
international justice. 99 States have a habit and practice of making
declarations at the ICC to satisfy national interests and legal obligations.
These declarations have in no way blunted the force of the Court.100
An opt-out under Article 15 would similarly not qualify as a reservation.
A partial opt-out for HIs is consistent with the object and purpose of the
treaty, making it an acceptable declaration under a plain reading of the
VCLT. Allowing a limited use of force to target actors committing crimes
that are entrenched in the ICC’s jurisdiction as crimes against humanity
also saves the crime of aggression from being overbroad or used in a way
that would violate the object and purpose of the Rome Statute to “put an
end to impunity for the perpetrators of [unimaginable atrocities that
deeply shock the conscience of humanity] and thus contribute to the
prevention of such crimes.” 101 An opt-out contributes to the moral
authority of the treaty, as it allows nations to take action when others are
in grave need, consistent with historical and modern day trends and basic
desires to stop the prolonged death and suffering of fellow humans. In
addition, the opt-out does not take the form of a reservation to safeguard
internal law, a type of reservation that has frequently been found to
subvert treaties’ objects and purposes by their “undetermined and
96. Id. at 1743. (citing declarations to the European Convention for the Prevention of Torture
and Inhuman or Degrading Treatment (1987), art. 21, and the Additional Protocol to the European
Convention on Extradition (1975), art. 6 para. 3).
97. Id. at 1747.
98 . Id. at 1767-75 (noting that Denmark declared that the entire statute did not apply to
Greenland or the Faroe Islands, and New Zealand declared that the statute did not apply to Tokelau
Island).
99. Id. at 1767-75 (stating that Egypt said it would abide by general principles and fundamental
rights, and Uruguay’s declaration stated it would only follow the statute to the extent it accorded with
the Constitutional Provisions of the Republic).
100. This can be inferred from the fact that the Declarations have not, to date, influenced the
Court in its decisions of who to prosecute or where to collect evidence, nor have there been any
reports that the policy of Declarations has dissuaded nation states from signing on to the Rome
Statute.
101. Rome Statute, supra note 1, pmbl.
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sweeping nature.” 102 Rather, an opt-out seeks to recognize an emerging
doctrine of international law, to the benefit of all nations. Absent
additional restrictions on Article 15, which allows declarations, a partial
opt-out would be no different from a full opt-out. Moreover, a full opt-out
would make much less sense under the current reading of the
amendments, which state that they enter into force against Parties
individually, as each Party ratifies.
A partial opt-out would track the bounds of the Court’s history in a
more direct manner by replicating the type of temporary exception that
states parties agreed to while drafting Article 124 during the 1998
negotiations. Article 124 has allowed nations that use force to join or
contemplate joining the Court where they previously would not have
considered such an idea: it allows for a temporary opt-out of the Court’s
jurisdiction over war crimes for a seven-year period. 103 The similarities
between Article 124 and a partial opt-out under Article 15 are stark.
Article 124 was first referred to as an “opt-out” by American
representative David Scheffer, in 1999.104 It was kept in the final version
of the Rome Statute in order to solicit support from nations, particularly
France, who wanted a temporary means of easing into the Court’s
jurisdiction given its novelty and uncertainty in tenure. 105 The original
proposal was submitted by the UK and supported by all five permanent
members of the UN Security Council, who advocated a stronger opt-out
for both war crimes and crimes against humanity (CAH) for a period of 10
years.106 Although prominent human rights groups denounced it as a free
pass, it has since been implemented with no problems and was reviewed at
Kampala with little fanfare.107 As the only article mandated for review at
the Kampala conference, it survived as part of the Statute to provide an
102. MARK E. VILLIGER, COMMENTARY ON THE 1969 VIENNA CONVENTION ON THE LAW OF
TREATIES 272 (2009); see also Aiste Akstiniene, Reservations to Human Rights Treaties: Problematic Aspects
Related to Gender, 20 JURISPRUDENCE 463 (2013) (detailing the unlawfulness of Pakistan’s reservations
to the ICCPR), available at https://www3.mruni.eu/ojs/jurisprudence/article/viewFil e/965/921;
OLIVER DORR AND KIRSTEN SCHMALENBACH, VIENNA CONVENTION ON THE LAW OF TREATIES:
A COMMENTARY 458 (2011) (detailing the unlawfulness of Iran’s reservation to the 1989 Convention
on the Rights of the Child).
103. Rome Statute, supra note 1, art. 124.
104. Shana Tabak, Article 124, War Crimes, and the Development of the Rome Statute, 40 GEO. J. INT’L
L. 1069, 1069 (2008).
105. Id. at 1083. (recognizing that Article 124 was included in the statute in a hurried manner, and
there is a possibility more nations would have signed on if this article had been added earlier in the
process). Id. at 1077.
106. TRIFFTERER, supra note 94, at 1768.
107. William A. Schabas, “Article 124: Much Ado About Nothing,” The ICC Review Conference:
Kampala 2010 (May 23, 2010), http://iccreviewconference.blogspot.com/2010/05/article-124-muchado-about-nothing.html. (Stating that only France and Colombia have invoked Article 124, and
France repealed its declaration “thereby accepting jurisdiction over war crimes even before the seven
year period had expired.”).
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extra push for nations considering joining.108 The history of Article 124
provides an example of the advantages of a partial opt-out for one crime
in the jurisdiction of the Court. Moreover, Article 124 is far more of an
extreme curtailment of the Court’s jurisdiction over one nation than a
partial opt-out would be. While Article 124’s inclusion was purely for
political reasons, a partial opt-out is in the interest of broader goals of
molding international humanitarian and military law and goes beyond the
mere desire to have more countries ratify the treaty. Like the successful
history of Article 124’s inclusion in the Rome Statute, support for
aggression may need to be open to compromise.
B. Does an opt-out encourage additional uses of force?
Although the question of whether an opt-out would be a reservation is
the most difficult of the counterarguments, there remain other, more
general concerns. Principal among them is the question of whether HI
increases overall military operations and cross-border conflicts. As far back
as the 17th century, Grotius mused on the use of HIs as a means for
countries with ulterior motives to flex their muscles and keep neighboring
rivals in check.109 The question continues to be a source of heavy debate in
international legal fora.110 The question for purposes of the ICC is much
narrower: simply, does the international legal community want to bar the
use of HI before the contours of HI have been defined? The answer
should be no. An opt-out is not a license to abuse the legitimate doctrine
of HI; it only removes a restriction that would effectively quash any future
HI operations.
Nations that remain unsure of HI’s status in international law have the
right to question certain uses of force. Yet so long as they believe that in
particular, narrow contexts HI may be a legitimate means of defending
people’s rights against the worst abuses that may be committed by
individuals (crimes against humanity, war crimes, and genocide), they
should support an opt-out to allow the doctrine of HI to continue to
evolve into an established principle. The alternative, leaving HI open to
prosecution and investigation at the ICC, would hang Damocles’ sword
over the heads of any national leaders who have legitimate reasons to
consider an HI operation of the sort that has been successful in the past.
The counterargument that an opt-out promotes the wrong incentives is a
red herring in that it starts from an assumption that any use of force is
108. Id.
109. 2 HUGO GROTIUS, DE JURE BELLI AC PACIS LIBRI TRES, CH. XXV, PT. VIII (4) (1625), cited
in Ryan Goodman, supra note 55, at 107.
110. Goodman, supra note 55, at 108-109; Richard B. Bilder, Kosovo and the "New Interventionism"
Promise or Peril? 9 J. TRANSNAT’L L. & POL’Y J.153, 160-1 (1999).
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unreasonable, whereas it has already been shown that there are emerging
exceptions to the Article 2(4) prohibition on the use of force.
C. Do individual opt-outs fracture the Kampala consensus?
Like the second counterargument, the question of whether opt-outs
fracture the consensus reached at Kampala is an issue that applies to nearly
all available options. It, too, is an overly broad question because it implies a
type of complete consensus. However, the need for a review conference is
a salient reminder that Kampala’s success still left many outstanding gaps.
In its simplest form, an opt-out not declared by all ratifying parties creates
pockets of territories where jurisdiction for the crime of aggression exists
and includes possible HI operations. Yet if nations rally their allies and
partners to consider an opt-out regime, this may signal to the Court that a
core constituency of states parties and nations that use force favor a
narrow interpretation of the crime of aggression. This will push the Court
to investigate other, less contentious allegations of aggression and will
create a norm that passes over HI and alleviates many nations’ legitimate
fears of how the crime of aggression will be pursued. The first step in the
process is to raise awareness of the opportunities to limit the crime, then
to encourage deliberation and discussion, and finally to start a “domino
effect” of opt-out declarations. Nothing in that plan disparages the
enormous achievements of Kampala, where states agreed on trigger
mechanisms for the prosecution of aggression, its basic definition,
jurisdictional restraints, and where deliberations overall gave a “muchneeded shot of legal adrenaline” to the ICC.111 The underlying purpose of
encouraging an opt-out is to promote the broadest ratification of the
crime while safeguarding legitimate uses of force that are emerging as legal
possibilities under international law, ensuring nations that the Court will
prosecute only those cases that are obvious, manifest examples of
aggression that deserve rebuke. States should also commit to reviewing the
declaration within three years, per Article 15bis(4),112 and again at the 2024
Review Conference, per Preambulatory Clause 4, 113 to stress the limited
nature of the opt-out114 and its primarily transitional nature to ease states
111. Schabas, An Assessment of Kampala: the Final Blog, supra note 74. See also Dapo Akande, What
Exactly was Agreed in Kampala on the Crime of Aggression?, EJIL: TALK! (21 June 2010),
http://www.ejiltalk.org/what-exactly-was-agreed-in-kampala-on-the-crime-of-aggression; Koh and
Rapp, supra note 33 (noting that the conference also “endorsed . . . the court’s core work with respect
to the traditional crimes . . . highlighted issues of state cooperation, peace and justice, stocktaking,
and participation of victims, . . . [and] adopted two new crimes, prohibition and non-international
armed conflict of certain weapons, . . . and a crime of aggression”).
112. ICC Resolution RC/Res.6, supra note 2, Art. 15 bis, ¶ 4.
113. ICC Resolution RC/Res.6, supra note 2, pmbl.
114. Id.; Resolution RC/Res.6 supra note 2, Art. 15 bis, ¶ 4.
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into the Court’s jurisdiction. This shows that the opt-out’s intentions are in
line with creating a cohesive community of nations in support of the ICC.
III. NINE OTHER PROCEDURAL OPTIONS
Beyond the opt-out declaration under Article 15, there remain at least
nine other procedural options for states to consider. Some encompass
textual changes to the current Kampala Document, others entail
procedure-based changes to operational documents of the ICC, like the
Rules of Procedure and Evidence (RPE) or the Prosecutorial Guidelines.
For reasons explained in Part II, an opt-out would be the most acceptable
option that also has a strong chance of achievement. However, all possible
changes deserve adequate consideration, as they may be combined or
tweaked with the hope of creating a compromise that satisfies the
maximum number of nations. This section will lay out nine procedural
options—ranging from those that are most effective at limiting the scope
of the amendments’ definition to those that are least effective—and will
assess each option’s political feasibility.
A. Off the Spectrum: Endpoints
It is worth briefly mentioning the two endpoints alluded to in Part II
that are so far off the scale as to be unacceptable: a carve-out amendment
to the Kampala Outcome document and a ratification of the current
document with no alterations. While a textual amendment to Kampala is
the most acceptable option with which to firmly implant an HI exception
into the ICC’s rules, it is also the least achievable. With a carve-out
amendment, the text would become part of the Rome Statute 115 and
would operate as the highest form of law governing the court.116 However,
this option would need to overcome a multitude of hurdles: from
overriding the broad understanding at Kampala that no further textual
changes would be made, to organizing a new conference and formal
system of ratification, to gaining a consensus on the wording of the
amendment.117
115. The Kampala outcome document, once approved in a “decision” taken post-2017, will have
each of its sections added in to the previously existing text of the Rome Statute as indicated by the
sections headers (Article 8, Article 15). ICC Resolution RC/Res.6, supra note 2, Art. 15 bis, ¶ 3.
116. Rules of Procedure and Evidence, International Criminal Court, Explanatory Note, 2013,
available at http://www.icccpi.int/en_menus/icc/legal%20texts%20and%20tools/official%20journ
al/Documents/RulesProcedureEvidenceEng.pdf (last accessed Aug. 1, 2015) (“The Rules of
Procedure and Evidence are an instrument for the application of the Rome Statute of the
International Criminal Court, to which they are subordinate in all cases.”).
117. See Koh, Closing Intervention, supra note 84 (detailing how changes to the organic Statute itself
need to take place at constitutional gatherings where decisions are reached by consensus).
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Similarly, ratification with no alterations is too unacceptable to be a
policy consideration. Without limits to the definition, the ICC risks a
situation wherein only countries who will never use force will ratify,
effectively sounding a death knell for the potential influence of the crime
of aggression’s implementation. This option is highly achievable if nothing
is done in the interim.118 For all of the reasons elaborated on in Part I, the
current definition of aggression in the Kampala documents should not be
the basis on which to investigate and prosecute international actors. It is
imperative to consider further options.
B. Option 2: Limiting language in the Understandings
An option that looks like the carve-out would be to draft text identical
to the Article 15(4) opt-out identifying an HI exception and to insert it as
an eighth Understanding in the Kampala document. 119 This option is a
double-edged sword: Although ostensibly a consensus agreement at any
future review conference would be necessary for the Understandings’ text,
its ambiguous legal footing may make consensus easier to reach. Yet the
ambiguous nature of the Understandings’ legal force is precisely what
makes it a less acceptable option for states concerned with the Court’s
reach.120 The Understandings have been interpreted by one international
law scholar as a “supplementary means of interpretat[ion],” similar to a
travaux preparatoires.121 Understandings 6 and 7, proposed in the final days
of the Kampala conference by the United States, already anticipate that
the Court will weigh an act’s “circumstances” when considering
investigation. The term “circumstances” was understood by delegates at
the conference to reference acts with humanitarian aims and purposes,122
and one might argue that this language goes far enough for purposes of
the Understandings to make room for HI’s mitigating effect on alleged acts
of aggression. Viewed as a middle ground in the realm of policy options,
inserting additional Understandings is a preferred possibility.
118. The lead organizer at Kampala, Lichtenstein’s Permanent Representative to the United
Nations Christian Wenaweser, is putting pressure on more state to sign as soon as possible. See THE
GLOBAL CAMPAIGN, supra note 5 (Under the heading of “Why and when to ratify the amendments”:
“The answer in short: as soon as possible”).
119. See ICC Resolution RC/Res.6, supra note 2, Annex III, Understandings regarding the amendments
to the Rome Statute of the International Criminal Court on the crime of aggression, Other Understandings.
120. Clauss Kress, Stefan Barriga, Leena Grover & Leonie von Holtzendorff, Negotiating the
Understandings on the Crime of Aggression, in TRAVAUX PREPARATOIRES OF THE CRIME OF
AGGRESSION, supra note 31, at 81-97.
121. Heller, supra note 70, at 245-247.
122. Id. at 233-34.
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C. Option 3: Opt-out domestic legislation for complementarity
States parties can encourage individual nations to enact domestic
legislation criminalizing aggression.123 This policy would heavily encourage
complementary prosecutions of the crime: if more alleged acts of
aggression are prosecuted or even investigated by national courts, the ICC
will have fewer opportunities to gain a stronghold over the crime’s
jurisprudence and development. An opt-out for domestic legislation is
achievable because even before the Kampala amendments gave a treatybased definition of aggression, thirty-two states had some form of
domestic legislation on the crime.124 This is acceptable because it would
ideally contain the same language allowing for HI as the Understandings
would, but the states would avoid the tough questions of how to convince
the ASP to organize another review conference and achieve agreement by
consensus. However, the domestic legislations’ language would have to be
identical to the language of the Understandings, or at least identical to one
another in order for consistent application of the crime to reassure states
with military operations that HIs would not be eligible for prosecution.
Absent consistency, the worries of a possible complementary prosecution
for an HI action would foster the same worries as the current
unpredictability of the ICC’s oversight. In addition, if not all states enact
domestic legislation, the fear of possible investigation by the ICC for acts
that occurred on territories belonging to states without corresponding
regimes would still be present. The possibility will always remain that a
nation with a corresponding regime would decline to prosecute, in which
case the ICC would have recourse to step in. Therefore, despite the
relatively high acceptability and achievability coefficients of this option, a
regime of complementarity would be most effective if coupled with
alternate options to guarantee an HI exception more security.
D. Option 4: Additional prosecutorial guidelines
Additional prosecutorial guidelines may be achievable because they are
non-legally binding policy statements to which the Office of the
123. This is really a separate topic. See Nidal Nabil Jurdi, The Domestic Prosecution of the Crime of
Aggression After the International Criminal Court Review Conference: Possibilities and Alternatives, 14
MELBOURNE J. INT’L L. 1 (2013); Jennifer Trahan, Is Complementarity the Right Approach for the
International Criminal Court’s Crime of Aggression?, 45 CORNELL INT’L L.J. 569 (2012); Beth Van
Schaack, Par in Parem Imperium Non Habet: Complementarity and the Crime of Aggression, 10 J. INT’L
CRIM. JUST. 133 (2012).
124. Why and How to Implement the Amendments, THE GLOBAL CAMPAIGN, supra note 5; see also
Astrid Reisinger Coracini, Evaluating Domestic Legislation on the Customary Crime of Aggression under the
Rome Statute’s Complementarity Regime, in THE ICC’S EMERGING PRACTICE: THE COURT AT FIVE
YEARS 724-754 (GORAN SLUITER AND CARSTEN STAHN, EDS. 2009) (comparing domestic
complementarity regimes for the crime of aggression).
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Prosecutor (OTP) tries to adhere. It is, however, their discretionary nature
that also makes them unacceptable without additional measures.
1. Development of prosecutorial guidelines and mechanisms for change
Drafters of the Rome Statute did not add prosecutorial guidelines to the
original text of the Statute. However, by 2002 the International Criminal
Tribunal for the Former Yugoslavia (ICTY) already had a set of
prosecutorial guidelines,125 and it would be naïve to state that the drafters
did not envision future development of guidelines to assist the OTP.126 By
2003, only a year after the Rome Statute entered into force, the Office of
the Prosecutor issued a policy paper, which stated that “[r]egulations are
essential to ensure [the OTP’s] independence and accountability.”127 The
OTP collected Expert Consultation memos on general issues related to
prosecutorial discretion, in which key policymakers from states parties laid
out priorities for the OTP and instructions on how to prioritize various
factors that the Court was mandated to consider in its founding Statute.128
In June 2003, the OTP issued Draft Regulations of the Office, divided
into five books, many of which included blanks spaces for large chunks of
the guidelines to be determined.129 A final draft was adopted for use in
April 2009, entitled the Regulations of the Office of the Prosecutor.130
The Regulations have been criticized for not going far enough to create
a set of standards that rank the prosecutor’s actions in a measurable
format. 131 They have also been criticized for their internal nature:
governments of states parties did not approve the guidelines, nor did they
125. ICTY Standards of Professional Conduct for Prosecution Counsel (1999).
126. Contra Greenawalt, supra note 68, at 601 ([the] Rome Statute “lump[ed] the Court’s rationales
together under a single heading,” and it “does not explore prosecutorial goals in any substantial
detail.”).
127 . Paper on some policy issues before the Office of the Prosecutor, ICC-OTP 2003,
September 2003, http://www.icc-cpi.int/NR/rdonlyres/1FA7C4C6-DE5F-42B7-8B2560AA962ED
8B6/143594/030905_Policy_Paper.pdf (last accessed Aug. 1, 2015).
128. Christopher Keith Hall, Suggestions concerning International Criminal Court Prosecutorial
Policy and Strategy and External Relations, 28 Mar. 2003, available at http://www.icccpi.int/iccdocs/asp_docs/library/organs/otp/hall.pdf (last accessed Aug. 1, 2015); Avril McDonald
and Roelof Haveman, Prosecutorial Discretion-Some Thoughts on ‘Objectifying’ the Exercise of
Prosecutorial Discretion by the Prosecutor of the ICC, 15 Apr. 2003, available at http://www.icccpi.int/iccdocs/asp_docs/library/organs/otp/mcdonald_haveman.pdf (last accessed Aug. 1, 2015).
129. INTERNATIONAL CRIMINAL COURT, OFFICE OF THE PROSECUTOR, DRAFT
REGULATIONS OF THE OFFICE OF THE PROSECUTOR (proposed Jun. 3, 2003), http://www.jura.unimuenchen.de/fakultaet/lehrstuehle/satzger/materialien/istghdrre.pdf. The five books were: i)
Mission and Organization ii) Standards of Conduct and Training iii) Operations Manual iv)
Information and Evidence Management and v) External Communication.
130. INTERNATIONAL CRIMINAL COURT, OFFICE OF THE PROSECUTOR, ICC-BD/05-01-09,
REGULATIONS OF THE OFFICE OF THE PROSECUTOR, ICC-BD/05-01-09 (23 Apr. 2009),
http://www.icc-cpi.int/NR/rdonlyres/FFF97111-ECD6-40B5-9CDA792BCBE1E695/280253/I
CCBD050109ENG.pdf.
131. Akande, supra note 68.
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have direct input on the finalized version.132 Yet they are by no means the
final declaration of authority for the OTP: Regulation 3 envisions that
proposed amendments to the Regulations will be presented in writing to
the Prosecutor and adopted by her decision.133 With the entrance of a new
crime into the Court’s jurisdiction and with so little precedent on which to
base best investigatory practices, a statement of measured caution
formalized in an expanded prosecutorial guideline seems like a reasonable
option. Observers of the Court called for guidelines for investigating
CAH, war crimes, and genocide almost immediately after the Prosecutor’s
office began its work,134 and it should be no different for aggression.
The Guidelines operate in conjunction with the OTP’s other
explanatory material, including policy papers that define certain standards,
such as the “interests of justice” language, with more precision. 135 The
OTP’s website indicates that the office will publish policy papers on other
key issues in the near future,136 and prosecutorial discretion with regard to
the crime of aggression may cover enough material to constitute its own
public policy paper.137
2. Lessons from domestic guidelines
The Unites States’ and United Kingdom’s common law emphasis on the
role of the prosecutor is particularly apt for the ICC prosecutor to look to
as an example of the discretionary role of the prosecutor and various tools
that a prosecutor may use to continue to work towards justice and holding
perpetrators liable while maintaining an image of fairness and impartiality.
As a starting point, the British Code of the Prosecutor contains much
132. Id. Representatives from states parties were allowed to offer insight into the guidelines over
the course of their drafting from 2003-2009, based on their delegates’ experiences with the OTP.
133. REGULATIONS OF THE OFFICE OF THE PROSECUTOR, supra note 130, Regulation 3.
134. Akande, supra note 68.
135. See Policy Paper on the Interests of Justice, September 2007, ICC-OTP 2007,
http://www.icc-cpi.int/iccdocs/asp_docs/library/organs/otp/ICC-OTP-InterestsOfJustice.pdf (last
accessed Aug. 1, 2015).
136. “Policies and strategies,” INTERNATIONAL CRIMINAL COURT, http://www.icc
cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/policie
s%20and%20strategies/Pages/documents.aspx (last accessed Aug. 1, 2015). Issues include positive
complementarity and case selection.
137. The Prosecutor’s actions could also be further constrained through the newly adopted
Prosecutor’s Code of Conduct, which sets out the minimum standards of conduct and specific duties
of the prosecutor. For more on the newly developed code, see INTERNATIONAL CRIMINAL COURT,
CODE OF CONDUCT FOR THE OFFICE OF THE PROSECUTOR (Sept. 5, 2013), http://www.icc
cpi.int/iccdocs/PIDS/docs/Code%20of%20Conduct%20for%20the%20office%20of%20the%20Pr
osecutor.pdf; Milan Markovic, The ICC Prosecutor’s Missing Code of Conduct, 47 TEX. INT’L L. J. 201
(2011-2012) (describing generally the benefits to having particularized codes of conduct to evaluate
international prosecutorial performance).
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more detailed standards by which to assess a prosecutor’s fairness and
diligence.138
The United States’ federal prosecution standards139 may give ideas for
means of further clarification. U.S. prosecutors have to make daily
decisions on which cases to bring to trial given an overextended docket
and limited resources. Federal standards for non-criminal alternatives to
prosecution suggest a weighing test that includes “the effect of noncriminal disposition on Federal law enforcement interests.” 140 A similar
explicit consideration of the appearance of a non-criminal alternative to
prosecution and its incentive structure is a key consideration that the ICCOTP should adopt. Other federal prosecutorial guidelines, such as
instructions not to commence a trial if the person is subject to
prosecution in another jurisdiction, mimic the existing 2009 ICC
Prosecutorial Guidelines. 141 Though they need not be reaffirmed with
respect to the crime of aggression, their consistency across jurisdictions
promotes a greater understanding of how to apply domestic prosecution
rules to international proceedings.
3. Substantive recommendations to the guidelines and code of conduct
A proposal to draft new prosecutorial guidelines may expand the
subject matter of debates beyond the question of the crime of aggression,
given that the current version of the guidelines was issued in 2009142 and
given that the Court has evolved dramatically in the last five years.143 States
could call for a policy paper on prosecutorial guidelines with respect to
only the crime of aggression (to limit the scope of proposals). This may
be a good way for the OTP to indicate that it takes responsibility for
prosecuting aggression seriously.
Such a paper could solicit “expert consultation” from various leading
experts in the field, similar to the 2003 draft guidelines. Policy goals for
aggression could also be drafted in the upcoming OTP Strategic Plan for
2015-2018. 144 These 2003 consultations listed various considerations the
138. Akande, supra note 68.
139. U.S. DEP’T OF JUSTICE, U.S. ATTORNEYS' MANUAL (U.S.A.M.)(2014).
140. U.S. DEP’T OF JUSTICE, U.S. ATTORNEYS' MANUAL § 9-27.250(a)(3), (1997),
http://www.justice.gov/usao/eousa/foia_reading_room/usam.
141. Id. §§ 9-27.220(A)(2), 9-27.240.
142. INTERNATIONAL CRIMINAL COURT, ICC-BD/05-01-09, REGULATIONS OF THE OFFICE
OF
THE
PROSECUTOR,
ICC-BD/05-01-09
(23
Apr.
2009),
http://www.icc
-cpi.int/NR/rdonlyres/FFF97111-ECD6-40B5-9CDA792BCBE1E695/280253/ICCBD050109E
NG.pdf.
143. For instance, the ICC now has a new prosecutor, Fatima Bensouda. See Gambia’s Bensouda to
be ICC Chief Prosecutor, ALJAZEERA, http://www.aljazeera.com/news/americas/2011/12/201112121
74036623874.html (last updated Dec. 12, 2011).
144. The OTP has published strategic plans every 3 years since 2009. See INTERNATIONAL
CRIMINAL COURT, OFFICE OF THE PROSECUTOR, STRATEGIC PLAN JUNE 2012-2015 (2013),
2015] HUMANITARIAN INTERVENTION AND CRIME OF AGGRESSION
821
prosecutor could choose to prioritize when deciding which cases to
investigate, including: the scale of crimes, available evidence, the level of
public outrage, whether or not investigation would prolong conflict,
threats to a fragile transitional state by prosecuting lead individuals, and the
availability of alternative mechanisms such as TRCs.s. 145 Similar
considerations might be theorized as guideposts for investigation into
alleged acts of aggression, such as:
⋅
Prioritizing investigation into alleged acts of aggression after
the aggressive actions have abated to encourage conciliation and
compromise;
⋅
Prioritizing investigation into alleged acts of aggression
committed by repeat actors (repeat allegations might suggest a
practice or habit that threatens future sovereign territories and
for which prosecution and investigation could present a
deterrent effect);
⋅
Prioritizing investigation into alleged acts of aggression
conducted unilaterally (removing immediate concerns of
investigation into NATO acts or collective humanitarian acts);
⋅
Prioritizing investigation into acts that result in annexation,
continued occupation of a territory, or causing discrimination
or harm to the civilian populous (a scenario directly opposite of
the aims of HI);
⋅
Prioritizing investigation into alleged acts of aggression in
situations where multiple alleged crimes within the jurisdiction
of the court have occurred (continuing the economies of scale
idea presented in Expert Consultations);146
⋅
Prioritizing investigation only by the Prosecutor’s investigation
teams to ensure impartiality in situations involving two States in
conflict (as opposed to asking States to conduct investigations
themselves, such as those concerning the financial aspects of a
http://www.icccpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20pro
secutor/reports%20and%20statements/statement/Documents/OTP%20Strategic%20Plan.pdf
(Hereinafter STRATEGIC PLAN); INTERNATIONAL CRIMINAL COURT, OFFICE OF THE
PROSECUTOR,
PROSECUTORIAL
STRATEGY
2009-2012
(2010),
http://www.icc
cpi.int/NR/rdonlyres/66A8DCDC-3650-4514-AA62D229D1128F65/281506/OTPProsecutorialStr
ategy20092013.pdf. The 2012-2015 plan made no mention of the crime of aggression.
145. Hall, supra note 128, at 12-20; McDonald and Haveman, supra note 128, at 5-15.
146. Hall, supra note 128, at 23 notes that this is consistent with the intent of drafters of Art
13(b) who rejected the possibility of the SC referring “matters” as too specific for the independence
of the Court and replaced it with the current term of a “situation.”
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conflict which was advocated for other crimes of the court in
the 2003 policy paper);147
⋅
Prioritizing investigation into alleged actors who “bear the
greatest responsibility” 148 (reinstating a term used in the 2003
ICC Policy Paper and a term that was the centerpiece of
prosecutorial guidelines at the Special Court for Sierra Leone
(SCSL));149
⋅
Affirming that the Prosecutor should not continue investigations
when the interests of justice under Article 53(1) do not support
investigation. 150 This shall include the use of other justice
mechanisms, peace processes, invocation of the use of force
for HI motivations, and broad international acceptance of the
military intervention.
4. Conclusion
In sum, the prosecutorial guidelines have more advantages than
disadvantages and should be considered strong policy options that succeed
at both limiting the definition of aggression and addressing underlying
problems of prosecutorial overreach for which the Court is currently
criticized. 151 However, the guidelines are not legally binding. Even for
those guidelines already promulgated, critics assert that these do not
address the core issues of a politicized international prosecutor and do not
go far enough to solicit legitimacy from the approval of the states
parties.152 It may be more advisable for States to work with the Prosecutor
through informal diplomatic channels, as she maintains a good relationship
147. Paper on some policy issues before the Office of the Prosecutor, International Criminal
Court, (Sept. 2003), http://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b2560aa962ed8b6
/143594/030905_policy_paper.pdf.
148. Note that in the 2012-2015 OTP Strategic Plan the office now follows a policy of “gradually
building upwards” instead of focusing on those bearing the greatest responsibility “due to limitations
on investigative possibilities and/or a lack of cooperation.” STRATEGIC PLAN JUNE 2012-2015, supra
note 144, at 6. However, the nature of the crime of aggression suggests that the changed strategic
approach is impossible for the crime, and the old policy should be explicitly reaffirmed.
149. Use of the term was criticized in the SCSL trials because it de facto served as an explicit
limitation the court’s jurisdiction in terms of the number of people that it would eventually
prosecute. Charles Chernor Jalloh, Prosecuting Those Bearing “Greatest Responsibility”: The Lessons of the
Special Court for Sierra Leone, 96 MARQ. L. REV. 863, 868 (2012-2013). For the crime of aggression, as a
leadership crime, this primer on the highest-level officials is favored.
150. Article 53(1) of the Rome Statute states that “[i]n deciding whether to initiate an
investigation, the Prosecutor shall 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.” Rome Statute, supra note 1, art. 53(1).
151. See Milan Markovic, The ICC Prosecutor’s Missing Code of Conduct, 47 TEX. INT’L L.J.
201, 209 (2012)(stating the problem as one of “prosecutorial overreach”).
152. See Akande, supra note 68; Greenawalt, supra note 68, at 650-58. .
2015] HUMANITARIAN INTERVENTION AND CRIME OF AGGRESSION
823
with the diplomats from many of the countries who have reason to fear
the crime of aggression’s overreach.
E. Option 5: Higher evidentiary standards
Modeled largely after the rules of the International Criminal Tribunal
for the Former Yugoslavia (ICTY) and International Criminal Tribunal for
Rwanda (ICTR) Rules, the Rules of Procedure and Evidence (RPE) lay out
the means for conducting investigations and trials at the Court. 153 The
RPE were approved in their draft form by consensus of the Preparatory
Commission for the ICC in 2000, after months of negotiations. 154
However, the possibility of amending the RPE or updating it to reflect
changes in the court’s jurisdiction was never foreclosed. In a 91-page
document with 225 rules, the Rule outlining the procedure for
amendments to the RPE comes in at number 3. 155 The amendment
procedure allows for proposed amendments to come from a wide array of
sources: the Prosecutor, any State Party, or the judges acting by an absolute
majority. 156 The ASP reviews amendments annually and may adopt new
rules and amendments by a two-thirds majority of members. 157 For
example, at the twelfth session of the ASP held in December 2013, the
ASP adopted three new rules that cover video proceedings and the rights
of accused to be absent from Pre-Trial proceedings.158 At the Princeton
Process of the Crime of Aggression, the review of the RPE to determine
whether there are provisions that require consideration a propos of the
crime of aggression was left as an “outstanding issue.” 159 With these
background facts in mind, amending the RPE may be an achievable and
politically acceptable way to limit the definition of aggression.
153. The ICTY has an extremely liberal evidence standard, epitomized in Rule 89, which says that
the trial court may admit any relevant evidence that it deems to have probative value. Int’l Criminal
Tribunal for the Former Yugoslavia, Rules of Procedure and Evidence, Rule 89, UN Doc. IT/32/Rev.49
(2013), available at http://www.icty.org.
154 . Fernández de Gurmendi and Håkan Friman, The Rules of Procedure and Evidence of the
International Criminal Court, in 3 Y.B. OF INT’L HUMANITARIAN L. 289, 289-90 (2000).
155. Rules of Procedure and Evidence, supra note 116, Rule 3.
156. Rome Statute, supra note 1, art. 51(2)(a)–(c).
157. Id. art. 51(3).
158. Rules of Procedure and Evidence Regulations 68, 100, and 134 (2014). These new rules are
antithetical to the prosecution of the crime of aggression, and should themselves be reviewed for
their applicability to aggression. For example, the new amendments allow a ruler to continue ruling
over aggressed territory or engaging in a war of aggression and be tried simultaneously while away
from trial, under Rule 134. See Justice at Risk: States Parties to the ICC Statute Concede to Political Pressure,
FIDH (Nov. 28, 2013), http://fidh.org/en/international-justice/international-criminal-courticc/14308-justice-at-risk-states-parties-to-the-icc-statute-concede-to-political.
159. BARRIGA, DANSPECKGRUBER, & WENAWESER, supra note 26, at 209 (2009). The report also
lists in the “appendix of outstanding issues” the question of how to formally open an investigation
under Article 53—this could be addressed through changes either to the RPE or to the draft
prosecutorial guidelines in Option 7.
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Substantive proposals to amend the RPE deserve to be theorized in
subsequent research; this paper will suggest only a few to give a flavor of
the proposals. Examples of possible changes under Section II Initiation of
investigations under Article 15 include:
⋅
Stipulating that for investigation into the crime of aggression
under Article 15(2), 160 the Prosecutor must (not may), seek
additional information from States, organs of the United
Nations, or other reliable sources;
⋅
Stipulating that for investigation into the crime of aggression
under Article 15(2) 161 for alleged crimes involving multiple
nations, the Prosecutor must investigate circumstances
surrounding each nations’ alleged participation and level of
involvement;
⋅
Stipulating that for initiation of an investigation into the crime
of aggression under Article 53(1), 162 the Prosecutor shall
consider whether action was taken pursuant to an ongoing
conflict that involved acts of genocide, crimes against humanity,
or grave breaches of the Geneva Convention committed against
a third party group [or language to that effect], and including
this basis as a reason not to find a sufficient basis for
prosecution under Article 53(2);163
⋅
Stipulating that for investigation into the crime of aggression
under Article 15(3)164, the standard under which to find a basis
to proceed with an investigation shall be higher than a reasonable
basis standard (for instance, substantial basis);
⋅
Stipulating that for investigation into the crime of aggression
under Article 15(1),165 the Prosecutor may initiate investigations
proprio motu on the basis of reliable/credible/considerable
information on crimes, or information that has been
independently verified to ensure for its truthfulness;
⋅
Stipulating that for investigation into the crime of aggression
under Article 15(4),166 the approval of a full investigation by the
Pre-Trial Chamber shall be dependent on the equities of the
160.
161.
162.
163.
164.
165.
166.
Rome Statute, supra note 1, art. 15(2).
Id.
Id. art. 53(1).
Id. art. 53(2).
Id. art. 15(3).
Id. art. 15(1).
Id. art 15(4).
2015] HUMANITARIAN INTERVENTION AND CRIME OF AGGRESSION
825
Court (similar to the “interests of justice” wording in Article
53(1));167
⋅
Stipulating that for the issue of admissibility under Article
17(1)(d), “sufficient gravity” 168 with respect to aggression
encompasses the character, scale, nature, and circumstances of
the alleged action, and should be assessed at a more critical level
than the Court’s other crimes within its jurisdiction, due to the
built-in nature of the weighing determination in the test for a
crime of aggression;
Possible changes under Section V Proceedings with regard to
confirmation of charges under Article 61169 include:
⋅
Requiring an evaluation of exonerating evidence, specifically
with regard to actions taken in furtherance of humanitarian
aims.
Amending the RPE would create an ex-ante deterrent to the
investigation of certain types of acts of aggression through a non-direct
route, avoiding contentious discussions on the nature of Article 15bis(4)’s
opt-out declaration. This option also leaves room to consider additional
means of moderating the definition in the future, as the ASP meets
annually.
Changes to the RPE also have disadvantages: as with other options that
involve little-tested aspects of the Court’s jurisdiction, actual use of the
amendment would result in ambiguity until cases grappled with the new
standards.170 This could be particularly concerning, given that the Court’s
predecessor, the ICTY, has recently demonstrated that rulings on
standards in an unpredictable manner frustrate the Court’s foundations
and attract international rebuke.171 To the extent that this concern is true
of almost any new textual addition, it is not a reason to disfavor the
option. Similarly, changes to the RPE mostly address the problem at the
167. Id. art. 53(1).
168. Id. art. 17(1)(d)(“[T]he Court shall determine that a case is inadmissible where…[t]he case is
not of sufficient gravity to justify further action by the Court.”).
169. Rules of Procedure and Evidence, Rule 61.
170. It would also allow parties to insert amendments regarding the crime of aggression that do
not necessarily hew to concerns about humanitarian intervention, which may muddle the
understanding and application of the crime even further.
171. The particular cases at issue were: Prosecutor v. Perišić, IT-04-81, Judgment (Int’l Crim. Trib.
for the Former Yugoslavia Feb. 28, 2014); and Prosecutor v. Gotovina et al., IT-06-90-A, Judgment
(Int’l Crim. Trib. for the Former Yugoslavia Nov. 16, 2012), See also Eric Gordy, What Happened to the
Hague
Tribunal?,
N.Y.
TIMES
(June
2,
2013),
http://www.nytimes.com/2013/06/03/opinion/global/what-happened-to-the-hague
-tribunal.html?pagewanted=all.
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preliminary trial stage or full investigation stage, allowing the Prosecutor to
continue to bring unwanted preliminary investigations.
Procedurally, this option only gives voice to states parties, as the
proposed amendments are reviewed and adopted at the annual ASP
review. This makes the RPE option less desirable for non-states parties
who are concerned with the use of force, particularly given that three of
the P5 members—the United States, China, and Russia—are not states
parties. As nations with some of the greatest military strength, they are
most likely to have the capacity to engage in HI operations. The United
States, along with the support of other NATO members, has already
successfully engaged in HI missions,172 and has contemplated re-engaging
in HI in Syria with international support.173 It is important for the nations
who are tasked with overseeing international law issues at the UN to be
part of the dialogue on limiting the crime of aggression. Furthermore,
proponents of a change to the reasonable basis standard for continuing an
investigation must make a convincing showing that aggression is distinct
enough from the Court’s other crimes to warrant a higher standard. 174
Amending the RPE is an achievable option, but it is a non-direct means of
moderation. Like the use of prosecutorial guidelines, it does not explicitly
state that HI shall not be prosecutable under the current definition of the
crime; therefore, it should be coupled with another achievable option for a
clearer understanding of the scope of prosecution.
F. Option 6: An affirmative defense for humanitarian intervention
Without adopting new text for the Kampala Outcome document, the
Rome Statute provides for potential workarounds to accommodate
legitimate uses of force. One of those workarounds involves the use of an
affirmative defense. 175 Whether through Article 31(1)(c), (d) or Article
31(3), the Court could interpret the Rome Statute to include an affirmative
defense for HI.
172. Most notably in Kosovo. See Louis Henkin, Kosovo and the Law of “Humanitarian Intervention,”
93 AM. J. INT’L L. 824, 826 (1999). See also Joshua Rozenberg, Syria intervention: it may not be wise, buy
using
force
may
be
lawful,
GUARDIAN,
Aug.
28,
2013,
http://www.theguardian.com/law/2013/aug/28/syria-intervention-force-lawful (citing the UK
government’s justification in 1998 for military action in Kosovo “on the grounds of overwhelming
humanitarian necessity” as discussed later in Adam Roberts, NATO’s ‘Humanitarian War’ over Kosovo,
41 SURVIVAL 102 (1999)).
173. See Syria Crisis, supra note 59.
174. This argument would not be difficult: differences between aggression and the Court’s other
crimes of jurisdiction are explained in Part I.
175. Very little scholarship exists on this idea. For the one piece found, see MCDOUGALL, supra
note 19, at 163-64.
2015] HUMANITARIAN INTERVENTION AND CRIME OF AGGRESSION
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1. Development of affirmative defenses at the Court
Currently, affirmative defenses are listed under Article 31 of the Rome
Statute, entitled “Grounds for excluding criminal responsibility.”176 Article
31 lists four defenses that are grounds for excluding criminal responsibility.
These include “suffer[ing] from mental disease or defect,” acting in a
“state of intoxication,” acting “reasonably to defend . . . against an
imminent and unlawful use of force in a manner proportionate,” and
acting under “duress resulting from a threat of imminent death or of
continuing or imminent serious bodily harm against that person or another
person.”177 These defenses are still in their infancy, and the uncertainty of
terms such as “defect that destroys that person’s capacity to appreciate the
unlawfulness or nature of his or her conduct” are unresolved and undertheorized.178 The relative novelty of defenses may be an opportunity for
creative lawyering, which comes at the risk of misapplication of the law or
unforeseen interpretations by the Court.
To date, none of the defenses have been successfully invoked at the
ICC, although there is case law on the invocation of the defenses of selfdefense and intoxication from the ICTY. 179 The Commentary on the
Drafting of the Rome Statute makes clear that “due to the novel nature of
how these exclusionary grounds are regulated . . . some caution with
regard to the appropriate methodology of its interpretation appears
advisable.”180
2. Means of expanding Article 31 to include HI
Article 31 parts (c) and (d) already have the kernels of defenses that
could be enlarged to cover HI. Article 31(c) allows for a defense if a
person acts “reasonably to defend himself or herself or another person.”181
The act of defending another person, rather than the traditional concept
of self-defense, as allowed for in the UN Charter,182 conceives of an HI
176. Rome Statute, supra note 1, art. 31.
177. Id. art. 31(1)(a)–(d).
178. Id. art. 31(1)(a). It remains unclear how the ICC definition of the insanity defense is
different from or related to domestic interpretations of the defense. On the under-theorization of
terms, in domestic laws see, e.g., 18 U.S.C.A. § 17 (2011) (the affirmative defense of insanity under
U.S. federal law: Defendant is “unable to appreciate the nature and quality or the wrongfulness of his
acts”); M’Nagten’s Case, [1843] 8 Eng. Rep. 718 (H.L.) 722 (the affirmative defense of insanity under
UK law: Defendant does “not [] know the nature and quality of the act he was doing; or, if he did
know it, that he did not know he was doing what was wrong”).
179. For additional reading on the defenses in general and at the ICTY, see Kai Ambos, Defences in
International Criminal Law, in RESEARCH HANDBOOK ON INTERNATIONAL CRIMINAL LAW 299-329
(Bartram S. Brown ed., 2011).
180. TRIFFTERER, supra note 94, at 867.
181. Rome Statute, supra note 1, art. 31(1)(c) (emphasis added).
182. U.N. Charter, art. 51 (“Nothing in the present Charter shall impair the inherent right of
individual or collective self-defense if an armed attack occurs against a Member of the United
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like act aimed at the protection of a third party. Extrapolating upon the
intent of that clause, the defense of use of force on behalf of a third
party would seem to widen if that force, maintaining its proper
proportionality, was invoked on behalf of multiple third parties in the
form of HI.183 An HI exception would also have to satisfy the second half
of the paragraph: “Defend . . . in a manner proportionate to the degree of
danger to the person or other person.”184
Read in conjunction with the entirety of the document, this natural
expansion of Article 31(c) conforms to the spirit and purpose of the
Rome Statute. As the Preamble states, the Rome Statute is “[m]indful that
during this century millions of children, women and men have been
victims of unimaginable atrocities that deeply shock the conscience of
humanity.”185 Furthermore, it is “[c]onscious that all peoples are united by
common bonds” and that “this delicate mosaic [of common bonds and a
shared heritage] may be shattered at any time.” 186 Humanitarian
interventions used in exceptional and necessary circumstances have the
aim of preventing the atrocities that threaten millions of women, children
and men, and extinguishing the onslaught of wars and violence that
threaten to shatter the world’s shared heritage. In addition, the Rome
Statute reaffirms the purposes and principles of the UN Charter, which
similarly supports the rights of humanity to freedom and peace.187
Article 31(d) likewise has room to encompass a defense of HI, although
stretching the traditional legal terms it invokes may go too far and result in
unforeseen consequences. Article 31(d) provides for a defense of conduct
caused by “duress resulting from a threat of imminent death or of
continuing or imminent serious bodily harm against that person or another
person,”188 followed by the requisite proportionality requirement. The threat
may come from other people or may be “[c]onstituted by other
circumstances beyond that person’s control.”189 The language of 31(d)(ii)
fits the objective of humanitarian intervention well: it seeks to respond to
circumstances instigated by a government or military besieging civilians. As
it allows defensive measures in response to acts or threats, it is a lower
Nations . . . .”).
183. For example, the population of Syria today is almost 18 million. See CENT. INTELLIGENCE
AGENCY, The World Factbook: Syria, https://www.cia.gov/library/publications/the-worldfactbook/geos/sy.html (last updated Jun. 20, 2014).
184. Rome Statute, supra note 1, art. 31(1)(c).
185. Id. pmbl.
186. Id.
187. U.N. Charter Pmbl (“We the peoples of the United Nations determined . . . to reaffirm faith
in fundamental human rights, in the dignity and worth of the human person, in the equal rights of
men and women and of nations large and small . . . .”).
188. Rome Statute, supra note 1, art. 31(1)(d) (emphasis added).
189. Id. art. 31(1)(d)(ii).
2015] HUMANITARIAN INTERVENTION AND CRIME OF AGGRESSION
829
threshold to meet.190 Again, 31(d) contemplates a defense measure aimed
at alleviating harms directed at a third party. 191 So far, it seems to be
another viable option for limiting the definition of aggression.
However, 31(d) is of limited use because it is a “duress” defense.
Duress is a specialized legal term that carries specific implications under
both international and national legal systems. 192 Particularly, duress is a
threat that causes the alleged criminal reaction; in the case of HI, it is
difficult to see exactly how the threat towards a nation that uses HI would
be grave enough to “overbear the [defendant’s] will” and create an
exclusion. Although the scholarship on HI exceptions is sparse, the
decision by nations to engage in humanitarian interventions after political
debates that may last for months 193 hardly appears to be a traditional
response to duress.
It may be possible to write a new affirmative defense for actions
committed with certain intent and knowledge of HI motivations
applicable uniquely to the crime of aggression. Such an exclusion has in
fact been proposed.194 It would be framed in the language of Article 30
(mental element), but instead of holding a person criminally responsible if
the material elements were committed with intent and knowledge, it would
exempt a person from prosecution of alleged acts of aggression if they
were committed with intent and knowledge of an HI operation. Yet this
solution seems confusing in the least and is, at worst, contradictory to the
limited aims for which the Court endows Article 31’s affirmative defense
exceptions. The existing exclusions are written on their face to encompass
all crimes, and without a doubt, at least (a)195 and (b)196 could be applied to
defendants charged with aggression. This means that aggression, unique as
the crime is, may not need its own independent exclusion. As the
exclusions are less politically desirable than a more direct limitation of the
crime through an opt-out or other insertion of text that stops the Court’s
190. See TRIFFTERER, supra note 94, at 885 (“[A] threat . . . require[es] more than easily healed
superficial wounds”).
191. Although it contemplates a third party in the singular, and there may be a problem with
“altruistic” duress defending a threat to a stranger or multiple strangers. See id.
192. See Benjamin J. Risacher, No Excuse: The Failure of the ICC’s Article 31 “Duress” Definition, 89
NOTRE DAME L. REV. 1403, 1406-12 (2014) (discussing the high degree of difference between
domestic interpretations of duress defenses).
193. Look at the example of Syria, wherein debates have continued for over now over two years.
Scott Wilson, On Syria, Obama’s Past Words Collide With National Security Implications, WASHINGTON
POST (Feb. 20, 2014), https://www.cia.gov/library/publications/the-world-factbook/geos/sy.html.
194 . Elise Leclerc-Gagné & Michael Byers, A Question of Intent: The Crime of Aggression and
Unilateral Humanitarian Intervention, 41 CASE W. RES. J. INT’L L. 379, 386-87 (2009).
195. Rome Statute, supra note 1, art. 31(1)(a)(“The person suffers from a mental disease or defect
that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or
capacity to control his or her conduct to conform to the requirements of law . . . .”).
196. Id. art. 31(1)(b)(“The person is in a state of intoxication that destroys that person’s capacity
to appreciate the unlawfulness or nature of his or her conduct . . . .”).
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investigation at a more preliminary stage, the addition of a new exclusion
to Article 31(1)(e) is an unacceptable third order option.
Moreover, a new textual exclusion is unnecessary because Article 31(3)
provides that the Court may consider other grounds for excluding criminal
responsibility where such a reason “is derived from applicable law as set
forth in article 21.”197 This catchall allows for the doctrine of exclusions to
evolve as the crime of aggression folds into the Court’s jurisdiction. 198
Article 21 states that unwritten exclusions follow principles of
international law.199 For HIs, it is fair to assume that no doctrine will be
agreed upon in the near future. Yet Article 21(3) makes clear that
international law should be read consistently with “internationally
recognized human rights . . . .”200 In borderline cases, interpretation of its
acceptability not pursuant to criminal punishment must be read in light of
applicable law’s preference for internationally recognized human rights,
which are the sole underlying element that is sought to be protected in
legitimate HIs.
3. Conclusion
The affirmative defense option is attractive at first blush because it
would require no new ratification or textual amendment. On second look,
though, its disadvantages make it one of the least acceptable options.
Addressing allegations of criminality at the trial stage means a warrant of
arrest will be issued for the actor in question, attaching severe international
criticism and possibly violent repercussions within the accused’s country.
The political actor who engaged in an HI operation would also be
chronicled as having satisfied all of the prima facie elements of the crime
of aggression, attaching psychological and moral stigmas and inviting
members of the Court to cerebrally associate the political actor with the
crime of aggression. An affirmative defense, moreover, puts the burden
on the defendant to prove the grounds by which she conducted legitimate
HI operations, which is a higher burden than is required by the opt-out
and which may relieve the prosecutor from carrying out her mandatory
duty of investigating all circumstances, inculpating and exonerating, under
Article 54.201 Even if the defendant could plead an affirmative defense at
the outset of a trial, this option still forces the Prosecutor to use her
limited time and resources to conduct a full criminal investigation and
discovery process to proceed to the trial phase.
197. Id. art. 31(3).
198 . TRIFFTERER, supra note 94, at 870 (listing several defenses that were considered but
ultimately not added to the final draft due to their controversial nature).
199. Rome Statute, supra note 1, art. 21.
200. Id. art. 21(3).
201. Id. art. 54.
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G. Option 7: A stricter mens rea requirement
A corollary to the affirmative defense option is the addition of a mens
rea requirement to the crime. Article 30 of the Rome Statute lists the
mental elements for crimes as intent and knowledge, unless otherwise
provided in Articles 7 and 8.202 The contours of intent and knowledge are
not settled at the ICC. For example, in the Lubanga and Bemba Gombo
cases, 203 Pre-Trial Chamber II and Trial Chamber I came to different
conclusions on the level of awareness that meets the requisite standards.
In the Lubanga case, Trial Chamber I stated in 2012 that Article 30’s intent
and knowledge standard was to be interpreted as sufficient if offenses
were the “necessary outcome of [a perpetrator’s] acts or omissions.” 204
This standard, evaluated for crimes under Article 8,205 took into account
the perpetrator’s anticipation on the basis of how events ordinarily
develop that a consequence will occur. However, the 2009 Bemba Gombo
decision by Pre-Trial Chamber II, in reference to crimes under Article 7,206
stated that the standard requires a “‘virtual certainty’ or ‘practical
certainty’” that that the crimes will occur.207 Put another way, the Pre-Trial
Chamber defined this higher mental element standard as certainty that an
event “will follow, barring an unforeseen or unexpected intervention.”208
The determination of which level of intent and knowledge would apply to
crime of aggression cases is up for debate, regardless of any specific
textual reference to an exception for HI.
As the Kampala document sets out in Annex II, Amendments to the
Elements of Crimes, mental elements are currently required for some aspects
of the crime equivalent to an awareness standard under Article 8bis
Elements (4) and (6).209 This standard applies to awareness of the factual
circumstances that exist, but does not extend further to the mental
element of the perpetrator’s choice to take certain actions that may or may
202. Id. art. 30.
203. Prosecutor v. Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, Trial
Chamber I, Mar. 14, 2012, Case No., ICC-01/04-01/06; Prosecutor v. Jean-Pierre Bemba Gombo, Decision
Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor, Pre-Trial
Chamber II, June 15, 2009, Case No. ICC-01/05-01/08.
204. Prosecutor v. Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, Trial
Chamber I, Mar. 14, 2012, Case No., ICC-01/04-01/06, para. 41.
205. Rome Statute, supra note 1, art. 8 (War Crimes). Lubanga was specifically charged under the
crime of Article 8(xxvi), “Conscripting or enlisting children under the age of fifteen years into the
national armed forces or using them to participate actively in hostilities.” Id.
206. Id. art. 7 (Crimes Against Humanity). Bemba Gombo was specifically charged under the
crimes of Articles 7(1)(a), (f), and (g) (Murder, torture, and rape). Id.
207. Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the
Rome Statute on the Charges of the Prosecutor, Pre-Trial Chamber II, June 15, 2009, Case No. ICC01/05-01/08, para. 362.
208. Id.
209. ICC Resolution RC/Res.6, supra note 2, Annex II, Article 8 bis Elements, ¶¶ 4, 6.
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not rise to the level of aggression. It may be similar to the knowledge
standard of Article 30(3), which defines knowledge as “awareness that a
circumstance exists or a consequence will occur,”210 but it is less than the
intent and knowledge standard that is the baseline of Article 30(1). The
amendments have “no special intent like that required for genocide, war
crimes, or crimes against humanity,” and the Elements section clarifies the
interpretation of Article 30 but does not supersede it.211
The lesser knowledge standard serves to place the weight of the
evaluation of the crime on the actions carried out, rather than delving into
the mental state of a perpetrator, for which evidence generally is much
harder to acquire. However, the Court might choose to read the elements
of the crime of aggression in conjunction with Article 30’s “intent and
knowledge” standard as it applies to other elements of the crime, notably
the planning, preparing, initiating or executing requirement of Element
1. 212 A heightened mens rea standard would require that perpetrators
possess intent and knowledge to use force with an unlawful purpose—to
commit aggression. The Court might ask whether an accused was aware
that humanitarian concerns existed for which a reasonable and
proportionate response would be the deployment of an HI operation. To
make this determination more overt, text to that effect may be included in
the Kampala document’s Elements section, providing that the perpetrator
did not act in furtherance of an HI aim, including prevention of genocide,
manifest breaches of the Geneva Conventions, or the prevention or war
crimes or crimes against humanity. While these considerations should
already be factored into the character, gravity, scale, and “manifest”
character determinations, 213 it may be useful to write out a specific HI
exception. This would ensure that even acts that rise to the level of a
borderline manifest violation, but committed in furtherance of the limited,
necessary aims of HI, are weighed against the explicit mental requirement
that the perpetrator was not acting on behalf of humanitarian goals.
A heightened mens rea standard, while textually quite similar to the
language of an opt-out or other declaration, is not the best option for
limiting the definition of aggression. Adding an exception in the form of a
negative requirement is unlike any of the current mens rea language.
Furthermore, adding to the Kampala Annex II Amendments comes with
the same risk of lack of consensus that has been previously discussed in
the context of other re-write proposals. This risk pushes against the bias
210. Rome Statute, supra note 1, art. 30(3) (emphasis added).
211. M. CHERIF BASSIOUNI, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW 669-70 (2d
ed., 2012).
212. Rome Statute, supra note 1, art. 30.
213. Particularly for ICC Resolution RC/Res.6, supra note 2, Annex II, Article 8 bis Elements, ¶¶ 46.
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towards leaving the Kampala document in place. Most significantly, mental
elements at the ICC and other international courts remain one of the most
debated aspects of criminal prosecution.
H. Option 8: Repeated invocation of Article 16
Article 16 of the Rome Statute, “Deferral of investigation or
prosecution,” states:
No investigation or prosecution may be commenced or
proceeded with under this Statute for a period of 12
months after the Security Council, in a resolution adopted
under Chapter VII of the Charter of the United Nations,
has requested the Court to that effect; that request may be
renewed by the Council under the same conditions.214
This Article was introduced into the Rome Statute as a means of
attracting P5 nations, after it became clear that countries would not
support a unique Security Council referral.215 It follows Article 24(1) of
the UN Charter, which states that the UN should be the institution with
the “primary responsibility for the maintenance of international peace and
security.”216 To date, Article 16 has been invoked a total of four times (and
once indirectly), and never for uses lasting more than two years.217 Article
16 has the potential to sweep much more broadly than its original
conception, especially when used in the infancy of the Court’s jurisdiction
over a crime. For example, Resolution 1422 of 2002, originally aimed at
safeguarding U.S. troops participating in peacekeeping operations in
Bosnia and Herzegovina,218 exempted all “‘current or former officials or
personnel from a contributing [non-party State] to the Rome Statute’ from
standing trial.”219
Article 16 is adversarial by nature, as it operates against the best
interests of the Prosecutor. It promotes direct discord between the UN
and the ICC, subverts the goals of the ICC to investigate alleged gross
214. Rome Statute, supra note 1, art. 16.
215. The text came about as a result of the “Singapore Compromise,” which proposed a Security
Council decision to suspend the Prosecutor’s power of investigation and prosecution, and Canada’s
addition of a 12-month renewable deferral period. El Zeidy, supra note 32, at 1510-11.
216. U.N. Charter art. 24 para. 1 (emphasis added).
217. Matthias Neuner, The Tenth Anniversary of the International Criminal Court: The Security Council
and the ICC: Assessing the First Ten Years of Coexistence, 18 NEW ENG. J. INT’L & COMP. L. 283, 301
(2012). (Twice in relations to Bosnia, once to Liberia, Sudan, and Libya).
218. Passage of the Resolution was due to the impetus of a letter from the President of the
United States, asking the Council to grant immunity to U.S. soldiers in Bosnia for a period of one
year. See President’s Letter to Congressional Leaders Reporting on Continued Operations of United
States Forces in Bosnia and Herzegovina, 38 WEEKLY COMP. PRES. DOC. 1243 (July 29, 2002).
219. S.C. Res. 1422, U.N. Doc S/RES/1422 (July 12, 2002); see also El Zeidy, supra note 32, at
1505-06.
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international crimes, and is particularly disconcerting in the case where a
P5 member defers potential prosecution for acts allegedly committed by
the country’s own citizens. Though it is an option already built into the
Rome Statute, Article 16’s use is not preferred and it rates very low on the
acceptability axis.
The idea behind Article 16—that exceptional circumstances exist in
which the efforts of the international community should be aimed first at
promoting peace instead of justice 220 —directly tracks fears of the
potential overreach of aggression.221 The peace versus justice debate222 has
been entrenched in international court politics since the opening days of
the ICTY and the SCSL. 223 More recently, the decision not to add the
option of an ICC referral in Resolution 2118 on Syria attracted criticism,
as it had been supported as a means of threatening justice to promote the
peace option. 224 The crime of aggression is particularly susceptible to
usurpation for political or other non-equitable grounds. To stem the use of
an indictment at the ICC for reasons that are not conducive to
international peace and justice, the Security Council, in the interest of
peace negotiations, may send tacit signals to defer referrals, as it did in the
case of the Juba peace talks in Southern Sudan in 2006.225 It may also give
teeth to peace talks by adopting a resolution to refer a situation to the ICC
with an ex ante Article 16 clause, provided the parties engage in substantive
talks, as was the case with Resolution 1593 (2005) in Darfur 226 or
Resolution 1970 (2011) in Libya.227
Still, Article 16 remains a controversial option beset by difficulties. Even
with deferral, the prosecutor retains certain pre-authorization investigation
220. Neuner, supra note 217, at 298.
221. Indeed, the idea that the Security Council can use Article 16 resolutions to protect P5
countries from unwanted investigations into alleged acts of aggression has been floated by the U.S.
former Ambassador on War Crimes, David Scheffer, as a “red light” option to assuage concerns. See
David Scheffer, On the Cusp of a Final Draft Text for the Crime of Aggression for the International Criminal
Court, ICC REVIEW (Jun. 9, 2010), http://iccreview.asil.org/?p=94.
222. For a great scholarly discussion of the merits of the peace versus justice debate and the
effectiveness of prioritizing peace over justice, see Peace v. Justice: The ICC and its Alternatives,
CANADIAN INTERNATIONAL COUNCIL (May 2012), http://opencanada.org/indepth/peace-vjustice-2/. See also Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and
Ugandan Alternative Justice Mechanisms, 23 CONN. J. INT’L L. 209 (2008) (a case study on the debate in
the Uganda context).
223. Neuner, supra note 217, at 298, n. 84 (citing the decision not to issue a warrant of arrest to
Slobadan Milosevic while he was signing the Dayton Peace Agreement, and the decision to unseal the
indictment against Charles Taylor while he was participating in peace talks).
224. The ICC Referral option had the backing of France, the UK, Luxembourg, Argentina,
Australia and South Korea. Carsten Stahn, Syria, Security Resolution 2118 (2013) and Peace versus Justice:
Two Steps Forward, One Step Back?, EJIL:TALK! (Oct. 3, 2013), http://www.ejiltalk.org/syria-securityresolution-2118-2013-and-peace-versus-justice-two-steps-forward-one-step-back.
225. See Neuner, supra note 217, at 298 n. 84.
226. S.C. Res. 1593 S/RES/1593 (Mar. 31, 2005).
227. S.C. Res. 1970 S/RES/1970 (Feb. 26, 2011).
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powers under Article 57. 228 These include: conducting a preliminary
examination under Article 15, evaluating evidence that has been received
by other States, seeking information, and receiving written and oral
testimony under Article 53(1).229 It is also relatively difficult to secure a
long-term continual renewal of an Article 16 deferral. Support for
renewed deferrals has in previous instances waned after two years, and
continually deferring three-plus years out would give a greater impression
of illegality, to the detriment of leaders seeking to use HI for legitimate
purposes. However, a two-year deferral may operate like an infinite
deferral in practice: as time goes by, more demonstrative evidence gets lost
or disappears, and witnesses and victims may be more difficult to find or
have more trouble remembering potential events which could provide
testimony. 230 Finally, the current Prosecutor, Fatou Bensouda, has come
out publicly in an op-ed against the distinction between a choice for peace
and for justice.231 She states that, “peace achieved by ignoring justice has
mostly been short-lived, and the cycle of violence has continued unabated
. . . [The ICC] cannot take into consideration the interests of peace, which
is the mandate of other institutions. . . .”232 These bold statements suggest
that, at least under Bensouda, the Court will continue to pursue cases it
feels warrant accountability, regardless of outside institutional actions. For
all of these reasons, use of Article 16 is not a smart policy option.
I. Option 9: Use of Article 12(3) declarations
Article 12(3) of the Rome Statute provides:
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 9.233
Article 12(3) is the opposite of an opt-out; it is an opt-in for non-states
parties who agree to subscribe to the Court’s jurisdiction to commence
investigation into “crimes referred to in article 5 of relevance to the
228. Hall, supra note 128, at 53-54.
229. El Zeidy, supra note 32, at 1512.
230. Neuner, supra note 217, at 306.
231. Fatou Bensouda, International Justice and Diplomacy, N.Y. TIMES (Mar. 19, 2013),
http://www.nytimes.com/2013/03/20/opinion/global/the-role-of-the-icc-in-international-justiceand-diplomacy.html.
232. Id.
233. Rome Statute, supra note 1, art. 12(3).
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situation.” 234 For example, Cote d’Ivoire has been waiting since 2006,
when it invoked Article 12(3), for the Court to investigate crimes that
allegedly took place on its territory.235 Article 12(3)’s relationship with the
Kampala document was not considered in 2010 and has been left without
further clarification in the years since. 236 The use of Article 12(3) is
achievable, as it requires no further negotiation, but it is only provisionally
acceptable. Article 12(3) has a limited capacity to shield nations from
investigation and fails to overtly affirm the non-criminal nature of HI. It
should be kept in reserve, considered only in the unfortunate event that all
attempts at compromise toward more acceptable options fail.
Article 12(3) is rarely used at the ICC.237 Its most visible application has
been in repeated attempts by the Palestinian authority to prompt
investigations against Israel, to no avail.238 But it has the potential to be of
great utility as a final attempt to limit the crime of aggression’s jurisdiction.
Should thirty states parties ratify and the ASP vote to introduce the crime
into the Rome Statute, it will come into force against nations who sign on
to the amendments. In the event that none of Options 1-8 succeed,
nations concerned with the crime’s scope may push states parties who have
not ratified to hold off and invoke the Court’s jurisdiction over the crime
on a case-by-case basis through Article 12(3). It is unclear whether Article
12(3) may be used in this manner, as the RPE text of Rule 44 makes clear
that the intent of an opt-in is for non-states parties to selectively allow
investigation into crimes that occurred on their territories, rather than for
states parties who have merely not ratified a portion of the Rome Statute
to use the case-by-case selective jurisdiction of Article 12(3) to avoid
submitting to the full jurisdictional requirements of a new amendment to
the Rome Statute.239 Provided that states parties who have not ratified the
amendments may invoke Article 12(3), advocating for its use would
234. Rules of Procedure and Evidence, supra note 116, at Rule 44.
235. TRIFFTERER, supra note 94, at 558-559.
236. For a brief reference to this idea, see Manson, supra note 7, at 439.
237. To date, three Article 12(3) declarations have been lodged with the Registrar. See
Declarations Art. 12(3), International Criminal Court (last accessed Aug. 1, 2015),
http://www.icccpi.int/en_menus/icc/structure%20of%20the%20court/registry/Pages/declarations.
aspx.
238 . See Chan James, Judicial Oversight over Article 12(3) of the ICC Statute, FICHL (2013),
http://www.fichl.org/fileadmin/fichl/documents/FICHL_Policy_Brief_Series/FICHL_PB11.pdf.
239. Rules of Procedure and Evidence, supra note 116, at Rule 44. It is unclear that aggression
will not apply to all states parties after a vote in the ASP, but the more likely interpretation of the
ratification process is that it will only come under the jurisdiction of the court for those parties that
have ratified the text of the Kampala amendments. One point that leans in favor of the idea of
universal application post-ratification is that made by Andreas Zimmerman, that states parties need
not opt out of the court’s jurisdiction concerning crimes introduced under Articles 8(2)(e) (xiii), (xiv),
and (xv) of statute, despite the fact that these amendments to war crimes were adopted at the same
time as the crime of aggression in Kampala. Zimmerman, supra note 7, at 223.
2015] HUMANITARIAN INTERVENTION AND CRIME OF AGGRESSION
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address some of the concerns about the Kampala document and promote
non-criminal alternatives to fostering international peace.
However, this option does nothing to affirm the legitimacy of an HI
operation, nor does it show that the Court recognizes that HIs should not
be subject to criminal prosecution. It also places the possible jurisdictional
reach of the crime of aggression to the whims of whichever thirty states
ratify first, as the ability to declare under Article 12(3) would only be
possible if the crime entered into the jurisdiction of the Court under the
prescribed ratification process.240 For these reasons, invocation of Article
12(3) remains very low on the acceptability axis of the policy options
matrix.
J. Option 10: Failure to ratify the Kampala document
Failure to ratify the Kampala Document would require powerful nations
and regional actors to unite against the ratification process, in hopes of
halting the current trajectory and letting the amendments cease to
represent a viable policy option. This option is achievable. According to
the Status Report on Implementation and Ratification, thirty-five nations
are actively working on ratification, seven others are in the early stages, and
a dozen or so others made commitments to ratify at the December 2010
and 2011 sessions of the ASP.241 Many of these nations currently working
towards ratification should have reservations on how the crime of
aggression will affect their capacity to make necessary decisions on military
operations, such as the UK and all other members of NATO (The
Netherlands, Greece, Iceland, Italy), and African nations that are
traditional targets of the Court 242 and have semi-fluid borders rife with
boundary disputes that could rise to the level of aggression (Ghana,
Senegal, Democratic Republic of the Congo, Kenya, Lesotho, Burundi,
South Africa). Others, like South American nations (Bolivia, Peru,
Argentina, Mexico, Paraguay, Costa Rica, Brazil, Venezuela, Panama,
Ecuador) may have external economic or political interests that align with
240. It may also counter-productively dissuade nations who otherwise would have utilized Article
12(3) for other crimes within the jurisdiction of the Court from invoking the provision if the nation
uses force and is concerned about the OTP investigating alleged acts of aggression. Although Article
12(3) states that the State will “accept the exercise of jurisdiction . . . with respect to the crime in
question,” it remains unclear in practice if the crime refers to all crimes within a certain situation or
only specific acts deemed investigable by the complying State. Rome Statute, supra note 1, art. 12(3).
241. “Status of ratification and implementation,” THE GLOBAL CAMPAIGN, supra note 6.
242. To date, all charges have been brought against African defendants. Situations and cases, ICC,
http://www.icccpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases
.aspx (last accessed Aug. 1, 2015). This has not gone unnoticed; see We do not target Africa, ICC President
Says, AFRICAREVIEW (Oct. 18, 2013), http://www.africareview.com/News/We-dont-target
-Africa-says-ICC-President/-/979180/2037514/-/j1btoo/-/index.html (Statement by the president
and judges at the ICC).
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powerful nations such as the United States, China, or Russia. 243 Under
appropriate diplomatic assurances, these nations could redact their support
for ratification if encouraged to do so by the P5 nations.
There already exist potential coalitions that could form against
ratification of the Kampala amendments under the direction of a world
power. More research is needed on the difficulty of enticing nations to
renege on their commitments, and whether or not a snowball effect of
either support or uniformity against the wishes of nations that use force
would arise, but as a concept, the ability to derail ratification efforts is not
out of the realm of possibilities. The rationale for advocating the
abstention from ratification for states parties would be the definition’s
insufficient detail in determining when instances of military action would
be targeted, or some other nuanced perspective on the outcome document
from Kampala that evoked displeasure.
In spite of this option’s achievability, it is almost as unacceptable as
ratification with no alterations. All nations who signed on to Kampala did
so with the aim of developing a favorable and fair mechanism for
prosecuting the crime of aggression. An about-face on the overarching
goal would represent a step backward on the path of international criminal
justice and would likely be viewed as highly contradictory for nations such
as the United States, the UK, and France, all of whom prosecuted
aggression as “crimes against peace” after World War II.244 It makes little
sense to abandon efforts to criminalize aggression when the statutory
provisions already anticipate additional attempts at negotiation in 2017.
Rather than scrap the successful compromise forged at Kampala, a better
option would be to rally support around questions that need further
theorization, as all previous options have suggested. The failure-to-ratify
option should not be encouraged, but it is nevertheless important to be
aware of, as it may appeal to nations who find compromise impossible and
243. On China’s growing influence in Latin America, see China, Latin America, and the United States:
The New Triangle, WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS 2 (Cynthia J.
Arnson
and
Jeffrey
Davidow,
eds.,
Jan.
2011),
http://www.wilsoncenter.org/sites/default/files/LAP_120810_Triangle_rpt.pdf; China and Latin
America: South-South Investment and Sustainable Development, TUFTS UNIVERSITY GLOBAL
DEVELOPMENT
AND
ENVIRONMENT
INSTITUTE,
http://www.ase.tufts.edu/gdae/policy_research/ChinaLatinAmerica.html (last accessed Aug. 1,
2015). On Russia’s, see Russia Seeks Several Military Bases Abroad-Defense Minister, RIANOVOSTI (Feb. 26,
2014),
http://en.ria.ru/military_news/20140226/187917901/Russia-Seeks-Several-Military-BasesAbroad--Defense-Minister.html. On America’s reviving interest in Latin America, see U.S.
Disengagement from Latin America: Compromised Security and Economic Interests, Subcommittee on the Western
Hemisphere, U.S. House of Representatives, (Mar. 25, 2014), http://foreignaffairs.house.gov/hearing/subc
ommittee-hearing-us-disengagement-latin-america-compromised-security-and-economic (discussing
the ills brought by America’s slow loosening of ties with its South American neighbors).
244. See Historical Review of Developments Related to Aggression, supra note 17.
2015] HUMANITARIAN INTERVENTION AND CRIME OF AGGRESSION
839
worry about the current definition. These nations are particularly
appropriate targets to persuade of the value of a 2017 Review Conference.
CONCLUSION
By January 1, 2017, the ICC will celebrate its 15th birthday. To
guarantee the Court’s continued success and legitimacy, it must stand on
sturdy foundations. The Kampala document provides the foundation for
the exercise of jurisdiction over the crime of aggression. It is a
tremendous showing of the belief in the necessity to prosecute States for
their egregious abuses of power. However, its current ability to support
future prosecutions remains weak. The definition of the crime of
aggression sweeps broadly, and its procedure for entry into force and
synchronization with the rest of the Rome Statute leave many questions
unanswered. In particular, the definition gives no mention of the emerging
exceptions to the Article 2(4) prohibition on the use of force without
Security Council authorization.
If the current definition of the crime of aggression enters into force,
the future of the Court is at risk. Nations that use force, concerned about
the possibility of being investigated or prosecuted for legitimate acts of
HI, may boycott the Court altogether. The UN, overseen by a Security
Council of which three of the five permanent members are not signatories
to the ICC, may distance itself further from the Court. The Court may
have a mixed jurisdiction wherein only countries that do not use force
ratify the Kampala amendments, leaving the prosecution of the crime of
aggression effectively impossible. Worse, the Court may begin to
investigate or threaten to investigate situations of HI and may receive a
backlash of criticism and withdrawal of support from a large number of
nations active in foreign affairs and world politics.245 Yet, if the current
definition fails to pass, then one of the principal responsibilities of the
Court will remain at large and all of the support garnered at the Review
Conference will dissipate.
To avoid these doomsday scenarios, a core of concerned nations must
band together in a review conference before the ASP vote after 2017. A
desire to allow the doctrine of HI to evolve without fear of prosecution is
not a priority only for nations that use force. Smaller nations that are part
245. The Court is heavily dependent on nations’ support, both for financing and for investigative
help. For example, the Court is dependent on developed nations’ computerized security record
archive systems to collect any data on surveillance and intelligence, which is almost always necessary
for investigations. See BOSCO, supra note 16, at 66-76 (detailing examples of the Court’s failed
attempts to investigate U.S. actions in Bosnia in 1995 and the Rwandan government’s response
actions against the RPF in 2002); Valerie Oosterveld, Mike Perry, & John McManus, The Cooperation of
States with the International Criminal Court, 25 FORDHAM INT’L L.J. 767, 839 (2001) (confirming that the
ICC relies heavily on states parties for its success).
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of regional defense bodies or who share foreign policy interests with
nations that use force would be susceptible to prosecution for collective
HI operations. Nations that have been beneficiaries of HI operations—
Kosovo, Bangladesh, Syria—should also be concerned with the possibility
of excluding that avenue of foreign aid where future heinous crimes are
committed against state nationals.
Nations concerned with the indiscriminate prosecution of the crime of
aggression have a plethora of policy options at their disposal. The
preferred option would be a partial opt-out declaration under Article
15bis(4). This option works within the bounds of the Kampala
amendments, does not hinge on consensus, and guarantees the ability for
nations that use force to consider HI operations while supporting the
Court’s evolution. The second best option would be language similar to
the opt-out for HI, but placed in the Understandings. There were attempts
to pass this at Kampala and, with more time, it may have been approved.
This option puts limiting language in the text of the Kampala amendment,
though its legal force would remain unclear until further application. The
third best option would be to encourage a regime of complementarity
whereby nations pass opt-outs for HI in their domestic legislation. Again,
the force of law and language directly on the issue of HI prosecution
makes this an attractive option. Below these three options, nations may
choose from options that limit the definition of aggression through other
procedural means, in a less direct manner. These options would be best
used in a combination of sorts. Choices include amending the 2009
Prosecutorial Guidelines, amending the Rules of Procedure and Evidence,
implementing an affirmative defense for HI, or interpreting a higher mens
rea requirement for aggression. Lastly, there are several options that are not
advisable but nevertheless exist as potential drastic measures in the event
that compromise fails. These include employing an Article 16 deferral or
an Article 12(3) declaration of selective jurisdiction.
With four broad categories of crimes in its jurisdiction, the Court’s
treatment of aggression will represent a significant portion of its work. It
is in the interest of all nations, members and non-members of the Court
alike, to see that the reintroduction of the crime of aggression into
international criminal tribunals is successful. With some combination of
policy options laid out in this paper, it remains hopeful that engaged
nations might further the accomplishments of Kampala and the aims of
the ICC, and that they will recognize a place for HI in the canons of
international criminal law.