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Humanitarian Law Perspectives 2009
Topic 3:
The Crime of Aggression under the
Rome Statute
Research paper prepared by:
Hugh Bannister
Zoe Hutchinson
Peter McNulty
Ben Mostafa
Prashanti Ravindra
Rebecca Zaman
The Crime of Aggression under the Rome Statute
Table of Contents
Summary
1
1
Introduction
2
2
Why is there presently no definition of the crime of aggression in the Rome Statute? 3
2.1
2.2
The Rome Conference: debates, controversy and compromise
Competing concerns: power, selectivity and accountability
3
4
3
Defining the crime of aggression
5
3.1
3.2
3.3
3.4
The conduct of the individual and the State
Who can commit the crime?
Compatibility with the Rome Statute
Practical application
5
7
7
7
4
Determining which State acts are ‘acts of aggression’
7
4.1
4.2
4.3
4.4
4.5
Including a threshold clause
A generic or specific definition of offending State acts
Why the controversy?
The UN General Assembly’s resolution on aggression
Using the compromise approach - the best way forward
8
8
9
9
10
5
Jurisdiction of the ICC and the crime of aggression
10
5.1
5.2
5.3
5.4
Is a pre-determination required?
The Security Council as exclusive decision maker
In absence of a Security Council determination
Reaching a Decision
11
12
12
13
6
Conclusion
13
7
Reference List
15
7.1
7.2
Primary Sources
Secondary Materials
15
15
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i
Summary
In 1998, over 100 States voted to adopt the Rome Statute of the International Criminal
Court (‘Rome Statute’) to establish a permanent International Criminal Court (‘ICC’).1
The creation of the ICC was seen by many as a significant step forward in the fight to end
impunity for those who commit the most serious international crimes, such as genocide
and crimes against humanity. However, one such crime, the crime of aggression, remains
outside the ICC’s ambit.
This crime’s present exclusion from the ICC’s jurisdiction is ultimately due to political
power plays and the need for compromise in the course of establishing the ICC. Whilst a
large number of States wanted the ICC to have jurisdiction over the crime of aggression,
and be able to exercise this jurisdiction in a relatively uninhibited manner, other States,
including a number of powerbrokers, wanted to minimise the ICC’s role in relation to this
crime.
The resulting compromise is that the crime is included in the Rome Statute, however, it
presently remains dormant. In 2009, the Secretary-General of the United Nations (‘UN’)
(‘Secretary General’) is required to call for a conference of State parties to review the
Rome Statute (‘Review Conference’). It is anticipated that the main point of discussion at
this conference will be the crime of aggression, and how it should be implemented within
the Rome Statute.
This paper reviews several of the most salient issues facing the State parties at the
upcoming Review Conference. It examines why the political context within which State
delegates will negotiate will, as in the past, be a difficult environment in which to achieve
consensus. This paper considers that the negotiating positions of particular States,
motivated by the desire to shield their nationals from prosecution by the court, have
created this environment.
This paper also notes some of the technical legal issues associated with the wording of the
crime of aggression. The frustrating conceptual problems caused by references to
interrelated State and individual behaviour within the most advanced definition of the
crime are examined. Whether the crime should cover individuals acting in non-State
capacities, the need for the definition to be compatible with the existing text of the Rome
Statute, and the need for it to be sensibly applicable to real conflicts in international
relations are also touched upon.
Determining which forms of State conduct constitute acts of aggression will also require
consideration. Central points in this area include questions about the threshold of gravity
required of State conduct for it to be classified as an act of aggression; whether to adopt a
general principle definition, or an express list of acts deemed to be aggressive, and
whether to incorporate the outline of acts of aggression contained in a resolution of the
General Assembly of the UN (‘General Assembly’). This paper agrees that the currently
favoured approach, which entails a hybrid of all of these elements, is the best solution.
Finally, this paper explores whether the UN should have some role in determining the
ICC’s jurisdiction over particular cases involving the crime of aggression. The scope of
such a potential role is considered, particularly whether the UN Security Council
1
Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90, (entered
into force 1 July 2002). (‘Rome Statute’)
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1
(‘Security Council’) should have a ‘gate-keeper’ role regarding the ICC’s jurisdiction
over this crime. This paper considers that an outcome entailing some UN involvement, in
particular through the Security Council, appears likely. However, it does not appear that
this will result in the ICC becoming subjugated to the UN with respect to the crime of
aggression.
1
Introduction
At the 1998 Rome Conference on the Establishment of the International Criminal Court
(‘Rome Conference’), over 100 States voted to establish the ICC. The role of the ICC is
to adjudicate the most serious international crimes, such as genocide and crimes against
humanity.2 Its creation has been viewed by a range of legal theorists as an important step
forward in assisting to prevent impunity in relation to such crimes.3
However, the crime of aggression caused considerable disagreement between the States
present at the Rome Conference. The controversy surrounding this crime threatened to
undermine the broad support base and general consensus required for the formation and
viability of the ICC. To address this threat, a compromise was reached. The crime of
aggression would be included in article 5(1)(d) of the Rome Statute, however, the crime
would remain essentially ‘dormant’ until further consideration was given to its definition
and the circumstances in which the ICC would exercise its jurisdiction over the crime.
1 July 2009 is the seventh anniversary of the entry into force of the Rome Statute. On this
date, the Secretary General is to convene a Review Conference to consider making
amendments to the Rome Statute, including amendments to define the crime of
aggression.4
This paper considers a number of the issues which States are likely to face when they
attempt to enliven the ICC’s capacity to hear prosecutions for the crime of aggression.
First, we consider why it is that no agreement could be reached to define the crime of
aggression at the Rome Conference, and as a result, why there is presently no definition of
the crime in the Rome Statute.
We then consider some of the issues in relation to reaching a definition of the crime of
aggression, such as the problems associated with a definition of the crime where the
criminality of an individual’s behaviour is contingent upon whether the conduct of a State
is in breach of international law.
Flowing on from this, we consider some of the issues in relation to reaching agreement as
to what conduct of a State may constitute an act of aggression. Issues here include
whether a minimum threshold clause should be applied to determine whether an act of
aggression has occurred, as well as ensuring that acts which may constitute aggression are
not limited so as to exclude future developments in international conflicts.
Finally, we address some of the issues regarding the circumstances in which the ICC
should be able to exercise jurisdiction over crimes of aggression. Particularly, whether a
2
3
4
Rome Statute, opened for signature 17 July 1998, 2187 UNTS 90, art 5 (entered into force 1 July 2002).
Yves Beigbeder, International Justice Against Impunity: Progress and New Challenges (2005) 185;
International Criminal Court, Frequently Asked Questions, International Criminal Court Website
<http://www.icc-cpi.int/about/ataglance/faq.html> at 27 January 2009.
Rome Statute, opened for signature 17 July 1998, 2187 UNTS 90, arts 5, 121, 123 (entered into force 1 July
2002).
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decision of a UN organ should be required before the jurisdiction should be exercised,
and, if such a decision is to be required, which body would be an appropriate decision
maker.
2
Why is there presently no definition of the crime of aggression
in the Rome Statute?
There are a range of reasons as to why there is, as yet, no definition for the crime of
aggression in the Rome Statute. The inability of States at the Rome Conference to agree
to include the crime in the Rome Statute, and to agree on the crime’s potential operation
and scope, was one significant problem. Another point of disagreement was that
conditions should be satisfied prior to the ICC exercising jurisdiction over the crime.
Against the backdrop of unequal power relations between States, and concerns over
selectivity in the enforcement of international law, disagreements over such issues
threatened to undermine the existence of the ICC unless a compromise was reached.
2.1
The Rome Conference: debates, controversy and compromise
A number of States at the Rome Conference argued that individuals should be liable for
the crime of aggression - an approach which had been reflected within the Charter of the
International Military Tribunal (‘Nuremberg Charter’).5 On the other hand, some States
argued that responsibility for the crime of aggression should rest with States alone, rather
than individuals.6 Others, including the United States and the United Kingdom, were
adamantly opposed to inclusion of the crime of aggression.7
The delegates to the Rome Conference also debated the related role of the Security
Council in the prosecution processes. Some States argued that only the Security Council
should have the authority to find that an act of aggression had occurred. This would mean
that the Security Council would be required to declare that an act of aggression had
occurred before the Court would be able to assume jurisdiction. It has been suggested that
such a requirement would render the jurisdiction of the Court meaningless, especially
given the Security Council’s reluctance in many instances to hold that States’ actions have
amounted to aggression.8 In this context, concerns have been raised that the Security
Council might, if given the power to do so, block the ICC’s jurisdiction for political
reasons.9
The deadlock over the crime of aggression risked undermining efforts to enact the Rome
Statute. The European Union and many States of the Non Aligned Movement would not
support an ICC without jurisdiction over the crime of aggression. A compromise was
reached in that the crime of aggression would be included in article 5 of the Rome Statute,
however, the definition of the crime and the conditions for the ICC to exercise jurisdiction
5
6
7
8
9
Charter of the International Military Tribunal, 82 UNTS 280, art 6 (entered into force 8 August 1945); Grant M.
Dawson, ‘Defining Substantive Crimes within the subject matter Jurisdiction of the International Criminal Court:
What is the Crime of Aggression’ (2000) 19 New York Law School Journal of International and Comparative
Law 413, 418-9.
Dawson, above n 5, 418-9.
Noah Weisbord, ‘Prosecuting Aggression’ (2008) 49 Harvard International Law Journal 161, 170-1.
Ibid 167-9.
Ibid 209.
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over it were deferred for agreement no earlier than seven years after the entry into force of
the Rome Statute.10
2.2
Competing concerns: power, selectivity and accountability
Historically, agreement about the crime of aggression has been fraught with difficulty.
The deadlock at the Rome Conference was, therefore, unsurprising. Since the Nuremburg
and Tokyo tribunals at the end of World War II, State practice would seem to have
recognised the crime of aggression more than had previously been the case.11 However,
there have been no significant opportunities since the Nuremburg and Tokyo tribunals for
national or international courts to further develop the legal content of this crime.12 The
statues of the International Criminal Tribunal for the former Yugoslavia and the
International Criminal Tribunal on Rwanda did not include the crime of aggression within
their mandates.13 Indeed, unlike the international crimes of genocide and torture,
aggression has not been elaborated further by any treaty.14
The crime of aggression was set out in the Nuremburg and Tokyo Charters as part of the
wider category of crimes against peace.15 The Nuremburg and Tokyo tribunals are of
great significance in that they directly attributed responsibility for international crimes to
individuals rather than to the abstract entity of the State. However, these tribunals also
have a mixed legacy. They are now seen by a number of commentators as selective or
victors’ justice.16 Given this history and the reality of power relations between States,
some legal theorists are concerned that the attribution of individual liability for crimes
such as aggression is likely to continue to remain selective or inherently political under
the ICC.17
At the same time, other legal theorists claim that having a definitive definition of
individual responsibility for the crime of aggression represents an opportunity for
international criminal law to move beyond the ‘exceptionalism’ on the part of some
States. Exceptionalism refers to the way that some States are said to use their position of
10
11
12
13
14
15
16
17
Ibid 162; Rome Statute, opened for signature 17 July 1998, 2187 UNTS 90, arts 5, 121, 123 (entered into
force 1 July 2002).
See Affirmation of Principles of International Law recognised by the Charter of Nuremburg Tribunal, GA Res
st
th
95, UN GAOR, 1 sess 55 plan mtg, UN Doc A/236 (1946); Resolution on the Definition of Aggression, GA
Res 3314 (XXIX), 29 UN GAOR Supp (No 31) UN Doc A/9631 (1974); Draft Code of Crimes against the
Peace and Security of Mankind (1996) article 16 in International Law Commission, Year Book of the
International Law Commission (1996) volume II (Part Two) 15.
Although the US-led invasion of Iraq in 2003 led to some jurisprudence on this matter in the United Kingdom
and Germany, see Cristina Villa, ‘The Crime of Aggression before the House of Lords: Chronicle of a Death
Foretold’ (2006) 4 Journal of International Criminal Justice 866, 876; Alberto Zuppi, ‘Aggression as
International Crime: Unattainable Crusade or Finally Conquering the Evil?’ (2007) 26 Penn State International
Law Review 1, 33.
Statute of the International Criminal Tribunal for the Former Yugoslavia, annexed to Resolution 827, SC Res
th
th
827, UN SCOR, 48 sess, 3217 mtg, UN Doc S/RES/927 (1993); Statute of the International Tribunal for
th
rd
Rwanda, annexed to Resolution 955, SC Res 955, UN SCOR, 49 sess, 3453 mtg, UN Doc S/RES/955
(1994); Gillian Triggs, International Law: Contemporary Principles and Practices (2006), 972-3.
Triggs, above n 13, 972-3.
Charter of the International Military Tribunal, 82 UNTS 280, art 6(a) (entered into force 8 August 1945);
Charter of the International Military Tribunal for the Far East, TIAS No 1589, art 5(a) (entered into force 19
January 1946).
Kingsley Moghalu and Pierre-Richard Prosper, Global Justice: The Politics of War Crimes Trials (2006) 30-31;
Weisbord, above n 7, 166.
James Boeving, ‘Aggression, International Law and the ICC: an Argument for the withdrawal of aggression
from the Rome Statute’ (2005) 43 Columbia Journal of Transnational Law 557, 583; Moghalu and Prosper,
above n 16, 41.
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4
power to selectively enforce or ignore international legal norms when it is perceived as in
their interests to do so. The enforcement of international criminal law by a permanent
international court is often viewed as a method of overcoming such exceptionalism and a
method of lessening the risks of acts of aggression being selectively condoned. However,
it is clear that some powerful States are likely to be hesitant to agree on an explicit
definition of the crime of aggression because of fears that their nationals could be
prosecuted by the ICC. The five permanent members of the Security Council seem
particularly hesitant to give up their power to determine aggressive acts.18
The pursuit of one of the key goals of the ICC - ending impunity for international
criminals - has therefore posed, and will likely continue to pose at the upcoming Review
Conference, one of the great obstacles to the inclusion of a definition of aggression within
the Rome Statute. States which presently possess the ability to insulate their nationals
from prosecutions for the crime of aggression will remain particularly keen to retain such
ability.
3
Defining the crime of aggression
Although the Rome Statute currently lacks a definition of the crime of aggression,
progress towards this definition has been advanced for the benefit of the upcoming
Review Conference by the work of a Special Working Group on the Crime of Aggression
(‘Special Working Group’), set up to facilitate the negotiating process around reaching a
definition.19 The Special Working Group’s final proposed drafting for the crime of
aggression highlights the fact that since 1945, most definitions of State aggression, and
individual involvement in such State conduct, have had similar general concepts and
structures; the differences have been in their finer details.20 Defining the relationship
between acts of aggression and the crime of aggression will be important for the ICC
given its focus on individual responsibility. In addition to this difficulty there are issues
associated with defining the class of persons who may fall within the scope of the crime,
making sure the definition is compatible with the Rome Statute generally and ensuring the
definition will be practicably applicable.
3.1
The conduct of the individual and the State
Most definitions of the crime of aggression contain two separate, but inter-related,
components. A crime of aggression refers to an individual’s conduct, for which that
18
19
20
Boeving, above n 17, 580.
The Special Working Group took up this work where another body, the Preparatory Commission for the
International Criminal Court, left off: United Nations, Final Act of the United Nations Diplomatic Conference of
Plenipotentiaries on the Establishment of an International Criminal Court, Annex I Resolution F paragraph 7,
UN Doc A/CONF.183/10 (1998); United Nations, Report of the Preparatory Commission for the International
Criminal Court (continued): Part II Proposals for a Provision on the Crime of Aggression, 2, UN Doc
PCNICC/2002 (2002); Michael O’Donovan, ‘Criminalizing War: Toward a Justifiable Crime of Aggression’
(2007) 30 Boston College International and Comparative Law Review 507, 515-517; Zuppi, above n 12, 22-6.
General Assembly Resolution 3314 (XXIX), 29 UN GAOR Supp (No 31) at 142-4, UN Doc A/9631 (1974);
Draft Code of Crimes against the Peace and Security of Mankind (1996) above n 11; United Nations, Report of
the Preparatory Commission for the International Criminal Court (continued) UN Doc PCNICC/2002 (2002), 35 ; Special Working Group on the Crime of Aggression, Report of the Special Working Group on the Crime of
Aggression, resumed 6th session, 12-4, ICC Doc ICC-ASP/6/20/Add.1/Annex II (2008); compare Matthias
Schuster, ‘The Rome Statute and the Crime of Aggression: a Gordian Knot in Search of a Sword’ (2003) 14
Criminal Law Forum 1, 17.
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individual may be liable. An act of aggression refers to the conduct of a State, for which
that State may be liable.21
The crime of aggression is generally agreed to be the conduct of a State’s most senior
leaders that causes the State to commit an act of aggression.22 This presents a frustrating
conceptual problem because an individual’s criminal liability is contingent upon whether
a State’s conduct is culpable.
The Rome Statute, like many of the world’s criminal justice systems, recognises that to
prove a person has committed a serious crime, two legal elements must be proven:23
(a)
a material (or physical) element, usually certain conduct of the accused; and
(b)
a fault (or mental) element, that the accused had a guilty mind or conscience.
The fault element ordinarily attaches to a consequence of the material element. To take a
simplified example, the crime of murder is committed by the accused causing the death of
another person (the material element) with the intention (the fault element) to cause this
death (the consequence of the material element).24
The fault element for the crime of aggression is considered to be having knowledge of,
and intending to cause, a State to commit an act of aggression.25 But an act of aggression
is a certain category of force used by a State, distinguished from other categories of force
by applying a value judgement to State conduct. The consequence of the crime of murder
is fixed and inherently self-evident: a person must be dead. But whether an act of
aggression has occurred is a variable consequence which is not self-evident because its
existence is deduced by a process of reasoning.
A circular chicken-and-egg causality dilemma occurs if an act of aggression needs to be
found to have first occurred before the crime of aggression can be proven. An act of
aggression cannot occur unless the crime of aggression has been committed by the leaders
of a State. But a crime of aggression cannot occur unless a State has committed an act of
aggression.26
Even though the two components in the definition lead to causal circularity, it should be
recognised that this does not mean that the crime cannot be defined. Rather, its
occurrence is self-evident, even if its definition is conceptually uncertain.27
21
22
23
24
25
26
27
Special Working Group on the Crime of Aggression, Report of the Special Working Group on the Crime of
Aggression, above n 20, 4, 12; Antonio Cassese, International Criminal Law (2nd ed, 2008), 155-8.
Special Working Group on the Crime of Aggression, Report of the Special Working Group on the Crime of
Aggression, above n 20, above n 20, 12-4.
Rome Statute, opened for signature 17 July 1998, 2187 UNTS 90, art 30 (entered into force 1 July 2002).
See Cassese, International Criminal Law, above n 21, Ch 3; Rodger Clark, ‘Rethinking Aggression as a Crime
and Formulating its Elements: the Final Work-Product of the Preparatory Commission for the International
Criminal Court’ (2002) 15 Leiden Journal of International Law 859, 867-869.
Article 30 of the Rome Statute deems this to be the default fault element if the definition of a crime does not
expressly state the fault element in its wording; Daniel Nsereko, ‘Defining the Crime of Aggression: an
Important Agenda Item for the Assembly of States Parties to the Rome Statute of the International Criminal
Court’ (2003) Acta Juridica 256, 281-3; Irina Müller-Schieke, ‘Defining the Crime of Aggression Under the
Statute of the International Criminal Court’ (2001) 14 Leiden Journal of International Law 409, 419-21; Antonio
Cassese, ‘On Some Problematical Aspects of the Crime of Aggression’ (2007) 20 Leiden Journal of
International Law 841, 848-849.
Schuster, above n 20, 23.
See Ibid 11-12; Cassese, International Criminal Law, above n 21, 155-6.
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3.2
Who can commit the crime?
The Special Working Group has concluded that only the most senior political and military
officials of a State can commit the crime of aggression.28 But this State-centric focus
means that persons not affiliated with States cannot commit the crime.29 This seems odd
given that the other crimes within the jurisdiction of the ICC can be committed by persons
not affiliated with States, and that the crime is supposed to provide a penalty for, and act
as a deterrence to, individuals responsible for illegal uses of force on the international
plane.30
Limiting the scope of the crime in this manner may also raise issues regarding the ICC’s
effectiveness. In circumstances where the use of force is increasingly attributable to nonState actors such as rebel groups,31 a definition aimed at ensuring only the ‘most
responsible’ State officials are prosecuted for the crime may have the inadvertent effect of
relieving the most responsible non-State actors from responsibility.
3.3
Compatibility with the Rome Statute
The proposed crime of aggression needs to be consistent with the Rome Statute, and
particularly, must be compatible with the general principles of criminal law set out in Part
III of the Rome Statute. For example, the Special Working Group has not clarified how
article 25(3)(f), which criminalises attempts to commit a crime, would apply to the crime
of aggression. Some observers believe that because the crime’s definition is contingent
on there being a manifested act of aggression, the crime of aggression only comes into
being once this has occurred.32 This and other difficulties may essentially preclude
prosecutions for attempts to commit the crime.
3.4
Practical application
Before a definition has been agreed upon and enacted into the Rome Statute,
consideration should be given to the definition’s practical application. In all but the most
serious inter-State incidents, accusations that State leaders have committed the crime of
aggression will be completely counter-productive to achieving a resolution to hostilities.33
This suggests that the gravity of the act of aggression used in the definition may need to
be set relatively high, although this will need to be balanced against the ideal of individual
criminal responsibility for certain State aggression.
4
Determining which State acts are ‘acts of aggression’
In addition to the technical difficulties involved, a crucial issue associated with defining the
crime of aggression is determining which State acts can constitute ‘aggression’. Various
issues arise when defining aggressive State acts by reference to draft article 8 bis of the
28
29
30
31
32
33
Special Working Group on the Crime of Aggression, Report of the Special Working Group on the Crime of
Aggression, above n 20, 5, 12-4; Clark, above n 24, 873-4; Zuppi, above n 12, 30.
Schuster, above n 20, 22-23.
Cassese, On Some Problematical Aspects of the Crime of Aggression, above n 25, 846; Michael O’Donovan,
above n 19, 509; Cassese, International Criminal Law, above n 21, 156-7.
Schuster, above n 20, 23.
Zuppi, above n 12, 31; Clark, above n 24, 884.
W Michael Reisman, ‘The Definition of Aggression and the ICC’ (2002) 96 American Society of International
Law Proceedings 181, 184.
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Special Working Group’s final proposed definition of the crime. These include whether a
threshold of gravity clause should be included in the definition, whether ‘aggressive acts’
should be defined by reference to either a generic definition or a specific list of offending acts,
and whether a balanced approach can be achieved.
4.1
Including a threshold clause
Before inquiring whether a particular State act constitutes an act of aggression, draft
article 8 bis requires that the act must reach a certain threshold of gravity: the act must ‘by
its character, gravity and scale, constitut[e] a manifest violation of the Charter of the
United Nations’. The rationale for this approach is to exclude marginal or borderline
cases from the jurisdiction of the Court.34 What constitutes a ‘borderline’ case is itself
controversial, as evinced by an early view of the United Kingdom and Russia that only
aggressive wars should be caught by the definition, as opposed to a more general
inclusion of aggressive acts.35
Some delegates to the Special Working Group have opposed the inclusion of a gravity
threshold on the basis that any act of aggression is intrinsically grave and constitutes a
‘manifest violation’ of the Charter of the United Nations36 (‘UN Charter’).37 Another
counter-argument put by delegates is that a threshold requirement is made redundant by
the preamble and articles 1, 5 and 17(d) of the Rome Statute, which already limit the
ICC’s jurisdiction to crimes of sufficient gravity to justify action by the Court.38 Despite
these objections, ‘a critical mass’ of delegations appear to support the continued inclusion
of the threshold clause.39
4.2
A generic or specific definition of offending State acts
A major point of contention between the negotiating States is whether the State acts which
constitute ‘aggression’ should be specifically listed or defined according to a general
principle. An alternative approach was to leave ‘aggression’ undefined, meaning its
identification remained completely at the discretion of the Security Council.40 This
approach was strongly criticised for being likely to result in arbitrary, highly-politicised
prosecutions, and equally arbitrary failures to prosecute.41 Although the role of the
Security Council in any exercise of jurisdiction by the ICC is contentious, the argument
34
35
36
37
38
39
40
41
Special Working Group on the Crime of Aggression, Report of the Special Working Group on the Crime of
Aggression, above n 20, 4.
Preparatory Commission for the International Criminal Court, Proposal submitted by the Russian Federation
Definition of the crime of aggression (1999) UN Doc. PCNICC/1999/DP.12; Phani Dascalopoulou-Livada, ‘The
Crime of Aggression: Making Operative the Jurisdiction of the ICC’ (2002) 96 American Society of
International Law Proceedings 181, 186.
Charter of the United Nations, 24 October 1945 1 UNTS XVI.
Special Working Group on the Crime of Aggression, Report of the Special Working Group on the Crime of
Aggression, above n 20, 4.
Ibid.
Ibid 5.
O’Donovan, above n 19, 522; see The American Non-Governmental Organizations Coalition for the
International Criminal Court, Crime of Aggression: Statement by the United States, September 26, 2001
(2001) <http://www.amicc.org/docs/AggressionUSstmt9_01.pdf> at 28 January 2009.
Carrie McDougall, ‘When Law and Reality Clash–The Imperative of Compromise in the Context of the
Accumulated Evil of the Whole: Conditions for the Exercise of the International Criminal Court’s Jurisdiction
over the Crime of Aggression’ (2007) 7 International Criminal Law Review 277, 310.
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that the definition of aggression should also be in the hands of the Security Council is no
longer raised in the debates.42
Draft article 8 bis paragraph 2 provides a generic definition of an act of aggression as:
the use of armed force by a State against the sovereignty, territorial integrity or
political independence of another State, or in any other manner inconsistent with the
Charter of the United Nations.
It then provides an inclusive list of State acts that would constitute aggression, such as
armed invasion, bombardment and blockade.
4.3
Why the controversy?
Many States fear that a specific and restrictive list of aggressive acts will be too rigid,
preventing international criminal law from evolving in line with new methods and
understandings of both ‘armed force’ and ‘aggression’.
For example, article 51 of the UN Charter recognises States’ continued right of selfdefence against ‘armed attacks’. If the UN Charter drafted article 51 as an exhaustive list
of eligible ‘armed attacks’ defined by 1945 standards, then self-defence would likely be
limited to grave attacks by State actors using conventional military weapons. By
comparison, following the 11 September 2001 attacks, non-State actors flying an
aeroplane into a building is generally accepted as an ‘armed attack’ triggering a State’s
right to self-defence.43
The counter-argument to objections to a specific list of aggressive acts is that a generic
definition may be too wide, criminalising State acts that should not be criminalised. For
example, if all uses of armed force against another State are considered to be criminal acts
of aggression, this could stymie the evolution of new international law, such as the
doctrine of humanitarian intervention.
4.4
The UN General Assembly’s resolution on aggression
In deciding how State acts of aggression should be defined, a significant part of the
discussion has focussed on whether and how UN General Assembly Resolution 3314
(XXIX)44 (‘GA Aggression Resolution’) should be incorporated into the Rome Statute.
Draft article 8 bis reflects a compromise approach between a generic definition and a
closed list of State acts. It is based on articles 1 and 3 of the GA Aggression Resolution.
It is essential that the definition of State acts of aggression respect the principle of legality
in criminal law.45 For this reason, arguments were made against adopting the entire GA
Aggression Resolution. In particular article 4, which provides that the Security Council
42
43
44
45
Special Working Group on the Crime of Aggression, Report of the Special Working Group on the Crime of
Aggression, above n 20, 4-6.
North Atlantic Treaty Organization, Invocation of Article 5 confirmed, (2001)
<http://www.nato.int/docu/update/2001/1001/e1002a.htm> at 28 January 2009.
Resolution on the Definition of Aggression, above n 19.
This is often expressed in the Latin phrase nullum crimen sine lege and dictates that a person cannot be
criminally liable for their conduct unless there is, at the time of the conduct, a law in existence prohibiting such
conduct; see Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS
90, art 22 (entered into force 1 July 2002).
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may determine that other acts constitute aggression, has not been included because it
offends this principle.46 Another issue is that article 2 appears to reverse the burden of
proof,47 an approach which is inconsistent with article 67(1)(i) of the Rome Statute.48
Further, and perhaps more fundamentally, the GA Aggression Resolution was not
designed to be a criminal law text to be applied by a judicial body.49 The current
compromised approach which adopts only selected provisions of the GA Aggression
Resolution reflects this.
4.5
Using the compromise approach - the best way forward
The compromise achieved by the current draft article 8 bis paragraph 2, in having a
generic definition and an illustrative list of acts of aggression, is generally considered to
be ‘the best possible compromise’.50 It addresses a number of concerns that had been
raised about previous drafts of the definition:
5
(a)
it is sufficiently precise to respect the principle of legality whilst remaining
sufficiently open to cover future forms of aggression;
(b)
it is designed to only cover the most serious crimes deserving of the Court’s
jurisdiction; and
(c)
it contains drafting which makes it clear that the proposed definition is only for
the purpose of individual criminal responsibility under the Rome Statue. The
Security Council and other UN organs remain free to apply their own
interpretations regarding acts of aggression.51
Jurisdiction of the ICC and the crime of aggression
In addition to the problem of defining the crime of aggression, another major issue left
undecided by the Rome Conference is under what conditions the ICC should be able to
exercise jurisdiction over the crime. The Special Working Group has also failed to come
46
47
48
49
50
51
Special Working Group on the Crime of Aggression, Informal inter-sessional meeting of the Special Working
Group on the Crime of Aggression, held at the Liechtenstein Institute on Self-Determination, Woodrow Wilson
School, Princeton University, United States, from 11 to 14 June 2007 (2007) ICC-ASP/6/SWGCA/INF.1, [41]
and Special Working Group on the Crime of Aggression, Report of the Special Working Group on the Crime of
Aggression (2007), Fifth session resumed, ICC doc ICC/ASP/5/35
Article 2 provides that the first use of armed force by a State in contravention of the Charter is prima facie
evidence of an act of aggression, although the Security Council may conclude that an act of aggression would
not have been justified in the relevant circumstances. Ordinarily, the Prosecutor would have to prove before
the ICC that an act of aggression has occurred. A reversal of this burden of proof would require the defence
to actively disprove the occurrence of the act of aggression.
Article 67(1)(i) of the Rome Statute protects the accused from any reversal of the burden of proof and being
imposed with an onus of rebuttal. However, this issue does not appear to have been specifically considered
by the Working Group. See Claus Kress, ‘The Crime of Aggression before the First Review of the ICC Statute’
(2007) 20 Leiden Journal of International Law 851, 857.
Ibid 857; Schuster, above n 20, 30.
Special Working Group on the Crime of Aggression, Report of the Special Working Group on the Crime of
Aggression, above n 20, 5.
Ibid.
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to a consensus on this point, but has enumerated a number of potential options in its latest
report and draft amendments.52
The main issues raised are:
5.1
(a)
whether there should be a pre-determination by a UN organ before the ICC can
exercise jurisdiction over the crime;
(b)
whether the pre-determination should consist of merely an authorisation for the
ICC to proceed or an actual determination of an act of aggression; and53
(c)
which body should make that pre-determination:54
(i)
whether the Security Council’s role in the determination should be an
exclusive one; or
(ii)
if the Security Council does not have exclusive power, and fails to make a
determination, whether the UN General Assembly, the International Court
of Justice (‘ICJ’) or the ICC should be able to make the determination.
Is a pre-determination required?
A number of delegates to the Special Working Group contend that the ICC should only be
able to exercise jurisdiction over the crime of aggression after a UN body has made a predetermination either that the ICC may proceed or that an act of aggression has occurred.55
The arguments against the need for a pre-determination include that it will undermine the
independence of the Court, remove the rights of the accused,56 and interfere with the
judicial process and guarantee of a fair trial.57
The arguments in favour of a pre-determination being required are that the elements of the
crime of aggression include a State act of aggression58 as well as a related, but separate,
individual act,59 and it is this individual act with which the ICC should be concerned.60
Prosecuting the crime of aggression is also likely to be a highly political question, and it
may be that the ICC’s decision to do so in certain circumstances may conflict with the
position taken by the UN, such as where the Security Council is presently seized of, and
attempting to resolve, a dispute.
52
Special Working Group on the Crime of Aggression, Report of the Special Working Group on the Crime of
Aggression, above n 20, 6-8.
53
Carrie McDougall, above n 41, 322-3.
Vimalen Reddi, 'The ICC and the Crime of Aggression: A Need to Reconcile the Prerogatives of the SC, the
ICC and the ICJ' (2008) 8 International Criminal Law Review 655, 678-9.
Weisbord, above n 7, 197.
Such as those rights under Article 67(1) of the Rome Statute: McDougall, above n 41, 318.
Ibid 313-8; Reddi, above n 54, 666-7.
Clark, above n 24, 871; Kress, above n 48, 862; Weisbord, above n 7, 179.
Clark, above n 24, 873; Weisbord, above n 7, 190-6.
Buhm-Suk Baek, 'The Definition and Jurisdiction of the Crime of Aggression and the International Criminal
Court' (2006) 19 Cornell Law School LLM Papers Series 1, 51.
54
55
56
57
58
59
60
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5.2
The Security Council as exclusive decision maker
Some delegates rely on article 39 of the UN Charter to assert that the Security Council
should have exclusive power to determine an act of aggression.61 Article 39 provides that
the Security Council ‘shall determine the existence of any… act of aggression’.62 It is
therefore argued by negative implication that no other body can determine the existence
of an act of aggression. Under this view, the ICC should only be able to exercise
jurisdiction over a crime of aggression after a Security Council determination. The view
that the UN Charter does provide the Security Council with a degree of primacy in
determining an act of aggression has gained substantial acceptance however, it is
contended that the Security Council’s power is not exclusive.63
Many States are strongly opposed to the Security Council having an exclusive ‘gatekeeper’ role to determine which crimes of aggression should be prosecuted.64 Their
concern primarily arises from the veto power of the Security Council’s permanent
members, which may be used both to protect the permanent members’ leaders from
prosecution as well as leaders of allied States.65 Whilst an exclusive role for the Security
Council is aimed at reducing tension between the ICC and the UN, it may be that such a
role would result in ICC prosecutions being politicised. Further, there is a perceived lack
of willingness by the Security Council to determine acts of aggression, as it has been
extremely reluctant to do so in the past.66 In cases where the Security Council is required
to balance the consequences of labelling a State as an aggressor, which may only incite
further conflict,67 with trying to resolve the conflict in question, the Security Council is
more concerned with international peace and security than with criminal justice.68
Further, as the Nicaragua case shows, the Security Council’s power to protect
international peace and security under article 39 of the UN Charter is not exclusive.69
Article 39 itself also appears to prevent an exclusive determination by the Security
Council, because read literally, the section only allows the Council to intervene in current
acts of aggression to maintain international peace and security, not past acts of aggression
to determine criminal liability.70
5.3
In absence of a Security Council determination
Alternative options to giving the Security Council a ‘gate keeper’ style role, whilst still
recognising its primacy, are receiving favour with many States’ delegates. The Security
Council could ‘green light’ a case for the ICC to proceed without determining that an act
of aggression had occurred, or, if the Security Council is not to play this role, the green
61
62
63
64
65
66
67
68
69
70
Mark Stein, 'The Security Council, the ICC, and the Crime of Aggression: How Exclusive is the Security
Council's Power to Determine Aggression?' (2005) 16 Indiana International & Comparative Law Review 1, 1-2.
Charter of the United Nations, 24 October 1945 1 UNTS XVI, art 39.
Stein, above n 61, 12-25.
This is particularly so in light of the existing right of the Security Council to instruct the Office of the Prosecutor
and the ICC to halt investigations or proceedings into any incident involving a crime that falls within the
jurisdiction of the ICC; see Rome Statute of the International Criminal Court, opened for signature 17 July
1998, 2187 UNTS 90, art 16 (entered into force 1 July 2002).
Schuster, above n 20, 40-1.
Weisbord, above n 7, 203.
McDougall, above n 41, 310.
Ibid.
Ibid 287; Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United
States of America) (Jurisdiction and Admissibility) [1984] ICJ Rep 392, 434.
Stein, above n 61, 15-7.
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light could be given by another UN organ.71 This overcomes the political issue of
requiring the Security Council to determine whether there has been an act of aggression,
and maintains the independence of the Court.
Other proposals include allowing other UN organs to make a determination, especially
where the Security Council has failed to do so.72 The Special Working Group continues to
debate which other UN organ, such as the General Assembly or the ICJ, could play this
role.73
The General Assembly has been suggested as a body which could make the required
determination where the Security Council fails to do so.74 Those in support of this
mechanism rely on the Uniting for Peace Resolution of 1950.75 This Resolution
represented the General Assembly exercising authority over the use of force and armed
attacks in circumstances where the Security Council had consistently failed to do so.76
Supporters contend that a General Assembly resolution would also allow for a consensus
of all UN State parties. However opponents assert that the General Assembly lacks the
‘ability to apply independent, rigorous legal analysis of the definition of aggression and
the ability to ensure the rights of the accused are upheld’.77
Another option is to permit the ICC to ask the General Assembly to request an advisory
opinion from the ICJ.78 The benefit of having the ICJ provide an opinion is that it will
have the independence and impartiality that a judicial organ can provide,79 as opposed to
recommendations from other UN organs. However, referrals from the ICC to the ICJ
could ‘add costly and undesirable time-consuming procedures’.80
5.4
Reaching a Decision
A number of options are presently before the Special Working Group. While the final
outcome on this point will only be known after the Review Conference, it appears likely
that one of the options which provides for Security Council involvement in, but not
domination of, the exercise of the ICC’s jurisdiction over the crime of aggression will
prevail.
6
Conclusion
The first issue that must be overcome to include meaningful and practical provisions
regarding the crime of aggression in the Rome Statute remains, as at the 1998 Rome
Conference, obtaining the requisite States’ consensus. It remains to be seen to what
71
72
73
74
75
76
77
78
79
80
Weisbord, above n 7, 207.
Troy Lavers, '[Pre] Determining the Crime of Aggression: Has the Time Come to Allow the International
Criminal Court its Freedom?' (2008) 71 Albany Law Review 299, 314-7.
Special Working Group on the Crime of Aggression, Report of the Special Working Group on the Crime of
Aggression, above n 20, 7, 13-4.
Ibid.
Uniting for Peace Resolution, G.A. Res. 337(v), U.N. Doc. A/RES/377 (1951).
Weisbord, above n 7, 201.
McDougall, above n 41, 324.
Jennifer Trahan, ‘Defining ‘Aggression’: Why the Preparatory Commission for the International Criminal Court
has Faced such a Conundrum’ (2002) 24 Loyola of Los Angeles International and Comparative Law Review
439, 455.
Baek, above n 60, 50.
Kress, above n 48, 863.
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extent, in the eleven years since the Rome Conference, a critical mass of States have
aligned their views on the issue.
Although a number of powerful States, such as the United States, Russia and China, have
yet to become parties to the Rome Statute, the weight of their opinions should not be
underestimated. The State parties to the Rome Statute will be aware that an ICC which is
supported by these States will be a more powerful institution than one impeded by their
opposition. Similarly, the influence of these international powerbrokers on the position
that other States may take is important.
Whilst achieving a general consensus is of great importance, a consensus will not, without
more, result in the ICC being a useful forum for prosecutions of the crime of aggression.
It is clear that, in order for such a consensus to form, compromises will have to be made.
Present areas of contention which may be subject to compromise between the ideal of a
uniformly applied rule of individual responsibility and realpolitik include:
(a)
the interaction between the desire to hold to account those responsible for armed
conflicts, and the desire for armed conflicts which do occur to be ended as soon as
possible;
(b)
the range of State acts which may be considered acts of aggression, and the degree
of force required to be used by a State before its leaders may come under scrutiny;
(c)
whether any pre-determinations by a UN organ need to be made before the ICC
may exercise jurisdiction over individuals accused of the crime, and in particular
how much power in this respect will be vested in States which are not presently
party to the Rome Statute, such as the majority of the Security Council.
Each of these issues represent points which, if too many concessions are made for the
sake of achieving a consensus, have the potential to seriously undermine the ICC’s power
to make headway into the impunity currently enjoyed by persons responsible for
aggressive acts. Another example is the issue of whether or not non-State actors will be
within the scope of the crime of aggression under the Rome Statute. Presently it appears
that they will not. This is perhaps less controversial than allowing prosecutions against
non-State actors for this crime, but at the same time, the restriction does significantly
curtail the ICC’s power. Whether the ICC will, in time, become a useful institution in
deterring those who would wage illegal wars appears to be a question which depends on
the will of State parties not only to reach a consensus, but one which provides this portion
of the Rome Statute with practical and meaningful application.
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7
Reference List
7.1
Primary Sources
(a)
Treaties/Statutes
Charter of the International Military Tribunal, 82 UNTS 280, (entered into force 8
August 1945)
Charter of the International Military Tribunal for the Far East, TIAS No 1589,
(entered into force 19 January 1946)
Charter of the United Nations, 24 October 1945 1 UNTS XVI
Draft Code of Crimes against the Peace and Security of Mankind (1996) article 16 in
International Law Commission, Year Book of the International Law Commission
(1996) volume II (Part Two) 15
Rome Statute of the International Criminal Court, opened for signature 17 July 1998,
2187 UNTS 90, (entered into force 1 July 2002)
Statute of the International Criminal Tribunal for the Former Yugoslavia, annexed to
Resolution 827, SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc S/RES/927
(1993)
Statute of the International Tribunal for Rwanda, annexed to Resolution 955, SC Res
955, UN SCOR, 49th sess, 3453rd mtg, UN Doc S/RES/955 (1994)
(b)
Cases
Case Concerning Military and Paramilitary Activities in and Against Nicaragua
(Nicaragua v United States of America) (Jurisdiction and Admissibility) [1984] ICJ
Rep 392
7.2
Secondary Materials
Affirmation of Principles of International Law recognised by the Charter of Nuremburg
Tribunal, GA Res 95, UN GAOR, 1st sess 55th plan mtg, UN Doc A/236 (1946)
The American Non-Governmental Organizations Coalition for the International Criminal
Court, Crime of Aggression: Statement by the United States, September 26, 2001 (2001)
<http://www.amicc.org/docs/AggressionUSstmt9_01.pdf> at 28 January 2009.
Buhm-Suk Baek, 'The Definition and Jurisdiction of the Crime of Aggression and the
International Criminal Court' (2006) 19 Cornell Law School LLM Papers Series 1
Yves Beigbeder, International Justice Against Impunity: Progress and New Challenges
(2005)
James Boeving, ‘Aggression, International Law and the ICC: an Argument for the withdrawal
of aggression from the Rome Statute’ (2005) 43 Columbia Journal of Transnational Law 557
Antonio Cassese, International Criminal Law (2nd ed, 2008)
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Antonio Cassese, ‘On Some Problematical Aspects of the Crime of Aggression’ (2007) 20
Leiden Journal of International Law 841
Rodger Clark, ‘Rethinking Aggression as a Crime and Formulating its Elements: the Final
Work-Product of the Preparatory Commission for the International Criminal Court’ (2002) 15
Leiden Journal of International Law 859
Phani Dascalopoulou-Livada, ‘The Crime of Aggression: Making Operative the Jurisdiction
of the ICC’ (2002) 96 American Society of International Law Proceedings 181
Grant M. Dawson, ‘ Defining Substantive Crimes within the subject matter Jurisdiction of the
International Criminal Court: What is the Crime of Aggression’ (2000) 19 New York Law
School Journal of International and Comparative Law 413
International Criminal Court, Frequently Asked Questions, International Criminal Court
Website <http://www.icc-cpi.int/about/ataglance/faq.html> at 27 January 2009
Claus Kress, ‘The Crime of Aggression before the First Review of the ICC Statute’ (2007) 20
Leiden Journal of International Law 851
Troy Lavers, '[Pre] Determining the Crime of Aggression: Has the Time Come to Allow the
International Criminal Court its Freedom?' (2008) 71 Albany Law Review 299
Carrie McDougall, ‘When Law and Reality Clash–The Imperative of Compromise in the
Context of the Accumulated Evil of the Whole: Conditions for the Exercise of the
International Criminal Court’s Jurisdiction over the Crime of Aggression’ (2007) 7
International Criminal Law Review 277
Kingsley Moghalu and Pierre-Richard Prosper, Global Justice: The Politics of War Crimes
Trials (2006)
North Atlantic Treaty Organization, Invocation of Article 5 confirmed, (2001)
<http://www.nato.int/docu/update/2001/1001/e1002a.htm> at 28 January 2009.
Daniel Nsereko, ‘Defining the Crime of Aggression: an Important Agenda Item for the
Assembly of States Parties to the Rome Statute of the International Criminal Court’ (2003)
Acta Juridica 256
Michael O’Donovan, ‘Criminalizing War: Toward a Justifiable Crime of Aggression’ (2007)
30 Boston College International and Comparative Law Review 507
Preparatory Commission for the International Criminal Court, Proposal submitted by the
Russian Federation Definition of the crime of aggression (1999) UN Doc.
PCNICC/1999/DP.12
Vimalen Reddi, 'The ICC and the Crime of Aggression: A Need to Reconcile the Prerogatives
of the SC, the ICC and the ICJ' (2008) 8 International Criminal Law Review 655
Irina Müller-Schieke, ‘Defining the Crime of Aggression Under the Statute of the
International Criminal Court’ (2001) 14 Leiden Journal of International Law 409
W Michael Reisman, ‘The Definition of Aggression and the ICC’ (2002) 96 American Society
of International Law Proceedings 181
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Mark Stein, 'The Security Council, the ICC, and the Crime of Aggression: How Exclusive is
the Security Council's Power to Determine Aggression?' (2005) 16 Indiana International &
Comparative Law Review 1
Matthias Schuster, ‘The Rome Statute and the Crime of Aggression: a Gordian Knot in Search
of a Sword’ (2003) 14 Criminal Law Forum 1
Special Working Group on the Crime of Aggression, Informal inter-sessional meeting of the
Special Working Group on the Crime of Aggression, held at the Liechtenstein Institute on
Self-Determination, Woodrow Wilson School, Princeton University, United States, from 11 to
14 June 2007 (2007) ICC-ASP/6/SWGCA/INF
Special Working Group on the Crime of Aggression, Report of the Special Working Group on
the Crime of Aggression (2007), Sixth session resumed, 12-4, ICC Doc ICCASP/6/20/Add.1/Annex II (2008)
Special Working Group on the Crime of Aggression, Report of the Special Working Group on
the Crime of Aggression (2007), Fifth session resumed, ICC doc ICC/ASP/5/35
Jennifer Trahan, ‘Defining ‘Aggression’: Why the Preparatory Commission for the
International Criminal Court has Faced such a Conundrum’ (2002) 24 Loyola of Los Angeles
International and Comparative Law Review 439
Gillian Triggs, International Law: Contemporary Principles and Practices (2006)
Resolution on the Definition of Aggression, GA Res 3314 (XXIX), 29 UN GAOR Supp (No
31) UN Doc A/9631 (1974)
United Nations General Assembly, Uniting for Peace Resolution, G.A. Res. 337(v), U.N.
Doc. A/RES/377 (1951)
United Nations, Final Act of the United Nations Diplomatic Conference of Plenipotentiaries
on the Establishment of an International Criminal Court, UN Doc A/CONF.183/10 (1998)
United Nations, Report of the Preparatory Commission for the International Criminal Court
(continued): Part II Proposals for a Provision on the Crime of Aggression, UN Doc
PCNICC/2002 (2002)
Noah Weisbord, ‘Prosecuting Aggression’ (2008) 49 Harvard International Law Journal 161
Cristina Villa, ‘The Crime of Aggression before the House of Lords: Chronicle of a Death
Foretold’ (2006) 4 Journal of International Criminal Justice 866
Alberto Zuppi, ‘Aggression as International Crime: Unattainable Crusade or Finally
Conquering the Evil?’ (2007) 26 Penn State International Law Review 1
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