Consequences of Kampala: Assessing the impact of an International Criminal Court finding of aggression.

• Author: McGinness, Edward

Abstract

In 2017, the crime of aggression is due to enter into force under the Rome Statute, giving an international tribunal, the International Criminal Court, the capacity to prosecute the crime for the first time since the end of World War II. The definition of the crime agreed upon at the Kampala Conference requires that the ICC first establish that a state has committed an 'act of aggression'. Therefore, the new jurisdiction of the ICC raises unresolved issues as to the interaction between two different systems of international law: the law of state responsibility and international criminal law. This article considers the implications for state responsibility flowing from a finding by the ICC. Specifically, it argues that such a finding would be coextensive with a breach of the prohibition on aggression under customary law and, thus, would be persuasive in a for a determination of state responsibility.

I Introduction

The historic Rome Statute, finalised in the twilight years of a century that confronted witness to heinous and widespread acts of violence, aimed to end the impunity for such acts by codifying individual liability for international crimes and establishing the International Criminal Court ('ICC'). (1) Despite this, the crime of aggression, once described as the 'supreme international crime', (2) was conspicuously absent from the regime. In 2010, however, the Review Conference on the Rome Statute of the International Criminal Court in Kampala, Uganda ('Kampala') finally reached agreement on a definition of this crime. Under this definition no individual will be found guilty of the crime of aggression unless the ICC has first found that a state has committed an 'act of aggression.' (3) Importantly, this element resembles the concept of aggression as a source of state liability. It therefore raises a significant question, which is the subject of this article: whether, and to what extent, a positive finding by the ICC should impact the responsibility of a state for aggression. (4)

Issues of this nature are not unique to the context of aggression: joint criminal enterprise and aiding and abetting also involve fault by third parties. (5) However, as Pellet has observed, 'except for the crime of aggression, the definitions given of the various crimes against the peace and security of humanity do not return necessarily to a crime corresponding to the state.' (6) The new crime of aggression therefore exposes, with particular urgency, the relationship between individual and state responsibility. Described variously as 'unclear and underdeveloped,' (7) of 'undefined parameters,' (8) and a 'shadow area of international law,"' this relationship has not been the focus of significant scholarship.

An ICC finding that a state committed an act of aggression may indeed be persuasive for the same determination by the ICJ. To foreground this conclusion, Part II will illustrate how the historical development of state and individual responsibility for aggression contributed towards their interdependence. Part III will argue that the use of an ICC finding in the ICJ is legally permissible given the coextensive content of aggression under each system, the procedural freedom to do so, and the current attitude of the ICJ towards similar tribunals. Finally, Part IV will develop and qualify this conclusion by a normative analysis, pointing to prevailing theories and institutional concerns.

If adopted, the conclusion presented here could be an important outcome in a practical sense--in a system of law where fragmentation poses issues for the cohesiveness and certainty of law, (10) and where the slow-moving institutional pace can impact perceptions of justice, (11) a finding that could trigger a response for state responsibility would be an important development. However, on a theoretical level it also has the chance to clarify the broader question surrounding how the jurisprudence of these two systems of responsibility relate, if at all. (12)

II The Crime of Aggression

1. Historical Development

   The interaction between state and individual responsibility for aggression is closely related to the historical development of both through the 20th century. In particular, state responsibility for aggressive acts can be traced to the early part of last century. While rules on the use of force were present throughout history, (13) it was in the wake of the carnage of World War I that a desire for a formal international prohibition on aggressive acts crystallised. (14) Indeed, until this point, the use of war was generally perceived to be a legitimate exercise of state policy. (15) At the Paris Peace Conference such a prohibition was unanimously desired, (16) and was ultimately incorporated into the Covenant of the League of Nations and The Versailles Treaty. (17) Under the latter, Germany was held liable to pay reparations for violating this prohibition. (18) The international movement towards clarifying and codifying this norm continued in the interwar period through a number of international agreements, (19) despite consensus on the precise scope of aggression remaining illusive. (20) By the end of the World War II the illegality of the basic state act seemed solidified through the establishment of international legal institutions and prosecutions born out of the conflict. (21) However, from here the development of aggression was characterised by the search for a political solution. Given the potential ramifications for the use of force by states, progress on defining aggression (particularly in the context of the Cold War) remained gradual. In the nascent United Nations, a search for the parameters of the norm continued: in prohibiting the use of force, (22) the Charter gave the UNSC the authority to determine an act of aggression, (23) but aggression itself remained undefined. However, after four consecutive committees commissioned by the UN over the proceeding decades, a definition was finally produced in the 1974 UNGA Resolution 3314. (24) Aggression was there defined as giving rise to international responsibility for the use of armed force against the 'political or territorial integrity of another state' (25) and provided was a list of acts qualifying as aggressive. (26)

   By comparison, individual responsibility developed from the international agreement to hold natural persons liable for the atrocities of World War II. (27) While the Nuremberg Charter, (28) referred to a 'war of aggression' as a 'crime against peace' the phrase was not elaborated upon. Consequently, military tribunals were immediately faced with the difficulty of convicting defendants for a crime never levelled at an individual by an international body. In response to arguments of a violation of nullum crimen sine lege, (29) (and in an approach which has not gone uncriticised) (30) the Tribunals, such as that in France v Goring, reasoned that as prominent officials aware of the international obligations of Germany, the defendants must have known what they were doing was wrong. (31) Moreover, 'far from it being unjust to punish him, it would be unjust if this wrong were allowed to go unpunished.' (32) Further, in United States v von Leeb, (33) it was concluded that individual liability must follow from state responsibility as a 'logical and inescapable conclusion', (34) particularly given that individuals were already considered subjects of international duties. (35) Thus it was in the context of state action that individual liability was imposed by the post-war courts. Despite criticism, such principles were subsequently approved by the UNGA. (36) Additionally, the ILC, tasked with defining the crime for inclusion in the DCOPSM, (37) included individual liability for aggression in its final draft, provided a state act of aggression could first be identified. (38)

   While coloured by a history of uncertainty, two consistent threads running through the development of the concept of aggression can be observed: a prohibition on aggressive acts by states and a requirement of such an act before individual liability can be imposed. It is these threads which came to be woven into the Kampala definition, and give rise the issue of system interaction at hand.

2. The Kampala Definition

   Under the Kampala definition of aggression an individual (a natural person) (39) will be guilty of the crime if he or she is found to have been involved in:

   'Article 8bis (1)... the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. (2)... "act of aggression" means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations' (40) A non-exhaustive list of aggressive acts, mirroring those listed in Article 3 of Resolution 3314 is then included. (41) As Boas argues, although appearing to criminalise an antiquated conception of conflict, the Kampala definition is reflective of the inherent state link established in the norm's historical development. (42)

   Despite predictions that another body would have to determine an act of aggression before the ICC could make a finding, (43) and several proposals put forward to this effect, (44) such a process was rejected at Kampala. (45) While the UNSC may make a determination of aggression in order to initiate proceedings, (46) it will not bind the ICC for the purposes of Article 8bis. (47) Conversely, and more importantly for present purposes, the Rome Statute makes clear that its provisions in no way affect state responsibility under general international law in a direct legal sense. (48) The overall result is that the ICC is not bound by, nor may it...