Criminally disproportionate warfare: aggression as a contextual war crime.

• Author: VanLandingham, Rachel E.
• Position: II. War Crimes as Shadow Crimes of Aggression B. ICC Crime of Aggression and War Crimes: Definitions and Elements through Conclusion, with footnotes, p. 243-271 - Benjamin B. Ferencz Essay Competition First Place Winner

2. ICC Crime of Aggression and War Crimes: Definitions and Elements

   1. ICC Crime of Aggression

      As mentioned above, the Rome Statute placed the crime of aggression within the ICC's jurisdiction--along with genocide, crimes against humanity, and war crimes--but did not define it nor provide jurisdictional provisions until the 2010 Kampala Agreements. (117) The resultant amendments to the Rome Statute contain, inter alia, Article 8 bis, which defines the crime of aggression: (118)

   1. For the purpose of this Statute, "crime of aggression" means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

   2. For the purpose of paragraph 1, "act of aggression" means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression.... (119)

      The actus reus of this crime involves the "planning, preparation, initiation or execution" of a predicate State act of aggression, (120) defined in Article 8bis as armed forced by a State "against the sovereignty, territorial integrity or political independence of another State." (121) Per these explicit terms, violent acts by non-state actors are excluded unless their action is attributable to a State. (122) Article 8bis also provides a non-exclusive list of qualifying acts of aggression, including invasions or attacks on another State's territory, military occupation, annexation of territory by force, bombardment, blockades, and large-scale attacks on the armed forces of another State. (123)

      For criminal liability to attach, such acts of aggression must also specifically be considered "manifest violations" of the UN Charter, with regard to their character, gravity and scale. (124) Lesser acts of aggression may give rise to State responsibility for breaches of jus ad bellum, but only those deemed "manifest violations" carry individual criminal liability. (125) This requirement was deemed necessary during drafting to ensure that only clear violations of the UN Charter would lead to criminal responsibility, given the well-noted ambiguities regarding the permissible exceptional uses of force under the modern jus ad bellum. (126) Commentators have assessed this manifest qualifier as signifying that the crime must involve only those acts of aggression which are "large-scale and produce serious consequences;" this severity criterion echoes the Rome Statute's preambulatory language that the ICC was established to deal with "the most serious crimes of concern to the international community as a whole." (127)

      Article 8bis also possesses a leadership requirement, one traceable to the Nuremberg IMT. In order for criminal liability to attach, the required act must be by conducted "by a person in a position effectively to exercise control over or to direct the political or military action of a State." (128) This leadership requirement is also replicated in Rome Statute Article 25 (the statute's modes of liability section), to ensure that average soldiers cannot be prosecuted for the crime of aggression via accomplice liability such as aiding and abetting. (129)

      Regarding the mens rea, or subjective mental element of the crime of aggression, Article 8bis is complemented by Article 30, which requires that all of the material elements of ICC crimes be committed with both intent and knowledge. (130) The amendments to the Rome Statute regarding the crime of aggression provide further clarification by specifying a lesser "knowledge of fact" mental state regarding the use of force's violation of the UN Charter; the amendment only requires awareness "of the factual circumstances" which make the armed force in question inconsistent, and manifestly so, with the UN Charter. (131) The amendments also clarify that "[t]here is no requirement to prove that the perpetrator has made a legal evaluation as to whether the use of armed force was inconsistent with the Charter of the United Nations" and similarly, "[t]here is no requirement to prove that the perpetrator has made a legal evaluation as to the 'manifest' nature of the violation" of the UN Charter. (132) Finally, some commentators have controversially argued that there is an additional special or specific intent requirement for the crime of aggression: "a malevolent purpose or animus malus held by the attacking State." (133) This intent, it is argued, is such that the act be committed with "the will to achieve territorial gains," or the act was otherwise "an instrument of national policy." (134) Yet, since no such intent is expressed in the amendments to the Rome Statute, it appears to either not be required, or is subsumed in the manifest violation of the UN Charter requirement itself. (135)

   2. ICC War Crimes

      As mentioned above, war crimes consist of serious violations of the rules of international humanitarian law, a body of law whose objective is to limit the effects of war; its rules allow war to be conducted in a manner that lessens the suffering of all involved while also enhancing the discipline, and hence, effectiveness, of the military forces who abide by its rules. (136) Not every crime committed during an armed conflict is a war crime, and not every violation of jus in bello constitutes a war crime either: there must be a nexus to both the armed conflict and a serious violation. (137) These requirements exist both to avoid having opportunistic but ordinary crime occurring during an armed conflict considered as war crimes, and to ensure that not every violation of the myriad rules of warfare is stigmatized as a war crime. (138) A noted commentator finds that the general "rationale behind the punishment of war crimes" is to ensure individual accountability of "those who, during an armed conflict, seriously contravene rules of IHL against persons protected by such rules." (139)

      It is worth noting that jus in bello historically, and today primarily, speaks to States and their duties to the international community, making them responsible for the acts of their armed forces. (140) Modern jus in bello obligates States to wage war in accordance with it by ensuring those under their control adhere to the law, requiring domestic criminal sanctions as part of such control. (141) For example, the Geneva Conventions specifies that State parties "undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches" of the Conventions. (142)

      Prior to such modern requirements, domestic military criminal systems have long criminally sanctioned certain misconduct by their own soldiers (143) that today constitutes war crimes, such as pillaging, robbery, etc., out of the need to maintain effective fighting forces--as well as out of a recognition that such rules ease the transition to peace by avoiding the alienation of local populations. (144) On the international level, individual international criminal liability notably came to the fore following World War II; however, international trials such as that of Peter von-Hagenbach in 1474 and that of William Wallace by Edward I are considered by commentators as early examples of international war crimes trials.145 Yet it was Nuremberg that transformed extant international humanitarian law into a body of law that provided for individual, and not just State, responsibility for serious infractions of its rules. (146) While subsequent jus in bello treaties specified particular conduct as war crimes--in particular the Geneva Conventions' grave breaches system--serious violations of customary international humanitarian law also constitute war crimes, and it is in this area that the Rome Statute makes particular headway. (147)

      Article 8 of the Rome Statute carries on the Nuremberg legacy of individual criminal responsibility for serious breaches of jus in bello. (148) It defines war crimes for prosecution by the ICC, and Article 8(1) notes that the ICC "shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes." (149) While this qualifier seems to focus the Court on systematic large-scale crimes, the statute does not exclude isolated war crimes as a jurisdictional matter. (150) Article 8(2)(a) includes as war crimes grave breaches of the Geneva Conventions of 1949, which deal with particular acts against protected persons and property, such as willful killing and torture. (151) Per the Geneva Conventions, grave breaches only occur during international armed conflicts; Article 8(2)(b) supplements these grave breaches with "[o]ther serious violations of the laws and customs applicable in international armed conflict," specifically listing twenty-six separate offenses. (152) These enumerated offenses reflect violations of the principles of international humanitarian law; for example, distinction and proportionality are reflected in Articles 8(2)(b)(i) and (iv), respectively:

      (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

      (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage...