Current U.S. policy on the crime of aggression: history in the unmaking?

• Author: Ferencz, Donald M.
• Position: New Beginnings, Resets & Pivots: The International Legal Practice of the Obama Administration

At the 2015 Annual Meeting of the American Society of International Law, a U.S. policy statement on the crime of aggression was presented as part of a panel entitled "The ICC Crime of Aggression and the Changing International Security Landscape. " This article examines current U.S. policy on the crime of aggression, highlighting the historic role that the U.S. played in establishing aggression as an international crime after World War II, and concludes that activation of ICC jurisdiction over the crime of aggression would be a significant step forward in the development of international law.

CONTENTS I. BRIEF BACKGROUND ON THE CRIME OF AGGRESSION II. CURRENT U.S. POLICY ON THE ICC CRIME OF AGGRESSION III. OBSERVATIONS REGARDING THE STATED U.S. CONCERNS A. Possible Chilling Effect on Military Coalition Partners B. Impairment of Ability to Resolve Ongoing Conflicts C. Interference with the ICC's Core Mission of Prosecuting and Helping to Deter Atrocity Crimes D. Jurisdiction over Nationals of Non-ratifying States Parties: The Article 121(5) Issue IV. U.S. SUGGESTIONS FOR MITIGATION OF ITS CONCERNS V. FURTHER REFLECTIONS AND CONCLUDING THOUGHTS I remind you that 23 members of the United Nations have bound themselves by the Charter of the Nuremberg Tribunal to the principle that planning, initiating or waging a war of aggression is a crime against humanity for which individuals as well as states shall be tried before the bar of international justice. (1)

U.S. President Harry Truman, Addressing the U.N. General Assembly, 23 October 1946.

1. BRIEF BACKGROUND ON THE CRIME OF AGGRESSION

   Sixty million dead (2) and the introduction of weapons of such mind-numbing destructive capacity as to threaten all life on earth could not help but leave those who had survived the carnage of World War II determined to curb war-making itself. (3) The year 1945 thus witnessed not only the establishment of the United Nations, whose Charter expressly prohibits the unauthorized use of force, (4) but also the historic opening of the ground-breaking Nuremberg Trials, whose judgment indelibly and conspicuously branded aggressive war as "the supreme international crime." (5)

   Students of history will know that the United States played a critical role in seeing to it that those accused at Nuremberg would stand trial for their crimes, rather than simply be taken out and shot-as was the initial preference of both Stalin and Churchill. (6) Moreover, American insistence was responsible for assuring that crimes against peace was among the indictable offenses at Nuremberg--the first time in history that aggressive war-making would be charged as a crime and that those responsible for it would be held personally accountable. (7)

   The Nuremberg Charter, which set forth the provisions pursuant to which the International Military Tribunal (IMT) would be conducted, was annexed to the London Agreement signed on the morning of August 8, 1945. (8) It enumerated three crimes for which individuals could be held accountable in their personal capacities, regardless of their positions of national leadership. These included war crimes, crimes against humanity, and crimes against peace--the core feature of which was the "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances." (9)

   At Nuremberg, Sir Hartley Shawcross, the British prosecutor, articulated the proposition that those who conduct wars in violation of international law are ineligible to claim, in defense, that such wars were executed in accordance with the laws and customs of war:

   The killing of combatants in war is justifiable, both in international and in municipal law, only where the war itself is legal. But where a war is illegal ... there is nothing to justify the killing, and these murders are not to be distinguished from those of any other lawless robber bands. (10) At the end of the ten-month trial, the IMT delivered its judgment on September 30, 1946. (11) Truman's October address to the United Nations, quoted above, came close on its heels, and was part of an American-led initiative pushing for worldwide recognition of the legal precedents established at Nuremberg. Before the year was out, the General Assembly, acting at the behest of the United States, unanimously approved Resolution 95(1), affirming the Nuremberg principles and directing that work begin on codifying them within an international criminal code. (12)

   Immediately after the conclusion of the IMT, Justice Robert H. Jackson, the American Chief of Counsel at Nuremberg, reported on the import of the trial to President Truman. In his report he wrote that "[n]o one can hereafter deny or fail to know that the principles on which the Nazi leaders are adjudged to forfeit their lives constitute law, and law with a sanction," (13) At the pace at which matters appeared to be proceeding, his conclusion seemed, at the time, to be an accurate assessment of where things were headed.

   Notwithstanding such initial momentum toward universalizing Nuremberg's core crimes, further progress was stymied by the politics of the Cold War. (14) As a consequence, half a century would pass before the seeds of such early efforts showed signs of the hoped-for harvest. (15)

   The effort to bring to fruition a criminal code including Nuremberg's core crimes achieved a milestone of historic proportions in 2002, with the entry into force of the Rome Statute ("the Rome Statute" or "the Statute") of the International Criminal Court ("the Court" or "the ICC"). (16) But, as far as the crime of aggression was concerned, there was still plenty of work to do. Though the Statute technically vested the Court with aggression jurisdiction, it provided that such jurisdiction could not be exercised until later provisions were adopted, defining the crime and specifying the conditions under which the Court could prosecute it. (17) Precisely when--and if--such additional provisions might eventually be adopted was anyone's guess, but it would certainly not occur prior to a review conference, expected to be held at least seven years after the coming into force of the Rome Statute. (18) Thus, notwithstanding that there was finally a permanent international criminal court which had ostensibly been vested with jurisdiction over aggression, the "supreme international crime" found itself rather ignominiously relegated to a state of legal limbo.

   At present, despite such continuing relegation, proponents of the Court's aggression jurisdiction have reasons for optimism. During the ICC Review Conference, held in Kampala in 2010, amendments to the Rome Statute were adopted by consensus, which, if activated, will finally grant the Court active jurisdiction over the crime of aggression possibly as early as 2017. (19) According to the terms of such amendments, they may be activated--subject to the collective reapproval of the Assembly of States Parties--once they have been ratified by at least thirty States Parties, twenty-eight of which have already done so. (20)

   Notwithstanding such progress, it is a sad fact that those who would commit the crime of aggression may still do so in the knowledge that the Court is currently powerless to prosecute them for it. But the days of such impunity may be numbered. As in the feature-length film with a similar-sounding title, the Court's aggression jurisdiction stands tantalizingly close to activation as "the fourth element" of the Rome Statute (21)--a weapon of mass instruction in the arsenal of international law--signalling that aggressors may soon be held accountable for their crimes, just as Justice Jackson had predicted.

   But not everyone agrees that activating the Court's independent aggression jurisdiction is a good idea. (22) The permanent members of the U.N. Security Council believe the Court's aggression jurisdiction should not be exercisable without pre-clearance from the Council itself. Although only two of the permanent members of the Council ("P-5") are Parties to the Rome Statute, (23) their collective influence is significant.

   Moreover, although the compromise reached in Kampala allows states, in certain circumstances, to opt out of the Court's aggression jurisdiction, (24) the optics of such an opt-out may be problematic. After all, is it likely that a state involved in a legally questionable military action would risk the potential opprobrium associated with electing to opt out of the Court's aggression jurisdiction if it did not seriously believe that there was reasonable doubt as to the legality of its actions? And are such doubts something that any national leader would like to publicly admit? Beyond this, if such an opt-out occurred, is it possible that the "opt-out" state's coalition partners might also feel tainted by such an opting out? Whether considerations such as these have had an influence or not, it is clear that not all who joined in negotiating the terms of Kampala's compromise package are comfortable with how its provisions may combine to play out in practice. (25)

   Finally, it should be recalled that at Nuremberg crimes against peace covered wars of aggression, or wars in violation of international treaties, agreements, or assurances. The definition of the crime of aggression set forth within the Kampala amendments goes well beyond this. In addition to criminalizing acts that would amount to crimes against peace at Nuremberg, it criminalizes a litany of acts which were characterized in a 1974 General Assembly resolution as prima facie acts of aggression, (26) but only if they rise to the level of manifest violations of the UN Charter as to their combined character, gravity, and scale. (27)

2. CURRENT U.S. POLICY ON THE ICC CRIME OF AGGRESSION

   It is against this backdrop that at the 2015 annual meeting of the American Society of International Law, Sarah Sewall, the U.S. State Department's Under Secretary for Civilian Security...