A pragmatic approach to jurisdictional and definitional requirements for the crime of aggression in the Rome Statute.

• Author: Scheffer, David

In an effort to bridge competing visions of how to incorporate the crime aggression in the Rome Statute of the International Criminal Court, the author proposes two options for negotiators to consider in the event there is no Security Council determination of aggression or referral of aggression to the Prosecutor. The first option would require the Security Council, acting under U.N. Charter Chapter VII, to adopt a resolution concluding that a breach of the peace resulting from the use of armed force between States has occurred, which then triggers, unless the Council excludes the possibility, an option for the International Court of Justice or the International Criminal Court (whichever court(s) is (are) selected in the final draft) to decide that an act of aggression constituting an unlawful military intervention has occurred. The second option would require that the Security Council act under Chapter VII to refer a breach of the peace resulting from the use of armed force between States to the Prosecutor and then either the General Assembly adopts a resolution or the International Court of Justice decides or issues an advisory opinion to the effect that an act of aggression constituting an unlawful military intervention has occurred.

INTRODUCTION

In an effort to achieve a compromise in the examination by the Special Working Group on the Crime of Aggression (SWGCA) (1) concerning the jurisdictional and definitional requirements for activating the crime of aggression in the Rome Statute of the International Criminal Court (ICC), (2) I advance a proposal that offers two options. Options I (judicial green light) and II (soft green light), set forth below, enable negotiators and governments to consider a range of opportunities by which to argue the merits of sustaining some form of United Nations (U.N.) Security Council engagement in the jurisdictional filter and yet to do so within a singular approach to the personal jurisdiction and subject matter jurisdiction requirements of the crime of aggression. In accordance with the framework of the May 2008 Chairman's Proposal of the SWGCA, (3) I have structured my proposal so that the definition of the crime of aggression is found in new Article 8bis and the jurisdictional filter is found in new Article 15bis.

The following discussion recognizes the utility of, and broad support that might be obtained, from recognition of the opportunity afforded by Article 121(5) of the Rome Statute. Under this amendment provision, any State Party (and, I would argue as a matter of logic, any non-party State unless covered by a Security Council Chapter VII referral resolution pursuant to Article 13(b) of the Rome Statute) can essentially opt-in to any amendment on the crime of aggression. The use of the opt-in right may constitute the ultimate compromise between the Permanent Five (United States, France, United Kingdom, People's Republic of China, and Russia) and other governments before the crime of aggression can be operationalized in the Rome Statute. Another lawyer's proposal, seeks an amendment to Article 12 of the Rome Statute that may merit serious consideration. (4)

NEW ARTICLE 8BIS

In my proposal, new Article 8bis is common to both options, but differs somewhat from the May 2008 Chairman's Proposal. I have omitted any effort to define an "act of aggression," as the SWGCA seeks to do in its Article 8bis(2) with liberal application of U.N. General Assembley Resolution 3314 (GA Res. 3314). (5) I propose a definition of the crime of aggression that avoids reference to an "act of aggression" because the Security Council and the International Court of Justice have not in the past, and would not in the future, consider themselves bound to UNGA Res. 3314 when determining the existence of an act of aggression. Neither should the ICC when adjudicating the crime of aggression against an individual (or an act of aggression if given the chance under Option 1 below). However, I propose that the elements of the crime of aggression (when drafted) should draw (but not exclusively) upon the acts listed in Article 3 of UNGA Res. 3314. (6) This keeps UNGA Res. 3314 "in the game" but in a far more realistic and practical manner than, in my humble view, as currently drafted by the SWGCA.

Within my definition of the crime of aggression in new Article 8(1), I have narrowed the crime (for purposes of individual criminal responsibility) to military interventions of a specific character, with caveats that reflect the reality of U.N.SC authorizations, the Uniting for Peace option, and the Article 51 exercise of the right of individual or collective self-defense. (Bear in mind that in Article 15bis of my proposal, the Security Council, General Assembly, ICC, or the International Court of Justice (ICJ) (depending on what option is used), can override a State's initial invocation of Article 51 and determine that in fact an act of aggression has occurred despite the State's plea of self-defense, and thus launch the ICC into individual criminal accountability.) I have incorporated much of what is in the SWGCA draft but also focused on Article 2(4) of the United Nations Charter as an alternative to the broader and far more indeterminate (for criminal purposes) scope of "the Charter of the United Nations."

Furthermore, Article 8 bis (1) of my proposal limits the definition of the crime of aggression to those acts that are "of such a character, gravity, and scale that it constitutes a manifest violation of the prohibition on the use of force under article 2(4) of the United Nations Charter...." This definition conforms to the gravity, duration, and context confirmed by the ICJ in the Democratic Republic of the Congo v. Uganda judgment (2005). (7) Given the important gravity and contextual requirements associated with genocide, crimes against humanity, and war crimes under the Rome Statute, there is an obvious need to establish some general threshold for the use of armed force which would qualify it as the crime of aggression. The language I have chosen to express that threshold is open to interpretation, as are the other crimes subject to magnitude conditionality under the Rome Statute. But it is a calculation that the ICC, once seized with an investigation into an act of aggression, should be capable of making.

ARTICLE 15BIS: LANGUAGE COMMON TO BOTH OPTIONS

Both of the options for Article 15bis, Sections 1 and 2, mirror the language from the May 2008 Chairman's Proposal for Article 15bis, Sections 1 and 2. (8) This initial jurisdictional filter would require that "the Security Council has made a determination of an act of aggression committed by the State concerned." This reflects the longstanding proposal of the five permanent members of the Security Council and other nations which would minimize any concerns about contravening the U.N. Charter because the Security Council has clear, and some would argue sole, authority to make such a determination pursuant to Article 39 of the Charter. (9) Once such a determination on aggression is made by the Council, then the ICC Prosecutor could investigate any individual who might be responsible in a criminal context for such act of aggression identified by the Council. Most proponents of much broader jurisdictional filters for the crime of aggression still embrace the logic of including this procedure of the Security Council's determination on aggression as one of several ways to trigger ICC jurisdiction, and the May 2008 Chairman's Proposal reflects it. (10) Thus, I position it as the first of two alternative means to establish ICC jurisdiction. The reality, however, is that the Security Council rarely makes such an emphatic decision on an act of aggression. (11) The question governments confront is whether there should be a continued role for the Security Council in the jurisdictional framework in the absence of an explicit decision by the Council on aggression, and whether that role should reflect the reality of how the Council actually operates.

Similarly, the language of Section 3(a) is drawn from Article 15bis Alternative 1, Option 2 (green light) of the May 2008 Chairman's Proposal, (12) which simply incorporates what already is permitted under Rome Statute Article 13(b), namely, referrals by the Security Council under Chapter VII of the U.N. Charter.

Option I: Judicial Green Light

Option I steers the jurisdictional filter away from political determinations of aggression per se and towards a more pragmatic methodology in terms of how the U.N. Security Council operates. The substance of Option I, which is set forth in its entirety in the annex to this article, is as follows:

The new Article 15(3)(b) of Option I would require a Security Council Chapter VII resolution determining a breach of the peace resulting from the use of armed force (and lacking any conditionality prohibiting Court interference), which then triggers a judicial option for the ICC or the ICJ to determine whether an act of aggression has occurred. This option invites a judicial consideration provided the Security Council has not prohibited it by the terms of the Chapter VII...