A question of intent: the crime of aggression and unilateral humanitarian intervention.

• Author: Leclerc-Gagne, Elise

While the question of the crime of aggression has prompted a number of publications and discussions pertaining to its preferable modalities of inclusion in the Rome Statute, surprisingly few scholars have considered contemporary events anal debates on the use of force. Examining developments like the right of unilateral humanitarian intervention (UHI) is crucial for ensuring that amendments to the Rome Statute, meant to allow for the prosecution of aggression, are compatible with the current international environment. This paper engages the issue of UHI and argues for the need to include, in the conditions of jurisdiction over the crime of aggression by the ICC, an exception for those engaged in a bona fide unilateral humanitarian intervention.

INTRODUCTION

The criminal nature of aggression is now beyond question. The twentieth century has witnessed an increasing commitment to recognizing and condemning aggression, as exemplified by the renunciation of the recourse to war by the State Parties to the 1929 Kellogg-Briand Pact (1) and the 1945 United Nations (U.N.) Charter, which includes among its primary purposes suppressing "acts of aggression" and preventing the "threat or use of force" by Member States in their international relations. (2) The criminal prosecution of individuals for Crimes Against Peace) by the International Military Tribunals (IMT) of Nuremberg and the Far East following World War II, and the adoption of a consensual definition of "aggression" by the U.N. General Assembly in 1974, (4) constitute other examples of international efforts to limit and outlaw aggression.

Efforts to recognize aggression as an offense under international criminal law, which were made over half a century, bore fruit in 1996 when the crime of aggression was included in the Draft Code of Crimes adopted by the International Law Commission (ILC). (5) The Draft Code served as a basis for the plenipotentiary negotiations in Rome where the European Union and approximately thirty countries of the Movement of the Non-Aligned Countries (NAC) made inclusion of the crime of aggression an absolute condition for their support of the Rome Statute of the International Criminal Court (ICC). (6) Given the sensitive nature of the crime of aggression, and particularly the prospect that high ranking officials of a State could face prosecution, the crime was included in the Statute but left undefined and without conditions of jurisdiction. (7)

Articles 121 and 123 of the Rome Statute prescribe a seven-year delay before a State Party may propose an amendment, (8) meaning that changes defining and providing conditions of jurisdiction for aggression will soon be permitted. However, exercising this potential requires reaching agreement on these matters in light of the events of the past decade. One such event was NATO's intervention--"Operation Allied Force" (OAF)--in Kosovo, Serbia and Montenegro in 1999. Although the Kosovo War did not generate an uncontested right of unilateral humanitarian intervention (UHI), (9) its unique character, and the fact that it was tolerated by many countries, introduced new elements into discussions of the recourse to force in international affairs. (10)

In this article, we argue that an agreement on the definition and conditions of jurisdiction for aggression is needed, but that these provisions must include an exception for those engaged in a bona fide unilateral humanitarian intervention. The applicability and validity of this exception should include a mental element that is analogous--but not identical--to that set out in Article 30 of the Rome Statute. (11) Our argument does not intend to reopen debates on the strengths and weaknesses of a possible right to UHI. Rather, we are merely suggesting a way in which the definition and conditions of jurisdiction over aggression can accommodate circumstances where gross human rights violations do occur, the Security Council is not always prepared to act, and individual states or groups of states sometimes intervene on what are--at least purportedly--humanitarian grounds.

We follow a tripartite approach that begins with a brief explanation of the crime of aggression and why it should be included in the ICC Statute. We then outline the downfalls of prosecuting aggression in the absence of a UHI exception. Finally, we set out some conditions for invoking the exception that might usefully be included so as to preclude its abuse.

1. THE PROSECUTION OF AGRESSION BY THE ICC

   Numerous official declarations and publications have already explained why the International Criminal Court should be able to prosecute the crime of aggression. First, it is necessary to bring an end to the impunity of individuals who perpetrate aggression, which was characterized by the Nuremberg Tribunal as "the supreme international crime ... [which] contains within itself the accumulated evil of the whole." (12) Second, a capacity to prosecute individuals for aggression should--when coupled with appropriate punishments--create a deterrent for would-be perpetrators. (13) Finally, and in any event, a continued inability to prosecute aggression on the part of the first permanent International Criminal Court constitutes a backwards step in the development of international law, given the jurisprudence supporting such prosecutions and the many, sometimes decades-old documents, treaties, and declarations outlawing and condemning aggression .(14)

   Article 5(2) of the Rome Statute requires only that the eventual definition and conditions of ICC jurisdiction over the crime of aggression be "consistent with the relevant provisions of the Charter of the United Nations." (15) Not surprisingly, State Parties, scholars and organizations have advanced a variety of different proposals. Given the specific purpose of our analysis and the already existing corpus of writings addressing this specific issue, only the most prominent proposals are considered here. (16)

   In contrast to the other core crimes over which the ICC has jurisdiction, an individual's responsibility for perpetrating the crime of aggression must be determined in conjunction with a State act, namely the commission of an act of aggression. Any definition of the "crime of aggression" must therefore include both these distinct but related elements of individual responsibility and the state-committed act of aggression. (17) But most of the definitional debate has, to date, concerned the state-committed act and not the question of individual responsibility. The latter is usually assumed--following the precedent set by the Nuremberg Charter--on the basis of the individual's position as a leader, organizer, instigator, or accomplice in the formulation or execution of the state-committed act. (18)

   There are three main approaches: (1) a generic approach...