Response to Koh and Buchwald's article: Don Quixote and Sancho Panza tilt at windmills.

Author:Pellet, Alain
Position:Response to Harold Hongju Koh and Todd F. Buchwald, American Journal of International Law, vol. 109, p. 257, April 2015
 
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In their eagerness to justify the "United States perspective" on the Kampala definition of the crime of aggression (1) and on the International Criminal Court (ICC), Koh and Buchwald (2) tend to invent imaginary enemies and to ascribe to them views that they do not actually hold. In so doing, the authors weaken a thesis that, in some respects, is not devoid of interest. From at least two points of view, however, their article is paradoxical, if not pathetic--exactly like the U.S. position.

First, they are obsessed with avoiding the prosecution of U.S. nationals before any court other than those of the United States. This position amounts to recognizing that U.S. citizens (and leaders) are likely to be accused of having committed acts of aggression (or other international crimes), while maintaining that it would be intolerable to have them judged as common Chadian, French, or Japanese criminals. The insistence of the authors (3) that only "wars" (and not mere "acts") of aggression should be indicted clearly also aims to protect the leaders of the United States--and of other big countries--given that they are more apt to be indicted for planning, preparing, initiating, or executing an act of aggression than a full-scale war of aggression. (4) Yet it bears noting that if one excludes the prospect of liability for aggression by a private actor, (5) the United States likely can be seen as the author of one of the rare wars of aggression, properly understood, during the last fifty years. (6)

Second, Koh and Buchwald proclaim, at the end of their article, that the "main message of [their] article is that the international community should take advantage of the time it has left, before 2017, to address [the] crucial issues in a cooperative and constructive way that contributes to the long-term success of the Court." This declaration of good faith bears witness to their extraordinary ability to ease their conscience precisely when they should question their positions. The U.S. approach is reminiscent of the pyromaniac fireman: after having done everything in its power to weaken the ICC and render a decent compromise impossible, the United States, through its representatives at the Kampala Review Conference, now introduces itself as one of the "countries of good will" that will "tackle" the "many difficult issues left," (8) thereby rescuing the Court from the unfortunate position into which, more than any other country, the United States itself has contributed to put it.

On both the substance of the Kampala amendments and the procedure selected for their adoption and entry into force, Koh and Buchwald raise interesting technical points. In the rest of this Note, I will endeavor both to comment on arguments of theirs that I find to be valid, and to point out regrettable, chauvinistic elements that in my view strongly weaken the persuasiveness of their approach.

  1. THE DEFINITION OF "AGGRESSION"

    Should the ICC Statute (9) criminalize "acts of aggression" or only "wars of aggression"? In spite of U.S. pressures, the Kampala negotiators wisely chose the former position. This choice was the better one if only for the sake of consistency with the language of the UN Charter, (10) yet there are also more substantial reasons for adopting a broader definition that targets acts rather than merely wars.

    Let us suppose that, in accordance with U.S. wishes (which sometimes look more like diktats), the Kampala Review Conference had limited the scope of the crime of aggression to fullscale wars. In that case, the masked armed action led by Russia in Eastern Ukraine in 2014 would fall outside the definition. Although it manifestly constitutes an act of aggression, it likely could not qualify as a "war of aggression. " Similarly, it is doubtful that the designation "war of aggression" would be applicable in the rare cases in which the Security Council identified the existence of an "act of aggression" (11) or "aggressive act." (12)

    Even given the broader definition, only certain illegal uses of force rise to the level of acts of aggression. As preambular paragraph 5 of General Assembly Resolution 3314 (XXIX) clearly states, "aggression is the most serious ... form of the illegal use of force." (13) This specification has been repeated in paragraph 6 of the "Understandings" annexed to the Kampala conference's Resolution RC/Res.6 on aggression; (14) indeed, an act of aggression is to the use of force what genocide is to crimes against humanity. Thus, the concerns described by Koh and Buchwald about criminalizing "acts of aggression" rather than "wars of aggression" appear to be unfounded. Likewise, paragraph 1 of the new Article 8 bis (15) creates criminal liability only for "an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations." The requirements of "gravity," "scale," and "manifest" character give ample guarantee that "brief skirmishes of relatively little real consequence," "relatively minor violations of bilateral agreements," (16) or "the firing of a single bullet that flies across a border" (17) cannot constitute an act of aggression within the meaning of Article 8 bis.

    Two passages contained in the Understandings underscore the lack of merit of Koh and Buchwald's concern. Paragraph 7, included upon the request of the United States, provides:

    It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a "manifest" determination. No one component can be significant enough to satisfy the manifest standard by itself. Finally, paragraph 6 of the Understandings makes clear "that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations."

    Granted, these Understandings, which are included in Annex III to Resolution RC/Res.6 on the crime of aggression, are not part of the Statute and do not constitute hard treaty law. Yet, since Annex III was adopted by consensus at the Review Conference, there is no doubt that the annex, along with the Understandings, is an "instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty." As such, it forms part of the "context for the purpose of the interpretation" of the Rome Statute as amended. (18) It is unconceivable that the Court would not take Understandings 6 and 7 fully into consideration when interpreting Article 8 bis.

    Koh and Buchwald nevertheless bemoan that

    the Kampala Review Conference failed to include a further Understanding proposed by the United States to address questions related to humanitarian intervention more explicitly.... The language that the United States put forward would clearly have excluded the use of force to prevent the very atrocity crimes that the Rome Statute itself aims to prevent: genocide, crimes against humanity, and war crimes. (19) I, too, regret that the Kampala conference did not accept this attractive and apparently reasonable proposal. Yet four observations are in order. First, the very fact that this proposal was made by the United States--a country surpassed by none (except perhaps France) in championing military intervention--probably made the other participants understandably suspicious. Second, the United States' refusal to accept any role for the Court in identifying acts of aggression and its insistence on leaving it exclusively to the Security Council could only aggravate such a suspicion. Third, Kampala might not have been the right forum to decide on the limits or lawfulness of humanitarian interventions, which would require amending the UN Charter. Finally, the fact that "character" is a necessary component of the act of aggression implies that the humanitarian nature of the use of force must--or at least can--be taken into consideration by the Court when called to exercise jurisdiction over the crime of aggression. (20) The same would certainly hold true if force is used in self-defense. However, it must be admitted that the exclusion of an act of self-defense from the category of acts of aggression is indeed lex lata, whereas military humanitarian interventions still belong in this respect to the indistinct domain of the lex ferenda.

    Significantly, Koh and Buchwald's article does not even mention the term "self-defense" once. (21) This omission is regrettable: discussing this central notion would have prevented them from providing what in my view are misplaced "examples" of conduct that, according to them, could be seen as acts of aggression under Article 8 bis. One such example is "the Allied occupations following World War II." (22) Indeed, Article 51 of the Charter recognizes "the inherent right of individual or collective self-defence" in case of an "armed attack," or in the French text, "agression. " Anyway, it derives from Article 51 that measures taken by states in the exercise of their right of self-defense do not qualify as acts of aggression. These considerations make it untenable to argue that the Kampala amendments create the "risk that a broad or vague definition will over-chill by discouraging states from using force in cases where they should." (23) Moreover, discouraging states (including powerful states) from using (military) force is an important goal. Even more important is to prevent states from having a free hand to ascertain when they should use force. The outraged remarks by the International Court of Justice (ICJ) in the Corfu Channel case remain fully relevant: the alleged right of intervention can only be regarded

    as the manifestation of a policy of force, such as has...

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