The definition of the crime of aggression: lessons not-learned.

• Author: Solera, Oscar

Since the establishment of the League of Nations, the international community has sought to provide a legal definition of aggression in international law. These efforts partly succeed with the adoption of General Assembly Resolution 3314 and with the adoption of the crime of aggression within the Statute of the International Criminal Court. This article shows that despite the wealth of experience and legal discussions, efforts undertaken by States Parties to the ICC to provide a suitable definition of the crime of aggression have failed to take into account the lessons of history. It shows that current discussions, in most cases, are a repetition of past negotiations that led to Resolution 3314. The article further points to some of the weaknesses contained in the proposal on the definition of the crime of aggression that will be discussed in the ICC 2010 Review Conference and provides an alternative definition that addresses those weaknesses.

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Certainly an American judge will then say, "Why did not you fellows define aggression when drawing up the agreement? It is not a clearly defined term of art--we find no body of law that clearly defines it." The treaties that I have cited use different language and sometimes with quite different meaning, and I am sure that an American judge would say that, if you charge a man with making aggressive war, it is his privilege to show that the war he made was not aggressive, and it is his privilege to show, in defense or in mitigation, provocation, threats, economic strangulation, and that sort of thing. (1) --Justice Robert Jackson, 1945 I. INTRODUCTION

The process of defining aggression in international law has been long and eventful. From the early negotiations in the context of the League of Nations, to the negotiations on the crimes to be pursued by the International Military Tribunal Sitting at Nuremberg, to the General Assembly definition of aggression, to the definition of the crime of aggression in the International Criminal Court (ICC) context, almost a century has gone by.

Two landmark events have indelibly marked this long process: (1) the inclusion in the Nuremberg Tribunal's jurisdiction of crimes against peace, the antecedent of what is known today as the crime of aggression; and (2) the adoption by the General Assembly of Resolution 3314 on the definition of aggression. The process of adopting these two toughly negotiated sets of norms has taught us, or at least should have taught us, a series of lessons that could be extremely useful in the context of the current negotiations on the definition of the crime of aggression that will hopefully be added to the ICC statute at the review conference to be held in 2010.

This article concentrates on the analysis of the substantive elements of the definition of the crime of aggression and will show that history has taught us very little. It argues that, for whatever reason, the Special Working Group on the Crime of Aggression (SWGCA) has chosen a definition that may create more substantive legal problems concerning the definition of the crime of aggression than it will solve. This article further proposes an alternative approach that, once submitted, may solve some of the shortcomings of the current definition proposed by the Chairman of the SWGCA.

2. THE SWGCA DEFINITION OF THE CRIME OF AGGRESSION: BACK TO THE FUTURE

   In his February 2009 revision of the Discussion Paper on the Crime of Aggression, the Chairman of the SWGCA proposed the following definition:

   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:

   (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

   (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

   (c) The blockade of the ports or coasts of a State by the armed forces of another State;

   (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

   (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

   (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

   (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. (2)

   Interestingly, this definition of the crime of aggression is similar to the one proposed by Australia, Canada, Italy, Japan, the U.S., and the U.K. in the 1969 General Assembly deliberations on the draft resolution on the definition of aggression. (3) This definition was initially criticized in the General Assembly because the chapeau of the definition did not provide any real objective legal element against which to test alleged acts of aggression. For example, what is a "manifest violation" of the U.N. Charter? What magnitude is required? What are the necessary elements for the use of force to be "aggressive"? What is the legal threshold for qualifying a use of force as large-scale? It is precisely because no clear answers were given to these questions that States felt it was necessary at the time to add an open-ended list of aggressive acts that would set the standard to determine whether other types of use of force not included in the list would also amount to aggression.

   After some years of back and forth between different committees in charge of drafting the 1974 definition of aggression, it soon became clear to States that they did not need to provide clearly established legal standards. The definition of aggression was for the exclusive use of the Security Council and was conceived to provide guidance to the Council when it had to deal with situations amounting to a breach of international peace and security or acts of aggression. (4) In order to preserve the Council's room to maneuver, Article 2 of Resolution 3314 provided that "the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity." (5) In other words, despite whatever the definition said, the Council could decide not to make a determination according to its own interpretation of the facts. Furthermore, according to Article 4 of the resolution, the Security Council could also make a determination of aggression for acts that were not included in the definition.

   It is clear today, as it was in 1974, that the actual value of the consensus reached to adopt Resolution 3314 should not be overestimated. At the time, the 1974 definition was indeed the closest we could get to an internationally agreed definition of aggression. (6) The American representative clearly indicated that "he saw no objection to the draft text going forward to the General Assembly, even though it was by no means perfect." (7) He added that "even a legally perfect definition might do more harm than good if given too much emphasis. The text that had been produced was a recommendation of the General Assembly for use of the Security Council." (8) In other words, so long as the Security Council kept its prerogatives, a definition of aggression represented a simple bargained political statement that allowed for many different interpretations. As Canadian delegate Wang recognized, "the achievement of a consensus was due above all to a sense of realism in the Committee as to what could be demanded of a definition and the purposes that it might serve." (9) This basic premise was largely understood and shared by most delegations.

   It is therefore striking that while the view of States in 1974 was that the General Assembly definition of aggression lacked sufficient legal value-as is demonstrated by the fact that the Security Council has never made reference to it in any of the situations in which it has made a determination of aggression--subsequent efforts to define aggression for criminal law purposes continued to focus on this definition. The International Law Commission (ILC) first, and then the Working Group on the Crime of Aggression (WGCA) and its successor, the SWGCA, have based their analyses on how to incorporate either Resolution 3314 as a whole, or at least parts of it, into a definition of the crime of aggression. The ILC desisted from such an approach before submitting the draft code of crimes against peace and security of mankind. (10) The WGCA and the SWGCA have continued with this approach...