The International Criminal Court and crimes of aggression: beyond the Kampala Convention.

• Author: Koran, Surendran

I. INTRODUCTION II. HISTORICAL BACKGROUND A. Pre-World War II Attempts to Prohibit War B. Post-World War H Period III. ROME STATUTE AND THE CRIME OF AGGRESSION IV. KAMPALA REVIE CONFERENCE AND THE ADOPTION OF A DEFINITION OF CRIME OF AGGRESSION A. Mens Rea Requirement B. Leadership Responsibility C. Individual Responsibility D. Independence from Other International Organs E. Lack of Clarity in and Limitations on the Exercise of Jurisdiction by the ICC on Crimes of Aggression. F. Retroactivity of the Statute G. The State Action Requirement and Possible Consequences H. Individual or Organization I. Self Defense and Crime of Aggression J. Humanitarian Intervention K. Nontraditional Warfare: Cyber Warfare L. Dynamic Approach to the Definition M. Suggested Definition of a Crime of Aggression V. CONCLUSION I. INTRODUCTION

"There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance."

--Benjamin B. Ferencz, a former Nurnberg prosecutor (1)

Finally, the long-awaited dream has become reality. Even though crime of aggression had long been recognized, its definition had remained ambiguous and lacking in broad agreement until the Kampala Convention, where the definition of crime of aggression was adopted by consensus among state parties. (2) There in Uganda, after years of negotiation and discussion, the state parties adopted a generally agreed definition of crime of aggression after reviewing the statute adopted at the Conference of Rome. (3) Even though there were great differences of opinion as to what constitutes a crime of aggression among members of a special working group, among the state parties to the Rome Statutes it has always been agreed that it "shall apply only to persons in a position effectively to exercise control over or to direct the political or military actions of a state." (4) Hence, the parties agreed that the crime of aggression is a leadership crime, one committed by those who are in active and direct control at a high level of a political or military decision-making body.

The "leadership" requirement that figures in an act of aggression dates back to the Nuremberg Trials where the chief prosecutor from the United States, Robert H. Jackson, stated in his opening statement:

The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. (5) He added: "We have no purpose to incriminate the whole German people." (6) The chief prosecutor further confirmed:

The case as presented by the United States will be concerned with the brains and authority back of all of the crimes. These defendants were men of station and rank which does not soil its own hands with blood. They were men who knew how to use lesser folk as tools. We want to reach the planners and designers, the inciters and leaders without whose evil architecture the world would not have been for so long scourged with the violence and lawlessness. (7) Nevertheless, despite the clear logic of the Nuremberg statement, the definition adopted by consensus among the state parties at Kampala failed to address possible aggression by or against non state actors or any other nontraditional form of aggression such as cyber crime or crimes committed by organized groups. (8) This paper will analyze the importance of the definition of the crime of aggression. In doing so, the perspective given by a historical background will also be discussed, as will the new definition approved in the Kampala Conference. This paper will also provide a critical evaluation of the agreed definition that puts a special emphasis on the importance of this definition for the present century and will explore its limitations for addressing issues that relate to intervention on account of some perceived necessity, acts against non state actors, crimes committed by non state actors, and interventions inspired by humanitarian impulses. There is no doubt that the Rome Statute and the subsequent adoption of a definition of crimes of aggression are a significant move towards institutionalizing the concept of the crime of aggression.

II. HISTORICAL BACKGROUND

Whether the notion of "aggression" is a useful concept in the development of international law and order is a problem that has almost continuously engaged the attention of international lawyers and scholars of the international system for the past several years. (9) That such has been the case stems in part from the difficulty of reaching an agreement on a proper definition of the notion. In order to analyze the definition of crime of aggression, it is helpful to make an overview of the historical events and attempts made to define and regulate illegal war and aggression. The term aggression was frequently used, but seldom ever defined in the international arena, mainly because of political interests. (10) The crime of aggression is best understood in the light of historical, political, and legal developments in the international arena. (11) For the sake of convenience, the historical development in the definition and regulation of the crime of aggression is divided into two sections. The first section deals with the attempts and events before World War II and the second deals with those that occurred after World War II.

1. Pre-World War H Attempts to Prohibit War

   1. Ancient Concepts: Holy War

      War has been an integral part of history throughout the ages. For our purposes, the concept of aggression, as distinct from the fact of aggression, has a history that dates back to ancient Greece. (12) In the ancient period, the concept of "holy war," meant that recourse to war was morally permissible if it was thought to be divinely ordained. (13) By this reckoning, even wars of conquest were acceptable if sanctioned by some divinity or divinities. (14) This was, more or less, the basis used to legitimate the conquest of the Americas, e.g., the Christianization of heathen peoples. (15) Wars not endorsed or instigated by the supernatural were not holy and, therefore, were not permissible. (16)

   2. Just War Concept

      Many centuries later, the concept of a holy war was replaced by the just war doctrine. "The crime of aggression developed from the principles governing the initiation of armed conflict among states, known as the jus ad bellum." (17) However, in time, the early just war concept that war was lawful and moral when initiated in pursuit of a just cause no longer corresponded to reality. (18) Under the evolved, or more refined, just war concept, war would be considered just not simply because it had a just cause; it also needed to be waged by an authority that had the right to wage it. (19) A well known writer in this vein, Hugo Grotius, introduced two requirements for embarking on a war. First, he maintained that for a war to be permissible, it should be undertaken by a lawful authority, and secondly, there should be a just cause for the war. (20) He elaborately discussed the circumstances under which war could be justified and also elaborated a detailed list of unjust causes. (21) Further, he also introduced the concept of personal responsibility for unlawful war. (22)

      However, in time, with the emergence of modern sovereign states, the just war concept was less widely recognized and validated. Indeed, the international system faced fundamental changes with the introduction of newly emerged sovereign states around the world. During this period, in spite of the moral limitations trying to dissuade parties from using war as recourse, the prevailing legal doctrine came to accept the right of states to wage war whenever they desired to do so. (23) Nevertheless, even during the period in which it was held that going to war was legal, there were attempts to prohibit war in the international system, or at least reduce its likelihood through treaties, understandings, and alliances. (24) Until World War I broke out, the closing years of the nineteenth century and the opening decade of the twentieth was a time in which Western European intellectuals cherished the illusion that international conflict was receding into history and civilization had progressed beyond recourse to war to settle disputes, though the Franco-Prussian War had occurred as recently as 1870 and there were wars in distant places (e.g., between Spain and the US, between Japan and Russia). (25)

   3. Paris World Peace Conference

      Although major organized movements for peace and against aggression were started after World War I ended, intergovernmental attempts were being made to prohibit aggressive war even before that. For example, "the Paris World Peace Conference of 1878 adopted a resolution which declared, '... que la guerre offensive est un brigandage international.'" (26) This mirrored the modern idea that eliminating aggressive war was both a state and individual responsibility. (27)

   4. Hague Conventions on Neutrality (1899 & 1907)

      The first Pacific Settlement of International Disputes (Hague I), July 29, 1899, was marked as the beginning of an organized attempt to prohibit wars of aggression. Even though the first Hague Convention failed to achieve its purpose of maintaining general and lasting peace, its real value lay in the fact that it opened the door for another conference (28) to push the discussion forward through Article 2 of the first convention on the Pacific Settlement of International Disputes. Article 2 states that "[i]n case of serious disagreement or conflict, before an appeal to arms, the Signatory Powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly Powers." (29) However, the conference ultimately failed to achieve its objectives because larger powers were unwilling to...