The push to criminalize aggression: something lost amid the gains?

• Author: Drumbl, Mark A.

The International Criminal Court has jurisdiction over the crime of aggression, but the Rome Statute fails to define the crime. A Special Working Group on the Crime of Aggression, however, has made considerable progress in developing a definition. The consensus that has emerged favors a narrow definition. Three characteristics animate this consensus: (1) that state action is central to the crime; (2) that acts of aggression involve interstate armed conflict; and (3) that criminal responsibility attaches only to very top political or military leaders. This Article normatively challenges this consensus. I argue that expanding the scope of the crime of aggression in terms of both the impugned acts as well as who can be prosecuted could carry considerable expressive value. Such an expansion also would better reflect the diversity of contemporary threats to stability, security, sovereignty, and human rights interests.

INTRODUCTION

Article 5(1) of the Rome Statute provides the International Criminal Court (ICC) with jurisdiction over the crime of aggression. In accordance with general principles of criminal law, however, the ICC is unable to prosecute anyone for aggression until the crime is precisely defined. The 1998 Rome Diplomatic Conference failed to reach agreement on a definition of aggression for the ICC's purposes. It also failed to reach agreement on conditions for the exercise of ICC jurisdiction over the crime. Assuredly, aggression is taken to be a crime under customary international law to which individual criminal responsibility attaches. (1) However, until the Rome Statute itself defines the crime, the ICC cannot prosecute it.

The Rome Statute charts a way forward by permitting an amendment that would define the crime and set out the conditions for the exercise of jurisdiction. In this regard, the Rome Statute creates an "opt-in" system for jurisdiction over aggression. (2) Resolution F of the Final Act of the Rome Conference requested that the Preparatory Commission develop proposals for a provision on aggression to be presented to the Assembly of States Parties for consideration at a Review Conference. In 2002, the Assembly of States Parties established a Special Working Group on the Crime of Aggression (Special Working Group). The Special Working Group has industriously issued a series of discussion papers.

The Review Conference looks like it will take place in 2010. In anticipation, the Chairman of the Special Working Group circulated a Discussion paper in mid-2008 that, in its Annex, proposes a definition of the crime of aggression. (3) This Discussion paper proposes specific draft amendments to the Rome Statute and is without prejudice to the positions of delegations. Whereas consensus is emerging within the Special Working Group in terms of the definition, consensus remains elusive in terms of the exercise of jurisdiction. The 2008 Discussion paper suggests several alternatives for the exercise of jurisdiction. The procedure for the entry into force of any amendment to the Rome Statute also remains unresolved.

The definitional consensus that has emerged is grounded on the assumption that a narrow definition of aggression stands a more realistic chance of securing state approval. Three characteristics animate this definitional consensus and contribute to its narrowness: (1) that state action is central to the crime; (2) that acts of aggression involve interstate armed conflict; and (3) that criminal responsibility only attaches to very top political or military leaders. The 2008 Discussion paper proposes a new Article 8 bis to the Rome Statute that defines the crime of aggression as follows (footnotes omitted):

(1) For the purpose of this Statute, "crime of aggression" means the planning, preparation, initiation or execution, by a person 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.

The Discussion paper also proposes a new Article 25(3bis) to the Rome Statute that provides as follows: "In respect of the crime of aggression, the provisions of this article [n.b. Article 25] shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State." (4)

Despite the pragmatic attraction and political soundness of proceeding conservatively, however, the opportunity to define the crime of aggression for the purposes of a permanent international justice institution also presents a moment for out-of-the-box thinking. In my remarks, I hope to contribute to this thinking by offering a lesson from the past, raising a concern for the present, and asking a question for the future. Principally, I suggest an expansion in the scope of the crime of aggression, both in terms of the impugned acts as well as in terms of who can be prosecuted. I draw from two examples of crimes against the peace prosecutions in the wake of the Second World War that have received scant attention in the Special Working Group. I also draw from the nature of contemporary threats to transnational stability, security, sovereignty, and human rights interests. In my opinion, many of these threats depart from the classic model of interstate armed conflict.

Mine is a normative project. It is not one that is principally concerned with pragmatics. This does not mean, however, that I am oblivious to the considerable resources that have been invested in consolidating a consensus regarding the definition of aggression. I recognize that discussions regarding the contours of the crime of aggression have occurred off-and-on for many decades. The reality is that a narrow understanding of the crime seems to be what negotiators want and constitutes shared common ground. That said, nothing precludes codification of the pre-existing consensus while actors within and/or outside of the Rome Statute framework push, either collaterally or subsequently, for the scope of the crime of aggression to expand in a manner that more accurately reflects the interests that criminalization purports to promote as well as the deeply collective nature of the crime. The following sequence concerns me: (1) the Special Working Group proposes a narrow crime of aggression; (2) the Rome Statute is amended to include this narrow crime; (3) the Special Working Group packs up its tent; and (4) the conversation about what exactly aggression should proscribe simply loses momentum and ends. Such an outcome, which arises from a push to codify, might compromise the longer-term expressive value and effective legitimacy of the crime of aggression to future generations, especially in the developing world.

1. BACKGROUND

   The Statutes of the Nuremberg and Tokyo International Military Tribunals (IMTs) were the first to criminalize crimes against peace and aggressive war and attribute individual criminal responsibility therefore. Article 6(a) of the Nuremberg IMT Statute (the London Charter, August 8, 1945) criminalized the "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing." (5) The Allies included this crime in the IMT's jurisdiction despite the fact that, at the time, there was "considerable doubt about the customary basis for charges of aggressive war." (6) That said, the Nuremberg IMT dismissed the retroactivity argument. It endeavored to demonstrate that crimes against the peace had been part of customary international law prior to 1939. (7) The Nuremberg IMT emphasized the preexisting nature of the crime as reflecting treaty law that emerged in the wake of the First World War, including the Kellogg-Briand Pact. (8) The Nuremberg IMT went so far as to call aggressive war the "supreme international crime." (9) It convicted 12 defendants on charges of conspiracy to wage aggressive war (Count I) or crimes against peace (Count II) (8 defendants...