(Fifth in a series on the crime of aggression in the ICC Statute)As discussed in a
prior post, the current definition of the crime of aggression hinges upon the Definition of Aggression annexed to U.N. General Assembly
Resolution 3314 (1974). By formulating the
actus reus of the crime with reference to this Definition of Aggression, states rejected several alternative proposals including one that mirrored the Nuremberg Charter definition of crimes against the peace, a more generic definition without a list of particular acts, and a more restrictive definition focused on situations of occupation or annexation.
Given its centrality in modern discussions of aggression,
this Resolution is worthy of closer 
study. (
These sites provide good basic histories of the Resolution, but the works of
Ben Ferencz (right) — who has been involved in this project since its inception and who offers the most compelling arguments in favor of the recognition of a modern crime of aggression — contain the best historical and political study of the Resolution. (See, e.g.,
here and
here)).
By way of background, contemporaneous to the International Law Commission's efforts on a
Draft Code of Offences against the Peace and Security of Mankind and to
build a permanent international criminal court in the immediate post-WWII period, the General Assembly spun off several special committees devoted to the task of defining aggression for inclusion in the draft Code. (This is a modern history; efforts to outlaw and define aggression preceded this project, of course). These committees failed to reach a consensus.
Accordingly, in 1967, the General Assembly further delegated the task of defining aggression to
a U.N. Special Committee on the Question of Defining Aggression, which was composed of 35 members chosen for their geographic and legal diversity. It took
seven sessions of the Special Committee for the Committee to come up with a consensus definition that it could recommend to the General Assembly for adoption. Given this Cold War provenance,
it is all the more amazing that the Resolution was adopted by consensus when it seemed there was very little on which the world’s superpowers and their proxies could agree.The Resolution contains a preamble reaffirming basis constitutional and normative principles of the United Nation. It then presents a generic definition of aggression that largely tracks Article 2(4) of the
U.N. Charter:
Aggression is 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, as set out in this Definition.
Article 5(1) makes clear that:
No consideration of whatever nature, whether political, economic, military or
otherwise, may serve as a justification for aggression.
This language leaves very little room for any notion of humanitarian intervention, even one inspired by entirely pure motives.
The Resolution makes no other explicit mention of the intention or purpose of the aggressor state, but does leave open the possibility that notwithstanding a first use of force by a state,
the Security Council might conclude that a determination that an act of aggression had occurred was not justified “in light of other relevant circumstances.” Earlier drafts of this Article had included reference to “the purposes of the States involved” here, but this was excised. The U.S. and the U.K. in particular wanted to make clear that it may be difficult to determine who was the "first mover" in an armed conflict, especially in the nuclear age when states might perceive the need to act pre-emptively. A
de minimis clause recognized that there may be cases of insufficient gravity where the Council would decide not to act.
Article 3 contains a non-exhaustive list of acts that qualify as acts of aggression, irrespective of the existence of a declaration of war.
It is this list that now appears in draft amendments to the ICC Statute. Coming up with this list was, not surprisingly, contentious, and debates about which acts to include were
ultimately debates on which acts would trigger states’ inherent right of self-defense. More indirect or non-violent forms of interference—such as fomenting subversion/civil strife/terrorism or economic embargoes or boycotts—were excluded. Paragraph (g), identifying the
sending of irregular bands or mercenaries to another state as an act of aggression, was significantly curtailed to exclude reference to
organizing or
supporting such groups. A clause also condemning the "substantial involvement" by a state in acts by armed bands allows for some consideration of other ways a state may more indirectly contribute to an act of aggression.
Article 6 acknowledges that certain uses of force are lawful under the Charter. Article 7 is a saving provision, ensuring that nothing in the Resolution impinges upon the inherent right of self-determination:
Nothing in this Definition, and in particular article 3, could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right … particularly peoples under colonial and racist regimes or other forms of alien domination; nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration.
This Article was adopted as a compromise between states that wanted to
carve out an explicit exception to the prohibition on acts of aggression for situations of self-determination and states arguing that only the Security Council could authorize uses of force. Like contemporary definitions of the crime of aggression, Resolution 3314 is primarily
statist, the only nod to non-state actors being a footnote indicating that the term “state” is used “without prejudice to questions of recognition” or U.N. membership. States wanting a more explicit dispensation for the use of violence by “peoples” seeking self-determination were thus disappointed as were states wanting the definition to more clearly govern non-state actors as well as states.
Article 5 somewhat cryptically discusses the consequences of engaging in acts of aggression and wars of aggression:
2. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.
3. No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.
Although the Article uses the term “crime” (with respect to “wars of aggression”) and discusses “international responsibility” for aggression
simpliciter,
there is no express mention of individual criminal responsibility flowing from a breach of the Resolution. (It was the British who insisted that only a
war of aggression constituted an international crime). At the time, states were most concerned with considering the issue of state responsibility rather than individual responsibility. Article 5(2) could, however, be read as recognizing
at least a partial co-extensiveness of state and individual responsibility given that the state machinery is controlled by individuals as recognized by the
Nuremberg Judgment in these oft-quoted words:
Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.
The Definition of Aggression was ostensibly drafted in order to serve as a political guide to the Security Council in determining the existence of an act of aggression in the exercise of its Chapter VII powers (Article 39). The Resolution accompanying the Definition states that the Council
should, as appropriate, take account of that Definition as guidance in determining, in accordance with the Charter, the existence of an act of aggression.
The Definition never really served its intended purpose, however, and
it has made little appreciable impact on Council deliberations. It is, however, generally accepted as an accurate interpretation of the Charter. The International Court of Justice, for example, has ruled that
Article 3(g) reflects customary international law in the Nicaragua and DRC cases. (
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 14, para. 3; see also
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, para. 146).
The Resolution has thus
taken on new life by providing the
actus reus for the ICC definition of the crime of aggression.
In connection with meetings at the Peace Palace (left) last week and the recent visit of Dame Rosalyn Higgins to Santa Clara, I had occasion to take a peek at the current docket of the International Court of Justice. The ICJ has entertained 150 cases since its inception in 1947. At the moment, 16 cases are pending on its docket—more than at any other point in history. I asked Judge Higgins about the more frequent resort to the Court and she credited several factors, including an increased faith in the ability of international law to resolve disputes, a recognition of the Court's ability to render just and efficient outcomes, and greater litigiousness generally.
