On March 3

On this day in ...
... 1976 (35 years ago today), contending that its eastern neighbor had committed acts of aggression against it, "Mozambique closed its borders and cut all links with Rhodesia," now known as Zimbabwe, "and mobilized for defense," according to The New York Times. Lines of communication were severed and rail links broken in a move that Maputo officials said stopped just short of a declaration of war.

(Prior March 3 posts are here, here, here, and here.)

The Aggression Negotiations

Several IntLawGrrls attending the ICC Kampala Review Conference provided blow-by-blow accounts of the negotiations on the crime of aggression and the stocktaking. I've recently completed a paper that provides a thick description of the negotiations and an analysis of the final jurisdictional package (based in part on research presented in our crime of aggression series). The full paper is posted here.

The paper recounts the perennial difficulty of reaching consensus on when and how to prosecute the crime of aggression, which stemmed from the recognition that the crime by its nature involves both state action and individual conduct. From virtually the beginning of the negotiations, it was argued that an aggression prosecution should not go forward absent some definitive showing that a state had committed a predicate act of aggression. Where delegations diverged was in deciding on which body should be empowered to determine this consensus: the oligarchic Security Council, in keeping with its role under the U.N. Charter as the arbiter of peace and security, or some other body, including perhaps the Court itself. Because state action was deemed to be so central to an aggression prosecution, delegates also raised the question of whether it was necessary for some state—the putative aggressor state(s), the victim state(s), or all of the above—to have consented to the Court’s jurisdiction in some fashion before a prosecution could proceed. Although these two issues—the role of the Security Council and state consent—were present in Rome where the ICC Statute was promulgated, they emerged in starker relief in Kampala.

States opposed to Security Council control of aggression prosecutions congregated around two irreconcilable positions: one—idealistic if not hopelessly naïve—seeking a fully independent Court, capable of exercising a universal form of jurisdiction over the crime of aggression, and another—more cautious—insisting that jurisdiction be premised on some manifestation of state consent and endeavoring to find a compromise that would satisfy Council members. States in these two camps were natural allies against the position of the permanent five members of the Council (P-5): Council control of aggression prosecutions. Nonetheless, the P-5's interlocutors' struggled to overcome their collective action problems and find common ground on a jurisdictional package that did not involve the Security Council, notwithstanding a host of creative solutions put forward in Kampala.

For their part, the P-5 had difficulty asserting their full influence as well. Indeed, with China, Russia, and the United States all observers during the negotiations, and the United States a latecomer at that, it was left to France and the United Kingdom (the P-2) to formally defend postwar privileges. And yet, legal arguments in favor of Council exclusivity in the aggression realm proved unconvincing in light of contemporary United Nations practice. Policy arguments, in turn, were never persuasively developed and were in any case undermined by the Security Council’s checkered history of responding to breaches of the peace. States that in the past might have been convinced to endorse a strong, if not exclusive, role for the Council instead espoused voluntarist attitudes that undercut the preferences of the P-5.

In the end, the coalition of states favoring strong aggression provisions abandoned its ideals and backed an unimpeachable regime of state consent with retrograde elements—one that completely insulates the nationals of non-states parties from prosecution and allows states parties to opt out of the crime entirely—in order to defeat one controlled by the Security Council. This concession attests to the extreme—if not irrational—antipathy felt by many states toward the Council. Speaking through the P-2, the P-5 reluctantly joined the consensus. This was notwithstanding that the results achieved in Kampala have once again subtly eroded the primacy of the Security Council, as states revealed a preference for a consent-based regime and a willingness to extend international criminal jurisdiction to their own nationals and over their own foreign policies. Notwithstanding the suggestion in the ICC Statute that there should be greater harmonization between the ICC and the Security Council in the aggression context, the Security Council was not ultimately accorded any additional powers vis-à-vis aggression prosecutions. Indeed, the aggression amendments may have actually diminished the efficacy of the Council’s pre-existing referral power and created the potential for greater conflict between the Council and the Court. The outcome in Kampala thus presents a microcosm of the continual thinning of state sovereignty and the indelible shift in the balance between power and law in contemporary international relations.

The article, entitled Negotiating at the Interface of Power & Law: The Crime of Aggression, engages the aggression amendments and the process by which they were adopted in three Parts. Part II introduces the central themes at issue, presents a short history of the multilateral efforts to codify the crime and its jurisdictional regime, and describes the negotiating dynamics in Kampala. Part III provides a thick description of the arc of the most recent negotiations and recounts states’ recurring efforts to mix and match jurisdictional elements to reach a consensus outcome and avoid either a contentious vote or continued deferral of the entire project. Part IV discusses the validity of the substantive arguments made by negotiating states and their rhetorical impact and offers a critique of the negotiation process. The Article closes with a discussion of the way in which the negotiations and the final amendments invoked and rebalanced the central themes of power politics, state consent, and judicial independence within public international law.

I welcome your comments!

Crime of Aggression: To Be Or Not To Be?

(The seventh in a series on the crime of aggression in the ICC Statute.)

This series of posts devoted to the crime of aggression before the ICC has discussed some of the technical aspects of, and challenges to, defining the crime of aggression within the ICC Statute. All of this material begs the normative question of whether the ICC Statute should include the crime of aggression at all. To a certain extent, of course, the normative question is a moot one, as the train has all but left the station. Important blocs of states (including members of the Non-Aligned Movement, the Arab League, and the European Community) have invested considerable energy negotiating and drafting the aggression amendments and are deeply committed to seeing them implemented. As such, this project enjoys a high degree of momentum as we approach the 2010 Review Conference.

That said, the perceived appeal and utility of aggression prosecutions will continue to influence the negotiations surrounding the jurisdictional regime that will govern the crime—a process that remains contentious. If opponents to the crime of aggression succeed in enacting a narrow (or overly labyrinthine) jurisdictional regime, or one that remains within the exclusive control of the Security Council (right), the aggression provisions may prove to be a dead letter, regardless of how expansively the crime is defined. So, it is worth considering the arguments opposed to and in favor of including the crime of aggression within the ICC Statute.

The primary argument against including the crime of aggression in the ICC Statute is that the crime will further politicize the Court. The fear is that states will use their referral power to cause the Court to initiate investigations into grievances over territory, foreign policies, arms control, and the like. The politicization concern is particularly acute in light of the fact that delegates have not yet agreed upon the relationship between the Court and the Security Council vis-à-vis the crime of aggression. One proposal, favored by those P-5 members who are participating in the deliberations, is that the Security Council would serve as a gatekeeper to any prosecution for aggression. Observers worry that such an arrangement would undermine judicial independence, render the Court a tool for the Security Council, and lead to unequal justice.

Critics are also concerned that aggression investigations before the Court will hamper the ability of states to reach political solutions to disputes, because once the Court's jurisdiction is triggered, it can only be halted by the Security Council (which would have to make a finding that the ongoing investigation constituted a threat to the peace pursuant to its Chapter VII mandate).

Human rights groups have raised concerns that tying the Court up with aggression investigations—which many argue are outside the Court’s core institutional competency—will detract time and attention from the atrocity crimes, which routinely go unpunished domestically. Many groups fear the Court will become bogged down in understanding the causes of war rather than in prosecuting war's consequences.

Critics also question whether the crime of aggression would add anything to the ability of the International Criminal Court to respond to situations of mass violence, especially given the comprehensive war crimes prohibitions contained in Article 8 of the ICC Statute. In other words, would a crime of aggression condemn conduct that would not be otherwise punishable as a war crime, a crime against humanity, or an act of genocide? Given the long-standing, although somewhat artificial, distinction between the jus ad bellum (the law governing the decision to go to war) and the jus in bello (the law governing the waging of war), the answer is yes.

An unlawful war can be fought legitimately; and a just war can be fought unlawfully. To be sure, it is often assumed that aggressive wars will be more brutal than lawful wars, and this is borne out in practice. In such conflicts, a comprehensive war crimes indictment will go far toward assigning responsibility for the horrors of war. But, even a cleanly fought but aggressive war harms civilians, societies, and the international community. Harm that would escape penal sanction because it does not constitute a war crime (such as so-called “collateral damage”) will be cognizable through the crime of aggression. Indeed, as the Security Council noted in Resolution 1820,

civilians account for the vast majority of those adversely affected by armed conflict.

Aggression may be the only charge that can be brought in the wake of a clean, but unlawful, war. In this way, the crime of aggression responds to the intuitive position that an otherwise lawful act of war (e.g., a proportionate attack on a military objective) committed within the context of an unlawful war is itself ipso facto unlawful even if no identifiable war crime is committed. The crime of aggression thus bridges the conceptual divide between the jus ad bellum and jus in bello.

Another rationale for including the crime of aggression in the ICC Statute hearkens back to the Nuremberg era, when crimes against the peace were first prosecuted. In the words of the Nuremberg Tribunal in its Judgment:

To initiate a war of aggression … is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.

The theory is that once the peace is breached by the initiation of a war of aggression, conditions exist that facilitate, indeed unleash, other forms of violence. Troops are deployed, arms proliferate, detention centers are established, human groups are vilified, and brutality becomes normalized. War crimes cannot be committed without a state of war, and the Security Council, in Resolution 1820, acknowledged the inevitability of gender-based and sexual violence in situations of armed conflict. War crimes can rise to the level of crimes against humanity when the civilian population is attacked on a widespread or systematic basis, and the Rwandan tragedy demonstrates that war can serve as a pretext for genocide. A state of war thus enables, encourages, and exacerbates multiple forms of violence. The crime of aggression empowers the Court to teller a fuller story of a particular dispute and the crimes it spawned and to address root causes.

In addition, the crime of aggression—as a leadership crime—may facilitate the prosecution of individuals at the pinnacle of a chain of command who cannot otherwise be connected to the commission of war crimes or crimes against humanity through principles of derivative or superior liability. In the absence of a crime of aggression, the ICC may be powerless to address the actions of elites that enabled the commission of other international crimes. Assuming the Court is able to serve a deterrent function (admittedly, a big assumption), empowering the Court to prosecute the crime of aggression will raise the cost of resorting to armed force in international relations. Detractors, by contrast, argue that it is preferable, and more logical, to rely upon principles of state responsibility to deter and condemn aggressive acts rather than a criminal law model. In light of the absence of a principle of state criminality in international law, this argument misses the added stigma and possible deterrent effects associated with assigning criminal liability to individuals rather than civil liability to states.

A final argument in favor of prosecuting the crime of aggression—more emotional than legal—states that only when the crime of aggression is prosecutable by the ICC would the international community finally fully implement the virtually sacrosanct Nuremberg Principles. The crimes against the peace charge was the linchpin of the Nuremberg and Tokyo indictments and the centerpiece of the final judgments. Indeed, the majority of the Nuremberg judgment is devoted to condemning the aggressive acts of Germany—including the invasions of Poland (map at right), Czechoslovakia, Austria, and Belgium—in violation of the Kellogg-Briand Pact, various bilateral treaties and assurances of non-aggression, and declarations of neutrality. And yet, crimes against the peace all but disappeared from the international criminal law pantheon in the Cold War period. Re-committing the international community to prosecuting the crime of aggression would ensure that the Nuremberg legacy remains alive.

Aggression & Complementarity

(The sixth in a series on the crime of aggression in the ICC Statute.)

As international delegates have been drafting the definition of the crime of aggression and determining the compatibility of the new provisions with the U.N. Charter, they have not focused on the fact that the crime of aggression threatens to destabilize the ICC’s complementarity regime. The foundational principle of complementarity dictates that the ICC is meant to complement, rather than supersede, national jurisdictions. Broadly stated, if a national court is investigating or prosecuting a particular case, it is inadmissible before the ICC unless the domestic proceedings are designed for the purpose of shielding the accused from accountability or are otherwise a sham. The principle assumes that states have the ability to prosecute offenders, either

• because the states have incorporated international crimes into their domestic codes; or
• because they have already penalized analogous and lesser included offenses, such as murder, rape and mayhem.

The crime of aggression calls this assumption into question, because very few states recognize this crime, even after the global movement to internalize international crimes spurred by the ICC ratification process. The Court may thus end up assuming a position of primacy vis-à-vis the crime of aggression where national authorities are unable to prosecute the crime themselves because they lack the legal basis to do so. Indeed, to the extent that the crime of aggression is prosecuted, it is best done in an international, rather than domestic, tribunal.

One potential fix for this apparent problem may be found in the Statute’s admissibility and double jeopardy (or ne bis in idem) provisions. Generally put, per Article 17(1), a case is inadmissible before the ICC if a state is prosecuting, or has prosecuted, the defendant. As Professor Linda Carter of McGeorge School of Law (left) notes in this very helpful article, questions of admissibility have already arisen in cases before the ICC where there is an incomplete concurrence between available domestic charges, on the one hand, and potential charges before the ICC, on the other, as where a state prosecutes an accused for the “ordinary” crime of murder when the underlying acts could also be characterized as the war crime of willfully killing a protected person.
According to the ICC’s admissibility rules, a “case” is inadmissible if it is “being investigated or prosecuted by a State” that has jurisdiction over it (Article 17(1)(a)). If the state has already prosecuted the individual, a subsequent prosecution is barred by operation of double jeopardy where “the person concerned has already been tried for conduct which is the subject of the complaint” (Articles 17(1)(b) and 20(3)).

Thus, in the murder example above, a domestic prosecution for murder would foreclose an ICC prosecution for the war crime of willful killing. Murder is a lesser included offense of this war crime in that the definition of murder contains no elements not contained in the definition of war crimes, the latter being distinguished by its internationalizing elements (i.e., the existence of an armed conflict, a nexus between the act and the conduct, and the status of the victim as a protected person). In addition, a domestic prosecution for kidnapping may also preclude a subsequent prosecution for the war crime of forcible conscription of a child into the armed forces if the latter charge would be based on the same conduct underlying the kidnapping charge. This is true even though the crimes of kidnapping and forcible conscription don't share the same elements.

The ICC’s provisions thus provide more double jeopardy protection than is available in the United States under the Blockburger test, whereby prosecutions are foreclosed only for crimes that share the same elements. As such, the ICC’s provisions are highly protective of state jurisdiction by limiting the ability of the ICC to prosecute the same defendant in the wake of a credible domestic adjudication concerning the same conduct.

Presumably, Articles 17 and 20 utilize different terminology (case v. conduct) to cover situations in which a crime base is under investigation, but a domestic indictment has not yet issued, so it is not known which specific domestic charges will be brought. By contrast, the double jeopardy provisions apply where an individual has been fully prosecuted for particular conduct, regardless of how the specific charges characterized that conduct.

Applying this framework to potential charges of aggression before the ICC, where a wartime crime base is under credible domestic investigation, the ICC should stay its hand pursuant to Article 17(1)(a). Once the domestic court has fully adjudicated the case, the ICC may retain jurisdiction over the crime of aggression pursuant to Article 20(3) where the conduct underlying aggression charges is different than the conduct underlying the domestic charges that were prosecuted. This will likely be so in most cases in which aggression is at issue, even where the domestic charges are for international law offenses, such as the war crimes of mistreating detainees or utilizing disproportionate force. This stems from the longstanding conceptual distinction in the law between the jus ad bellum (the rules governing the resort to armed force) and the jus in bello (the rules governing the conduct of hostilities).

The domestic crimes most analogous to the crime of aggression—sedition, insurrection, or treason—usually aim to suppress internal dissension rather than cross-border aggressive acts, and so the conduct in question will differ. Under U.S. law, see, e.g.,

• the Insurrection Act of 1807, 10 U.S.C. § 331 et seq. (non-penal provision authorizing the president to employ state militia or armed forces to suppress rebellion);
• the Alien Enemies Act, 50 U.S.C. §21-24 (allowing the president to deport resident aliens if their home countries are at war with the United States); and
• the Espionage Act, 18 U.S.C. § 793-794 (penalizing the gathering or transmitting of national defense information).

Potential domestic charges that might trigger complementarity vis-a-vis potential aggression charges are terrorism charges under domestic law—such as using weapons of mass destruction, 18 U.S.C. §2332a, or terrorist bombings, 18 U.S.C. §2332f—or weapons charges, such as using radiological dispersal devices, 18 U.S.C. § 2332h. In U.S. law, for example, it is a federal crime to commit an act of terrorism transcending national boundaries (18 U.S.C. § 2332b). Conduct triggering prosecution under these statutes might also support charges of aggression before the ICC where the individual in question satisfies the leadership clause of the ICC definition.

In the next negotiation rounds, delegates should focus on the complementarity consequences of enabling the ICC to prosecute aggression if they want to clarify when the ICC should prosecute acts of aggression if a domestic court has adjudicated crimes arising out of the same crime base as any potential aggression charges, notwithstanding that the underlying conduct differs. This would require tinkering with Articles 17, 18 and 20 addressing admissibility and double jeopardy.

Deconstructing Resolution 3314

(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.

The Crime of Humanitarian Intervention?

(Part 4 in a series on Aggression and the ICC.)

As discussed in a prior post, draft amendments to the ICC Statute that would finally define the crime of aggression do not include any express exceptions for acts that might qualify as unilateral humanitarian interventions—uses of force without Security Council approval designed to liberate an oppressed people or to rescue nationals detained abroad. Indeed, even the Kosovo intervention of 1999—arguably the best example of a pure, i.e. non-pretextual, humanitarian intervention—would at first glance meet all the elements of aggression as it is current defined.

Specifically: The intervention was an air war consisting of an “attack [or] bombardment by the armed forces of a State against the territory of another State.” Although NATO possessed no territorial ambitions, the intervention did violate the territorial integrity of Yugoslavia (right) and, arguably, sought to undermine the political independence of the state (if not effectuate regime change). Most, although not all, scholars concede that the intervention was illegal under the Charter framework, but conclude that it was nonetheless legitimate and justifiable under the circumstances, as evidenced by the fact that it generated little in the way of censure from other members of the international community. (The non-rejoinder may also be explained, of course, by the disparities of power between NATO and others weaker or post-colonial states that might be wary of endorsing a broad right of humanitarian intervention). The intervention was a “manifest” violation insofar as it wrecked considerable damage on Yugoslavia, but it was not necessarily an arrant or flagrant one given lingering debates over its legality, morality, and wisdom. Potential high-level defendants—such as General Wesley Clark (below left), commander of Operation Allied Force in Kosovo, or Javier Solana (right), then-Secretary General of NATO—would not be immune from suit pursuant to Article 27 (“[t]his Statute shall apply equally to all persons without any distinction based on official capacity.”).

Whereas the concept of self-defense is well established under international law, the right to use force in defense of others is less so. Advocates of an emerging, or surviving, norm in favor of humanitarian intervention raise a host of inter-related arguments:

► These include textual arguments that attempt to carve out an implicit exception for humanitarian intervention from the language of Article 2(4) of the Charter by noting that states engaging in humanitarian interventions don’t seek territorial aggrandizement or to undermine the target state’s political independence—the sovereign values protected by the Charter.

► Advocates also raise moral arguments drawing on natural law theory and argue that the post-WWII period ushered in a new conception of sovereignty by which human rights values are now constitutive of statehood. As such, sovereign prerogatives of non-intervention and monopolistic territorial power are contingent upon states’ manifesting respect for human rights.

► Advocates also point to state practice (such as Kosovo) and opinio juris (such as the Responsibility to Protect initiative--see Marjorie Florestal's recent post on this concept) to support an emerging customary international law norm in favor of interventions on purely humanitarian grounds where grave violations are at issue and other efforts (diplomacy, sanctions, etc.) have failed.

Delegates drafting the definition of aggression are not unaware of the potential conflict between humanitarian intervention and the crime of aggression. Indeed, the Kosovo intervention occurred just as the Preparatory Commission was starting its work on issues left unfinished at the 1998 Rome Conference, including the Rules of Procedure and Evidence, the Elements of Crimes, and the definition of Aggression. Delegates have preferred to adopt a concerted silence on this point, so as to not jeopardize their forward progress in defining aggression by getting bogged down in already intractable debates over humanitarian intervention. As such, it will be for the various organs and constituencies of the ICC to determine how to address future humanitarian interventions. The ICC is thus poised to play a role as arbiter on the legality of humanitarian interventions.

This assumes, of course, that cases even make it to the Court. There are many ways in which the architects of just wars may be insulated from prosecution for the crime of aggression.

• As noted in a prior post, it remains to be seen whether explicit approval from the Security Council, General Assembly, International Court of Justice, or Pre-Trial Chamber will be established as a condition precedent for investigation and prosecution.


• States and the Security Council may fail to refer such situations to the Court pursuant to their Article 14 and Article 13(b) powers, respectively.


• In the exercise of prosecutorial discretion, the Prosecutor may decide not to launch investigations proprio motu pursuant to Article 15 or may decline to go forward with referred cases in “the interests of justice” per Article 53(1)(c).


• The Security Council may use its deferral powers (Article 16) to delay cases or, if it is granted a more robust “red light” power as is contemplated, it may stop such investigations altogether.

If delegates want to add a doctrinal barrier to prosecution, they could tinker with the mens rea element of the crime of aggression. As it stands, the definition adopts an objective intention/knowledge formulation: the defendant must intend to commit an enumerated act of aggression (bombardment, etc.) and must have knowledge of the factual circumstances that render the act a manifest violation of the Charter. The defendant need not, however, have knowledge of legal doctrine concerning the use of force. If drafters were to require proof of a surplus of intent—such as a specific intent or motive element to achieve an illegitimate territorial or political aim or even bad faith, malice, willfulness, or hostile intent—they might provide an additional barrier to prosecutions if they want to prevent the Court from entering into the humanitarian intervention fray and potentially altering the debate through its jurisprudence.

Aggression & The Security Council: A Monopoly?

(Part 3 of a series on the crime of aggression and the International Criminal Court; Part 1 is here and Part 2 is here.)

As detailed in a prior post, although some elements remain contentious, delegates are approaching a consensus definition of the crime of aggression. The most entrenched battle lines are now those governing the preconditions for the ICC’s jurisdiction over the crime of aggression.
At the 1998 Rome Conference, delegates were unable to agree upon any pre-conditions for the exercise of jurisdiction over the crime of aggression except to note that such pre-conditions should be “consistent with the relevant provisions of the Charter of the United Nations.” (Article 5(1)). The primary debate revolves around what role — if any — the U.N. Security Council (left) should have in prosecutions of the crime of aggression given the Council’s central role in the United Nations’ system of peace and security and the special nature of the crime of aggression. These provisions are to be contained in Article 15bis, which will be inserted into the Rome Statute after the Articles discussing the Court’s trigger mechanisms (state referrals (Art. 14), Security Council referrals (Art. 13(b)), and initiation by the Prosecutor acting proprio motu (Art. 15)), and prior to the Article governing the Security Council’s deferral powers (Art. 16).

The language — contained in an annex to a draft enabling resolution to be presented at the upcoming Review Conference — that has been the subject of debate reads as follows:

Article 15 bis
Exercise of jurisdiction over the crime of aggression
1. The Court may exercise jurisdiction over the crime of aggression in
accordance with article 13, subject to the provisions of this article.
2. Where the Prosecutor concludes that there is a reasonable basis to
proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents.
3. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression.
4. (Alternative 1) In the absence of such a determination, the Prosecutor may not proceed with the investigation in respect of a crime of aggression,
Option 1 – end the paragraph here.
Option 2 – add: unless the Security Council has, in a resolution adopted under Chapter VII of the Charter of the United Nations, requested the Prosecutor to proceed with the investigation in respect of a crime of aggression.
4. (Alternative 2) Where no such determination is made within [6] months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression,
Option 1 – end the paragraph here.
Option 2 – add: provided that the Pre-Trial Chamber has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15;
Option 3 – add: provided that the General Assembly has determined that an act of
aggression has been committed by the State referred to in article 8 bis;
Option 4 – add: provided that the International Court of Justice has determined that an act of aggression has been committed by the State referred to in article 8 bis.
5. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s determination of an act of aggression under this Statute.

As this draft text reveals, a number of options remain on the table:

► Under the first option, which gives ex ante veto power to the Security Council, the Council would have to determine that an act of aggression had occurred before an investigation or prosecution into the crime of aggression could commence. If the Security Council does not so determine, no prosecution could commence into crimes of aggression, although the Prosecution could investigate other ICC crimes committed within the same situation. (Draft Article 15bis (3) & (4, Alternative 1, Option 1)). Not surprisingly, those permanent members of the Security Council that have taken a position on these provisions favor this option.

► Under a second Option, the Security Council could request the Prosecutor to proceed with an investigation into crimes of aggression, even where it did not itself make a determination as to the existence of an act of aggression. (Incidentally, the Security Council has rarely declared a use of force to be an "act of aggression." Normally, unlawful uses of force are deemed "breaches of the peace" in the alternative lexicon of Article 39. Even the invasion of Kuwait by Iraq was designated as such in S.C. Res. 660 (1990)).

► Under the third set of options, Security Council inaction is not necessarily fatal to an investigation into crimes of aggression. According to the most permissive option, in the event of Security Council inaction, the Prosecutor could proceed with an investigation into crimes of aggression (draft Article 15bis (4, Alternative 2, Option 1)). As a more restrictive version of this option, the Prosecution could proceed so long as some other entity (either the Pre-Trial Chamber (Option 2), the General Assembly (Option 3), or the ICJ (Option 4)) had determined that an act of aggression had occurred. Precise details on how the General Assembly or ICJ would make such a determination remain to be worked out. For example, delegates have discussed allowing the ICJ to make such a determination through its advisory, as opposed to contentious, jurisdiction at the request of the General Assembly or another body with standing.

► Most importantly from the perspective of the independence of the Court, under all of these options, the Court is not bound by any determination on aggression by an organ outside of the Court (Article 15bis(5)).

This is not the case with respect to one additional proposal floating around the negotiations. This proposal would empower the Security Council to stop altogether a prosecution into a crime of aggression, presumably on the ground that no act of aggression had been committed because the putative aggressor state had legitimately acted in self-defense. This proposal would grant the Security Council powers that are stronger than the deferral powers already provided for in Article 16, which allows the Council to suspend, on a renewable basis, any investigation for a period of a year pursuant to a Chapter VII resolution. This proposal received limited support, primarily because delegates did not relish the idea of the Court being legally bound by such a political determination.

The drafting history of these provisions is available here.

Elements of Aggression

(Part 2 of a series on the crime of aggression and the International Criminal Court; Part 1 is here.)

As mentioned in the 1st post in this series, delegates examining the Statute of the International Criminal Court are gradually closing in on a definition of aggression and a list of elements of that crime. These proposals will be presented for adoption at the Review Conference scheduled for Spring 2010 in Kampala, Uganda. The definition of the crime of aggression will be inserted within the ICC Statute as Article 8bis, just following the war crimes provision that now comprises Article 8.

The working definition of aggression in draft Article 8bis, as contained in a Discussion Paper prepared by the Chair of the Special Working Group on the Crime of Aggression and in the group's subsequent reports, is as follows:

Article 8 bis
Crime of aggression
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.

This draft reproduces almost verbatim Article 3 of General Assembly Resolution 3314 (1974), adopted to “guide” the Security Council in determining the occurrence of aggression in the exercise of its Chapter VII power.

In the most recent gathering of states, most delegations indicated that while the draft may not be perfect, they supported the text as a compromise.

The working Elements of Crimes are as follows:

1. The perpetrator planned, prepared, initiated or executed an act of aggression.
2. The perpetrator was a person in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression.
3. The act of aggression — 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 — was committed.
4. The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations.
5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations.
6. The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations.

The definition and elements of aggression contain several notable features:

► Personal jurisdiction: The crime of aggression is subject to a leadership clause, providing that only those individuals in the top echelons of a military or civilian hierarchy can be prosecuted for the crime of aggression. Foot soldiers would not be subject to such charges, but could be prosecuted pursuant to Article 8 of the ICC Statute for any war crimes committed in connection with the act of aggression. A footnote in the draft text makes clear that more than one person may be criminally liable for a particular act of aggression.

► State Action: Proposed definitions of the crime of aggression have always been state-centric, envisioning aggression as a phenomenon of states, formal military organizations, and international borders. Controversially, there is no notion of a crime of aggression that may be committed by non-state actors, such as insurgents or terrorists, or by states against their own citizens. This discounts the diversity of threats to the peace and international security in contemporary international relations.

► Forms of responsibility: The crime of aggression will be subject to all the forms of responsibility set forth in Article 25. There had been some discussion about identifying a separate set of forms of responsibility applicable to the crime of aggression only, but this proposal appears to have fallen to the wayside. The provision does allow for prosecution for preparatory acts (planning), although only if an act of aggression is consummated. Thus, the aggression provisions will be of limited use in halting the "steps to war" ex ante, although the Court might conceivably prevent the further escalation of a conflict from a militarized dispute to outright war if an aggression investigation is initiated.

► Condition Precedent: Since the early days of the drafting of the ICC Statute, delegates have insisted that no prosecution for the crime of aggression could take place until an act of aggression by a State had occurred. How such a determination should be made remains contentious and will be the subject of a future post.

► “Manifest” Violation: The act of aggression by the applicable state must be a manifest violation of the Charter, viewed objectively. Given the formulation of Article 8bis(1) and the reference to the “character, gravity and scale” of the act, “manifest” in this context seems to denote some level of seriousness. (Earlier articulations of this element included the term “flagrant.”) The goal of this threshold element seems to be to preclude the assertion of jurisdiction over “borderline” cases, such as frontier scuffles or coast guard incursions. Some state delegates have insisted that any act of aggression would constitute a “manifest violation” of the U.N. Charter and should give rise to individual criminal responsibility where the other elements of the crime of aggression had been proven. These delegates argue that the list of acts in Article 8bis(2) will ensure that minor incursions across an international border would not trigger the applicability of Article 8bis. The reference to “objective” ensures that the Court would be charged with determining whether the act was a manifest violation of the Charter based upon some sort of reasonable leader standard.

► Mens rea: The first element is a conduct element subject to a mens rea of intent. Subsequent circumstance elements, such as the fact that the defendant occupied a leadership position, are subject to a knowledge mental state pursuant to Article 30(3)(“‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events”). This formulation seems to exclude a constructive knowledge, or “should have known,” standard.

► Knowledge of fact: This mental element, applicable to the 3rd and 5th elements, requires a showing that the defendant was aware of the factual circumstances that rendered the applicable state’s use of force inconsistent vis-à-vis the U.N. Charter (e.g., the occurrence of an armed attack against another state, the lack of Security Council authorization, and the lack of a prior attack by the victim state). Thus, the perpetrator is not required to have knowledge of precise legal doctrine governing uses of force. A similar knowledge-of-fact formulation is contained in the text addressed to war crimes and clarifies that it need not be shown that the defendant undertook a legal evaluation as to the existence of an armed conflict, its classification as international or non-international, or the status of the victims as protected persons.

► Actus Reus: A leader may be prosecuted for planning, preparing, initiating or executing one of a number of acts of aggression. The listed acts of aggression reflect their historical origins in Resolution 3314. Absent are acts that might be considered modern forms of aggression, such as cyber attacks or deliberately inflicted environmental degradation.

► Exceptions: Some commentators (such as the former Ambassador-At-Large for War Crimes David Scheffer) have proposed that the ICC Statute should include enumerated exclusions to the crime of aggression, such as uses of armed force or deployments of armed forces made pursuant Security Council authorization, the “Uniting for Peace” Resolution (Res. 377 (1950)), or Article 51 of the U.N. Charter (self-defense). This draft does not include such a provision. Nor does it include a provision excepting uses of force that may constitute bona fide humanitarian interventions.

It is anticipated that the proposed Elements of Crimes amendment will be presented at the Review Conference for adoption along with the amendment on to include the crime of aggression. Although some elements remain contentious, delegates are approaching a consensus definition of aggression. Battle lines remain over the preconditions for the exercise of ICC jurisdiction over the crime of aggression. That's the subject of the next post in this series.

The Crime of Aggression: United States, wherefore art thou?

(Part 1 in a series on the crime of aggression before the ICC)

Crimes against the peace (the crime of aggression in today’s lexicon) was the centerpiece of the Nuremberg Trial, which was to be the “trial to end all wars.” Indeed, the Nuremberg Judgment reasoned that aggressive war was the proximate cause of the other crimes within the jurisdiction of the Nuremberg Tribunal—war crimes and crimes against humanity. Notwithstanding its prominence in the postwar period, the crime of aggression all but disappeared in the pantheon of international criminal law after WWII. Instead, the postwar architects of the United Nations enshrined a prohibition on the use of force directed at states in the U.N. Charter. Article 2(4) of the Charter reads:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

None of the post-Cold War international tribunals included the crime of aggression within its subject matter jurisdiction, even though the crime was arguably relevant to the Yugoslavian, Sierra Leonean, and East Timorese contexts, at a minimum.

Reports of the death of the crime of aggression proved premature, however. As the ICC Statute gradually took shape during the 1990s, many smaller states—with the backing of former Nuremberg-era prosecutors such as Ben Ferencz (left) and the late Henry King (below right on the right with Nuremberg defendant Albert Speer)—insisted that the crime of aggression be revived. Negotiations on the precise contours of the crime proved contentious, however, and during the waning hours of the 1998 Rome Conference, delegates effectively punted. Article 5(2) of the Statute currently contains a placeholder indicating that Court will exercise jurisdiction over the crime of aggression once a definition is achieved:

The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

This process has been ongoing in the form of the proceedings of a Working Group (now disbanded) dedicated to the crime and a number of informal sessions with states, NGOs, and academics. It is expected that a definition of the crime, and its formal elements, will be adopted at the Review Conference to be held next summer in Uganda.

A decision has apparently yet to be made on whether the United States will participate in the remaining discussions on the crime of aggression. The final negotiation session of the Special Working Group on the Crime of Aggression was held in New York in January and February 2009—immediately after President Obama took office. The U.S. did not participate (the SWGCA is open to non-parties). Nor did it participate in either an informal retreat or an intersessional meeting held in April and July 2009. The U.S. will need to make a decision about its future participation soon, as the next negotiation session involving the Assembly of State Parties is slated for November 18-26 in The Hague.

John Bellinger (right)—the Legal Advisor to the State Department under President George W. Bush—has cogently argued in a recent op-ed that the U.S. should be at the negotiation table going forward, even if the U.S. has no plans to join the Court in the immediate future. Bellinger is right; it is squarely within the United States’ interests to ensure that the ICC Statute contains a legitimate and appropriate definition of the crime of aggression given the crime's potentially critical impact on international affairs and the U.N. system of peace and security. In addition, the Security Council will play an important role in any prosecution for aggression; as a permanent member of the Council, the U.S. should ensure that the ICC Statute properly defines the relationship between the Court and the Council with respect to the ICC crime that most acutely implicates the Council’s bailiwick. Making constructive contributions to these negotiations will also enable the Obama Administration to signal a new, more engaged, relationship with the Court and its Assembly of States Parties.

Although many foundational issues have been resolved over the years, a number of open questions about the scope and contours of this crime remain subject to potential U.S. influence in advance of the 2010 Review Conference. The two primary outstanding issues with respect to the definition of aggression are

• the precise definition of the crime (as set forth in draft Article 8bis and explicated in the Elements of Crimes) and
• the conditions for the exercise of jurisdiction (draft Article 15bis).

Subsequent posts will focus on the details of each of these issues.

Insight into ICC endeavor against aggression

With a year to go before the 1st review conference for the 1998 Rome Statute of the International Criminal Court, a panel is hard at work on one of the ICC’s knottier problems – how to render the crime of aggression an offense fully within the jurisdiction of the permanent international court.
Article 5 of the ICC Statute lists aggression – the foremost offense tried at Nuremberg, there given the more descriptive name “crimes against the peace” – as 1 of 4 crimes “within the jurisdiction of the Court.” But then it adds a caveat: no charge of aggression may be adjudicated until “a provision ... defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.” Thus aggression is not a crime within the current prosecutorial quiver, a fact that sets it apart from the others listed in Article 5, genocide, crimes against humanity, and war crimes.
A Special Working Group is endeavoring to activate this jurisdiction following the 2010 Statute review conference. As explained in this ASIL Insight by Dr. Anja Seibert-Fohr (above left), head of the Minerva Research Group at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany, the Working Group is nearing agreement on a definition of aggression, based on U.N. General Assembly Resolution 2625 (1970):

The current draft amendment takes a conservative approach, defining the crime of aggression as a ‘leadership crime’ which only applies to manifest violations of the UN Charter. Among the listed acts of aggression are: (1) the military invasion or attack of another State’s territory; (2) bombardment of such territory; (3) military blockage of foreign ports and coasts; and (4) attacks on land, sea and forces of another State.

Yet key aspects of this problem are still unresolved, among them:
► Whether jurisdiction over charges of aggression ought to depend on referral by the U.N. Security Council, as preferred by the only 2 ICC states parties that are also permanent Council members, or whether the Council’s role should be limited to blocking of undesired referrals;
► Whether to allow states parties an effective opt-out from the provision relating to aggression, thus permitting 2-tiered application of the ICC treaty; and
► The procedural mechanism for proper adoption of the new provision, a question that gives rise to another respecting the percentage of states parties that must agree.
Seibert-Fohr’s incisive essay concludes as do many respecting the role of international law in our contemporary world:

Whether the Conference will eventually adopt an amendment is still open and largely depends on political momentum.

On October 7

On this day in ...

... 1935, 4 days after troops from Benito Mussolini-led Italy "swept into Ethiopia from Eritrea and Italian Somaliland and overwhelmed the Ethiopian army," the Council of the League of Nations "declared that Italy was the aggressor nation in the Ethiopian affair and made preparations to apply sanctions against the Italians." In fact League members did nothing, however, and within a year Ethiopia (known then as Abyssinia) accepted Italian rule. "This incident was not a minor one and has been regarded by history to be one of the thorns that led to the outbreak of World War II." (map credit)

... 1955, at the Six Gallery in San Francisco's Fillmore district, a 29-year-old "unknown poet from the East Coast," Allen Ginsberg, gave the 1st public reading of "Howl." He began:

I saw the best minds of my generation destroyed by madness

and then continued with a poetic rant (full text here) that, in the words of an NPR retrospective, "gave voice to an undercurrent of dissatisfaction and alienation in Eisenhower's America." Lawrence Ferlinghetti, whose City Lights press would publish the poem amid controversy, described the impact of this literary icon of the Beat Generation with more punch: "'Howl' knocked the sides out of things."