Adjudicating Aggression in Domestic Courts

As we’ve blogged before, adding the crime of aggression to the ICC Statute threatens to undermine the Court’s system of complementarity, which depends on domestic courts being the primary fora for adjudicating international crimes. Very few states have penalized the crime of aggression, but they may begin to do so in the event that the crime of aggression is added to the ICC Statute. Delegates involved in these negotiations should start focusing on what amendments to the complementarity provisions or other provisions might be appropriate to signal that aggression prosecutions need not go forward in domestic courts in the event that the Court eventually exercises jurisdiction over the crime.
This issue was central to the British House of Lords case of R. v. Jones, [2006] UKHL 16—one of the few domestic cases to consider the crime of aggression. (Article 14 of the Statute of the Iraqi High Tribunal includes the domestic crime of an analogous crime—“The abuse of position and the pursuit of policies that were about to lead to the threat of war or the use of the armed forces of Iraq against an Arab country, in accordance with Article 1 of Law Number 7 of 1958.” Saddam Hussein was executed before these charges could be adjudicated).
The issue arose in Jones in a somewhat backward fashion. In 2003, several British subjects (including Margaret Jones, right) were arrested in connection with efforts undertaken at British military bases to impede British involvement in the Iraq War. The individuals were variously charged with, and some convicted of, aggravated trespass and criminal damage. The appellants all argued that under British law, they were entitled to use reasonable force to prevent the commission of a crime: the crime of aggression. Section 3 of the Criminal Law Act 1967 provides:

(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

Appellants asserted that the United Kingdom’s actions in Iraq were unlawful and that they were thus justified in attempting to prevent them by the use of reasonable force. By their account, the crime of aggression was established in customary international law and its core elements understood with sufficient clarity to permit the prosecution of the crime. They argued that the defense should not be

restricted to crimes triable in the domestic courts and should be understood as extending to crimes recognised under customary international law.

Acknowledging the ongoing negotiations within the Special Working Group on the Crime of Aggression, the appellants stated that the absence of agreed provisions was primarily the result of disagreements over procedural matters, and did not negate the existence of a sufficiently defined prohibition of aggression in customary international law. Even though “the exercise of the prerogative in respect of foreign policy and deployment of the armed forces cannot be challenged in the courts,” the appellants argued that they should be entitled to rely on the illegality of the exercise of the Crown’s prerogative powers as a defense to criminal charges and to put to the jury the question of whether their actions were reasonable and proportionate in the face of an imminent crime.
In response, the Crown argued that there is no automatic incorporation of crimes of customary international law into the domestic law. Rather, such crimes require “statutory interposition.” In situations in which the state’s prerogative with regard to national security and foreign policy is at issue and is determinative, such matters remain outside the courts’ purview.
The Court of Appeals ruled, inter alia, that the crime of aggression was insufficiently defined under international law to trigger the application of the justification defense under the statute.
The House of Lords affirmed, but on different grounds. Lord Bingham of Cornhill determined that customary international law recognized the crime of aggression as evidenced by treaty practice since the 1920s, the Nuremberg and Tokyo proceedings, and the ICC negotiations. Lord Hoffman (left, of Pinochet fame) reasoned that it was for Parliament to decide which international offenses should be made prosecutable in domestic courts and that the courts no longer possessed any residual power to create new offenses in the event of statutory gaps, no matter how pressing the public interest. Furthermore, he noted that the liability of individuals for the crime of aggression is secondary to the acts of a state. The courts should not inquire into the “discretionary powers” of the state to use force. Lord Mance in his speech noted that not all public international law crimes must, or should, be incorporated into the domestic penal code.
The Appeals were dismissed. Several of the appellants were allowed at trial to argue that they were seeking to prevent specific and codified war crimes from being committed, principally the release of cluster bombs and munitions tipped with depleted uranium. Last I was able to determine, the trials ended with hung juries and the defendants were slated to be retried.
In their speeches, the Lords recognized that since the early days of the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind, individual responsibility for the crime of aggression has been intrinsically and inextricably linked to the commission of aggression by a state. Thus, prosecuting the crime of aggression in domestic courts would necessarily involve those courts in non-justiciable inquiries into foreign policy/national security decisions to use force by the home or foreign states. Indeed, as a predicate to finding an individual liable for the crime of aggression, courts would have to declare an act of state to be unlawful. Creating a unique or inverse complementarity regime for the crime of aggression would avoid this. To date, delegates have not focused on this implication of expanding the Court’s subject matter jurisdiction to the crime of aggression, but they would do well to do so.

(Disclosure: I've been advising the Department of State on the aggression negotiations. Any views expressed here are my own).

Crimen Sine Lege

One of the most fundamental defenses to a criminal prosecution is that of nullum crimen sine lege, nulla poena sine lege (“no crime without law, no punishment without law”), also known by the acronym NCSL. Notwithstanding that respect for NCSL is a hallmark of modern national legal systems and a recurrent refrain in the omnibus human rights instruments, many jurists have argued that international criminal law (ICL) has to date failed to fully implement this principle. Having just finished a casebook in the field with Ron Slye of University of Seattle School of Law, I have been exploring that question.

The absence of a rigorous manifestation of NCSL within ICL can be traced to the dawn of the field. In the post-WWII period, NCSL was at the heart of the defendants’ challenge to the legality of the near-identical Charters governing the international military tribunals at Nuremberg and Tokyo. The Allied representatives drafting the Charters could have easily relied solely on the well-established constellation of war crimes to prosecute the WWII defendants. Instead, they opted to innovate and assert jurisdiction over two additional crimes, not theretofore codified: crimes against the peace (the crime of aggression in today’s lexicon) and crimes against humanity. War crimes, while deserving of opprobrium, did not fully capture the Nazi atrocities, which radiated outward in acts of aggression and penetrated inward as persecutory pogroms against compatriots.

The judges of the Nuremberg Tribunal (above left), in reasoning that was to be later echoed by their brethren on the Tokyo Tribunal, rejected the defense with a troika of analytical claims:

► The first move qualified the very application of the maxim, which the Tribunal argued is “not a limitation on sovereignty, but is in general a principle of justice.” This implied, of course, that states could override the principle in the collective exercise of their executive, legislative, or judicial powers.

► Second, having assigned the defense to the more flexible realm of equity, the Tribunal concluded that prosecution was justified, because the defendants could not have reasonably thought their conduct was lawful and it would be unjust to exonerate malefactors:

To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances, the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.

► Third, the Tribunal ruled that the Charter was an “expression of international law existing at the time of its creation.” With the NCSL defense neutralized, the Tribunal rendered judgment on all counts in the Indictment.

Proving that there is nothing new under the sun, these arguments are repeated in the modern ICL jurisprudence. Where states have failed to enact comprehensive ICL, judicial institutions have engaged in a full-scale refashioning of ICL through jurisprudence addressed to their own jurisdiction, the elements of international crimes, and applicable forms of responsibility. Along the way, courts have updated and expanded historical treaties and customary prohibitions, upset arrangements carefully negotiated between states, rejected political compromises made by states during multilateral drafting conferences, and added content to vaguely worded provisions that were conceived more as retrospective condemnations of past horrors than as detailed codes for prospective penal enforcement. By reviewing these cases, it is possible to construct a taxonomy of analytical claims made by tribunals adjudicating international criminal law to evade or neutralize the defense of NCSL. These arguments turn on a complex interplay of immorality, illegality, and criminality and depend in large part on the multiplicitous sources of international law.

Collectively, these cases -- in which defendants have been made subject to new or expanded criminal law rules -- have the potential to raise acute concerns about the rights of criminal defendants before today’s international criminal tribunals. Nonetheless, the methodology developed by the European Court of Human Rights (right) to enforce the articulation of the NCSL principle in its constitutive document, the European Convention for the Protection of Human Rights and Fundamental Freedoms, suggests that the NCSL jurisprudence has not compromised the fundamental fairness of ICL. Indeed, defendants were on sufficient notice of the foreseeability of such jurisprudential innovations in light of:

► extant domestic penal law;

► universal moral values expressed in international human rights law;

► developments in international humanitarian law and the circumstances in which it has been invoked; and

► other dramatic changes to the international order brought about in the post-World War II period.

I am exploring these ideas in a paper I posted here. I welcome your comments.