Coming full circle: the Rome Statute and the crime of aggression.

• Author: Kacker, Devyani

INTRODUCTION

The right to aggress, conquer or expand was recognized as a right of a sovereign state until the Twentieth Century. The desire to conquer has fueled countless conflicts, including the two World Wars, which left massive destruction of life and property in their wake. This spurred the international community to reconsider the role of aggression in international relations: namely, that aggression is no longer a privilege within the right of the sovereign, but rather is a bane of society that needs to be curtailed and punished. Numerous initiatives were undertaken to define and punish aggression, albeit under different names. These efforts suffered from different deficiencies and ultimately were not fruitful. Although aggression as a crime captured the minds of jurists decades ago, the international community has yet to reach a consensus definition of when aggression might be criminal. Unlike the crimes of genocide, war crimes, and crimes against humanity, which are all now well-defined in international law, the crime of aggression is less developed. It now falls to the states party to the Rome Statute of the International Criminal Court (ICC) to amend the statute and fill a void in international law by drafting a definition of the crime of aggression.

In 1998, when the Rome Statute was negotiated and drafted, the crime of aggression was included on the list of crimes falling within the jurisdiction of the ICC, but no agreement was reached as to its definition. (1) Thus, although article 5, paragraph 1 of the Rome Statute lists the crime of aggression as one of the crimes under the jurisdiction of the ICC it does not provide a definition. To begin work on a definition, the ICC set up a Preparatory Commission that culminated in the 2002 Coordinator's Discussion Paper. This paper summarized the various options that were on the table for consideration, but did not reflect a complete agreement. (2) Thereafter, in 2002, the Special Working Group on the Crime of Aggression (Working Group) was established by the Assembly of States Parties of the ICC (Assembly of State Parties) to continue discussions on the definition of the crime of aggression, focusing on its elements and jurisdictional conditions. The discussions are open to all states, including non-states parties. The Working Group has until 2010 to submit a draft on which all the States Parties will vote.

Part I of this paper will provide a historical background of the ongoing efforts of the international community to define and punish the crime of aggression. Part II will articulate and examine the definition in its current form, as well as the core elements currently debated by the Working Group. Part III will discuss whether military humanitarian intervention is permitted within the scope of the new definition under debate. Part IV will address a triggering mechanism, specifically what procedure would recognize aggression and trigger the ICC jurisdiction. Part V will discuss the procedure for entry into force of amendments regarding the definition of aggression and any implication this may have on states considering joining the ICC.

1. HISTORICAL BACKGROUND

   1. Pre World War II

      At the culmination of World War I in 1919, an effort was made to criminally try Kaiser Wilhelm of Hohenzollern for "a supreme offense against international morality and the sanctity of treaties" (3) under Article 227 of the Treaty of Versailles. (4) Even though the Kaiser won refuge in the Netherlands, the effort clearly demonstrated the sentiment that war was antithetical to peace, that crimes against peace should be punished, and that jurisdiction could be exercised over such crimes. (5) In fact, this reaction was reflected in the covenant establishing the League of Nations. The members of the League of Nations accepted the obligation not to resort to war in an effort to promote international co-operation and achieve international peace and security. (6)

      Thus, the 1920s witnessed an effort by the League of Nations to prohibit aggression through various agreements. The Draft Treaty of Mutual Assistance, while never adopted, condemned "aggressive war [as] an international crime." (7) In 1924, the Protocol for the Pacific Settlement of International Disputes (Protocol) declared in its Preamble that aggressive war is a crime. (8) Beyond the League of Nations, the 1928 General Treaty for the Renunciation of War (Kellogg-Briand Pact) renounced war as an instrument of national policy and pledged to resolve all disputes by peaceful means. (9) Although the efforts were a step in the right direction they stopped short of criminalizing aggression. Thus, it was left to the International Military Tribunals for Nuremberg and Tokyo to formally deal with aggression as a crime in the wake of World War II.

   2. Post World War II

      Some say historical events repeat themselves, and this may be true of what happened after World War II. Following the cessation of hostilities, the Allied Powers agreed to the establishment of an International Military Tribunal (IMT) at Nuremberg to prosecute crimes against peace, war crimes, and crimes against humanity. (10) Although the Charter of the IMT did not include the crime of aggression, the phrase "crimes against peace" encompasses it, as it was defined as 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". (11) The defendants at the IMT trials put forth an unsuccessful argument regarding protection from retroactivity under the principle of nullum crimen sine lege nulla poena sine lege. (12) The tribunal found that the crimes covered were part of customary international law even prior to 1939, thus defeating the nullum crimen sine lege argument. (13)

      The IMT has been criticized by many scholars, in particular the Chief Justice of the United States Supreme Court Harlan Fiske Stone, who labeled the Nuremberg trials a fraud. (14) Justice Stone remarked that "[Chief U.S. prosecutor Robert] Jackson [also a Supreme Court justice] is away conducting his high-grade lynching party in Nuremberg. I don't mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law." (15) Interestingly, one of the legacies of the IMT arises out of its criticisms. "Cognizant ... of the strict view that the London Charter had defined its crimes after the fact, and thus violated the principle of nullem crimen sine lege, the U.N. directed the preparation of a formalized code of international crimes and a statute for a new international criminal tribunal." (16)

   3. The United Nations (U.N.) and the Cold War Era

      Some attention to crimes against peace was refocused with the start of the Cold War. The Charter of the United Nations (U.N. Charter) resolves to maintain international peace and security, and provides the Security Council with wide powers to maintain them. (17) The U.N. Charter obliges its members to refrain from the use of force, but it also empowers the Security Council to take action, including the use of military force. Under article 39 of the U.N. Charter, the Security Council "shall determine the existence of any threat to the peace, breach of the peace, or act of aggression," and, under article 42, it may take such action, "necessary to maintain or restore international peace and security." Thus, under the U.N. Charter, military action may be taken against an aggressor state, under certain circumstances.

      To solidify the effort of establishing the crime of aggression, in 1952 the U.N. created a Special Committee to address the question of defining "aggression." (18) These efforts, however, were not prioritized. (19) In the early 1950s, the world was a divided place and certainly neither the Soviet Union nor the United States were waving the white flag. It was not until 1974 that the U.N. General Assembly finally endorsed the work of its Special Committee and unanimously adopted Resolution 3314 (Resolution 3314), which contained a proposed definition of "aggression." (20) The core of Resolution 3314 contains a generic definition and a non-exhaustive, illustrative list of seven such acts of aggression. (21) Under this definition, the first use of armed force by a state in contravention of the U.N. Charter is prima facie evidence of an act of aggression, although the Security Council may conclude otherwise. (22) Despite the fact the International Court of Justice (ICJ) has recognized certain sections of the Resolution as customary international law, (23) the Resolution itself has been criticized by many. Labeled as political and unusable for prosecution, the Resolution does not specifically address individual criminal responsibility. Many have argued that the Resolution was designed only to act as a guide for the U.N. Security Council. (24)

   4. The International Criminal Court

      When the Rome Statute was being debated, the crime of aggression formed one of the most divisive issues. (25) When the delegates failed to reach a consensus, they compromised by including aggression as a crime that the ICC shall exercise jurisdiction over once a definition was established. (26) Thus the current statute leaves a place holder for the definition under article 5, paragraph 1, sub-paragraph d and suspends jurisdiction until states parties can resolve the issue. The Rome Statute also makes it clear that the definition, when provided, must be consistent with the provisions of the U.N. Charter and be adopted in accordance with articles 121 and 123 of the statute. The same directs that a Review Conference to consider the amendment be held no earlier than seven years after the entry into force of the Rome Statute (i.e. 2002). (27)

      Thus, the states parties established the Working Group to draft a definition of the crime of aggression for...