Criminalizing Force: Resolving the Threshold Question for the Crime of Aggression in the Context of Modern Conflict

• Publication year: 2009
• Citation: Vol. 33 No. 01

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 33, No. 1FALL 2009

Criminalizing Force: Resolving the Threshold Question for the Crime of Aggression in the Context of Modern Conflict

Keith A. Petty(fn*)

I. Introduction

The Rome Statute of the International Criminal Court (ICC) will soon become another instrument used to regulate the use of armed force. In 2010, the Assembly of States Parties to the Rome Statute is expected to adopt a definition of the crime of aggression.(fn1) Armed conflict in the post-U.N. Charter era, however, is not easily defined or regulated under the existing legal regime. Aggression has been defined in terms of violations of Article 2(4) of the U.N. Charter, when a State uses force that violates another State's territorial integrity or political independence. While traditional wars between two sovereign States are limited by the U.N. Charter and customary international law, uncertainty surrounds the legal nature of humanitarian intervention, preemptive self-defense, and actions against non-State actors. When, if ever, do these contemporary applications of military force cross the threshold of unlawful aggression?

Consider, for example, the legality of the 1999-armed intervention in Kosovo by NATO forces. Many argue that, although not technically lawful under the U.N. Charter, it was morally defensible for the humanitarian purpose of protecting the Kosovo Albanian population from slaughter. The legality of actions to combat terrorism is also worth considering in the post-9/11 era. When U.S.-led forces toppled Saddam Hussein's Iraq in 2003 under the guise of preemptive self-defense, ostensibly to prevent terrorist groups from gaining access to Saddam's mythic weapons of mass destruction, many in the international community cried foul. Similarly, U.S. drone attacks on suspected Taliban strongholds in Pakistan in 2008 and 2009 were based on self-defense, a principle typically reserved for responding to attacks by a State, not non-State armed groups.

The changing nature of armed conflict-from the traditional war between two States to the modern humanitarian intervention or action against non-State armed groups-requires a two-step analysis to determine whether the threshold of unlawful aggression has been crossed. The first step is determining whether the use of force violates the U.N. Charter. If the answer is yes, then the analysis shifts to whether the unlawful use of force is a manifest violation of the Charter. Only after resolving these questions can individuals be held responsible before the ICC for the crime of aggression.

This article examines the draft definition of the crime of aggression and how this definition will be applied to certain uses of armed force, ultimately identifying whether these actions constitute "manifest violations" of the U.N. Charter. Part II establishes the analytical framework of criminal aggression. Initially, the threshold question is explained in detail, followed by an examination of the Charter's prohibition of the unlawful use of force and the magnitude test required to determine manifest violations of the Charter. The threshold question is then applied to humanitarian intervention in Part III. In Part IV, certain measures against terrorism, preemptive self-defense, and attacks against non-State armed groups, are examined under the terms of the draft definition of aggression. Ultimately, whether cases of criminal aggression go forward at the ICC will be an issue of intent, as addressed in Part V. The article concludes in Part VI with a brief summary of issues that will hopefully be resolved by an operational definition of the crime of aggression.

It would be unrealistic to attempt to enumerate every possible manifest violation of the U.N. Charter for the purposes of criminal aggression. Thus, this article establishes a preliminary framework for analyzing the threshold of aggression, both for prosecutors at the ICC and regime elites considering the use of force. The Assembly of States Parties' adoption of the crime of aggression should give pause to decision makers before engaging in questionably lawful uses of force.

II. The Threshold Question and the Prohibition of Unlawful Force

A. The Threshold in the Draft Definition of Aggression

The International Criminal Court will have a limited mandate to initiate proceedings into alleged acts of aggression. The "threshold question" in the draft definition of aggression exists to eliminate less significant instances of the use of armed force from the ICC's jurisdiction.(fn2) Ultimately, the question is whether specific instances of armed force rise to the level of criminal aggression. The issue is framed in terms of the gravity of the State conduct. When alleged acts of unlawful force reach a certain level of severity, they cross the threshold of criminal aggression.

The current draft definition of the crime of aggression, Article 8 bis of the Rome Statute, requires that certain factual findings be made prior to the initiation of an investigation and prosecution of alleged aggression.(fn3) Before the ICC can exercise jurisdiction over an offense, an outside body must determine that a State has committed an aggressive act.(fn4) Most commentators agree that this determination will fall either to the U.N. Security Council or to another U.N. body if the Security Council fails to act.(fn5) Following a determination that a State act is aggression, the prosecutor must conclude that there is a reasonable basis to proceed with an investigation.(fn6) In order to satisfy this objective jurisdictional requirement, the prosecutor must resolve the issue whether the use of armed force rises to the level of criminal aggression.

The threshold clause provides some jurisdictional guidance and is intended to prevent borderline cases from going forward.(fn7) The threshold clause has taken several forms during the negotiations of the Special Working Group on the Crime of Aggression. The most recent draft of Article 8 bis provides: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.(fn8) This provision emphasizes the nature of acts that constitute criminal aggression. The delegates to the Special Working Group on the Crime of Aggression recognized that in order for criminal responsibility to attach, the State act in question must be more than a casual violation of the U.N. Charter.(fn9)

Previous drafts of the crime of aggression included language similar to the "manifest violation" requirement, including draft definitions by the International Law Commission(fn10) and the United Nations Preparatory Commission for the ICC.(fn11) This language is also consistent with the Rome Statute's establishment provision, which limits the ICC's reach to only "the most serious crimes of international concern."(fn12)

The threshold clause, however, does not find universal support among delegates to the Special Working Group. Previous drafts of the crime included an "object or result" test, which some argue is more consistent with the language of Article 2(4) of the U.N. Charter prohibiting the use of force in violation of the territorial integrity or political independence of another State.(fn13) This option clarifies that a manifest violation of the U.N. Charter includes State acts such as, "a war of aggression or an act which has the object or result of establishing a military occupation of, or annexing, the territory of another State or part thereof"(fn14)

Since the early days of the U.N. Charter, aggression has been defined as the use of force that seriously endangers a State's territorial integrity or political independence.(fn15) As such, it is argued, a State act should be judged in terms of whether it was intended to or actually results in "a military occupation of, or annexing, the territory of another State or part thereof-a clear breach of Article 2(4).(fn16)

Critics of the "object or result" approach argue that it is unjustifiably restrictive.(fn17) Limiting the scope of prosecutable actions further than "manifest violations" of the U.N. Charter would have the absurd result of rendering the crime of aggression virtually meaningless and unenforceable.(fn18) In addition, there is concern that the "object or result" test would run afoul of the principle of legality (nullum crimen sine lege) because this test was not required in previous legal interpretations of aggression.(fn19) It is also worth noting that the "object or result" option was removed from the most recent draft definition.(fn20)

Beyond the "object or result" approach, some delegates advocate an alternative to the draft definition, arguing that the threshold clause should be omitted from Article 8 bis altogether.(fn21) They reason that the clause is unnecessary because any act of aggression is inherently a manifest violation of the U.N. Charter.(fn22) Requiring an analysis of the magnitude of aggression adds an additional and unnecessary layer to the pre-trial determination-not to mention the elements that must be proven at trial.(fn23) As such, the Prosecutor should consider only whether the listed acts of aggression contained in Article 3 of...