(Pre)determining the crime of aggression: has the time come to allow the International Criminal Court its freedom?

• Author: Lavers, J. Troy

ABSTRACT

The Assembly of States Party of the International Criminal Court is currently discussing the crime of aggression. It was postponed during the negotiations for the Treaty of Rome because of the contentious nature of the crime, jurisdiction and trigger mechanisms. One of the present discussion points includes the requirement of the Security Council to make a determination of an act of aggression before the International Criminal Court can have jurisdiction over the crime. This Article critiques the necessity for a Security Council determination as a precondition. The determination by the Security Council will allow for the continued dominance by the powerful veto states of the council. It will also give the Security Council a quasi-judicial role for which it was not designed nor capable of because of its political nature and unbalanced representation. Certain states in the negotiations have argued that the primary function of the Security Council is to make determinations on aggression referring to Article 39 of the UN Charter. Article 39 deals with actions of the council, not the determination of criminal liability. This predetermination also ignores the independence of the court and sets a new precedent for one specific crime. It not only undermines the value of an international court, it creates due process problems such as the right to a fair trial at the ICC if a UN body has already made a determination. The predetermination by the Security Council has broad ranging consequences, none so important as lack of equity and fairness in international criminal law application.

1. Introduction II. Maintenance of Peace and Security versus Criminal Justice A. The Security Council's Hesitancy with Determining Aggression III. Political Influences on the Security Council: Threats to International Law? IV. Interpreting the Requirements of the UN Charter V. Proposals for the Determination of the Crime of Aggression VI. Possible Scenarios VII. Conclusion: The Best Case Scenario I. INTRODUCTION

   The prohibition on acts of aggression is often traced back to Nuremberg where it was defined in the International Military Charter as a "crime[] against peace." (1) It was sometimes referred to as the "supreme crime." (2) "'That attack on the peace of the world is the crime against international society which brings into international cognizance crimes in its aid and preparation which otherwise might be only internal concerns.'" (3) The United Nations General Assembly (GA) Resolution 95 in 1946 adopted the principles of international law recognized from the International Military Tribunal, including the crime against peace. (4) In fact, during 1947, the International Law Commission adopted the work of the original Committee of Seventeen to prepare a draft of the code against the peace and security of mankind. (5) This was early in the development of the United Nations (UN), when World War II was fresh in the memory of member states, and the main function of the UN was to develop a structure that would prevent any further wars or acts of aggression.

   Several attempts to specifically define aggression had not reached maturity until 1974 when the Special Committee for the Definition of Aggression did what it said on the tin, and proposed the definition to form UN GA Resolution 3314. (6) This resolution does not have the same force as a binding Security Council (SC) resolution made under Chapter VII, but the International Court of Justice (ICJ) in Nicaragua stated that Resolution 3314, Article 3(g) did reflect international customary law. (7) Various international writers also support the belief that Resolution 3314 is part of customary law. (8) This is not to say that it has solved the problem of acts of aggression throughout the world, indeed because of the lack of states' adherence to customary law and the prohibition use of force in the UN Charter there has been increasing momentum to codify aggression in the Statute of Rome. This is reminiscent of the old argument that stronger enforcement mechanisms lead to adherence of international law.

   The crime of aggression was included but not defined in the Statute of Rome, (9) due to the lack of agreement by the negotiating states. Unlike the other core crimes, including war crimes, genocide, and crimes against humanity, which have seen more emphasis in recent years with the International Criminal Tribunals of Rwanda and Yugoslavia, (10) the crime of aggression is a representation of state power and force and is perceived to be of less of a direct concern for international humanitarian law. Defining the crime of aggression within the Statute of Rome is also seen as a possible threat to those states that have or are likely to commit these acts against other states. Powerful states fear the potential for politically motivated prosecutions similar to the calls for Tony Blair and George Bush to be prosecuted as war criminals after the invasion of Iraq in 2003. (11)

   Since the Statute of Rome came into force, the Assembly of States Party established the Special Working Group on the Crime of Aggression (SWGCA) in order to agree on the inclusion of the crime in the statute at the Review Conference in 2009. Several issues are contentious in the current negotiations of the SWGCA, such as its exact definition of the crime, (12) the distinction between state and individual responsibility, and, for the purposes of this discussion, the issue of whether there should be a determination by the SC before the International Criminal Court (ICC) can have jurisdiction. This is a key concern for the negotiations since determinations by the SC for acts of aggression in the past have been rare. (13) The problem in making the ICC dependent on the SC for a determination is the removal of the court's independence as an international judicial body and its subordination to the SC. The proposal for a prior determination not only devalues the competency of the ICC, but it is also in opposition to the intended role of the SC. The determination gives the SC a quasi-judicial function for which it is ill-suited because it is a political organ. The SC also suffers from the dominance of the veto states. Further, certain past SC resolutions have placed more emphasis on the maintenance of peace and security instead of human rights and/or other general principles of international law. (14)

   This Article will contend that a determination by the SC before the ICC has jurisdiction over the crime is not judicious for several reasons. First, it will introduce a political element into the analysis. Second, there is the distinct possibility of SC inaction or the toning down of acts of aggression based on its previous history. There is also the possibility of violating the due process principle once the SC has made a determination; any determination or lack thereof made by the SC may influence the ICC's decision making. Finally, the requirement for the SC to determine acts of aggression as stated by Article 39 is part of its primary function (Article 24) in order to act to maintain peace and security, but it is not its exclusive right. (15) Article 39 does not prohibit other bodies from making a determination. The main distinction between these interpretations of Article 39 is the necessary distinction between the function of the maintenance of peace and security and the function of criminal justice.

   This analysis will also examine the major area of debate in the current negotiations, which highlight the contentious nature of the proposed determination by the SC. This is followed by a discussion about the problems with other possible scenarios for a determination by other bodies in the UN framework besides the SC, such as the GA or the ICJ. The GA has the advantage of being more representative and the ICJ is not a political body; however, each have disadvantages for a determination of an act of aggression. These disadvantages would not only inhibit the work of the ICC but also influence the process of international criminal justice. It is essential that if the crime of aggression is to be adopted as anticipated in the review conference in 2009, (16) it does not enhance the faulty international mechanisms that we have today. In other words, it should not be a determination based on power allocation.

2. MAINTENANCE OF PEACE AND SECURITY VERSUS CRIMINAL JUSTICE

   1. The Security Council's Hesitancy with Determining Aggression

   The World Conference in 2005 did not result in any of the much debated reform of the SC. The Council is a time specific reflection of powerful states and so too are the contentious veto powers of the permanent members with the subsequent resolutions reflecting this reality. These are the powerful states, not only within the UN structure itself, but also economically and militarily. Sanctioning powerful states and/or their close allies for an act of aggression can become a problematic tale for international diplomacy. This does not reinforce the "principle of the sovereign equalit[ies] of all its Members" as stated in Article 2, Paragraph 1 of the UN Charter. (17)

   The SC often "understate[s] ... the situation" in order to gain a consensus from the members, according to Giorgio Gaja. (18) Throughout the history of the SC, there have only been three occasions where the term of an act of aggression or act of armed aggression has been used, one concerning South Africa and Angola in 1976, (19) and another concerning the Israeli bombing of the headquarters of the PLO in Tunisia. (20) The third was a SC resolution condemning the "act of armed aggression perpetrated against the People's Republic of Benin." (21) Several SC resolutions have identified situations and conflicts not as acts of aggression, but as "threat[s] to international peace and security," (22) without making a determination of aggression. These resolutions have applied to cross border military invasions, such as the Argentinean invasion of...