Reconciling Quasi-states With the Crime of Aggression Under the Icc Statute

• Citation: Vol. 33 No. 1
• Publication year: 2018
• topic: Criminal Law

Reconciling Quasi-States with the Crime of Aggression Under the ICC Statute

Sascha Dominik Bachmann

Yasser Abdelkader

RECONCILING QUASI-STATES WITH THE CRIME OF AGGRESSION UNDER THE ICC STATUTE

Sascha Dominik Bachmann^* Yasser Abdelkader^**

Abstract

On June 11, 2010, a binding definition of the crime of aggression was finally adopted at the Review Conference of the Rome Statute in Kampala, Uganda. The adopted definition of the crime of aggression in the Rome Statute reflecting on existing practice leads to the assumption that State-like entities which are lacking universal recognition will not be covered by the Court's jurisdiction of the crime of aggression. The fact that the term 'State' was not clearly defined under the Rome Statute gives the first indication of the implied exclusion of State-like entities from the scope of the crime of aggression. On the other hand, the most recent interpretation of the term "State" as provided by the International Criminal Court (ICC) delivers even more persuasive evidence, reinforcing the argument that these entities would not be covered by this amendment. This Article argues that uncertainty or explicit exclusion of these entities are both illegitimate; based on historical, legal and practical analyses respectively. Consequently, for the purpose of amending this illegitimate situation, the Article will examine how to reconcile these entities with the definition of the crime of aggression. It acknowledges that the explicit inclusion of such entities under the definition alongside States, yet, distinguishable from the latter, is the most favorable solution that better serves the wider objectives of international criminal justice and law.

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Introduction

In 1998, the Rome Statute of the International Criminal Court (ICC) was adopted at the Rome conference,¹ and the crime of aggression was included amongst the four international core crimes within its jurisdiction.² However, since a definition of the crime could not be agreed on then, the new ICC was not able to prosecute the crime of aggression when it became operational in 2002. It took until 2010, when after extensive discussions by the members of the Assembly of States Parties, the crime of aggression was finally defined as:

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.³

This definition of the crime of aggression, as adopted by the ICC, is influenced by the definition of the act of aggression articulated in the U.N. General Assembly (UNGA) Resolution 3314, which always exclusively addressed interstate aggression as international wars.⁴ Likewise, the crime of aggression limited its scope of application in terms of criminal responsibility to state leaders only.⁵

The issue of determining the aggressor has concerned policy makers, scholars, diplomats and Statesmen for over a quarter of a century. Today, this question is still being debated among scholars and policy makers, and it is almost unanimous that attaining this objective is extremely difficult.⁶ The ICC is restricted in its jurisdiction over aggression to state leaders only and does not provide a clear definition of what is to be considered a state. The only relevant stipulation of a state would be the definition used in the just mentioned UNGA Resolution 3314 which was used as source for outlining the crime of aggression,

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whereas "in this Definition the term 'State': (a) is used without prejudice to questions of recognition or to whether a State is a member of the United Nations."⁷

The issue of this ambiguity stems from different contexts. Historically, these entities could be treated as States for the purpose of the act of aggression, and from a legal point of view, they could also be described as such and incur international responsibility especially in the area of armed conflicts. In modern times, Quasi-States have become a major actor in war and conflict.⁸ However, since they are granted some but not all rights and obligations under international law, they cannot be described as fully-fledged states. Thus, Quasi-States have attained statehood to a certain extent, yet, they are not regarded as states due to the lack of universal recognition. The specific rights and obligations of Quasi-States include their compliance with the law applicable to armed conflicts, namely the jus ad bellum and the jus in bello.

Conflicts involving Quasi-States are strictly speaking not international, as the international community does not recognise these entities as states. Nor are such conflicts "purely internal," since Quasi-States are "separate, effective[ly] state-like [entities] having some level of international personality" against recognised states.⁹ Hence, they are best described as Quasi International Armed Conflicts (QIACs),¹⁰ such as the Sri Lankan civil war.¹¹ Therefore, referring to such hybrid interstate/internal armed conflicts without clear state definition questions the applicability of the crime of aggression on such conflicts. Currently, Quasi-States such as Somaliland, Western Sahara, Abkhazia, Transnistria, South Ossetia, Kosovo (which has become recognized under state custom since 2008), Palestine and finally the Islamic State in Iraq and Sham (IS) (until its collapse in 2017) exist on nearly every continent. They usually emerge through military means in the form of civil wars. The number of armed conflicts involving Quasi-States exceeds by far the number of (classical) interstate armed conflicts.¹² Thus, it is necessary from a practical point of view to clear the

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ambiguity surrounding the legal position of Quasi-States, in order to overcome current challenges and attain a higher level of international peace.

This Article aims to reconcile Quasi-States with the crime of aggression under the Rome Statute and discusses their position under international law. It is argued that, based on historical, practical and legal considerations, Quasi-States should be included under the crime of aggression and this Article elaborates on how to reconcile Quasi-States with the crime of aggression. Following the introduction, part I will provide an evaluative overview of the historical evolution of the Crime of Aggression with a reflection on the historical meaning of 'State'. Part II discusses the concept of so called 'Quasi-States' under international law before turning to the interpretation of such entities by the ICC. Part III examines the ICC's interpretation of statehood and its stance towards 'Quasi States'. The last part, part IV reflects on the interpretative issues around the term 'State' before the current sociological changes to warfare. This Article concludes with the recommendation that the Rome Statute was to be amended to include 'Quasi-States'.

I. The Historical Evolution of the Crime of Aggression

Beginning from the Nuremberg to the Rome Statute, the historical evolution of the crime of aggression will confirm that the definition in the Rome Statute is reflection of customary international law, and constitutes the consensus of the international community on the concept of aggression. Accordingly, redefining aggression is not a promising venue.¹³

A. The Nuremberg Trials and the Subsequent Efforts to Define Aggression.

In mid-1943, the idea of individual criminal responsibility for aggression began to take shape, when criminologist Aron Naumovich Trainin put forward in his book, Defence of Peace and Criminal Law, the proposition that individuals should be held accountable for initiating aggressive war.¹⁴ His ideas inspired one of the major legal principles adopted by the Nuremberg and Tokyo International Military Tribunals (IMT): "'crimes against peace' through 'common plan or conspiracy'."¹⁵

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At that point, the discussions that preceded the establishment of the Nuremberg Tribunals by virtue of its London Charter revealed that the inclusion of the "crimes against peace"—later to become the crime of aggression—under international law would not be widely encouraged.¹⁶ As it had been agreed to give the Nuremberg IMT jurisdiction over such a crime,¹⁷ the same approach was followed by the Tokyo IMT as Nuremberg's equivalent to the Far East.¹⁸ The London Charter defined crimes against peace 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."¹⁹

Since at this point in time no one had ever been charged with this crime, there was heated controversy around the legality of prosecuting such a crime as "new law." The Tribunal was faced with the objection of the accused that by applying crimes against peace, it was implementing the law ex-post facto²⁰ and as such, violating the non-retroactivity principle under international law.²¹

In this regard, the Tribunal referred to the aforementioned Kellogg-Briand Pact (Pact),²² as foundation to emphasise that the waging of war in the late 1930s was a crime under international law.²³

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In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing.²⁴

German and other critics argue that the ratification of a pact forbidding a state from waging a war under international law could not lead to individual criminal responsibility being established "by a so-called 'Agreement'" among victors in disregard of a state's sovereignty and international law.²⁵ This view was based on the fact that...