The mens rea of the crime of aggression.

• Published date: 22 September 2013
• Author: Weisbord, Noah
• Date: 22 September 2013

I. INTRODUCTION

This gathering is steeped in history. It is the hundredth birthday of Whitney Harris, one of the last original prosecutors of the Nazi leaders after World War II. We're commemorating Harris' remarkable life at the 2012 International Criminal Court at Ten Conference at the Whitney Harris World Law Institute at Washington University Law School. Under the leadership of Professor Leila Sadat, the Institute has played a formative role in the contemporary international justice project. The St. Louis conference also celebrates the tenth anniversary of the International Criminal Court, which has become an important feature in international affairs since its birth in 2002. The ICC is perhaps the most concrete expression of the Nuremberg legacy. Two years ago, against most expectations, the Assembly of States Parties agreed to incorporate the definition and jurisdictional conditions of the crime of aggression into the Rome Statute, thereby reviving the fourth and final Nuremberg crime. (1)

In a very real sense, the future is contained in the past. ICC Judge Hans-Peter Kaul, in his St. Louis lecture memorializing his friend Whitney Harris, described how Harris crossed the raucous hall (2) at the adoption of the Rome Statute in 1998 to shake his hand and solemnly congratulate him. Without Germany's initiative, "the crime of aggression would not have been included in the treaty." (3) Though the crime of aggression almost collapsed the negotiations, Harris considered it essential. (4) In an eleventh hour compromise, jurisdiction over the crime of aggression was included in the Rome Statute, but the crime's definition and jurisdictional conditions were left to be established later. (5) It took twelve more years of intricate negotiations to build a consensus on the definition and jurisdiction of the crime. (6) Kaul, head of the German diplomatic delegation in Rome and a stalwart proponent of criminalizing aggression, later became an ICC Judge and Vice President of the Court. He concluded his lecture in St. Louis speaking directly to his departed friend: "Whitney ... [y]ou have shown us that power built on contempt of international law and aggression will not stand--we continue to hear you." (7)

It's likely that the crime of aggression will be reactivated in 2017 or soon after. (8) I've been asked to contribute to the conference and this special symposium issue of the Washington University Global Studies Law Review by imagining future directions of the Court. Certainly, with 2017 rapidly approaching, the time for vigorous imagination is upon us. The Review Conference in Kampala gave us the bare skeleton of a crime and left a great deal to the imagination. The subject of my contribution, in honor of Whitney Harris, will be the mens rea of the crime of aggression. As all criminal lawyers know, when it comes to substantive crimes, mens rea issues are pivotal in determining responsibility and punishment. Mens rea is, after all, a "safeguard for beliefs firmly embedded 'within ... [the criminal law's] traditions of individual liberty, responsibility and duty.'" (9) Today, most people deem a defendant who lacks a culpable mental state unworthy of punishment. (10)

The starting point for this exploration of the mens rea of the crime of aggression is its elements. (11) The elements are an official ICC document clarifying the culpable mental state that applies to each aspect of the conduct, consequences, and circumstances constituting the crime. (12) They are meant to "assist the Court in the interpretation and application" of the Rome Statute. (13) According to Professor Roger Clark, the elements have been "central to the way the Chambers have been going about their tasks." (14)

Fortunately, I won't be the first scholar to brave the elements. The first, and still the most intrepid, was Clark himself. As a diplomatic representative for Samoa, he played a leading role in the drafting of the elements. Clark later wrote a paper in 2001 about this exercise--he called it an anthropology of treaty-making--which also amounted to an elaboration on the work of the Preparatory Commission. (15) His 2008 article, published in the New Zealand Yearbook of International Law, examines the way the elements of crimes were employed by the judges in the early jurisprudence of the ICC. (16) In an article published just before the ICC Review Conference, Clark writes about negotiating the elements of the fledgling crime of aggression. (17) This 2009 paper includes a revealing, if brief, discussion of the mens rea of the crime. (18)

Two other sources are foundational to this analysis of the mens rea of the crime of aggression. In April 2009, as the work of the Special Working Group on the Crime of Aggression ("SWGCA") was wrapping up, a small cadre of legal experts and diplomats was invited to an informal retreat in Montreux by the Swiss Department of Foreign Affairs to draft the elements of the crime of aggression. Frances Angaddi, Greg French, and James Potter, legal experts and diplomatic representatives from Australia, contributed a chapter to the Crime of Aggression Library about this meeting. (19) SWGCA Chair Christian Wenaweser and his team then based their 2009 Chairman's Non-paper on the Elements of Crimes, the other foundational source, on the work of the Montreux group. (20) With only minor changes, the elements of the crime of aggression conceptualized in Montreux became the official elements adopted alongside the definition and jurisdictional conditions of the crime at the 2010 Review Conference in Kampala. (21) The work of Clark, Anggadi et al., and Chairman Wenaweser are, therefore, my starting point.

II. BRAVING THE ELEMENTS

Articles 30 and 32 of the Rome Statute are part of the so-called "general" part and, therefore, apply to all ICC crimes, (22) including the newly defined crime of aggression. Article 30 pertains to the mental elements of the ICC crimes as distinguished from the material elements. The material element is equivalent to the actus reus in the common law, and the mental element serves the function of the mens rea. (23) Article 32 deals with mistakes of fact and law and is, therefore, also relevant when establishing the mental element of the crime of aggression because these defenses can negate the necessary mental element. (24)

The material elements of ICC crimes can be broken down into conduct, consequences, and circumstances. These three terms are not defined in the Statute. (25) Clark, careful not to speak for the drafters, defines conduct as an act or omission. (26) Consequences, as Clark defines them, are the results of an act or omission. (27) Overlap between these terms, and confusion, occurs for people who take conduct to include causation and results. (28) The term "circumstances" is the most difficult of the three aspects of the material element of the crime to define. Clark points out that the problem of defining "circumstances," or "attendant circumstances," is not unique to the Rome Statute. (29) Legal scholars and the drafters of the Model Penal Code in the United States have also wrestled with the distinction between conduct and circumstances. (30) Clark takes some comfort in the fact that we know a circumstance when we see it: "If I kill a living being, it is only murder if the being is a human one." (31) This imperfect breakdown of the material element is nonetheless important--it becomes the basis for the mental element, or mens rea, of every ICC crime.

There are only two culpable mental states in the Rome Statute: intent and knowledge. (32) There is no mention in the statute of recklessness or negligence. The mental states of intent and knowledge apply in different ways to the material elements of conduct, consequences, and circumstances. For the conduct element of a crime, the defendant has the culpable mental state if he or she "means [i.e., intends] to engage in the conduct." (33) For the consequence element, the defendant has the culpable mental state if he or she "means to cause that consequence or is aware [knows] that it will occur in the ordinary course of events." (34) The culpable mental state for the circumstance element is also knowledge. A defendant who knows that a required circumstance exists, such as the existence of an armed conflict for war crimes, has the culpable mental state for this material element of the crime. (35)

The elements of the crime of aggression, as contained in the Kampala Outcome (Annex II) are reproduced below:

1. The perpetrator planned, prepared, initiated or executed an act of aggression.

2. The perpetrator was a person in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression.

3. The act of aggression--the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations--was committed.

4. The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations.

5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations.

6. The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations. (36)

The first element sets out the culpable conduct of the crime of aggression. As a material element that concerns conduct, the culpable mental state is intention: "[t]hose who open books and sit down in easy chairs generally intend to read.... Certain acts require and entail having certain mental functions." (37) The defendant must mean to (in other words, have the purpose to) plan, prepare, initiate, or execute an act of aggression. Planning, preparing, initiating, or executing is to the crime of aggression what pulling...