When law and reality clash-the imperative of compromise in the context of the accumulated evil of the whole: Conditions for the exercise of the international criminal court's jurisdiction over the crime of aggression

International Criminal Law Review

Volumn 7, Issue 2-3, 2007, Pages 277-333

  McDougall, Carrie ^a,b  

^a High Court of Australia ^*  (Australia)

^b UNIVERSITY OF MELBOURNE   (Australia)

Author keywords

Crime of aggression; International criminal court; Jurisdiction; Rome statute; Security council

Indexed keywords

EID: 34547636655     PISSN: 1567536X     EISSN: 15718123     Source Type: Journal    
DOI: 10.1163/156753607X204545     Document Type: Article

References (252)

1. Rome Statute of the International Criminal Court, signed 17 JuIy 1998, 2187 UNTS 90 (entry into force 1 July 2002).
2. See for example Discussion Paper on the Crime of Aggression proposed by the Chairman, UN Doc. ICC-ASP/5/SWGCA/2 (2007), 3 (2007 Chairman's Discussion Paper).
3. See in particular: ibid and Proposal submitted by Greece & Portugal, UN Doc PCNICC/1999/WGCA/DP.1 (1999); PCNICC/2000/WGCA/DP.5 (2000);
4. Proposal submitted by Bosnia and Herzegovina, New Zealand and Romania UN Doc PCNICC/2001/WGCA/DP.l (2001);
5. Proposal by the Netherlands concerning PCNICCI2002IWGCAIRT. I, UN Doc PCNICC/2002/WGCA/DP.1 (2002).
6. Sir Franklin Berman, 'The Relationship between the International Criminal Court and the Security Council' in H. A. M. Von Hebel, J. G. Lammers and J. J. Schukkina (eds), Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos (1999), 178.
7. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Summary Record of the 9th Plenary Meeting, UN Doc. A/CONF.183/SR.9 (1999), 7.
8. See for example Theodor Meron, 'Defining Aggression for the International Criminal Court' (2001) 25 Suffolk Transnational Law Review, 1, 2;
9. Andrew L. Paulus, 'Peace through Justice? The Future of the Crime of Aggression in a Time of Crisis' (2004) 50 Wayne Law Review, 1, 21;
10. Matthias Schuster, 'The Rome Statute and the Crime of Aggression: A Gordian Knot in Search of a Sword' (2003) 14 Criminal Law Forum, 1, 14;
11. A Zimmermann, 'Article 5' in O. Triffterer (ed.), Commentary on the Rome Stature of the International Criminal Court: Observer's Notes, Article by Article (1999) 97, 106.
12. Cited in William A. Schabas, 'The Unfinished Work of Defining Aggression: How Many Times Must the Cannonballs Fly, Before They are Forever Banned?' in Dominic McGoldrick, Peter Rowe & Eric Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (2004) 123, 135.
13. Consistency with the Charter is reflected in provisions such as Article 13(b) allowing for Security Council referral, Article 16 allowing for Security Council deferment of investigations and prosecutions, Article 87(5) (a) relating to Security Council notification of the failure of States to cooperate and Article 119 allowing for the referral of disputes to the ICJ.
14. See for example, Theodor Meron, above n6, 5;
15. Benjamin B. Ferencz, 'Can Aggression be Deterred by Law?'(1999) 11 Pace International Law Review, 341, 355-356; Response of the United Kingdom to Discussion Paper Prepared by Pål Wrange, document distributed to members of the SWGCA during its Intersessional Meeting, 8-11 June 2006, Princeton University, New Jersey, on file with author, 18.
16. Report of the International Law Commission on the Work of its Forty-Third Session, UN GAOR, 46th sess, supp no 12, UN Doc. A/46/10 (1991), 92.
17. Dapo Akande, 'The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations' (1997) 46 International and Comparative Law Quarterly, 309, 338.
18. Keith Harper, 'Does the United Nations Security Council Have the Competence to Act as Court and Legislature?' (1994-1995) 27 NYU Journal of International Law and Politics, 103, 135.
19. It should be noted that several of the supporting arguments outlined below have been submitted in the context of the judicial reviewability of Security Council decisions debate, rather than in relation to the jurisdictional issues surrounding the crime of aggression. Proponents of Security Council determination rarely advance their argument past their interpretation of Article 39. Arguments advanced in the judicial review debate that could be applied to the case for Security Council determination have been included so as to present that case at its highest in order to properly test its merit.
20. Report of Mr Paul-Boncour, Rapporteur on Ch VIII, Section B, Doc. 881, III/3146 (1945) reproduced in Benjamin B. Ferencz, Defining International Aggression: The Search for World Peace: A Documentary History and Analysis (1975), 349-352.
21. See United Nations Conference on International Organisation, Proposals of the Delegation of the Republic of Bolivia for the Organisation of a System of Peace and Security and Proposed Amendments to the Dumbarton Oaks Proposals Submitted by the Philippine Delegation, 5 May 1945 reproduced in ibid, 313-321 and 322-327.
22. Report of Mr Paul-Boncour, above n14, 352.
23. See also: Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro) Further Request for the Indication of Provisional Measures, ICJ Rep [1993] 325 per Judge Lauterpacht, Separate Opinion, 439;
24. and Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, ICJ Rep [1998] 115, per President Schwebel, Dissenting Opinion, 171.
25. Case Concerning Questions of Interpretation and Application of the Montreal Convention Arising out of the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) Provisional Measures, ICJ Rep [1992] 3, 66.
26. Prosecutor v. Joseph Kanyabashi, Case No. ICTR-96-15-T, Decision on the Defence Motion on Jurisdiction, 18 June 1997, para 20.
27. Erika De Wet, The Chapter VII Powers of the United Nations Security Council (2004), 134-135.
28. Comments made by delegates to the Intersessional Meeting of the SWGCA, 8-11 June 2006, Princeton University, New Jersey, notes on file with author.
29. Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (1951), 438.
30. Jochen Frowein & Nico Krisch, 'Article 41' in B. Simma (ed), The Charter oftheUnited Nations: A Commentary (2nd ed, 2002), 740. According totheAppeals Chamber of the ICTY in the Tadic Case: "It is evident that the measures set out in Article 41 are merely illustrative examples which obviously do not exclude other measures. All the Article requires is that they do not involve "the use of force." It is a negative definition ... The Article only prescribes what these measures cannot be. Beyond that it does not say or suggest what they have to be." (Prosecutor v. Dusko Iodic, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Tadic Case), para 35).
31. Ibid, para 36.
32. Jennifer Trahan, 'Aggression: Why the Preparatory Commission for the International Criminal Court has Faced Such a Conundrum' (2002) 24 Loyola of Los Angeles International and Comparative Law Review, 439, 464.
33. Article 12(1) provides that: 'While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter,the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so request.'
34. Matthias Schuster, above n6, 15.
35. Ibid, 16.
36. On the principles of the interpretation of the UN Charter, see Competence of the General Assembly for the Admission of a State to the United Nations ICJ Rep [1950] 4, 8;
37. Georg Ress, 'The Interpretation of the Charter' in B. Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed., 2002) 13, 18-19.
38. Mark S. Stein, 'The Security Council, the International Criminal Court, and the Crime of Aggression: How Exclusive is the Security Council's Power to Determine Aggression?' (2005) 16 Indiana International and Comparative Law Review, 1, 5.
39. Paula Escarameia, 'The ICC and the Security Council on Aggression: Overlapping Competencies?' in M. Politi & G. Nesi (eds), The International Criminal Court and the Crime of Aggression (2004) 133, 137.
40. Daniel D. Ntanda Nsereko, Aggression under the Rome Statute of the International Criminal Court' (2002) 71 Nordic Journal of International Law, 497, 506.
41. See also Andreas L. Paulus, above n6, 21.
42. Mark S. Stein, above n30, 5.
43. Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, ICJ Reports [1962] 151, 163 (Certain Expenses Case);
44. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Jurisdiction and Admissibility) ICJ Rep [1984] 392, 434 (Nicaragua (Jurisdiction);
45. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (Advisory Opinion) ICJ Rep [2004] 136, 148.
46. Certain Expenses Case, above n34, 163;
47. Nicaragua (Jurisdiction), above n34, 434.
48. The opinion was sought as a result of the financial difficulties posed by the UN's operations in the Suez and the Congo. A number of Member States, including the Soviet Union, contended that the operations had not been undertaken in conformity with the UN Charter and thus refused to make contributions to the costs of the operations that had been budgeted for by the GA.
49. The relevant limitation provides that: "Any such question [relating to the maintenance of international peace and security] on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion."
50. Certain Expenses Case, above n34, 163.
51. Ibid, 165.
52. Ibid, 164-165.
53. It should be noted that the ONUC was established bytheSecurity Council before it handed over operations to the General Assembly. UNEF was established by the General Assembly.
54. Certain Expenses Case, above n34, 171, 176-177.
55. Article 14 provides that: "Subject to the provisions of Article 12, the General Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations."
56. Certain Expenses Case, above n34, 172.
57. A Donat Pharand, 'Analysis of the Opinion of the International Court of Justice on Certain Expenses of the United Nations' (1963) 1 Canadian Yearbook of International Law, 272, 285.
58. Resolution on the situation in the Republic of the Congo, GA Res 1600, UN GAOR, 15th Sess, 985th plen mtg, UN Doc A/Res/1600 (1961).
59. Uniting for Peace Resolution, GA Res 377, Un GAOR, 5th Sess, 302nd plen mtg, UN Doc A/Res/377 (1950).
60. Resolution on the Intervention of the Central People's Government of the People's Republic of China in Korea, GA Res 498, UN GAOR, 5th Sess, 327th plen mtg, UN Doc A/Res.498 (1951).
61. See also in particular Resolution on the illegal occupation by Portuguese military forces of certain sectors of the Republic of Guinea-Bissau and acts of aggression committed by them against the people of the Republic, GA Res 3061, UN GAOR, 28th sess, 2163rd plen mtg, UN Doc. A/RES/3061 (1973) referring to acts of aggression committed by Portugal against the people of Guinea-Bissau and Cape Verde;
62. Resolution on the policies of apartheid of the Government of South Africa, GA Res 3151, UN GAOR, 28th sess, 2201st plen mtg, UN Doc A/Res/3151(1973) referring to South Africa's aggression and aggressive acts before they were described as such by the Security Council;
63. and Resolution on the question of Namibia, GA Res 43/26, UN GAOR, 43rd sess, 54th plen mtg, UN Doc A/Res/43/26 (1988), which declares that "South Africa's illegal occupation of Namibia constitutes an act of aggression against the Nambian people in terms of the Definition of Aggression contained in [... resolution 3314]...".
64. Resolution on the question of Southern Rhodesia, GA Res 2508, UN GAOR, 24th sess, 1816th plen mtg, UN Doc A/Res/2508 (1969).
65. Resolution on armed Israeli aggression against the Iraqi nuclear installations, GA Res 32/27, UN GAOR, 36th sess, 56th plen mtg, UN Doc A/Res/36/27 (1981).
66. Resolution on the situation in the occupied Arab territories, GA Res ES-9/1, 9th Emergency Special Sess, 12th plen mtg, UN Doc A/Res/ES-9/1 (1982).
67. Kay Hailbronner & Eckart Klein, 'Article 12' in B. Simma (ed.) The Charter of the United Nations: A Commentary (2nd ed, 2002) 287, 293.
68. Twenty-Third General Assembly, 3rd Committee, 1637th Meeting, UN Doc. A/C.3/SR.1637, para 9.
69. (Advisory Opinion) ICJ Rep [2004] 136, 150.
70. (United States v. Iran) Judgment, ICJ Rep [1980] 3 (Tehran Hostages Case).
71. SC Res 457, UN SCOR, 2178th mtg, UN Doc S/Res/457(1979).
72. SC Res 461, UN SCOR, 2184th mtg, UN Doc S/Res/461 (1979).
73. Tehran Hostages Case, above n56, 21.
74. Ibid, 22.
75. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Yugoslavia, Serbia and Montenegro) (Provisional Measures), ICJ Rep [1993] 3, 18.
76. (Democratic Republic of the Congo v. Uganda) (Provisional Measures) ICJ Rep [2000] 111, 126-127.
77. Nicaragua (Jurisdiction) above n34, 431.
78. Ibid, 432.
79. Ibid, 432-433.
80. Ibid, 433.
81. Ibid, 434.
82. Ibid.
83. For the contrary view see Matthias Schuster, above n6, 19.
84. Nicaragua (Jurisdiction), above n34, 434-435.
85. Ibid, 435.
86. Corfu Channel (United Kingdom v. Albania) (Merits) ICJ Rep [1949] 4.
87. Nicaragua (Jurisdiction), above n34, 435.
88. Ibid, 436.
89. As to justiciability see also Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits) ICJ Rep [1986] 14, 27 (Nicaragua (Merits)).
90. Ibid, 123, 146.
91. There is room to argue that the Court equated armed attacks with acts of aggression in distinguishing between the most grave and less grave forms of the use of force. See ibid, 191 and 195.
92. In the course of his Dissenting Opinion Judge Oda found that: "... a dispute in which use of force is resorted, to is in essence and in limine one most suitable for settlement by a political organ such as the Security Council, but is not necessarily a justiciable dispute such as falls withintheproper functions of the judicial organ." (240). His Honour continued, however, holding that: "I certainly am not suggesting any principle that, once a dispute has been brought before the Security Council ... it cannot or should not be dealt with by the Court ... Yet ... the States Members of the ... United Nations, have always been aware that certain disputes are more properly resolved by a means other than judicial settlement, that is, by ... the Security Council or the General Assembly ... or by some other means ..." (240). As such, Judge Oda's findings are in essence concerned only with, practicalities and do not go to the ability of the ICJ to determine the of an act of aggression.
93. Nicaragua (Merits), above n74, Dissenting Opinion of Judge Schwebel, 289-290.
94. Ibid, 344. See also 272, 390.
95. (Democratic Republic of the Congo v. Uganda) (Merits), at 〈http://www.icj-cij.org/icjwww/idocnet/ico/icoframe.htm〉 at 12 December 2006 (DRC v. Uganda (Merits)).
96. Ibid, para 23, para 345.
97. Ibid, para 163.
98. Ibid, para 165.
99. DRC v. Uganda (Merits), above n80, Separate Opinion of Judge Elaraby, para 1.
100. Ibid, para 9.
101. Ibid, para 11. References omitted.
102. Ibid, para 14.
103. Ibid, para 20.
104. DRC v. Uganda (Merits), above n80, Separate Opinion of Judge Simma, para 2.
105. Ibid, para 2.
106. Ibid, para 3.
107. DRC v. Uganda (Merits), above n80, Declaration of Judge Koroma, para 8.
108. (Islamic Republic of Iran v. United States of America) (Merits) ICJ Rep [2003] 161.
109. DRC v. Uganda (Merits), above n80, Declaration of Judge Koroma, para, 9.
110. Draft Article 8 provided that: "... Jurisdiction over the crime set out in article 16 [Crime of Aggression] shall rest with an international criminal court. However, a state referred to in article 16 is not precluded from trying its nationals of the crime set out in that article."
111. Erika De Wet, above n20, 146, note 80.
112. Report of Mr Paul-Boncour, above n14, 352.
113. See also Umberto Leanza, 'The Historical Background' in M. Politi and G. Nesi (eds), The International Criminal Court and the Crime of Aggression (2004) 3, 4-5.
114. Erika De Wet, above n20, 136.
115. Ibid, 136.
116. Ibid, 136-137.
117. See also Tadic Case, above n23, para 29, where the Appeals Chamber held that "While the 'act of aggression' is more amenable to a legal determination, the 'threat to the peace' is more of a political concept. But the determination that there exists such a threat is not a totally unfettered discretion, as it has to remain, at the very least, withinthelimits of the Purposes and Principles of the Charter."
118. Erika De Wet, above n20, 136-137.
119. Ibid, 137.
120. Derek Bowett, 'The Impact of Security Council Decisions on Dispute Settlement Procedures' (1994) 5 European Journal of International Law, 89, 90.
121. See Jochen Frowein & Nico Krisch, above n23, 742.
122. Jochen Frowein & Krisch, Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression' in B. Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed, 2002) 701, 705-706 citing UNCIO XII, 162, Doc 1027 III/2/31(1).
123. The Organization is based on the principle of the sovereign equality of all its Members."
124. It should be noted that all members of the Council are able to vote on Chapter VII decisions, even if involved inthesituation under consideration. There is no requirement of recusal. See Babback Sabahi, 'The ICJ's Authority to Invalidate the Security Council's Decisions under Chapter VII: Legal Romanticism or the Rule of Law?' (2004) 17 New York International Law Review 1, 7-8.
125. Mark S. Stein, above n30, 6.
126. Stein cites the report oftheUNCIO committee responsible for drafting what would become Article 2(1), which states that: "The subcommittee voted to keep the terminology 'sovereign equality' on the assumption and understanding that it conveys ... that states are juridically equal ... " Report of Rapporteur of Subcommittee 1/1/A to Committee 1/1, Conference on International Organization, Selected, Documents (1946) 483
127. cited in ibid, 7, note 25.
128. See also Vera Gowlland-Debbas, 'The Relationship between Political and Judicial Organs of International Organisations: The Role of the Security Council in the New International Criminal Court' in L. Boisson de Cahzournes, C. Romano & R. MacKenzie (eds), International Organizations and International Dispute Settlement: Trends and Prospects (2002), 205.
129. Jochen Frowein & Nico Krisch, above n105, 706.
130. Tadic Case, above n23, para, 37.
131. Ibid, para 38.
132. Ibid.
133. See notes 17 to 18 and accompanying text.
134. Constantine Antonopoulos, 'Whatever Happened to Crimes against Peace' (2001) 6 Journal of Conflict and Security Law, 33, 52.
135. 2007 Chairman's Discussion Paper, above n2, 3.
136. Hermann A. M. Von Hebel & Darryl Robinson, 'Crimes within the Jurisdiction of the Court' in R. S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (1999), 84.
137. Cited in Daniel D. Ntanda Nsereko, 'Bringing Aggressors to Justice: From Nuremberg to Rome' (2005) 2 University of Botswana, Law Journal 5, 26.
138. Report of the Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, 13 to 15 June 2005, Princeton University, New Jersey, UN Doc. ICC-ASP/4/SWGCA/INF.1 (2005), 61;
139. Jackson Nyamuya Maogoto, 'Aggression Supreme: International Offence Still in Search of a Definition' (2002) 6 Southern Cross University Law Review, 278, 307;
140. Jennifer Trahan, above n25, 464;
141. Matthias Schuster, above n6, 15-16;
142. William A. Schabas, 'United States Hostility to the International Criminal Court: It's All About the Security Council' (2004) 14 European Journal of International Law, 701, 715.
143. Lyal S. Sunga, The Emerging System of International Criminal Law, Developments in Codification and Implementation (1997), 51
144. cited in Major Michael L. Smidt, 'The International Criminal Court: An Effective Means of Deterrence?' (2001) 167
145. Military Law Review 156, 205.
146. Allegra Carroll Carpenter, 'The International Criminal Court and the Crime of Aggression' (1995) 64 Nordic Journal of International Law, 223, 233;
147. Matthias Schuster, above n6, 15.
148. Theodor Meron, above n6, 13.
149. Ibid.
150. James Nicholas Boeving, 'Aggression, International Law and the ICC: An Argument for the Withdrawal of Aggression from the Rome Statute' (2004) 3 Columbia Journal of Transnational Law, 557, 578;
151. Theodor Meron, above n6, 13.
152. David M. Malone, 'Conclusion' in D. M. Malone (ed.), The UN Security Council: From the Cold War to the 21st Century (2004), 625.
153. See also Sydney Bailey, The Procedure of the UN Security Council (1998), 245.
154. A. D'Amato, International Law and Political Reality (1995) 208
155. cited in Justin Hogan-Doran & Bibi T. Van Ginkel, Aggression as a Crime Under International Law and the Prosecution of Individuals by the Proposed International Criminal Court' (1996) 43
156. Netherlands International Law Review 321, 341;
157. Allegra Carroll Carpenter, above n121, 237.
158. Constantine Antonopoulos, above n115, 49-50;
159. Irina Kaye Muller-Schieke, 'Defining the Crime of Aggression under the Statute of the International Criminal Court' (2001)14
160. Leiden Journal of International Law, 409, 421-422;
161. Andreas L. Paulus, above n6, 17.
162. SC Res 326, UN SCOR, 1691st mtg, UN Doc S/Res/326 (1973); SC Res 386, UN SCOR, 1892nd mtg, UN Doc S/Res/386 (1976).
163. SC Res 387, UN SCOR, 1906th mtg, UN Doc A/Res/387 (1976); SC Res 428, UN SCOR, 2078th mtg, UN Doc S/Res/428 (1978); SC Res 527, UN SCOR, 2407th mtg, UN Doc S/Res/527 (1982); SC Res 535, UN SCOR, 2455th mtg, UN Doc S/Res/535 (1983).
164. SC Res 667, UN SCOR, 2940th mtg, UN Doc S/Res/667 (1990).
165. SC Res 387, above n127; SC Res 418, UN SCOR, 2046th mtg, UN Doc S/Res/418 (1977) (this resolution refers only to persistent acts of aggression, rather than a specific act of aggression); SC Res 447, UN SCOR, 2139th mtg, UN Doc S/Res/447 (1978); SC Res 454, UN SCOR, 2170th mtg, UN Doc S/Res/454 (1979); SC Res 466, UN SCOR, 2211st mtg, UN Doc S/Res/466 (1980) (this resolution only recalls past acts of aggression); SC Res 475, UN SCOR, 2240th mtg, UN Doc S/Res/475 (1980); SC Res 546, UN SCOR, 2,511st mtg, UN Doc S/Res/546 (1984); SC Res 567, UN SCOR, 2597th mtg, UN Doc S/Res/567 (1985); SC Res 568, UN SCOR, 2599th mtg, UN Doc S/Res/568 (1985); SC Res 571, UN SCOR, 2607th, mtg, UN Doc S/Res.571 (1985); SC Res 572, UN SCOR, 2609th mtg, UN Doc S/Res/572 (1985); SC Res 574, UN SCOR, 2617th mtg, UN Doc S/Res/574 (1985); SC Res 577, UN SCOR, 2631st mtg, UN Doc S/Res/577 (1985); SC Res 580, UN SCOR, 2639th mtg, UN Doc S/Res/580 (1985); SC Res 581, UN SCOR, 2662nd mtg, UN Doc S/Res/581 (1986); SC Res 602, UN SCOR, 2767th mtg, UN Doc S/Res/602 (1987).
166. SC Res 411, UN SCOR, 2019th mtg, UN Doc S/Res/411 (1977); SC Res 423, UN SCOR, 2067th mtg, UN Doc S/Res/423 (1978) (this resolution refers only to continuing acts of aggression generally as opposed to a specific act of aggression); SC Res 424, UN SCOR, 2070th mtg, UN Doc S/Res/424 (1978); SC Res 445, UN SCOR, 2122nd mtg, UN Doc S/Res/445 (1979); SC Res 455, UN SCOR, 2171st mtg, UN Doc S/Res/455 (1979).
167. SC Res 573, UN SCOR, 2615th mtg, UN Doc S/Res/573 (1985); SC Res 611, UN SCOR, 2810th mtg, UN Doc S/Res/611 (1988).
168. SC Res 387, above n129; SC Res 428, above n 129; SC Res 447, above n131; SC Res 454, above n131; SC Res 475, above n131; SC Res 571, above n131; SC Res 574, above n131; SC Res 581, above n131.
169. SC Res 573, above n133; SC Res 611, above n133.
170. SC Res 573, above n133.
171. SC Res 405, UN SCOR, 2005th mtg, UN Doc S/Res/405 (1977).
172. SC Res 496, UN SCOR, 2314th mtg, UN Doc S/Res/496 (1981); SC Res 507, UN SCOR, 2370th mtg, UN Doc S/Res/507 (1982).
173. See Resolutions 387, 428, 447, 454, 475, 571, 573, 574, 581 and 611. In addition the Council alluded to aggression in SC Res 294, UN SCOR, 1572nd mtg, UN Doc. S/Res/294 (1971) in relation to Portuguese violence against Senegal, when it said, "Conscious of its duty to take effective collective measures for the prevention and removal of threats to international peace and security and for the suppression of acts of aggression."
174. SC Res 660, UN SCOR, 2932nd mtg, UN Doc S/Res/660 (1990).
175. See International Covenant for Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171, Art 14(1) (entered into force 23 March 1976) (ICCPR), Universal Declaration of Human Rights, adopted and proclaimed by Resolution on an International Bill of Human Rights, GA Res 217A, UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/Res/217A (1948), Article 10 (UDHR) and Article 67(1) of the Rome Statute.
176. Jochen Frowein & Nico Krisch, 'Article 39' in B. Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed., 2002) 717, 727.
177. Ibid.
178. Or refer to such a statement having been made in an earlier resolution.
179. See Resolutions 326, 411, 418, 423, 424, 445, 447, 455, 475, 546, 567, 573, 574, 577, 602.
180. A majority of authors in fact claim that the Council has never made a determination under Article 39 as to the existence of an act of aggression. See for example Matthias Schuster, above n6, 16;
181. Vera Gowlland-Debbas, above n109, 210;
182. Erika De Wet, above n20, 148-149;
183. Constantine Antonopoulous, above n115, 48.
184. Mark S. Stein, above n30, 12.
185. The UK and France are obliged by the customary international law principle pacta sunt servanda to perform their obligations under the Rome Statute in good faith. In addition, the UK is a party to the Vienna Convention on the Law of Treaties, signed 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), Article 26 of which enshrines the principle.
186. Emphasis added.
187. Rudiger Wolfrum, 'Article 1' in B. Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed., 2002) 39, 43.
188. See also G. H. Oosthuizen, 'Playing the Devil's Advocate: the United, Nations Security Council is Unbound, by Law' (1999) 12 Leiden Journal of International Law, 549, 552-553;
189. Dapo Akande, above n11, 317-321.
190. See for example, paragraph 4 of 2007 Chairman's Discussion Paper, above n2, 4.
191. It should be noted that some authors contend that the Council must act in conformity with the principles of justice and international law in all circumstances. See for example Keith Harper, above n12, 149;
192. P. Hulsroj, 'The Legal Function of the Security Council' (2002) 1, Chinese Journal of International Law 59, 62-63.
193. More accurately, the Pre-Trial Chamber if the issue of jurisdiction is raised, before the confirmation of charges, or the Trial Chamber once such charges have been confirmed. Questions of jurisdiction can be appealed to the Appeal Chamber: Article 19(6), Rome Statute.
194. Tadic Case, above n23, 18. For a parallel argument in relation to ICC review of the legality of Security Council resolutions deferring investigation or prosecution under Article 16 or the exercise of jurisdiction under Article 13(b)
195. see Luigi Condorelli & Santiago Villalpando, 'Referral and Deferral by the Security Council' in A. Cassese, P. Gaeta & J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (2002) 627, 637, 641, 648, 650.
196. Cf Dan Sarooshi, 'The Peace and Justice Paradox: The International Criminal Court and the UN Security Council' in D. McGoldrick, P. Rowe & E. Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (2004) 115.
197. See also Article 15 of the ICCPR and Article 11 (2) of the UDHR.
198. Article 22(2).
199. Article 27, United Nations Charter. Hans Kelsen, above n22, 442.
200. Article 67(1) of the Rome Statute
201. Article 67(1). See also Article 14(1) ICCPR and Article 10 UDHR.
202. Article 67(1)(d). See also Article 14(3)(d) ICCPR.
203. Article 67(1)(d). See also Article 14(3)(d) ICCPR.
204. Article 67(1)(e).
205. Article 67(1)(e).
206. Article 66. See also Article 14(2) ICCPR and Article 11(1) UDHR.
207. Giorgio Gaja, 'The Long Journey towards Repressing Aggression' in A. Cassese, P. Gaeta & J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (2002) 427, 434.
208. The Security Council cannot require a prosecution by virtue of Article 13(b). Under Article 53, the Prosecutor must determine whether there is a sufficient basis for a prosecution. If the Prosecutor decides not to proceed, the Security Council must be informed (Article 53(2)) and can request a review of that decision by a Pre-Trial Chamber (Art 53(3)(a)).
209. Sir Franklin Berman, above n4, 174;
210. Luigi Condorelli & Santiago Villalpando, above n154, 632.
211. Giorgio Gaja, above n165, 434.
212. R. St.J. Macdonald, 'Changing Relations between the International Court of Justice and the Security Council of the United Nations' (1993) 31 Canadian Yearbook of International Law, 3, 17.
213. Phani Dascalopoulou-Livada, 'The Crime of Aggression: Making Operative the Jurisdiction of the ICC-Tendencies in the Prepcom' (2002) 96 American Society of International Law Proceedings, 185, 189.
214. This view is shared by at least one of the leading voices in the SWGCA, Phani Dascalopoulou-Livada: see ibid, 189.
215. Proposal Submitted by Greece and Portugal, above n3;
216. 2007 Coordinator's Draft, above n2.
217. Ibid.
218. Ibid;
219. Proposal by the Netherlands concerning PCNICC/2002/WGCA/RT.1, above n3.
220. Ibid.
221. Proposal submitted by Bosnia and Herzegovina, New Zealand and Romania, above n3.
222. 2007 Coordinator's Draft, above n2.
223. Comments made by delegates to the Intersessional Meeting of the SWGCA, 8-11 June 2006, Princeton University, New Jersey, notes on file with author. Roger Clark has made additional suggestions whereby the Security Council, GA or ICJ could determine whether there "[is sufficient evidence][are grounds] to believe that an act of aggression has been committed" as a precondition to the exercise of the Court's jurisdiction, or, alternatively, determine that there is "prima facie evidence that a State has committed an act of aggression" prior to any determination being made by the Court. These options have not yet been discussed by the SWGCA. Memo from Roger Clark, January 2007, circulated to members of the Virtual Working Group of the SWGCA, on file with author.
224. Roger S. Clark, 'Rethinking Aggression as a Crime and Formulating Its Elements: The Final Work-Product of the Preparatory Commission for the International Criminal Court' (2002) 15 Leiden Journal of International Law, 859, 876-877.
225. Hermann Moselr & Karin Oellers-Frahm, 'Article 96' in B. Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed., 2002) 1179, 1182.
226. Mosler and Oellers-Frahm note that the required voting majorities for a decision to request an advisory opinion are unclear and suggest that a decision of the Council to make a request could be interpreted as a procedural matter within the meaning of Article 27(2) of the Charter. Whether or not a request from the GA requires a two-thirds majority as an 'important question' within the meaning of Article 18(2) of the Charter also appears to be unsettled, ibid, 1183.
227. Theodor Meron, above n6, 14;
228. Hermann Mosler & Karin Oellers-Frahm, above n180, 1185;
229. Matthias Schuster, above n6, 19.
230. See Art 102(2) International Court of Justice Rules of Court adopted on 14 April 1978 and entered into force on 1 July 1978 as amended in September 2005.
231. D. Stephen Mathias, 'The Definition of Aggression and the ICC: Remarks' (2002) 96 American Society of International Law Proceedings, 181, 184-185; Hermann Mosler & Karin Oellers-Frahm, above n182, 1187.
232. Ibid, 184-185.
233. Ibid, 1181, 1187.
234. Advisory opinion, PCIJ 1923, Series B, No. 5.
235. Ibid, 28-29.
236. A similar issue arose in the Western Sahara (Advisory Opinion) ICJ Rep [1975] 6. Spain argued, that the subject of the question submitted to the Court by the GA was substantially identical to Spain's dispute with Morocco regarding Western Sahara. Morocco had asked Spain to consent to the dispute being submitted, to the Court, but Spain had refused, such consent. Spain argued that disputes over territorial sovereignty required the consent of involved parties and that the advisory jurisdiction of the Court was being used to circumvent the principle that the Court had no jurisdiction to settle a dispute without the consent of the parties. The Court on this occasion, however, was able to hold that the GA did not bring the question to the Court with a view to peaceful settlement but sought the advisory opinion to assist it in the exercise of its functions concerning decolonisation, meaning that the legal position of Spain would not be compromised. It was further held that the questions did not call on the Court to adjudicate existing territorial rights. It would arguably be far harder to draw such distinctions between an advisory opinion as to the occurrence of an act of aggression and a contentious dispute between States regarding State responsibility for a serious use of force.
237. Matthias Schuster, above n6, 19.
238. Article 67(1)(c) Rome Statute.
239. Proposal submitted by Bosnia and Herzegovina, New Zealand and Romania, above n3.
240. Ibid, 3.
241. Security Council Resolution 1593, UN SCOR, 5158th mtg, UN Doc S/RES/1593 (2005).
242. As opposed to only in relation to State referrals and investigations initialed proprio motu, as suggested by Belgium: Proposal presented by Belgium on the question of jurisdiction of the Court with respect to the crime of aggression, UN Doc. ICC-ASP/5/SWGCA/WP.1 (2007), 5.
243. Mark S. Stein, above n30, 34-35. Stein would modify pretrial arrest procedure such that persons accused of the crime of aggression could only be arrested after Security Council approval.
244. Ibid, 35.
245. Report of the Special Working Group on the Crime of Aggression, UN Doc. ICC-ASP/5/SWGCA/3 (2007), 5.
246. Ibid.
247. See for example Article 1(1) of the UN Charter.
248. Report of the International Law Commission on the Work of its Forty- Third Session, above n10, 91.
249. See for example William A. Schabas, above n7, 720.
250. UN SCOR 4572nd mtg, UN Doc S/Res/1422 (2002).
251. See M. El Zeidy, 'The United States Dropped the Atomic Bomb of Article 16 of the ICC Statute: Security Council Power of Deferrals and Resolution 1422' (2002) 35 Vanderbilt Journal of Transnational Law, 1503;
252. M. Weller, 'Undoing the Global Constitution: UN Security Council Action on the International Criminal Court' (2002) 78:4 International Affairs, 693, 706-708.