Prosecuting aggression

Harvard International Law Journal

Volumn 49, Issue 1, 2008, Pages 161-220

  Weisbord, Noah ^a,b  

^a MCGILL UNIVERSITY   (Canada)

^b HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

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EID: 39449120445     PISSN: 00178063     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (317)

1. Herman von Hebei & Darryl Robinson, Crimes Within the Jurisdiction of the Court, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE 79, 85 (Roy S. Lee ed., 1999);
2. see also Silvia A. Fernández de Gurmendi, Completing the Work of the Preparatory Commission: The Working Group on Aggression at the Preparatory Commission for the International Criminal Court, 25 FORDHAM INT'L L.J. 589, 589 (2002).
3. Rome Statute of the International Criminal Court arts. 5(2), 121, 123, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute].
4. For a compilation of key documents, see Benjamin B. Ferencz, Defining International Aggression: The Search for World Peace (1975).
5. See Treaty of Peace between the Allied and Associate Powers and Germany art. 227, June 28, 1919, 225 Consol. T.S. 188;
6. see also Commission on the Responsibilities of the Authors of the War and on Enforcement of Penalties, Report Presented to the Preliminary Peace Conference (1919),
7. reprinted in 14 AM. J. INT'L L. 95, 116-17 (1920);
8. James Brown Scott, The Trial of the Kaiser, in WHAT REALLY HAPPENED AT PARIS 231, 243-44 (Edward M. House & Charles Seymore eds., 1921).
9. DAVID LLOYD GEORGE, MEMOIRS OF THE PEACE CONFERENCE 55 (1939).
10. Benjamin B. Ferencz, From Nuremberg to Rome: A Personal Account, in JUSTICE FOR CRIMES AGAINST HUMANITY 31, 31 (Mark Lattimer & Philippe Sands eds., 2003).
11. Covenant of the League of Nations.
12. Draft Treaty of Mutual Assistance, 3 J. BRIT. INST. INT'L AFF. 45, 51 (1924).
13. Geneva Protocol for the Pacific Settlement of International Disputes, 19 AM. J. INT'L L. SUPP. 9 (1925).
14. General Treaty for the Renunciation of War arts. 1, 2, Aug. 27, 1928, 46 Stat. 2343, 94 L.N.T.S. 57.
15. International Military Tribunal (Nuremberg), Judgment and Sentences, 41 AM. J. INT'L. L. 172, 219 (1947)
16. [hereinafter Nuremberg Judgment].
17. William A. Schabas, Origins of the Criminalization of Aggression: How Crimes Against Peace Became the "Supreme International Crime" in THE INTERNATIONAL CRIMINAL COURT AND THE CRIME OF AGGRESSION 17, 22 (Mauro Politi & Giuseppi Nesi eds., 2002);
18. see also Roger S. Clark, Nuremberg and the Crime Against Peace, 6 WASH. U. GLOBAL STUD. L. REV. (forthcoming 2007).
19. UNITED NATIONS WAR CRIMES COMMISSION, HISTORY OF THE UNITED NATIONS WAR CRIMES COMMISSION AND THE DEVELOPMENT OF THE LAWS OF WAR 180 (1948),
20. quoted in Schabas, supra note 12, at 22.
21. See generally Sheldon Glueck, The Nuremberg Trial and Aggressive War, 59 HARV. L. REV. 396 (1945-1946) (discussing the legitimacy of the crime of aggression).
22. Charter of the International Military Tribunal, Annexed to London Agreement for the Establishment of an International Military Tribunal art. 6, Aug. 8, 1945, 59 Stat. 544, 82 U.N.T.S. 279 [hereinafter London Charter]. For details of the debate over the merits of the crime, see generally GARY JONATHAN BASS, STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIMES TRIBUNALS 147-205 (2000);
23. TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR (1992);
24. U.S. DEP'T OF STATE, REPORT OF ROBERT H. JACKSON, UNITED STATES REPRESENTATIVE TO THE INTERNATIONAL CONFERENCE ON MILITARY TRIALS, LONDON, 1945 (1949) [hereinafter JACKSON];
25. Glueck, supra note 13.
26. London Charter, supra note 14, art. 6.
27. Nuremberg Judgment, supra note 11, at 186.
28. These defendants were Hermann Wilhelm Göring, Rudolf Hess, Joachim von Ribbentrop, Robert Ley, Wilhelm Keitel, Ernst Kaltenbrunner, Alfred Rosenberg, Hans Frank, Wilhelm Frick, Julius Streicher, Walter Funk, Hjalmar Schacht, Gustav Krupp von Bohlen und Halbach, Karl Dönitz, Erich Raeder, Baldur von Schirach, Fritz Sauckel, Alfred Jodl, Martin Bormann, Franz von Papen, Artur Seyss-Inquart, Albert Speer, Constantin von Neurath, and Hans Fritzsche. Nuremberg Judgment, supra note 11, at 272-331.
29. Robert Ley committed suicide in prison, and Gustav Krupp von Bohlen und Halbach was not tried because of his deteriorating physical and mental condition. Id. at 173.
30. Göring, Hess, von Ribbentrop, Hess, Keitel, Rosenberg, Raeder, Jodl, von Neurath, Frick, Funk, Dönitz, and Seyss-Inquart. Id. at 272-331.
31. See JACKSON, supra note 14;
32. Nuremberg Judgment, supra note 11, at 186.
33. Nuremberg Judgment, supra note 11, at 186.
34. Charges were brought against 24 high-level officials of industry. The tribunal found that "[t]he evidence falls far short of establishing beyond a reasonable doubt that their endeavours and activities [the rearmament of Germany] were undertaken and carried out with the knowledge that they were thereby preparing Germany for participation in an aggressive war." 8 U.S. GOV'T PRINTING OFF., TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at 1081, 1123 (1952) [hereinafter NUREMBERG MILITARY TRIBUNALS];
35. see also JOSEPH BORKIN, THE CRIME AND PUNISHMENT OF IG FARBEN (1978).
36. Twelve high-level managers and officials in the Krupp firm were tried. The tribunal dismissed charges for lack of sufficient evidence. NUREMBERG MILITARY TRIBUNALS, supra note 21, at 1.
37. Fourteen officers holding high-level positions in the German military were charged with crimes against peace and conspiracy to commit crimes against peace. All of the accused were acquitted on the basis that they were "not at the policy level." Id. at 462, 491.
38. Twenty-one high-level officials in the government or Nazi Party were charged with crimes against peace, war crimes and crimes against humanity. Seventeen were charged with aggression and/or conspiracy to commit aggression. Id. at 308, 314, 323, 435.
39. The directors of the Roechling firm were charged with crimes against peace, namely encouraging and contributing to the preparation of aggressive war. The charges were dropped against all but Roechling, who was convicted. The Supreme Government Court of the French Occupation Zone in Germany reversed the conviction for crimes against peace because they "remained outside the boundary 'which has been fixed very high by the IMT.'" Id. at 1109-10.
40. See Preparatory Comm'n for the Int'l Crim. Ct., Working Group on the Crime of Aggression, Historical Review of Developments Relating to Aggression, at 44-45, PCNICC/2002/WGCA/L. 1 (Apr. 8-19, 2002).
41. In re Hirota and Others, 15 ANN. DIG. 356, 362-63 (Int'l Mil. Trib. for the Far East, 1948).
42. U.S. GOV'T PRINTING OFF., TRIAL OF JAPANESE WAR CRIMINALS: DOCUMENTS 45 (1946)
43. [hereinafter TRIAL OF JAPANESE WAR CRIMINALS: DOCUMENTS].
44. For the grouping of the counts into five subject areas, see Historical Review of Developments Relating to Aggression, supra note 26, at 87.
45. TRIAL OF JAPANESE WAR CRIMINALS: DOCUMENTS, supra note 28, at 23-24.
46. John Dower, Embracing Defeat: Japan in the Wake of World War II 562 (1999).
47. Benjamin B. Ferencz, The United Nations Consensus Definition of Aggression: Sieve or Substance?, 10 J. INT'L L. & ECON. 701, 707 (1975)
48. [hereinafter Ferencz (1975)].
49. See generally U.N. Gen. Assembly, Special Comm. on the Question of Defining Aggression, Sixth Comm., Report of the Special Committee on the Question of Defining Aggression, U.N. Doc. A/9619 (1974);
50. U.N. Gen. Assembly, Special Comm. on the Question of Defining Aggression, Sixth Comm., Report of the Special Committee on the Question of Defining Aggression, U.N. Doc. A/9019 (1973);
51. U.N. Gen. Assembly, Special Comm. on the Question of Defining Aggression, Sixth Comm., Report of the Special Committee on the Question of Defining Aggression, U.N. Doc. 8719 (1972);
52. U.N. Gen. Assembly, Special Comm. on the Question of Defining Aggression, Sixth Comm., Report of Special Committee on the Question of Defining Aggression, U.N. Doc. A/8419 (1971);
53. U.N. Gen. Assembly, Special Comm. on the Question of Defining Aggression, Sixth Comm., Report of the Special Committee on the Question of Defining Aggression, U.N. Doc. A/8019 (1970);
54. U.N. Gen. Assembly, Special Comm. on the Question of Aggression, Sixth Comm., Report of the Special Committee on the Question of Defining Aggression, U.N. Doc. A/7620 (1969);
55. U.N. General Assembly, Sixth Comm., Report of the Special Comm. on the Question of Defining Aggression, U.N. Doc. A/7402 (1968);
56. G.A. Res. 2330 (XXII), U.N. Doc. A/6988 (Dec. 18, 1967) (thirty-five members);
57. G.A. Res. 895 (IX), U.N. Doc. A/2890 (Dec. 4, 1954) (nineteen members);
58. G.A. Res. 378/B (V), U.N. Doc. A/529 (Nov. 17, 1950) (fifteen members).
59. Umberto Leanza, The Historical Background, in THE INTERNATIONAL CRIMINAL COURT AND THE CRIME OF AGGRESSION 3, 6 (Mauro Politi and Guiseppe Nesi eds., 2004).
60. Id.;
61. Benjamin Ferencz, Defining Aggression: Where It Stands and Where It's Going, 66 AM. J. INT'L L. 491, 495 (1972)
62. [hereinafter Ferencz (1972)]. The Six Powers were Australia, Canada, Italy, Japan, the United Kingdom, and the United States.
63. Leanza, supra note 32, at 6.
64. Ferencz (1975), supra note 31, at 708.
65. Id.
66. Uniting for Peace Resolution, G.A. Res. 337(V), U.N. Doc. A/RES/377 (Nov. 3, 1951).
67. Intervention of the Central People's Government of the People's Republic of China in Korea, G.A. Res. 498 (V), U.N. Doc. A/RES/498 (Nov. 5, 1951).
68. G.A. Res. 999, U.N. GAOR, 1st Emergency Spec. Sess., Supp. No. 1, U.N. Doc. A/3354 (Nov. 4, 1956);
69. G.A. Res. 998, U.N. GAOR, 1st Emergency Spec. Sess., Supp. No. 1, U.N. Doc. A/3354 (Nov. 4, 1956);
70. G.A. Res. 997, U.N. GAOR, 1st Emergency Spec. Sess., Supp. No. 1, U.N. Doc. A/3354 (Nov. 2, 1956).
71. A larger committee, established in 1967 with 35 participants. See G.A. Res. 2330 (XXII), U.N. Doc. A/RES/2330 (Dec. 18, 1967).
72. G.A. Res. 3314 (XXIX), U.N. Doc. A/RES/3314 (Dec. 14, 1974).
73. Id. arts. 1, 3.
74. Id. art. 2.
75. Id. art. 7.
76. Ferencz (1975), supra note 31, at 708.
77. Ferencz (1972), supra note 33, at 493
78. E-mail from Benjamin Ferencz to author (Apr. 4, 2007) (on file with author).
79. In 1996, the International Law Commission decided that the 1974 definition was not a suitable basis for criminalizing aggression, see infra note 56 and accompanying text, while Professor M. Cherif Bassiouni, writing at around the same time, took the opposite view.
80. M. Cherif Bassiouni & Benjamin B. Ferencz, The Crime Against Peace, in INTERNATIONAL CRIMINAL LAW 313, 316 (M. Cherif Bassiouni ed., 2d ed. 1999).
81. See Nicolaos Strapatsas, Rethinking General Assembly Resolution 3314 (1974) as a Basis for the Definition of Aggression Under the Rome Statute of the ICC, in RETHINKING INTERNATIONAL CRIMINAL LAW: THE SUBSTANTIVE PART 155 (Olaoluwa Lousanya ed., 2007).
82. See id.
83. Andrew M. Warner, The Case Against Saddam Hussein - The Case for World Order, 43 MERCER L. REV. 563 (1992).
84. William Schabas, Issue #15: Should Saddam Hussein Be Prosecuted for the Crime of Aggression?, Grotian Moment: The International War Crimes Trial Blog, Iraqi High Tribunals Trials, Case W. Res. U. Sch. L. (Oct. 19, 2005), http://www.law.case.edu/saddamtrial/entry.asp?entry_id = 21 (last visited Oct. 11, 2007).
85. Id.
86. See Statute of the International Tribunal, 32 I.L.M. 1192, available at http://www.un.org/icty/basic/statut/statute.htm, adopted by S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg. at 6, U.N. Doc. S/RES/827 (1993), 32 I.L.M. 1203 [hereinafter ICTY Statute];
87. Statute of the International Tribunal for Rwanda, 33 I.L.M. 1602, available at http://www.ictr.org/ENGLISH/basicdocs/statute.html, adopted by S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg. at 3, U.N. Doc. S/RES/955 (1994), 33 I.L.M. 1600 [hereinafter ICTR Statute];
88. WAR CRIMES: THE LEGACY OF NUREMBERG (Belinda Cooper ed., 1999).
89. G.A. Res. 177(11), U.N. Doc. A/519 (Nov. 21, 1947).
90. See Int'l. L. Comm'n, Report of the International Law Commission on the Work of its 48th Session, May 6-July 26, 1996, at 83-85, U.N. Doc. A/51/10 (SUPP) (Jan. 1, 1996)
91. [hereinafter ILC Work Report].
92. Id. at 85.
93. Id. at 83.
94. See id.
95. Bassiouni & Ferencz, supra note 48, at 342.
96. Von Hebel & Robinson, supra note 1, at 79, 81, 84.
97. Bassiouni Sc Ferencz, supra note 48, at 346.
98. Rome Statute, supra note 2, arts. 5(1)(d), 5(2), 121, 123.
99. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, Italy, June 15-July 17, 1998, Final Act, at 9, U.N. Doc. A/CONF.183/10 (July 17, 1998).
100. Note from Lord Goldsmith, Attorney General, to Tony Blair, Prime Minister, Gov't of the U.K. (Mar. 7, 2003), available at http://www.number10.gov.uk/output/Page7445.asp. In 2006, the House of Lords, invited to rule on this exact question, came to the opposite conclusion.
101. See infra note 76 and accompanying text.
102. Wilmshurst Resignation Letter, BBC NEWS ONLINE, Mar. 18, 2003, http://news.bbc.co.uk/2/hi/uk_news/politics/4377605.stm (last visited Nov. 13, 2007).
103. For differing arguments on the legality of the Iraq conflict, see generally Agora: Future Implications of the Iraq Conflict, 97 AM. J. INT'L L. 553 (2003).
104. Richard Overy, Comment, Coalition in the Dock: There is a Strong War Crimes Case Against US and British Leaders, but Big Powers Have Immunity, GUARDIAN (London), Apr. 15, 2003, at 17;
105. Robert Verkaik, Politics & Parliament: Court Studies Blair 'War Crimes' Claim, INDEPENDENT (London), Jan. 21, 2004, at 8;
106. Thomas Walkom, Op-Ed., Tide Turns Against Bush, TORONTO STAR, Mar. 11, 2003, at A17.
107. The Green Party of Ohio passed a policy proposal at their January 2004 State Convention to try President George W. Bush, Vice President Richard Cheney, and Secretary of Defense Donald Rumsfeld for the crime of aggression against Iraq. Noting that there is no statute of limitations on war crimes, the Green Party pledged to "aggressively pursue US citizens . . . responsible for the March 2003 invasion of Iraq . . . when Green Party members hold public office. " GREEN PARTY OF OHIO, WAR CRIMES PROPOSAL - 2003 IRAQ INVASION (Jan. 31, 2004), http://www.ohiogreens.org/war_crimes_proposal.html. The proposal was forwarded to the 2004 Green Party of the U.S. National Convention for consideration.
108. Press Release, White House Office of the Press Sec'y, President Bush Addresses Nation on the Capture of Saddam Hussein: Remarks by the President on the Capture of Saddam Hussein (Dec. 14, 2003), http://www.whitehouse.gov/news/ releases/2003/12/20031214-3.html.
109. Transcript: Saddam's Arraignment, FOX NEWS, July 1, 2004, http://www.foxnews.com/story/0,2933,124433,00.html.
110. Statute of the Iraqi Special Tribunal art. 14(c), 2003, http://www.cpa-iraq.org/human_rights/Statute.htm.
111. José E. Alvarez, Trying Hussein: Between Hubris and Hegemony, 2 J. INT'L CRIM. JUST. 319, 319 (2004).
112. For more on the tu coque defense, see TAYLOR, supra note 14, at 400-01, 409 (Admiral Dönitz acquitted of illegal submarine warfare because he had produced an affidavit from U.S. Admiral Nimitz saying Nimitz had done the same thing).
113. Peace Activists "Broke into Base," BBC NEWS, Sept. 4, 2006, http://news.bbc.co.uk/2/hi/uk_news/england/gloucestershire/ 5313020.stm (last visited Nov, 14, 2007).
114. R v. Jones [2006] UKHL 16 (appeal taken from Eng.), available at http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060329/jones.pdf.
115. Id. at 7-14.
116. See Donald M. Ferencz, Introductory Note to United Kingdom House of Lords: R v. Jones et al., 45 I.L.M. 988, 988-91 (2006).
117. R v. Jones, supra note 75, ¶ 99.
118. See Documents on the Crime of Aggression, Preparatory Commission for the Int'l Crim. Ct. (1999-2002), http://www.un.org/law/icc/documents/ aggression/aggressiondocs.htm.
119. Preparatory Comm'n for the Int'l Crim. Ct., Working Group on the Crime of Aggression, July 1-12, 2002, Discussion Paper Proposed by the Coordinator, PCNICC/2002/WGCA/RT.1/Rev.2 (July 11, 2002)
120. [hereinafter Coordinator's 2002 Discussion Paper].
121. The Special Working Group on the Crime of Aggression is a subsidiary body of the Assembly of States Parties to the Rome Statute of the International Criminal Court. It is nevertheless open to all states "on an equal footing." ICC, Assembly of States Parties, 3rd plen. mtg., Continuity of Work in Respect of the Crime of Aggression, ¶ 2, ICC-ASP/1/Res. 1 (Sept. 9, 2002), available at http://www.un.org/law/icc/asp/1stsession/ report/english/part_iv_res_1_e.pdf.
122. See Coalition for the Int'l Crim. Ct., Issues and Campaigns, Crime of Aggression, http://www.ICCnow.org/?mod=aggression (last visited Nov. 14, 2007), for reports, documents, and notes on the Princeton meetings.
123. Three meetings were held in June 2004, 2005, and 2006.
124. ICC, Assembly of States Parties, Special Working Group on the Crime of Aggression, Resumed 5th Sess., New York, Jan. 29-Feb. 1, 2005, Discussion Paper on the Crime of Aggression Proposed by the Chairman, ICC-ASP/5/SWGCA/2 (Jan. 16, 2007), http://www.ICC-cpi.int/library/asp/ICC-ASP-5-SWGCA-2_English. pdf
125. [hereinafter Chairman's 2007 Discussion Paper].
126. Internal references omitted.
127. For the text of articles 1 and 3 of U.N. General Assembly Resolution 3314, see infra text accompanying note 94.
128. ICC, Assembly of States Parties, Special Working Group on the Crime of Aggression, 4th Sess., Nov. 28-Dec. 2, 2005, Discussion Paper 1: The Crime of Aggression and Article 25, Paragraph 3, of the Statute, annex II.B, ICC-ASP/4/32, available at http://www.icc-cpi.int/library/asp/annexes.pdf
129. [hereinafter Discussion Paper 1].
130. ICC, Assembly of States Parties, Special Working Group on the Crime of Aggression, 4th Sess., Nov. 28-Dec. 2, 2005, Discussion Paper 2: The Conditions for the Exercise of Jurisdiction with Respect to the Crime of Aggression, annex II.C, ICC-ASP/4/32, available at http://www.icc-cpi.int/library/asp/annexes.pdf
131. [hereinafter Discussion Paper 2].
132. ICC, Assembly of States Parties, Special Working Group on the Crime of Aggression, 4th Sess., Nov. 28-Dec. 2, 2005, Discussion Paper 3: Definition of Aggression in the Context of the Statute of the ICC, annex II.D, ICC-ASP/4/32, available at http://www.ICC-cpi.int/library/asp/annexes.pdf
133. [hereinafter Discussion Paper 3].
134. ICC, Assembly of States Parties, 5th Sess., Nov. 23-Dec. 1, 2006, Strategic Plan of the International Criminal Court, pt. IV, ICC-ASP/5/6 (Aug, 4, 2006), available at http://www.icc-cpi.int/library/asp/ICC-ASP- 5-6_English.pdf.
135. For examples of the background literature, see JAMES TURNER JOHNSON, JUST WAR TRADITION AND THE RESTRAINT OF WAR: A MORAL AND HISTORICAL INQUIRY (1981);
136. JAMES TURNER JOHNSON, THE HOLY WAR IDEA IN WESTERN AND ISLAMIC TRADITIONS (1997);
137. JAMES TURNER JOHNSON, MORALITY & CONTEMPORARY WARFARE (1999);
138. MOHAMMAD TAGHI KAROUBI, JUST OR UNJUST WAR? INTERNATIONAL LAW AND UNILATERAL USE OF ARMED FORCE BY STATES AT THE TURN OF THE 20TH CENTURY (2004);
139. TRADITIONS OF INTERNATIONAL ETHICS (Terry Nardin and David R. Mapel eds., 1993);
140. James F. Childress, Just War Theories: The Bases, Interrelations, Priorities, and Functions of Their Criteria, 39 THEOLOGICAL STUD. 427, 427-45 (1978);
141. James F. Childress, Moral Discourse About War in the Early Church, in Peace, Politics, and the People of God 117, 117-34 (Paul Peachey ed., 1986);
142. Sohail Humayun Hashmi, Interpreting the Islamic Ethic of War and Peace, in THE ETHICS OF WAR AND PEACE: RELIGIOUS AND SECULAR PERSPECTIVES 146, 146-68 (Terry Nardin ed., 1996).
143. Strapatsas, supra note 49, at 159;
144. AHMED RIFAAT, INTERNATIONAL AGGRESSION (1979);
145. Julius Stone, Hopes and Loopholes in the 1974 Definition of Aggression, 71 AM. J. INT'L L. 224 (1977);
146. 2 BENJAMIN B. FERENCZ, DEFINING INTERNATIONAL AGGRESSION (1975).
147. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27), available at http://www.icj-cij.org/ docket/files/70/9973.pdf. The Court finds that article 3, paragraph (g) of the 1974 Definition of Aggression, "the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State," may "be taken to reflect customary international law."
148. Id. ¶ 195.
149. In 2003 the attorney general of the United Kingdom concluded that aggression was a crime under customary international law, which automatically formed part of U.K. domestic law. Lord Goldsmith, Iraq: Resolution 1441, GUARDIAN (London), Mar. 7, 2003, ¶ 34, http://image.guardian.co. uk/sys-files/Guardian/documents/2005/04/28/legal.pdf.
150. G.A. Res. 3314, supra note 41, annex, arts. 1-8.
151. Id. annex, art. 3(c).
152. THE COALITION FOR THE INT'L CRIM. CT., INFORMAL INTER-SESSIONAL MEETING OF THE SPECIAL WORKING GROUP ON THE CRIME OF AGGRESSION, LIECHTENSTEIN INSTITUTE ON SELF-DETERMINATION, WOODROW WILSON SCHOOL, PRINCETON UNIVERSITY, UNITED STATES, FROM 8 TO 11 JUNE, 2006, REPORT OF THE CICC TEAM REPORT ON AGGRESSION, at 4-5 (Aug. 26, 2006), http://www.ICCnow.org/ documents/ TeamReportOnIntersessionalMeeting_26Aug06.pdf [hereinafter CICC 2006 REPORT].
153. Chairman's 2007 Discussion Paper, supra note 84, ¶ 2.
154. Non-Paper by the Chairman on Defining the State Act of Aggression, in ICC, Assembly of States Parties, Special Working Group on the Crime of Aggression, 6th Sess., Liechtenstein Institute on Self-Determination, Woodrow Wilson School, Princeton University, United States, June 11-14, 2007,
155. Report of the Informal Inter-sessional Meeting of the Special Working Group on the Crime of Aggression, annex IV, ICC-ASP/6/ SWGCA/INF.l, available at http://www.ICC-cpi.int/library/asp/ICC-ASP-6-SWGCA-INF. 1_English.pdf
156. [hereinafter 2007 Non-Paper on Defining the State Act of Aggression].
157. Roger Clark, the Rutgers Law Professor representing Samoa at SWGCA, claims that "the open-ended characteristics of Article 7(1)(k) which has to be read ejusdem generis with all that comes before" is "much more constricted than some of the generic approaches to aggression would have it." E-mail from Roger Clark to author (Apr. 27, 2007) (on file with author).
158. ICC, Assembly of States Parties, Special Working Group on the Crime of Aggression, 6th Sess., Informal Inter-sessional Meeting of Special Working Group on the Crime of Aggression, held at Liechtenstein Institute on Self-Determination, Woodrow Wilson School, Princeton University, United States, June 11-14, 2007, ¶ 47, ICC-ASP/6/SWGCA/INF.l, available at http://www.ICC-cpi.int/library/asp/ICC-ASP-6-SWGCA-INF.1_English.pdf
159. [hereinafter SWGCA 2007 Report].
160. Benjamin B. Ferencz, Enabling the International Criminal Court to Punish Aggression, pt. I.B (unpublished article), http://www.benferencz.org/arts/90. html.
161. Id.
162. 2007 Non-Paper on Defining the State Act of Aggression, supra note 98.
163. CICC 2006 REPORT, supra note 96, at 5.
164. Id. at 6-7.
165. This seems highly probable.
166. CICC 2006 REPORT, supra note 96, at 6.
167. Coordinator's 2002 Discussion Paper, supra note 80, ¶ 1, options 1 and 2.
168. Id.
169. Id.
170. ICC, Assembly of States Parties, Special Working Group on the Crime of Aggression, 5th Sess., Report of the Special Working Group on the Crime of Aggression, ¶ 8, ICC-ASP/5/SWGCA/1 (Nov. 29, 2006), available at http://www.icc-cpi.int/library/asp/ICC-ASP-5-SWGCA-1_English.pdf
171. [hereinafter SWGCA 2006 Report].
172. G.A. Res. 3314, supra note 41, annex, art. 1.
173. CICC 2006 REPORT, supra note 96, at 6.
174. Id. at 6-7.
175. Id.
176. Chairman's 2007 Discussion Paper, supra note 84, art. 1, ¶ 2.
177. SWGCA 2006 Report, supra note 111, at 8.
178. Id.
179. Rome Stature, supra note 2, art. 22 ("Nullum crimen sine lege: 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court; 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.")
180. G.A. Resolution 3314, supra note 41, annex, art. 1.
181. Chairman's 2007 Discussion Paper, supra note 84, ¶ 1, variant (b).
182. In 2007, the Chairman found "broad support" in the Working Group for the differentiated approach. SWGCA 2007 Report, supra note 100, ¶ 7.
183. Chairman's 2007 Discussion Paper, supra note 84, ¶ 1, variant (a).
184. Discussion Paper 1, supra note 87, at 377.
185. The principle of legality requires an individual contemplating a crime to have enough guidance from a criminal prohibition to distinguish permitted and prohibited conduct.
186. SWGCA 2007 Report, supra note 100, ¶ 6.
187. For an example of a compatibility problem, see Discussion Paper 1, supra note 87, ¶ 3: "Take only one example: If the word 'participate' is used in the definition of the crime and if Article 25, paragraph 3(c) of the Statute is applied, the result would be that an aider in the crime of aggression would be someone who 'aids in the participation in [the collective act]'. That would not seem to make much sense."
188. R v. Jones, supra note 75;
189. Strapatsas, supra note 49, at 157.
190. SWGCA 2007 Report, supra note 100, annex II.
191. Id.
192. ICC, Assembly of States Parties, Special Working Group on the Crime of Aggression, 5th resumed Sess., New York, Jan. 29-Feb. 1, 2007, Annex 11: Report of the Special Working Group on the Crime of Aggression, ¶ 9, ICC-ASP/5/35, available at http://www.icc-cpi.int/library/asp/ Report_SWGCA_English.pdf.
193. SWGCA 2007 Report, supra note 100, annex II. For an argument that the leadership qualifier should also include private economic actors,
194. see Kevin Jon Heller, Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression, 18 EUR. J. INT'L L. (forthcoming 2007).
195. The proposal for alternative language in variant (a) prepared by the chairman in January 2007 reads as follows: The Court shall have jurisdiction with respect to the crime of aggression when committed by a person being in a position effectively to exercise control over or to direct the political or military action of a State. For purposes 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/armed attack.... SWGCA 2007 Report, supra note 100, annex II.
196. Id. The revised proposal for alternative language on variant (a) prepared by the chairman for the informal consultations is reproduced, supra, text accompanying note 130.
197. THE COALITION FOR THE INT'L CRIM. CT., INFORMAL INTER-SESSIONAL MEETING OF THE SPECIAL WORKING GROUP ON THE CRIME OF AGGRESSION, LIECHTENSTEIN INSTITUTE ON SELF-DETERMINATION, WOODROW WILSON SCHOOL, PRINCETON UNIVERSITY, UNITED STATES, JUNE 11-14, 2007,
198. REPORT OF THE CICC TEAM REPORT ON AGGRESSION, at 5 [hereinafter CICC 2007 REPORT] (on file with author).
199. SWGCA 2007 Report, supra note 100, ¶ 11.
200. CICC 2007 REPORT, supra note 135, at 7.
201. The suggestion reads, "Article 25: add new paragraph 3 bis: 'With respect to the crime of aggression, the provisions of the present article shall only apply to persons being in a position effectively to exercise control over or to direct the political or military action of a State.'" Id.
202. London Charter, supra note 14, art. 6(a).
203. Only eight of twenty-two Nazi leaders charged with conspiracy were convicted. See Stanislaw Pomorski, Conspiracy and Criminal Organization, in THE NUREMBERG TRIAL AND INTERNATIONAL LAW 213, 235 (George Ginsburgs & V.N. Kudriavtsev eds., 1990).
204. See generally Paula Escarameia, The ICC and the Security Council on Aggression: Overlapping Competencies?, in THE INTERNATIONAL CRIMINAL COURT AND THE CRIME OF AGGRESSION, supra note 13, at 133;
205. Giorgio Gaja, The Respective Roles of the ICC and the Security Council in Determining the Existence of an Act of Aggression, in THE INTERNATIONAL CRIMINAL COURT AND THE CRIME OF AGGRESSION, supra note 13, at 121;
206. Marja Lehto, The ICC and the Security Council: About the Argument of Politkization, in THE INTERNATIONAL CRIMINAL COURT AND THE CRIME OF AGGRESSION, supra note 13, at 145;
207. Saeid Mirzaee Yengejeh, Reflections on the Security Council in Determining an Act of Aggression, in THE INTERNATIONAL CRIMINAL COURT AND THE CRIME OF AGGRESSION, supra note 13, at 125.
208. "For those who opposed recognizing any role of the Security Council, any express mention to [sic] the Council in Article 5 would have been unacceptable." Silvia A. Fernández de Gurmendi, An Insider's View, in THE INTERNATIONAL CRIMINAL COURT AND THE CRIME OF AGGRESSION, supra note 13, at 183.
209. For details on the Working Group debate, see SWGCA 2006 Report, supra note 111, ¶ 9;
210. see also ICC, Assembly of States Parties, 4th Sess., Nov. 28-Dec. 3, 2005, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, annex II.C., ICC-ASP/4/32, available at http://www.icc-cpi.int/library/asp/annexes.pdf.
211. See Discussion Paper 2, supra note 88, at 386-87.
212. Australia proposed that the Security Council get "the first bite of the cherry, but not necessarily the last." CICC 2006 REPORT, supra note 96, at 12. For various possibilities,
213. see Coordinator's 2002 Discussion Paper, supra note 80, art. 5.
214. There is a distinction between the issue of a predetermination for the sake of ICC jurisdiction and the issue of using this predetermination as a prejudicial, or binding, element of the crime itself. It would be possible, for instance, to draft a crime requiring a U.N. organ to give a "go-ahead" for the sake of jurisdiction, but then require the Prosecutor to independently prove the existence of a state/collective act of aggression for the sake of individual criminal responsibility.
215. See Lehto, supra note 141, at 186,
216. citing Prof. Thedeor Meron, U.S. Rep., Statement at the ICC Preparatory Commission, Working Group on the Crime of Aggression (Dec. 6, 2002).
217. See id.
218. See, e.g., Yengejeh, supra note 141, at 132.
219. See id.
220. Proposal Presented by Belgium on the Question of Jurisdiction of the Court with Respect to the Crime of Aggression, in ICC, Assembly of States Parties, Special Working Group on the Crime of Aggression, 5th Sess., The Hague, Jan. 29-Feb. 1, 2007,
221. Official Records of the Assembly of States Parties to the Rome Statute, ICC-ASP/5/SWGCA/WP.1 (Jan. 29, 2007).
222. See supra note 145.
223. Option 2 thus gives the Security Council final say and is no compromise at all.
224. E-mail from the Turin conference chairman Judge Roberto Bellelli, containing David Scheffer's Proposal, to author (May 24, 2007 4:09:16 PM GMT+02:00) (on file with author). The proposal is also available in ICC, Assembly of States Parties, 6th Sess., Policy Issues Under the United Nations Charter and the Rome Statute, at 30, ICC-ASP/6/INF.2 (Aug. 21, 2007), available at http://www.iccnow.org/documents/Turin_Report_English_21-08- 07_ADVANCE_COPY.pdf [hereinafter Scheffer Proposal].
225. According to Scheffer, (2) and (3) are compromises because they entail "passing the buck" to other bodies, but in a way that remains within the initial control of the Security Council. See Scheffer Proposal, supra note 154, at 2.
226. CICC 2006 REPORT, supra note 96, at 10. For a summary of the various positions of the Preparatory Commission members,
227. see Escarameia, supra note 141, at 139.
228. In response to this claim, one delegate reminded the Working Group of the failure of the Security Council to act decisively and prevent the 1994 genocide in Rwanda.
229. See Coordinator's 2002 Discussion Paper, supra note 80, ¶¶ 4-5;
230. Non-Paper Submitted by the Chairman on the Exercise of the Jurisdiction, in ICC, Assembly of States Parties, Special Working Group on the Crime of Aggression, 6th Sess., Informal Inter-sessional Meeting of the Special Working Group on the Crime of Aggression, held at Liechtenstein Institute on Self-Determination, Woodrow Wilson School, Princeton University, United States, from 11 to 14 June 2007, annex III, ICC-ASP/6/SWGCA/INF.1, available at http://www.ICC-cpi.int/library/asp/ICC-ASP-6-SWGCA-INF. 1_English.pdf.
231. See Uniting for Peace Resolution, supra note 37.
232. Eric Stein Sc Richard C. Morrissey, Uniting for Peace Resolution, 5 ENCYCLOPEDIA OF PUB. INT'L L. 380 (1983).
233. Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 116, ¶ 244 (Dec. 19), available at http://www.icj-cij.org/docket/files/116/10455.pdf.
234. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8), available at http://www.icj-cij.org/docket/files/95/ 7495.pdf.
235. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), supra note 93.
236. Certain Expenses of the United Nations, Advisory Opinion, 1962 I.C.J. 151, 163 (July 20), available at http://www.icj-cij.org/docket/files/49/ 5259.pdf.
237. On the need for the "full and unconditional cooperation of states and organizations" in order to ensure the "swift fulfillment of the mandate of the Office of the Prosecutor," see Third Report of the Prosecutor of the International Criminal Court to the U.N. Security Council Pursuant To UNSCR 1593 (2005) (June 14, 2006), available at http://www.icc-cpi.int/library/cases/OTP_ReportUNSC_3-Darfur_English.pdf.
238. 2007 Non-Paper on Defining the State Act of Aggression, supra note 98, ¶ 2.
239. Id. ¶ 3(a).
240. Id. ¶ 3(b).
241. Id. ¶ 3(c).
242. Discussion Paper 1, supra note 87, at 386.
243. Discussion Paper 1, supra note 87;
244. 2007 Non-Paper on Defining the State Act of Aggression, supra note 98. The Proposal for alternative language on variant (a) was prepared by the chairman in January 2007, and the Revised Proposal for alternative language on variant (a) was prepared by the chairman for the informal consultations.
245. See CICC 2007 REPORT, supra note 135, at 9, 10, 13, 44, 48-49.
246. The more central the outside determination is in establishing the existence of the state/collective act, the less work the Prosecutor will have in proving it on the basis of evidence collected in the field.
247. CICC 2006 REPORT, supra note 96, at 28.
248. Id.
249. "No one argued that a prior determination had to be prejudicial." Id.
250. See Non-Paper Submitted by the Chairman on the Exercise of the Jurisdiction, supra note 158.
251. Id. at 19, 24.
252. E-mail from Jutta Bertram-Nothnagel to the delegation of experts of the Special Working Group on the Crime of Aggression (Apr. 16, 2007) (on file with author).
253. CICC 2006 REPORT, supra note 96, at 22.
254. See supra note 151.
255. ICC, Office of the Prosecutor, Report on the Activities Performed During the First Three Years (June 2003-June 2006) (Sept. 12, 2006), available at http://www.icc-cpi.int/library/organs/otp/OTP_3-year-report- 20060914_English.pdf.
256. S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005).
257. With legislation implementing the Rome Statute into domestic law, the state could also try its own leaders.
258. ICC, Office of the Prosecutor, Paper on Some Policy Issues Before the Office of the Prosecutor, at 3 (Sept. 2003), available at http://www.icc-cpi.int/library/organs/otp/030905_Policy_Paper.pdf.
259. Id.
260. Rome Statute, supra note 2, art. 42(1).
261. ICC, Office of the Prosecutor, Criteria for Selection of Situations and Cases, at 2 (June 2006) (draft policy paper on file with author)
262. [hereinafter OTP Selection Criteria].
263. Id.
264. Rome Statute, supra note 2, art. 21(3).
265. OTP Selection Criteria, supra note 188, at 4-6.
266. Id. at 5.
267. See supra Part II.A.3.
268. Mark Osiel, The Banality of Good: Aligning Incentives Against Mass Atrocity, 105 COLUM. L. REV. 1751, 1754 (2005).
269. Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges (Jan. 29, 2007), available at http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-803-tEN_English.pdf.
270. David Cohen, Beyond Nuremberg: Individual Responsibility for War Crimes, in HUMAN RIGHTS IN POLITICAL TRANSITIONS: GETTYSBURG TO BOSNIA 53 (Carla Hesse & Robert Post eds., 1999).
271. London Charter, supra note 14, arts. 9, 10.
272. Even in 1945, the doctrine was highly problematic. According to Telford Taylor, "The conspiracy case . . . bid fair to swallow the greater part of the entire case." TAYLOR, supra note 14, at 80.
273. In the end, "[t]he practical and moral difficulties proved overwhelming" and the judges rejected much of the conspiracy case, except, notably, in relation to crimes against peace. Id. at 75.
274. ICTY Statute, supra note 54, art. 7(3);
275. ICTR Stature, supra note 54, art. 6(3).
276. ICTY Statute, supra note 54, art. 7(1);
277. Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment, ¶¶ 185-229 (July 15, 1999), available at http://www.un.org/icty/tadic/appeal/ judgement/tad-aj990715e.pdf [hereinafter Tadic];
278. ICTR Statute, supra note 54, art. 6(1);
279. Prosecutor v. Ntakirutimana, Case No. ICTR-96-19-A, Judgment, ¶ 468 (Dec. 13, 2004). The ICTR Statute eliminates much of the need for joint criminal enterprise by including conspiracy to commit genocide.
280. Osiel, supra note 194, at 1770.
281. ICTY Statute, supra note 54, art. 7(3).
282. Prosecutor v. Kupreskic et al., Case No. IT-95-16-T, Judgment, ¶ 772 (Jan. 14, 2000), available at http://www.un.org/icty/kupreskic/appeal/ judgement/kup-tj000114e.pdf.
283. Tadic, supra note 200, ¶ 196.
284. Id. ¶ 202.
285. Id. ¶ 204.
286. Rome Statute, supra note 2, art. 28.
287. Id. art. 25(3)(d).
288. Allison Marston Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 CAL. L. REV. 75 (2005).
289. Osiel, supra note 194, at 1772.
290. Id. at 1786.
291. Id. at 1764 (referring to Prosecutor v. Blaskic, Case No. IT-95-14-A, Judgment, ¶¶ 54-57 (July 29, 2004), available at http://www.un.org/icty/blaskic/appeal/judgement/bla- aj040729e.pdf,
292. and Prosecutor v. Krstic, Case No. IT-98-33-A, Judgment, ¶¶ 237-239 (Apr. 19, 2004), available at http://www.un.org/icty/krstic/ Appeal/judgement/krs-aj040419e.pdf).
293. Chairman's 2007 Discussion Paper, supra note 84, art. 1.
294. Under this proposal, article 28 of the Rome Statute, supra note 2, on "Responsibility of commanders and other superiors," would need to be modified or excluded.
295. BASS, supra note 14, at 277.
296. Id.
297. Id.
298. OTP Selection Criteria, supra note 188, at 8.
299. Luis Moreno-Ocampo, A Global Web of Justice Is Up and Running, INT'L HERALD TRIB., June 12, 2006, available at http://www.iht.com/articles/2006/06/11/opinion/edocampo.php.
300. G.M. GILBERT, NUREMBERG DIARY 4 (1947).
301. London Charter, supra note 14, art. 6.
302. Developments in the Law: International Criminal Law, 114 HARV. L. REV. 1943, 1982 (2001);
303. Steven Fogelson, The Nuremberg Legacy: An Unfulfilled Promise, 63 S. CAL. L. REV. 833, 858-61 (1990);
304. Jeremy Peterson, Unpacking Show Trials: Situating the Trial of Saddam Hussein, 48 HARV. INT'L. L.J. 258, 275 (2006).
305. International Covenant on Civil and Political Rights, art. 15(1), opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) ("No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.").
306. "Occupying the positions they did in the Government of Germany, the defendants or at least some of them must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international disputes, they must have known that they were acting in defiance of all international law when in complete deliberation they carried out their designs of invasion and aggression. On this view of the case alone, it would appear that the maxim [nullum crimen sine lege] has no application to the present facts." Nuremberg Judgment, supra note 11, at 217.
307. Id. at 220.
308. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. Rome Statute, supra note 2, art. 22.
309. See BASS, supra note 14, at 200.
310. Rome Statute, supra note 2, art. 66.
311. See id. art. 67(1)(i).
312. See supra Part II.C.
313. The worst violation of the presumption of innocence makes the prejudicial outside determination that an act of aggression has occurred an element of the crime. It is a gray area whether an outside determination for the purpose of jurisdiction violates the presumption so badly as to violate the principle of legality.
314. See supra Part II.A.
315. See ILC Work Report, supra note 56.
316. See Osiel, supra note 194, at 1772.
317. Id. at 1803.