The audacity of compromise: The un security council and the pre-conditions to the exercise of jurisdiction by the ICC with regard to the crime of aggression

International Criminal Law Review

Volumn 9, Issue 2, 2009, Pages 411-433

  Schaeffer, Robert ^a  

^a ICTY ^*

Author keywords

Crime of aggression; International criminal court; Pre conditions to the exercise of jurisdiction; Review conference; Security council; Special working group on the crime of aggression

Indexed keywords

EID: 70449346169     PISSN: 1567536X     EISSN: 15718123     Source Type: Journal    
DOI: 10.1163/157181209X418580     Document Type: Article

References (88)

1. The only exception being Art. 1(1), which stipulates that the suppression of acts of aggression is one of the purposes of the United Nations. It could be inferred from this that being a purpose of the entire UN, determinations of aggression are not limited to the Security Council.
2. For many excellent interpretation commentaries on this issue see Chapters 11-15 in M. Politi & G. Nesi (eds.), The International Criminal Court and the Crime of Aggression (2004).
3. Emphasis added.
4. See D. Nsereko, Aggression under the Rome Statute of the International Criminal Court', (2002)
5. E.g. the accepted usage of Art. 27 (3) where the P5 do not have to vote in the affirmative but can also abstain, see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, [1971] ICJ Rep. 16, at 22.
6. See for an overview N. Blokker, "The Crime of Aggression and the United Nations Security Council', (2007) 20 LJIL 867, at 880-886
7. 20 LJIL, Ibid., at 883.
8. Nordic Journal of International Law 497, at 506.
9. Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, [1962] ICJ Rep. 151, at 163. It later confirmed this interpretation in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. USA), Jurisdiction and Admissibility, Judgment, 26 November 1984, [1984] ICJ Rep. 392, at 434-5
10. and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, at para. 26.
11. UN Doc. A/Res/377(V).
12. E.g. UN Doc. S/Res/120 (Hungary); UN Doc. S/Res/129 (Lebanon); UN Doc. S/Res/157 (Congo); UN Doc. S/Res/303 (Bangladesh).
13. The point to convey here is that there is no legal requirement to do so. However, it would still be possible to provide for such a solution for policy reasons.
14. The most famous example is the 1990 invasion of Kuwait by Iraq, which the Security Council only called 'breach of peace, S/Res/660 (1990).
15. E.g. UN Doc. S/Res/387 (1976), UN Doc. S/Res/418 (1977), UN Doc. S/Res/447 (1979), UN Doc. S/Res/454 (1979) with regard to South Africa.
16. E.g. UN Doc. S/Res/573 (1985), UN Doc. S/Res/611 (1988) with regard to Israel.
17. E.g. UN Doc. S/Res/405 (1977) with regard to Benin.
18. E.g. UN Doc. S/Res/496 (1981), UN Doc. S/Res/507 (1982) with regard to the Seychelles.
19. E.g. Arts. 41 or 42, see also Art. 25; cf. J. Delbrück, Article 24', in B. Simma (ed.), The Charter of the United Nations: A commentary (2002), at MN 8.
20. The General Assembly pursuant to the Uniting for Peace resolution can only make 'appropriate recommendations [...] for collective measures'.
21. See Blokker (Crime of Aggression), supra note 6, at 880
22. cf. also Art. 92 of the UN Charter.
23. C. Kreß, "The Crime of Aggression Before the First Review Conference', (2007) 20 LJIL 851, at 860.
24. For opposing views see e.g. M.E. Kurth, 'Der Angriffskrieg und seine völkerstrafrechtliche Bewertung', (2005) Neue Zeitschrift für Wehrrecht 59, at 65
25. or I.K. Müller-Schieke, 'Defining the Crime of Aggression', (2001) 14 LJIL 409, at 423.
26. See for more on this aspect G. Schofield, The Empty U.S. Chair: United States Nonparticipation in the Negotiations on the Definition of Aggression, (2007) 15 Human Rights Brief 20.
27. Report of the SWGCA, ICC-ASP/4/SWGCA/INF.1, at para. 64. Arguing against this with reliance on prejudicialness, see Kurth (Angriffskrieg), supra note 21, at 65.
28. ICC-ASP/5/SWGCA/2, annex.
29. ICC-ASP/6/SWGCA/INF.l, annex III.
30. See e.g. CI CC Team Report on the inter-sessional meeting of the Special Working Group on the Crime of Aggression (11-14 June 2007), at 13-14.
31. ICC-ASP/6/SWGCA/2/Rev.1.
32. Option 2 is based on previous discussions regarding an additional option which would constitute a merely procedural "go-ahead" from the Security Council without a substantive determination that an act of aggression has occurred, but with an explicit authorization for the Court to investigate in respect of the crime of aggression. In case of a Security Council referral under article 13 (b) of the Statute, such an authorization could be contained in the resolution referring the situation to the Prosecutor.
33. See Report of the SWGCA, ICC-ASP/6/SWGCA/1.
34. Cf. the discussion during the 2007 Princeton meeting, CICC Team Report, supra note 26, at 23.
35. As cited in Simma/Brunner/Kaul (Article 27), supra note 17, at MN 17.
36. E.g. the US notably abstained from resolution 1593 referring the situation in the Darfur to the ICC; 00 also, another renewal following resolutions 1422 and 1487 failed inter alia due to impending vetoes.
37. Cf. Simma/Brunner/Kaul (Article 27), supra note 17, at MN 104 & 106.
38. Ibid., at MN 13.
39. Cf. Art. 27 (3) UN Charter. However, practice has shown that this article is interpreted differently as simply requiring that no permanent member votes against the resolution, hence allowing for abstentions, see note 5 supra.
40. See C. McDougall, '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', (2007) 7 ICLR 277, at 304
41. M. Stein, "The Security Council, the International Criminal Court, and the Crime of Aggression: How Exclusive is the Security Council's Power to Determine Aggression?', (2006) 16 Indiana International & Comparative Law Review 1, at 6.
42. However, the matter is more complex as not only some states not party to the ICC call for Security Council involvement but also some state parties, e.g. France or the UK.
43. B. Ferencz, Speaking Frankly about the Crime of Aggression (2008), at 1 (on file with author).
44. Cf. also McDougall (Law and Reality), supra note 36, at 308.
45. This might also be the reason why many leading NGOs have not spoken out on this topic, see also Kreß (Crime of Aggression), supra note 20, at 864.
46. See the 'Proposal for a new paragraph 3 to Article 15bis' of the Netherlands from 4 June 2008 (on file with author); also Report of the SWGCA, ICC-ASP/6/SWGCA/CRP.2, at 38.
47. This draft article is modeled on draft Art. 15bis (2) of the chairman's non-paper of 2007.
48. The irony of it all is that those supporting Security Council involvement also criticized the politicization of the Court due to the prosecutor s proprio motu powers. However, Security Council involvement in the process, by some even advanced as preventing possible politicization, would more likely increase politicization due to the influence of a political body.
49. This argument was advanced repeatedly by American diplomats and politicians, possibly because of their own domestic experience with the Office of the Independent Counsel (OIC) in the 1990s.
50. See also McDougall (Law and Reality), supra note 36, at 329.
51. Cf. ibid., at 327.
52. Even more, with such open language it might even be sufficient to have presidential statements or formal letters by the Security Council President on behalf of the Council. This would be more low-key and maybe easier to achieve than a resolution. There would be no problems with the speci ficity of the veto as such statements or letters are always adopted by consensus, however, consensus is a high threshold in itself and sometimes more difficult to achieve than 'only' nine votes without a negative vote from the P5, cf Simma/Brunner/Kaul (Article 27), supra note 17, at MN 142-148
53. Of course this can also happen in a new and purely political circumstance such as for example a change of mind of the Security Council members with regard to a certain leader, who in the past was seen as crucial for the success of peace talks.
54. E.g. the ball would still be put in the Security Council's court; however, this modified 'red light' option is part and parcel of a 'green light' option really. Whereas the Belgian proposal of 2008 would have the consequence of direct ICC investigation if the Security Council fails to come to a decision, this proposal provides for another safeguard if the Security Council is blocked or inactive.
55. Whether the composition of the Security Council really is representative of UN membership may of course be seriously questioned (see e.g. Blokker (Crime of Aggression), supra note 6, at 888), but as a decision-making organ of the UN, at least in theory it represents the organization and all of its members.
56. See e.g. Report of the SWGCA, ICC-ASP/6/SWGCA/CRP.2, at 46.
57. See the remark of the delegation of Liechtenstein at the resumed 6th session of the ASP on 4 June 2008 (on file with author).
58. Another argument relates to the fact that the ICC (or ASP) as an independent organization would have the power to give a certain power to the Security Council for ICC purposes. Were it to transfer a power for UN purposes this would be a different story and come close to 're-writing the Charter'.
59. See Simma/Brunner/Kaul (Article 27), supra note 17, at MN 152.
60. 'Decision' is understood broadly and in conformity with UN practice as referring to all types of actions, see Simma/Brunner/Kaul (Article 27), supra note 17, at MN 100 et seq.
61. E.g. T. Meron, 'Defining Aggression for the International Criminal Court', (2001) Suffolk Transnational Law Review 1, at 14.
62. Just like was done in Rome in 1998 with regard to Art. 16 of the Statute.
63. See also note 5 supra.
64. McDougall (Law and Reality), supra note 36, at 331.
65. See Kreß (Crime of Aggression), supra note 20, at 860 & 864-5
66. Stein (Security Council), supra note 36, at 32.
67. One important exception where a nation would possibly vote in favor of such a resolution, is where there was a regime change in the country concerned and the new leader acknowledges the aggression of his/her predecessor.
68. See also Stein (Security Council), supra note 36, at 10.
69. It is only envisaged in Art. 27 (3) for decisions under Chapter VI and under Art. 52 (3).
70. Also, reliance on the veto power in connection with the ICC could reinforce the perception of the ICC in some areas of the world as another instrument of the west, thereby corrupting interna tional justice.
71. McDougall (Law and Reality), supra note 36, at 333.
72. UN Doc. A/Res/377(V).
73. Cf. A More Secure World: Our Shared Responsibility', Report of the High-Level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2004), at 256.
74. Or breaches of the prohibition on the use of force, depending on the outcome of the definition of aggression.
75. The obvious recent examples are the 1999 Kosovo war and the 2003 Iraq war.
76. High-Level Panel Report, supra note 67, at 256.
77. Cf. also W.A. Schabas, 'United States Hostility to the International Criminal Court: It's All About the Security Council', (2004) 15 EJIL 701, at 720.
78. Cf. UN Doc. A/50/47 and A/54/47.
79. See Simma/Brunner/Kaul (Article 27), supra note 17, at MN 153.
80. See also N. Weisbord, 'Prosecuting Aggression', (2008) 49 Harvard International Law Journal 161, at 200.
81. However, it should not be forgotten that the proposal does not provide for a flat-out 'last word' for the political bodies, but also and more subtly for some degree of 'last word' for the pre-trial chamber which is given the power to interpret the actions of said bodies. This is in conformity with the Rome Statute, where the Court is also competent to interpret external actions, such as e.g. 'unable' or 'unwilling' in Art. 17, or potentially even the Chapter VII legality in Art. 16 of the Rome Statute. For the latter point, see M. Fitzmaurice & O. Elias, 'Contemporary Issues in the Law of Treaties' (2005), at 286.
82. G) See J.N. Boeving, 'Aggression, International Law, and the ICC: an Argument for the Withdrawal of Aggression from the Rome Statute', (2005) 43 Columbia Journal of Transnational Law 557;
83. M. Schuster, "The Rome Statute and the Crime of Aggression: A Gordian Knot in Search of a Sword', (2003) 14 Criminal Law Forum 1.
84. P. Escarameia, "The ICC and the Security Council on Aggression: Overlapping Competencies?', in Politi & Nesi (ICC), supra note 2, 133, at 141.
85. Cf. also Nsereko (Aggression), supra note 4, at 520.
86. A.L. Paulus, 'Peace through Justice? The Future of the Crime of Aggression in aTime of Crisis', (2004) 50 The Wayne Law Review 1, at 22.
87. Cf. also McDougall (Law and Reality), supra note 36, at 333.
88. E.g. a 'green light', an 'inbuilt red light', a 'last word' by a political body, a more subtle 'last word' by the pre-trial chamber, a primacy for the Security Council, and a circumventing of the veto.