Negotiating provisions defining the crime of aggression, its elements and the conditions for ICC exercise of jurisdiction over it

European Journal of International Law

Volumn 20, Issue 4, 2009, Pages 1103-1115

  Clark, Roger S ^a  

^a and law in the military   (United States)

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[No Author keywords available]

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EID: 77952557237     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chp075     Document Type: Article

References (64)

1. Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90 (Rome Statute)
2. Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Annex I, Resolution F, para. 7, UN Doc A/CONF.183/10 (1998), at 8-9.
3. Report of the Special Working Group on the Crime of Aggression, Doc ICC-ASP/7/SWGCA/2 (2009) (2009 Working Group Report)
4. Informal inter-sessional meeting on the Crime of Aggression, hosted by the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, at the Princeton Club, New York, from 8 to 10 June 2009, Doc ICC-ASP/8/INF.2 (2009) (2009 Inter-sessional Report), at 12, Annex I (Draft Elements of Crimes). There is a useful explanatory note on the elements in Annex II, Appendix II of the 2009 Report, at 15 ('Non-paper by the Chairman on the Elements of Crimes'). Art. 9 of the Rome Statute required the production of Elements for genocide, crimes against humanity, and war crimes. Resolution F required them for aggression; the SWGCA recommended an amendment to Art. 9 to make clear that aggression, too, requires its Elements. It is apparently not intended at this point that The Elements will be formally approved as part of a package in Kampala, but delegates there will no doubt examine them carefully for the light they throw on draft Art. 8bis. The bulk of the serious drafting took place in informal meetings under the auspices of the Liechtenstein Institute.
5. Draft Art. 8bis(1).
6. See Heller, 'Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression', 18 EJIL (2007) 477
7. See Informal inter-sessional meeting of the Special Working Group on the Crime of Aggression, held at the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, Princeton University, from 11 to 14 June 2007, Doc ICC-ASP/6/SWGCA/INF.1 (2007), at 3.
8. '[i]t was argued that the clause was unnecessary because any act of aggression would constitute a manifest violation of the Charter ... and that the definition should not exclude any acts of aggression.... Other delegations expressed support for the threshold clause which would provide important guidance for the Court, and in particular prevent the Court from addressing borderline cases'.
9. The Nuremberg Charter had a puzzling requirement of a 'war of aggression' which prompted the International Military Tribunal to draw an unclear distinction between the conquests of Austria and Czechoslovakia (achieved without actual fighting) on the one hand, and the invasions of Poland and others (achieved with considerable fighting) on the other. The former were classified as 'acts of aggression' (and not yet 'criminal'), the latter as 'wars of aggression' and proscribed under the Charter. Control Council Law No. 10 had language broad enough to treat Austria and Czechoslovakia as criminal aggressions.
10. See Clark, 'Nuremberg and the Crime against Peace', 6 Washington U Global Studies L Rev (2007) 527, at 535-536
11. See the final Discussion paper produced by the Coordinator on the Crime of Aggression at the Preparatory Commission for the Court, UN Doc PCNICC/2002/WGCA/RT.1/Rev. 2 (2002) (Coordinator's 2002 draft), one option of which would limit 'act of aggression' to one which 'amounts to a war of aggression or constitutes an act which has the object or the result of establishing a military occupation of, or annexing, the territory of another State or part thereof'.
12. Infra at notes 46-62
13. On the mental side, Art. 30 speaks of intent and knowledge. On the material side, it has a structure of conduct, consequence, and circumstance elements, a structure followed in drafting the Elements of the other crimes within the jurisdiction of the Court.
14. See generally R. Lee et al. (eds), The International Criminal Court: Elements of Crimes and Rules of Evidence and Procedure (2001)
15. Clark, 'Elements of Crimes in Early Decisions of the Pre-Trial Chambers of the ICC', forthcoming (2009) NZ Yrbk Int'l L
16. A formula designed to short-circuit the debate about which 'defences' were justifications and which were excuses
17. No state consent is needed for a Security Council referral
18. A non-party may accept the jurisdiction 'with respect to the crime in question'
19. The SS Lotus (France v. Turkey), PCIJ, Ser. A, No. 10 (1927), at 4 (negligence on board a French ship resulting in deaths on a Turkish ship on the high seas - criminal jurisdiction in the Turkish courts).
20. See Report of the Special Working Group on the Crime of Aggression, Doc ICC-ASP/7/SWGCA/1 (2008), at 6-7 (discussing The Lotus)
21. (discussing whether the point should be clarified explicitly or whether it was so obvious that nothing more needed to be said)
22. Draft Code of Crimes against the Peace and Security of Mankind [1996] Yrbk Int'l L Commission, ii (Part Two), Draft Art. 8.
23. 'Unwillingness' and 'inability' are defined in paras 2 and 3 respectively
24. In some cases this probably meant 'leaving it to the judges'
25. Para. 3 of that draft also specifically rejected the application of Arts 25(3), 28, and 33 of the Statute to the crime of aggression.
26. See Informal inter-sessional meeting of the Special Working Group on the Crime of Aggression, Doc ICC-ASP/5/SWGCA/INF. 1 (2006), at 15-16
27. Report of the Special Working Group on the Crime of Aggression, Doc ICC-ASP/5/35 (2007), at 9
28. 'In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.'
29. Informal inter-sessional meeting of the Special Working Group on the Crime of Aggression, Doc ICC-ASP/5/SWGCA/INF. 1 (2006), at 9-10.
30. The resolution of this issue may have been influenced in part by the timing of the discussion. When it was being considered, it was still possible that the Security Council or some other United Nations organ might make the definitive decision on whether there was an act of aggression. It was inconceivable that the Security Council would ever take a decision framed along the lines that a state had committed an attempted aggression.
31. Consider the words 'use of armed force' in the definition. 'Use' may include a total failure to mount a credible attack.
32. By the time the German leaders were prosecuted, the conspiracy had been acted upon and the Nuremberg Tribunal made little of the inchoate aspects, other than to broaden the scope of those responsible back into the 1920s
33. Art. 25(3)(e), echoing the Genocide Convention, makes it a crime directly and publicly to incite genocide. There is no comparable inchoate incitement provision for war crimes or crimes against humanity, and there was no disposition to include one for aggression.
34. See Report of the Special Working Group on the Crime of Aggression, Doc ICC-ASP/6/20/Add. 1 (June 2008), at 11-12 (tossing the question to the judges).
35. Infra at notes 46-62
36. 'Defence' seems to be the right word here but must be used with some caution. The structure of Art. 31(3) suggests that the accused has some burden of showing that the defence exists in the general law. On the other hand, Art. 67(1)(i) of the Rome Statute says that the accused has the right, inter alia, '[n]ot to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal'. Disproof of the factual basis for such a defence thus rests squarely with the Prosecutor.
37. There were some informal NGO representations made that this was an opportunity to engage in progressive development of this branch of the law, but no Government took this up
38. See, generally, Leclerc-Gagné and Byers, 'A Question of Intent: The Crime of Aggression and Unilateral Humanitarian Intervention', 41 Case Western Reserve J Int'l L (2009) 379 (arguing that drafters should face the issue directly)
39. (conceding that it is likely that no specific language will be included and arguing that in the long term, with prosecutions unlikely in such situation, this may give credence to the view that humanitarian interventions - even without Security Council approval - are lawful)
40. American Law Institute, Model Penal Code (1962), Section 1, subss (9) and (13)
41. See Otto Triffterer's masterful deconstruction of the article in Triffterer, 'Article 33, Superior Orders and Proscription of Law', in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article (2nd edn, 2008), at 915.
42. Informal inter-sessional meeting of the Special Working Group on the Crime of Aggression, held at the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, Princeton University, NJ from 13 to 15 June 2005, Doc ICC-ASP/4/32 (2005), at 364-365 (expressing just about every possible position and deciding to do nothing)
43. Apparently the drafters thought it awkward to list all the 'acts' in what is a brief set of Elements, but wanted to make sure that no misunderstanding was caused by this
44. 'Factual circumstances establishing lawfulness of a person's presence in an area (Elements of Crimes, article 7 (1) (d) crime against humanity of deportation or forcible transfer of population, Elements 2 and 3); the protected status of a person under the Geneva Conventions (see Elements for most of the war crimes, for example article 8 (2) (a) (i) war crime of willful killing, Elements 2 and 3); or the existence of an armed conflict (see Elements for most war crimes, for example, Article 8 (2) (a) (i) war crime of willful killing, Element 5).'
45. (Art. 33 deals with superior orders.)
46. 'However, a mental element requiring that the perpetrator positively knew that the State's acts were inconsistent with the Charter of the United Nations (effectively requiring knowledge of law) may have unintended consequences. For example, it may encourage a potential perpetrator to be willfully blind as to the legality of his or her actions, or to rely on disreputable advice supporting the legality of State acts even if that advice is subsequently shown to have been incorrect. Also, mental elements requiring knowledge of law are regularly avoided in domestic legal systems as they are difficult to prove to the required standard.'
47. Element 4 follows the Introduction in asserting: '[t]he perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter'
48. A speaker at the June 2009 informal meeting, supra note 4, is recorded as suggesting that 'the Court would apply the standard of a " reasonable leader" , similar to the standard of the " reasonable soldier" which was embodied in the concept of manifestly unlawful orders in article 33 of the Rome Statute'. The argument would on the facts be shaped in part around the words 'character, gravity and scale' in the draft. Para. 20 of the Chairman's Non-Paper on the Elements of Crimes, Annex II to Doc ICC-ASP/8/INF.2 (June 2009), suggests: '[e]xamples of relevant facts here could include: the fact that the use of force was directed against another State, the existence or absence of a Security Council resolution, the content of the Security Council resolution, the existence or absence of a prior or imminent attack by another State'.
49. A footnote here adds that '[w]ith respect to an act of aggression, more than one person may be in a position that meets these criteria'. This is a point worth making ex abundante cautela. The perpetrators of aggression are usually leaders, not just one supreme leader. In addition, causation was a topic which was ducked during the drafting (both of the Statute and of the provision on aggression). There would appear to be no requirement of 'but for' causation as to any one of the players, who may no doubt be important without being a sine qua non.
50. Nothing turns ultimately on the precise characterization of the nature of the element - consequence or circumstance - the important step in the reasoning is the knowledge (fact or law) aspect of the issue
51. Draft Element 5
52. Draft Element 6
53. Art. 5(2), second sentence.
54. GA Res 377A (1950)
55. Most recently in Armed Activities on the Territory of the Congo (DR Congo v. Uganda), Judgment of 19 Dec. 2005.
56. Draft Art. 15bis(5) provides: 'A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court's own findings under this Statute.'
57. Draft Art. 15bis, paras 2-4.
58. Draft Art. 15bis, para. 4, Alternative 2, Option 1.
59. '[t]he adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties'
60. Clark, 'Ambiguities in Articles 5 (2), 121 and 123 of the Rome Statute', 41 Case Western Reserve J Int'l L (2009) 413, at 416-418
61. It is fair to add that many of the negotiators accept that the ICC will have competence to receive Security Council referrals once the text is adopted - even in the absence of any ratifications. See the Nov. 2008 Report of the Special Working Group, ICC-ASP/7/SWGCA/1, at para. 38.
62. Formally, the proposed amendments insert new Arts 8bis and 15bis in the Statute and make changes in Arts 9, 20(3), and 25(3). While Art. 5, para. 2, is said, in the SWGCA's proposals, to be 'deleted' this hardly seems necessary on any interpretation of it.
63. Waiting while decent states slowly agree one by one to accept the obligations unilaterally is not a cheerful prospect either. Those most able to use force will not be likely to be in the vanguard of ratification whatever method is adopted.
64. There are also several possibilities in the air for 'opting in' or 'opting out' of the aggression provisions, over and above any necessary agreement. These include requirements that the alleged aggressor state have agreed to the jurisdiction in advance.