Aggression, legitimacy and the international criminal court

European Journal of International Law

Volumn 20, Issue 4, 2009, Pages 1147-1156

  Murphy, Sean D ^a  

^a NONE

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EID: 77952560275     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chp079     Document Type: Article

References (24)

1. Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90 (hereinafter Rome Statute)
2. see Kirsch and Holmes, 'The Rome Conference on an International Criminal Court: The Negotiating Process', 93 AJIL (1999) 2, at 10 (discussing the treatment of the crime of aggression in the negotiation of the Rome Statute)
3. See International Criminal Court, Assembly of States Parties, Report of the Special Working Group, 7th Session (second resumption), at para. 10, ICC Doc ICC-ASP/7/SWGCA/2 (20 Feb. 2009) (hereinafter 2009 Special Working Group Report).
4. See, e.g., Murphy, 'Criminalizing Humanitarian Intervention', 41 Case Western Reserve J Int'l L (2009) 241.
5. T. Franck, The Power of Legitimacy Among Nations (1990).
6. Once seven-eighths of the states parties ratify or accept the amendment, any party who has not accepted it may also withdraw completely from the Rome Statute
7. This provision, however, does not clarify or narrow the content of the crime itself. Thus, if it is a crime to plan or prepare an act of aggression, there is no need to rely on a theory of 'attempt' to commit the aggression; it is sufficient to prove acts in the form of planning and preparing to commit the act.
8. See UN Charter, 59 Stat. 1031, TS 993, Art. 39 (calling upon the Security Council to address 'any threat to the peace, breach of the peace, or act of aggression').
9. The term 'manifest' might be construed as addressing not a type of aggression but, rather, whether the aggression at issue is sufficiently proven in a given case. If that is the reason for 'manifest', then the definition is conflating the jurisdiction of the ICC with an evidentiary standard which would normally apply at a later stage in a process of prosecution. Such a notion introduces further confusion as to the definition of the crime. See Paulus, 'Second Thoughts on the Crime of Aggression', in this vol.
10. GA Res 3314 (XXIX) (1974)
11. See, e.g., Trachtman, 'The Domain of WTO Dispute Resolution', 40 Harvard Int'l LJ (1999) 333, at 344-354.
12. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US) [1986] ICJ Rep 14, at 100, para. 190.
13. UN Charter, supra note 18, Art. 2(4) ('All Members shall refrain in their international relations from the threat or use of force.. .').
14. In Nicaragua v. US, supra note 24, at 103-104, the ICJ concluded that certain acts in violation of Art. 2(4) might not rise to the level of being an 'armed attack' for the purposes of Art. 51, and therefore could not be responded to through the exercise of self-defence. The lack of symmetry between Arts 2(4) and 51 is well grounded textually in the Charter but - in a system which relies heavily on self-help measures for enforcement of norms - arguably encourages coercive behaviour which falls short of 'armed attack'.
15. 22 USC §§ 6001-6010 (2000) (imposing comprehensive sanctions on Cuba)
16. 47 ILM (2008) 130
17. See, e.g., Award of the Arbitral Tribunal (Guyana v. Suriname)(17 Sept. 2007), 47 ILM (2008) 166, at para. 445 (involving an oil rig which had been authorized by Guyana to engage in exploratory drilling on a part of the continental shelf in dispute between the two states).
18. See, e.g., Partial Award on the Jus ad Bellum, 45 ILM (2006) 430, Ethiopia's Claims 1-8, paras 11-12
19. See, e.g., Iraq's Aug. 1990 invasion of Kuwait, though the UN Security Council did not actually classify that conduct as 'aggression': see SC Res 660 (2 Aug. 1990) (characterizing Iraq's conduct as 'a breach of international peace and security').
20. Arts 25(3)(b) (imposing responsibility for ordering a crime), 27 (denying any official immunity), and 28 (addressing superior and command authority)
21. See www.icc-cpi.int/Menus/ICC/Situations+and+Cases/.
22. For a recounting of the US relationship with the ICC by President Bush's second-term State Department Legal Adviser see Bellinger III, 'A Global Court Quandary for the President', Washington Post, 10 Aug. 2009, at A13.
23. See Report of an Independent Task Force Convened by the American Society of International Law, U.S. Policy Toward the International Criminal Court: Furthering Positive Engagement (2009), available at: www.asil.org.
24. E.g., in the aftermath of his indictment, Sudan President Bashir attended an Arab League summit in Qatar, receiving support from several Arab states. See 'Unity of a Kind', The Economist, 2 Apr. 2009 ('Delegates denounced the court for picking on Arab and Muslim leaders while ignoring the alleged crimes of Israel. Syria's president, Bashar Assad, said the court had no right to interfere in countries' sovereign affairs - an understandable complaint, as a UN tribunal is investigating Syria's likely involvement in a series of political murders in Lebanon').