Progress on Defining the Crime of Aggression — But at What Price?

The ICC’s Special Working Group on the Crime of Aggression (SWG) met again last month in New York. According to the Financial Times, the SWG is close to achieving consensus on a definition of the crime:

Sixty years after the Nuremberg trials made legal history by finding individuals responsible for the second world war, a select group of diplomats, lawyers and activists are close to another breakthrough: the universal criminalisation of aggression between states.

Last week, about 150 experts met in the basement of the United Nations to discuss how to place the “crime of aggression” under the jurisdiction of the International Criminal Court, and – in spite of the odds – many believe they might succeed.

If agreed, the move would be the culmination of six decades of legal struggle, and, says Benjamin Ferencz, the 86-year-old former Nuremberg prosecutor, ultimate recognition that war is “no longer an acceptable method of resolving differences among nations”.

Back in 1998, when the Rome statute establishing the ICC was negotiated, the issue was subject to serious debate but deemed too difficult to resolve – so today’s court can only judge crimes against humanity, war crimes and genocide.

But negotiators came close enough to a deal that they decided “aggression” could be included in the ICC’s work if a review, proposed for 2009, agrees a definition, and the conditions under which a case can be brought.

Christian Wenaweser, Liechtenstein’s UN ambassador and the chair of the working group trying to make this happen, suggests that the positive tenor of last week’s meeting led several participants to feel that there was a genuine chance of success.

The definition that is the current favorite, which is a composite of proposals contained in the most recent Chairman’s discussion paper and SWG Report, reads as follows:

Insert new article 8 bis (entitled “Crime of Aggression”) into the Rome Statute:

Variant (a):

1. 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 of an act of aggression/armed attack [which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations] [such as, in particular, a war of aggression or an act which has the object or result of establishing a military occupation of, or annexing, the territory of another State or part thereof].

2. For the purpose of paragraph 1, “act of aggression” means an act referred to in [articles 1 and 3 of] United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974.

3. The provisions of articles 25, paragraph 3 (f), and [28] of the Statute do not apply to the crime of aggression.

4. Where the Prosecutor intends to proceed with an investigation in respect of a crime of aggression, the Court shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. If no Security Council determination exists, the Court shall notify the Security Council of the situation before the Court.

5. Where the Security Council does not make such a determination within [six] months after the date of notification,

Option 1: the Court may proceed with the case.

Option 2: the Court may not proceed with the case.

Option 3: the Court may, with due regard to the provisions of articles 12, 14 and 24 of the Charter, request the General Assembly of the United Nations to make such a determination within [12] months. In the absence of such a determination, the Court may proceed with the case.

Option 4: the Court may proceed if it ascertains that the International Court of Justice has made a finding in proceedings brought under Chapter II of its Statute that an act of aggression has been committed by the State concerned.

As the brackets indicate, the SWG still has to resolve three major issues: (1) whether the definition should require a State’s act of aggression to be “manifestly” in violation of the UN Charter; (2) whether, if so, examples should be given of such manifest violations; and (3) what role the Security Council should play in determining whether the ICC has jurisdiction over an act of aggression.

With regard to the first issue, the more popular — though certainly not universal — view is that the “manifest” requirement should be included:

16. The question whether the reference to the State act of aggression should be subject to a qualifier regarding its nature or its object and result (reflected as two sets of square brackets in paragraph 1 of the Chairman’s paper) was extensively discussed. Broad support was voiced for a threshold as reflected in the first set of brackets. It was stressed that such a qualifier (“manifest”) was necessary to exclude borderline cases from the jurisdiction of the Court.

17. Some delegations argued that there was no need to qualify the State’s act as a “manifest violation of the Charter of the United Nations”, as a certain threshold was inherent in the limitation of the jurisdiction of the Court to the “most serious crimes of international concern” (article 1 of the Statute) and in the restrictive use of the term of aggression under the United Nations Charter.

With regard to the second issue, a consensus seems to be emerging that providing examples of “manifest” violations of the UN Charter might unduly limit the scope of the crime:

18. Different views were expressed concerning the usefulness of retaining the second set of brackets. While some support was voiced for the notion of “war of aggression”, mainly due to the Nuremberg precedent, other delegations emphasized that such a reference was not desirable as it was closely linked to the modalities of warfare in World War II and would unduly limit the scope of the crime of aggression. It was also pointed out that the non-exhaustive list of examples in the second set of brackets was difficult to reconcile with the principle of legality. Some delegations therefore called for the deletion of the content of the second set of brackets.

The third issue, not surprisingly, remains the most contentious. There is still little agreement concerning the proper relationship between the Security Council and the Court — although, importantly, there does seem to be general agreement that the Court should have jurisdiction over an act of aggression even in the absence of a Security Council referral:

25. Some delegations expressed support for the idea that the Prosecutor could proceed with an investigation without a prior determination of the Security Council as to the existence of an act of aggression. The point was made that the involvement of a political body would undermine the Court’s independence. These delegations argued that the existing provisions of the Statute regarding the exercise of jurisdiction already provided an appropriate framework to define the relationship with the Security Council.

26. Other delegations stressed the role of the Security Council under Article 39 of the Charter, and that any provision on the crime of aggression should be consistent with the relevant provisions of the Charter, as required by article 5, paragraph 2, of the Rome Statute. Under Article 39 of the Charter, the Security Council was the only organ competent to determine that a State act of aggression had occurred.

27. Other delegations expressed the view that the competence of the Security Council under Article 39 of the Charter was primary, but not exclusive, and that the General Assembly and the International Court of Justice also had competences in this area. Reference was made to the practice of the General Assembly and the International Court of Justice which had made findings on aggression irrespective of a previous determination by the Security Council. In this context, it was emphasized that the International Criminal Court should be able to make its own determination of a State act of aggression in the context of individual criminal justice. In order to safeguard the rights of the defendant, the Court should in any event not be bound by a prior determination of an act of aggression by the Security Council.

28. Support was expressed for a solution which duly takes into account the special responsibility of the Security Council under Chapter VII of the United Nations Charter, while allowing the Court to act in the absence of a determination by the Security Council. This solution should provide for a system of checks and balances, thus avoiding frivolous referrals.

It is also worth noting that Variant (a) adopts the differentiated approach to aggression, whereby new Article 8 would govern the liability of principal perpetrators and Article 25 would — as with genocide, war crimes, and crimes against humanity — govern the liability of secondary perpetrators. Indeed, all forms of secondary liability would apply to the crime of aggression, with the exception of attempt.

Variant (a) would, however, add one very important qualification to the liability of secondary perpetrators: such perpetrators would have to satisfy the same leadership requirement that applies to principal perpetrators:

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.

In other words, unless a secondary perpetrator was able to control or direct the political or military action of the State that committed the act of aggression, he could not be held criminally liable for aggression even if his actions otherwise satisfied the requirements of Article 25.

That is a notable limitation — and one that represents a significant retreat from the jurisprudence of the Nuremberg tribunals. As I explain in this essay, the IMT, NMT, and IMTFE not only assumed that the crime of aggression could be committed by two categories of secondary perpetrators who will rarely if ever be able to satisfy the “control or direct” leadership requirement — private economic actors such as industrialists, and political or military officials in a State who are complicit in another State’s act of aggression — they specifically rejected the control or direct requirement in favor of a much less restrictive “shape or influence” leadership standard.

The SWG is aware of the historical evidence that contradicts its insistence that the “control or direct” leadership requirement is consistent with the Nuremberg jurisprudence. Delegations have occasionally introduced proposed definitions of aggression that would replace the “control or direct” requirement with a “shape or influence” requirement, and the SWG specifically considered an earlier version of my essay at its most recent meeting. Unfortunately, those proposals and my essay have met with little success, my essay relegated to unlucky paragraph 13 in the SWG’s most recent report:

13. It was suggested that the leadership clause in paragraph 1 should also capture persons outside the military and political leadership, who had the power to shape or influence the actions of a State.

I continue to hope that the SWG will be able to reach consensus on a definition of the crime of aggression. It will be a shame, though, if that definition uncritically adopts the “control or direct” leadership requirement. There is simply no reason — historical, theoretical, or pragmatic — to exclude private economic actors and complicit third-State officials from liability for the crime.