Thoughts on Glennon’s “Blank-Prose Crime of Aggression”

by Kevin Jon Heller

I want to offer two thoughts on Glennon’s article, which — though I am generally skeptical of the ICC’s attempts to define the crime — I find anything but convincing.  The first has to do with his central thesis: that the Special Working Group on the Crime of Aggression’s proposed definition of aggression “would constitute a crime in blank prose — one that would run afoul of basic international human rights norms and domestic guarantees of due process in its disregard of the international principle of legality and related U.S. constitutional prohibitions against vague and retroactive criminal punishment” (p. 72).  Readers should be skeptical of that thesis for many reasons, but one reason looms particularly large — Glennon does not even mention, much less discuss, the SWG’s proposed elements of the crime of aggression.  The Elements of Crimes were adopted precisely to minimize nullum crimen problems with the definitions of crimes in the Rome Statute, and they remain perhaps the most positive legacy of the US’s involvement in the establishment of the ICC.

The SWG has debated the elements of the crime of aggression for a number of years.  The most recent formulation was distributed in a 28 May 2009 non-paper by the Chairman:

Article 8 bis
Crime of aggression

1. It is understood that any of the acts referred to in article 8 bis, paragraph 2, qualify as an act of aggression.
2. As a result of Element 4, there is no requirement to prove that the perpetrator has made a legal evaluation as to the inconsistency with the Charter of the United Nations of the use of armed force by the State.
3. With respect to Elements 5 and 6, the term “manifest” is an objective qualification.
4. As a result of Element 6, there is no requirement to prove that the perpetrator has made a legal evaluation as to the “manifest” nature of the violation.

1. The perpetrator planned, prepared, initiated or executed an act of aggression.
2. The perpetrator was a person in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression.
3. The act of aggression – the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations – was committed.
4. The perpetrator was aware of the factual circumstances establishing the inconsistency of the use of armed force by the State with the Charter of the United Nations.
5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations.
6. The perpetrator was aware of the factual circumstances establishing such a manifest violation of the Charter of the United Nations.

Glennon may very well believe that these elements do not cure the crime’s supposed nullem crimen problems.  I might even be sympathetic to his critique — I’ve made my problems with the proposed elements known to the Australian delegation to the SWG.  But I cannot see how anyone can claim that the crime of aggression is impermissibly vague without even addressing the proposed elements.  Indeed, it appears that Glennon does not even realize that they exist.  How else do we explain his statement that “[p]otential defendants have a right to know the specific elements of a crime before their conduct occurs — not when they are charged or tried, after a consensus has finally emerged” (p. 111-12)?  If the Assembly of States Parties adopts a definition of aggression, they obviously will.

The second thought concerns Glennon’s claim that customary international law does not criminalize aggression (p. 74).  That is a truly bizarre position — and perhaps not surprisingly, Glennon cites only himself in defense of it.  (The footnote on p. 74 refers to footnote 129, which mentions Glennon’s book Limits of Law, Prerogatives of Power, and to footnote 165, which mentions the same book and Glennon’s article “How International Rules Die.”)  The London Charter, the Tokyo Charter, and Control Council Law No. 10 all criminalized aggression, and individuals were convicted of aggression under all three.  Those international instruments — as Gerhard Werle, one of the world’s most eminent ICL scholars has pointed out — “are the starting points for the established opinio juris of the international community that waging aggressive war is criminal.”  UN General Assembly Resolution 95(I), enacted on 11 December 1946, expressly affirmed that aggression is an international crime.  Article 5(2) of the UN Definition of Aggression and Principle 1(2) of the Friendly Relations Declaration both define aggression as a crime against peace.  The ILC took the position that aggression is an international crime in both the 1991 and 1996 Draft Codes of Crimes Against the Peace and Security of Mankind.  And, of course, aggression was included in the Rome Statute, “an expression of a belief in its criminality under customary international law.”

To be sure, there is significant debate about the contours of the customary crime of aggression.  Some scholars adopt the conservative view that only acts of aggression equivalent to the acts condemned at Nuremberg and Tokyo can be considered criminal under international law — namely, those that are designed to annex territory or control the resources of the invaded state.  (This problematizes considering the invasion of Iraq to be criminal, unless one believes that the invasion was intended to control Iraq’s oil resources.)  Others take the view that customary international law criminalizes any act that violates Resolution 3314, the UN Definition of Aggression.  I take the former position, because I’m conservative when it comes to principle of legality issues.  But it’s a debatable point.  What is not debatable, though, is that at least some acts of aggression are criminal under customary international law.  For Glennon to claim otherwise illustrates just how radically conservative his views really are.

I agree with Ken that Glennon’s article is interesting and well worth a read.  But readers would be well advised to take his conclusions with a very large grain of salt.

6 Responses

  1. The claim that aggression is not a crime under customary international law is anything but bizarre.
    Even though crimes against peace was the major category of crimes at Nuremberg and Tokyo, it is hardly a secret that it was a legal innovation disguised as custom.

    So far the only convictions we have under the so-called customary crime of aggression date back to WWII.
    Even Werle only goes so far to state that if there is a customary law of aggression, it is limited to aggressive wars.

    But why would it be so absurd to claim that a “custom” whose content is indefinite cannot create individual criminal responsibility?
    Why would it be absurd to consider that even if there ever was such a custom it has fallen to desuetude by now?

    Simply claiming that the international community’s repeated insistence on the existence of such norm fails to take into account the fact that the same countries have been unable to determine the content…

  2. I’m not sure what your point is.  Are you seriously claiming that aggressive wars are not criminal under customary international law?  Despite Nuremberg, Tokyo, Ministries, the General Assembly, the Rome Statute, etc.?  As you admit, Werle believes that they are — which is why I linked to his book in the post. The fact that it is unclear whether additional acts of aggression are criminal under customary international law in no way indicates that “countries have been unable to determine the content” of aggression.  That’s like saying the crime of murder has no content because countries disagree over whether abortion qualifies.

    As for the desuetude argument, crimes against humanity were routinely committed between 1948 and 1993 and almost never prosecuted. Does that mean they are no longer criminal under customary international law? (And if your reply is that they have been prosecuted by the ICTY and ICTR, please explain why the inclusion of aggression in the Rome Statute is different.)

  3. After WWII the defeated Germans were accused of aggression for their attack on the countries that the Molotov-von Ribbentrop pact placed in the German sphere of influence, but the Soviets were not accused of aggression for invading eastern Poland, Latvia, Lithuania, Estonia, and Finland at pretty much the same time that the Germans invaded Poland to start the war. A crime that is constantly ignored, except when a victor applies it against the vanquished or the powerful apply it against the relatively powerless, is not a real crime. It is a hypocritical pretext for personal revenge or political posturing.

    This is not to say that it would not be a really good thing if such a crime actually existed and was actually enforced, but no matter how praiseworthy an objective may be, something that in practice is ignored 90% of the time cannot be called “customary” just because pretending that it is real makes us feel good.

  4. My point is that right after WWII the crime of aggression did not exist as customary crime, it was a legal innovation created by the Nuremberg Charter and reaffirmed in the Tokyo Tribunal and Council Law No. 10.
    From this fundament it could have transformed to a truly customary crime, given adequate state practice but that has never happened. Even though there were references to the crime of war of aggression in GA Res. 2526 and 3314, there was not a single prosecution based on this crime, neither a binding international document.

    Compared to crimes against humanity, there we had an abundance of equivocal national legislation and even international treaties (of course many of them were quite controversial such as Apartheid Convention or the UN Convention on the inapplicability of statutory limitations, but still).

    Still, even accepting that such crime exists in abstracto, how could it be applicable in concreto? How do you square the requirement of strict construction of criminal norms with the complete vagueness of this supposed customary crime?

    The ICC Statute is perfectly illustrative of this dilemma. If we truly have a customary crime, how come that states cannot even agree on the hard core of its definition?

  5. TH: Re: Crimes of Aggression
    They don’t want to have to give up their own people when they fail to prosecute and the world decides it’s time to prosecute…
    Don’t want to admit they were wrong, because admittance equals failure, which in turn equals weakness, and maybe even defeat in wars they are still waging.

    HG:  Victors Justice, the worst kind.  Trust me I now first hand about the people who suffered either at both the hands of the Russians (during and after the war), and the fate of those who were caught by the Germans (who mostly went the same way as the Jewish people, only slight respite if they thought they were worthy enough).
    But sadly enough, it seems to have helped stopp any bigger atrocities from happening.

  6. In reaction to Mr. Hillers thoughts I would like to note the following: The first critic – that Glennon has not sited the recent non-paper on the elements of the crime and therefor missed that the definition match the requirement of legal clarity – ignores that Glennons point nonetheless stays right. Whether he forgot to mention them or did not mention them for the purpose of his argument does not matter – the essence is right, namely that the definition itself needs (as the non paper placative shows) new definitions to clarify the meaning of the first definition. The requirement of legal clarity is not fulfilled with the definition proposed, because it obviously leaves unclear what it suppose to set clear. But such a profound definition should do that simply because it pretends to define something to make actors aware of. A definition that is not defining what it is meant to define cannot rightly be called a definition. The elements of the crime could have been mentioned by Glennon but they would not have changed the power of the argument. When reading the elements of the crime it could also be questioned, if they meet the requirement of legal clarity… The second critic regarding the question if the crime of aggression is customary law fails to address the comment that Glennon’s position is “truly bizarre”. Instead the author undermines Glennon’s position and let it not seem bizarre but convincing. If one takes the victors justice as examples of opinio juris one still cannot proof subsequent practice. The practice of the ones who enacted the laws can only hardly be sited because they are build on the laws that were written to justify that practice and cannot be regarded as general practice. A practice based on opinio juris sive necessitates is different. Putting the victors justice of Tokyo and Nuremberg aside – consistent and general international practice based on opinio juris sive necessitates is simply not existent. To argue that the crime of aggression is customary law would therefor be pointless. Therefor the two critics have to be dismissed and it remains to be seen if someone can show that Glennon’s argument has not the weight it pretends to have…

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