YJIL Online Symposium: First Response to Michael Glennon

[Anthony Clark Arend is a Professor of Government and Foreign Service at Georgetown University]. When the Obama Administration came into office over a year ago, it was faced with a daunting task. The previous Administration had run rough-shot over international law dealing with the use of military force.  A man that would be Attorney General would call the Geneva Conventions “quaint,” torture would be defined away by the Vice President and others,  the United States would launch an invasion of Iraq in a move that many believed to be a clear violation of the United Nations Charter, and we could go on.  With this record of disrespect for international law, it is not surprising that the Obama Administration would seek to take a more conciliatory move with respect to the ICC.

Unfortunately, one of the key lacunae left in the Roman Statute related to “the crime of aggression.” As Professor Glennon notes, the drafters of the Rome Statute left that crime undefined with the expectation that the ten-year review conference would be able to come up with a workable definition. In preparation for that conference, a working group has developed a draft. But, as Glennon masterfully demonstrates in his post, the working group has produced absurd definitions for both an “act of aggression” and the “crime of aggression” that defy logic and risk even further marginalizing the United Nations Charter framework.

First, as Glennon notes, the working group seeks to define “an act of aggression” as:

[T]he 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.

It then goes on to list seven specific acts mentioned in the 1974 Definition of Aggression Resolution as qualifying as acts of aggression. Note the problem:  This definition assumes that all uses of armed force “against the sovereignty, territorial integrity or political independence of another State” are a violation of the Charter, but ignores that such uses of force might be taking in self-defense, done for the purpose of rescuing nationals, or undertaken for other benign purposes that would not rise to the level of a violation of Article 2(4) of the Charter. Hence, Glennon provides us a long list of historical uses of force that would be “acts of aggression” under this definition.

Second, having sought to define an “act of aggression,” the working group proposed a similarly troubling definition for a “crime of aggression.”  The working group submits that a “crime of aggression” means:

[T]he planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

Where does one begin to deconstruct this definition? And is anyone troubled by the fact that while historically, aggression– whatever it meant– was thought to be a crime under international law, now only certain acts of aggression would rise to the level of “crimes of aggression”– those that constitute “a manifest violation of the Charter”?  But what is a “manifest violation of the Charter”? And who is “a person in a position effectively to exercise control over or to direct the political or military action of a State”?  As Glennon observers, these terms are far too vague to serve as a standard for defining a crime.  He notes that ,

[T]he working group’s definition of the crime of aggression is irretrievably vague.  To use the apt phrase of the United States Supreme Court, it fails to provide “ascertainable standards of guilt.”

So where does this leave us as we approach the review conference? Glennon rightly points out the problems of trying to either include or exclude the Security Council in the process:

The Charter thus presents the states parties to the Rome Statute with an impossible choice: include the Security Council in the decision to prosecute and create inexorable retroactivity problems, or exclude the Council from that decision and create a structure incompatible with the Charter.

There simply does not seem to be an easy (or even hard) fix.

What then is to be done? Glennon concludes his post with this sober note:

[I]t makes sense for the United States to participate as an observer in next May’s proceedings to try to steer the Court’s members away from the proposed definition. The 1998 Rome Statute itself requires that it be applied “consistent with internationally recognized human rights.”  No right is more fundamental than that of a criminal defendant to know what conduct is illegal at the time the conduct occurs.  No one will gain if the Court is permitted to undermine that right.

I agree. If the review conference seeks to define aggression along the lines proposed by the working group, it will only serve to undercut the legitimacy of international law. Indeed, given the current nature of state practice with respect to the use of force and the lack of compliance with the UN Charter framework,  I am led to the conclusion that aggression cannot be defined as a crime under international law at this time. But this should not be too troubling. The Security Council continues to have the authority under Article 39 to find that a state has committed an act of aggression. And the Council continues to have the authority to impose sanctions on the offending state. And it should not be forgotten that individuals can be held personally accountable for war crimes, crimes against humanity, and genocide.