YJIL Online Symposium: Second Response to Michael Glennon

[Larry Johnson is an adjunct professor at Columbia Law School.  From 2006-2008, he served at the United Nations  Headquarters as the Assistant-Secretary-General for Legal Affairs.]  Professor Michael J. Glennon in his post warned American policy-makers to be wary of a “time bomb” that could explode in May – the adoption of a vague, new crime of aggression that could have broad application to U.S. leaders. His remarks are an important contribution to the policy discussions no doubt going on as we speak on what the U.S. position should be at the up-coming Review Conference of States Parties to the Rome Statute of the International Criminal Court (ICC). While not a party to the Rome Statute, the United States will participate in the Conference as an “observer”, having signed – but not ratified – the Statute.

First, a technical point. Professor Glennon refers to the supposed U.S. “unsigning” of the Rome Statute and indeed quotes the Secretary of State has having said that it was a “great regret . . . that we are not yet a signatory”. Unfortunately the impression of some that the United States “unsigned” the Rome Statute is simply not correct under treaty law. There is no procedure whatever for “unsigning” a treaty a State has signed. The United States signed the treaty on 31 December 2000, as continues to be shown in the United Nations’ list of multilateral treaties deposited with the Secretary-General. That is an historical fact that cannot be “whited out”. What the Bush Administration did was simply remove the legal effects of that signature. According to treaty law (article 18 of the Vienna Convention on the Law of Treaties), the only legal obligation on the part of a signatory of a treaty is “to refrain from acts which would defeat the object and purpose” of the treaty. But this can be lifted if the signatory State makes “its intention clear not to become a party to the treaty”. Thus, on 6 May 2002, the United States informed the United Nations that it “does not intend to become a party…[and] has no legal obligations arising from the signature..”. So as of that date until today, the United States is legally free to engage in acts that would defeat the object and purpose of the Rome Statute. This is reproduced in a footnote to the U.S. signature entry in the U.N. list, but the signature date remains. Whether the Obama Administration is considering withdrawing the so-called “Bolton unsigning” letter remains to be seen. In any event, the United States was and is a signatory to the Rome Statute and is entitled to participate at the Review Conference as an observer.

As such, it would be expected to take a position on the proposal to amend the Rome Statute to provide for a definition of the crime of aggression. That definition makes persons in a position effectively to exercise control over or to direct the political or military action of a State, criminally responsible for having planned, prepared, initiated or executed an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. The proposed amendment then defines an act of aggression as 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 U.N. Charter. It then lists various acts that qualify as acts of aggression, drawing from the 1974 General Assembly definition of aggression.

Professor Glennon makes a point of listing the cases where in his view under the proposed definition every use of force undertaken by the United States in recent decades would constitute an act of aggression. He then lists the actions of other nations from 1956 to 1982 that in his view would fall within the scope of the proposed definition. He also cites the 2004 High-Level Panel report concerning the number of violations of the use-of-force rules of the Charter as having been so numerous as to defy qualification.

But as Professor Glennon points out, the act of aggression under the proposed amendment must be a “manifest” violation of the Charter. In almost all the cases he lists, the State using force has claimed legal justification based on an exercise of the inherent right of individual or collective self-defense under Article 51, or on some other basis. It may be recalled that the United States claimed that the 2003 military action against Iraq had been authorized by virtue of prior resolutions of the Security Council. It is not so clear that these cases should be considered “manifest” violations of the Charter or not; the question is “by whom”? In none of the cases did the Security Council find that the particular use of force had been an act of aggression, an unlawful exercise of self-defense or an unauthorized use of force. The same High-level Panel noted “according to long-established international law” a State can take military action, across borders, as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate (drawing no doubt from the famous Caroline incident).

Whether the Charter’s rules on the use of force continue to constitute binding law or whether the existing Charter structure is sufficient, is a matter which Professor Glennon and others have addressed elsewhere and is not for this discussion. But the point here is that an existing structure and set of norms do exist for determining whether a given use of force is either an illegal act of aggression under the Charter or a legitimate exercise of the right of self-defense under the Charter. It should be recalled that that right of self-defense is subject to Security Council oversight. It may be exercised until such time as the Security Council has taken measures necessary to maintain or restore international peace and security; moreover, all such acts must be reported to the Security Council.

In addition to Professor Glennon’s view that the amendment proposal is too vague as a matter of criminal law, in my view the inter-relationship between the law of State responsibility and the Charter on the one hand, and the proposed amendment on the other, has not been reflected in the text (nor perhaps been studied in any depth). As a matter of policy, should an international criminal court composed of judges elected not necessarily for their prowess in public international or U.N. law be judging whether a given act constitutes an act of aggression (assuming the text does not require a Security Council “trigger”) and if so, whether such an act is a “manifest” violation of the U.N. Charter? Is that for a criminal court established outside the Charter framework by a non-universal treaty to do? How does it integrate with Security Council prerogatives to determine when an act of aggression has occurred under Article 39 of the Charter or if it needs to take the measures after the right of self-defense under Article 51? If there is no Security Council determination of an act of aggression nor a Security Council disavowal of a self-defense claim or intervention under Article 51, is it really in the interest of any State to empower a criminal court to make such determinations instead? Or even worse, one could have a Council determination (or non-determination) but the criminal court come to an entirely different conclusion. Is the ICC to displace the Council in such determinations or provide an alternative determination?

Professor Glennon’s arguments regarding the “legality” principle are sound: how is a leader of a State to know beforehand, from the text of the proposed amendment and assuming no Security Council “trigger”, whether his conduct will constitute an act of self-defense to protect and defend his country and its people (as he would no doubt argue) or will constitute an act of aggression manifestly in violation of the Charter, for which he will be held criminally responsible? This brings me to another matter as a follow-up to Professor Glennon’s piece. If one walks through what a criminal trial for the crime of aggression would look like in practice, the defense might raise various defenses as in the usual international criminal trial such as that the accused was not in fact the initiator/planner, was not responsible or involved for the decision in question, etc. But other defenses may well come straight from the international law rules governing the responsibility of States for internationally wrongful acts, such as an act of aggression. Normally, if such issues come before any international judicial body at all, that body would be the International Court of Justice (ICJ), assuming the proper jurisdictional and other requisites are met. The “circumstances precluding wrongfulness” provisions of the International Law Commission’s 2001 draft on State responsibility provide the following among such circumstances: consent, force majeure, necessity—and self-defense “in conformity with the Charter”. All could be invoked as defenses by a person accused of having committed the crime of aggression before a trial chamber of the ICC which would presumably have to decide on the merits of such defenses and, in that event, would inextricably be called upon to decide matters of State conduct and State responsibility, in the course of determining individual criminal responsibility. The defense could also raise this point—that under international law and law of the Charter, it is not for a criminal court outside the Charter framework to determine questions of State responsibility or acts of self-defense in conformity with the Charter.

In a case involving the Genocide Convention (Bosnia and Herzegovina vs. Serbia, 2007), the ICJ noted that the International Criminal Tribunal for the former Yugoslavia (ICTY) had concluded that acts committed by Bosnian Serbs could give rise to the international responsibility of the then-Federal Republic of Yugoslavia (FRY) on the basis of the “overall control” exercised by that State over the Bosnian Serb entity and military, without any need to prove that the operations of the Bosnian Serbs were under the “effective control” of FRY, a test which had been used by the ICJ in the Nicaragua/USA case. The ICJ rejected the ICTY test and noted that the ICTY was not in general called upon “to rule on questions of State responsibility, since its jurisdiction is criminal and extends over persons only”.

There are dangers in mixing State responsibility law and Charter law with international criminal law dealing with an individual’s criminal responsibility. This point, as well as Professor Glennon’s “irretrievably vague” point, should be raised by the United States at the Review Conference as matters of serious concern requiring further reflection by all Governments before any precipitous action is taken. This is not to say the United States should not carefully list the advantages and disadvantages of the United States joining the existing Rome Statute covering the traditional war crimes, genocide and crimes against humanity. But adding the crime of aggression as presently proposed to the Rome Statute would, in my view, also mean adding to the disadvantages column of that list.