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

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

Introduction
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.

Elements
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.