The International Criminal Court and the Crime of Aggression

Mauro Politi, Giuseppe Nesi

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351218283
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

The Rome Statute of the International Criminal Court entered into force in 2002 and the ICC will soon be fully operational. Earlier in the ICC process, an international conference was held in Trento to address a specific issue that is still unresolved in the post-Rome negotiations: the crime of aggression. Article 5 of the ICC Statute includes aggression, yet the Statute postpones the exercise of its jurisdiction over the crime of aggression until such time as further provisions have been prepared on the definition of this crime and on the related conditions for the Court's intervention. This important volume collects the papers given by the participants at the Trento Conference. The volume is divided into three parts: the historical background of the crime of aggression; the definition of the crime of aggression, in light of proposals in the Preparatory Commission; and various points of view on the relationship between the Court's competence in adjudicating cases of alleged crimes of aggression and the Security Council's competence.

THE INTERNATIONAL CRIMINAL COURT AND THE CRIME OF AGGRESSION: QUESTIONS OF DEFINITION AND JURISDICTION

5. The Definition of the Crime of Aggression and the ICC Jurisdiction over that Crime

MOHAMMED M. GOMAA*

One hundred and sixty States participated in the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court held in Rome from 15 June to 17 July 1998¹ to draft the Statute of the International Criminal Court (ICC),² the establishment of which had been a challenge for the United Nations for more than 50 years. Those States made a last minute decision to confer upon the Court the “jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime”.³ They agreed to that compromise in order to secure the conclusion of the Statute after they had reached a deadlock over the crime “aggression”.⁴ The compromise led to the inclusion of aggression as one of the four crimes within the jurisdiction of the Court.⁵ That was not without a price; it resulted in a main defect in the Statute. The Statute does not contain a readily applicable provision on aggression which, according to the whole international community, represented by the General Assembly, is “the gravest of all crimes against peace and security throughout the world”,⁶ without the punishment of which the ICC would not really become the ultimate long awaited international criminal jurisdiction.

Of course, the definition of aggression has always been an extremely difficult issue to settle. The history of the search for such a definition tells us that it is not a purely technical operation. Rather, it is overshadowed by political bras de fer. It has challenged the professionalism and patience of international negotiators for more than a century.⁷ But, the negotiations over the ICC caused them to continue their plight in reaching a definition of aggression. According to Resolution “F” of the Diplomatic Conference⁸ and in line with Article 5 of the Statute of the ICC, the Preparatory Commission for the International Criminal Court, established by that resolution, shall “prepare proposals for a provision on aggression, including the definition and Elements of Crimes of aggression and the conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this crime. The Commission shall submit such proposals to the Assembly of States Parties at a Review Conference, with a view to arriving at an acceptable provision on the crime of aggression for inclusion in this Statute. The provisions relating to the crime of aggression shall enter into force for the States Parties in accordance with the relevant provisions of this Statute.” Accordingly, the definition could only be considered for adoption at an amendment conference that cannot take place until more than seven years have elapsed after the Statute has gone into effect.⁹

This article seeks to determine whether the ICC needs to have a definition of aggression of its own or whether a definition under general international law is enough for the Court to undertake its tasks in connection with the crime of aggression. In so doing, it reconstructs the trail of the “definition of aggression” since its first and unsuccessful attempts until the adoption by the General Assembly of the only authoritative and agreed Definition of Aggression in 1974. It also analyzes the legal nature of the Definition of Aggression in order to prove its authority and adequacy.

The article further explores the question of the relationship between the International Criminal Court and the Security Council, with a view to clarifying the conditions for the exercise of the Court’s jurisdiction over the crime of aggression.

Where to Start?

The preliminary question that we must ask ourselves at the outset is whether we are requested to – or whether we should – define aggression de novo for the purposes of the Statute of the ICC? or whether existing international law is adequate in this connection?

The Statute of the ICC is an international agreement consisting in objective law (prescribing rights and obligations). It is also a constitutional instrument (establishing the Court and defining its powers and procedures). According to it, the jurisdiction of the Court ratione personae is confined to individual criminal responsibility. Thus, the Court cannot be seized with State responsibility as can, for example, the International Court of Justice.¹⁰ As a corollary of this nature of the Statute a definition of aggression, for the purposes of the Court, should be one that has its sedes materiae not in the law of international responsibility (which applies to international persons not within the purview of the Court); rather it has to be found elsewhere: in criminal law (applied to the individual).

But the whole problem starts here. Aggression has particular features which distinguish it from the other crimes under the Statute. It is not a crime committed by individuals. It is an unlawful act which could only be committed by a collectivity. Therefore, aggression per se cannot be entertained directly by the ICC as it does not pertain ratione personae to individuals who come under its jurisdiction.

How then can we interpret Article 5 of the Statute on the definition of aggression? In fact, what contributes to the confusion caused by the drafting of that article is the phrase “a provision … defining the crime [of aggression]” in paragraph 2 of Article 5. It, therefore, needs to be determined what is exactly meant by it? Is it an invitation to define aggression for the purposes of the Statute of the ICC? More precisely, does it call for the provision of a description of what constitutes aggression? The analysis of the phrase, as well as literature and jurisprudence suggest negative answers to these questions.

The language of Article 5 is misleading. The literal meaning of “definition” is the description of a thing by its properties which helps in distinguishing it from others. So what we would be defining is “aggression” which is an unlawful act committed by a collectivity, which is not within the jurisdiction of the Court. Whence, by applying the rules of interpretation of treaties contained in Article 31 of the Vienna Convention on the Law of Treaties of 1969¹¹ the “ordinary” meaning of “definition” would lead to a legal absurdity since such a definition would not in itself enable the Court to undertake its judicial task. Therefore, a definition stricto sensu of aggression would not fulfill the legal requirements of Article 5 of the Statute.

Actually, the drafters of the Nuremberg and Tokyo Charters had confronted the same problematique more than 50 years ago. Before the Second World War, “aggression” could not be considered a crime under existing international law as it had not yet been defined.¹² As a consequence, individuals could not be held to account for it owing to the principle of legality expressed in the maxim nullum crimen, nulla poena, sine previa lege poenali (nullum crimen sine lege).¹³ Therefore, the representatives of the four victors in the world war (the allied powers of USA – USSR – UK – France) embarked on a mission to define aggression for the purpose of individual criminal responsibility arising out of the events leading to the two landmark trials.¹⁴ However, their initiative resulted in a different product as reflected in the original formula reached at London, which was far from a definition in the literal or legal sense, i.e., a description of what constitutes “aggression” or a “war of aggression” and what their elements were. Aggression was declared to be a “crime against peace”; but it was nowhere defined.

The London Formula

It was only after the Charter of the International Military Tribunal (IMT) at Nuremberg,¹⁵ put together in London in 1945,¹⁶ that aggression became an international crime and its perpetrators were prosecuted, tried and punished.¹⁷ But what was the formula adopted in the Nuremberg Charter that led to the prosecution and punishment of the perpetrators? What was its legal significance? How did it function?

The representatives of the four Allied Powers convened in London from 26 June to 8 August 1945, at the International Conference on Military Trials¹⁸ with a view to reaching a unified position on the law and procedure for what was to become the International Military Tribunal at Nuremberg. They were confronted with the most problematic and controversial issue of the criminality of aggressive war and the fact that aggression was a State-crime. Accordingly, they did not venture to introduce a crime of aggression committed by the individual per se. That led to their adoption of a formula that established the legal nexus between a “war of aggression” and the act of the individual implicated in it.

Article VI of the Charter of Nuremberg, which included aggression among the three categories of crimes that should come within the jurisdiction of the Nuremberg Tribunal, stipulated that:

…The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) Crimes against peace: Namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; ¹⁹

A striking feature of this formulation is that it attempted to define aggression by a mere reference to the element of participation. The underlying idea of the article’s scope ratione materiae involved the notion of participation, whether active or passive. Such a solution actually evades the issue of definition altogether. Article VI did not include a definition of aggression or a war of aggression or what constituted such concepts. ²⁰ The mere mention of “a war of aggression” in paragraph (a) without any indication as to what it means beyond the provision that the planning, preparation, initiation or waging of it, or participation in a common plan or conspiracy for its accomplishment makes it a crime against peace for which there shall be individual responsibility implies that the definition of “war of aggression” is to be found in instruments other than the Charter itself.

Naturally drawing on the Nuremberg Charter, Article 5 on “Jurisdiction over Persons and Offences” of the Charter of the International Military Tribunal for the Far East (Tokyo Tribunal) defined crimes against peace almost identically.²¹ The only difference was the addition to the formula copied from Article VI of the Nuremberg Charter of the phrase “declared or undeclared” in respect of a war of aggression. It may have been intended by that addition to emphasize that aggressive war, in whatever disguise, was an international crime. In any case, it was implied in the Charter of Nuremberg.

Based on the logic of the formula arrived at London, the Nuremberg Tribunal proceeded to charge and judge the defendants in a manner that put into effect the link between the Charter (which contained the crimes to be committed by the individual) and aggression (which was to be found elsewhere). It considered that in 1939 aggressive war was already criminalized as a consequence of the Pact for the Renunciation of War, also known as the Kellogg-Briand Pact, signed in Paris on 27 August 1928.²² The Tribunal referred to the Draft Treaty of Mutual Assistance, the Geneva Protocol, the resolution of the League Assembly of 24 September 1927, and the resolution of the Sixth International Conference of American States declaring aggressive war an international crime.²³ Its conclu...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Participants
• Editors’ Preface
• The Crime of Aggression from Nuremberg to the Rome Statute
• The International Criminal Court and the Crime of Aggression: Questions of Definition and Jurisdiction
• The Crime of Aggression and the Relationship between the International Criminal Court and the Security Council
• Afterword The International Criminal Court and the Crime of Aggression: From the Preparatory Commission to the Assembly of States Parties and Beyond
• Index