Professor Andreas Paulus holds the Chair of Public and International Law at Georg-August-University Göttingen. He is a member of the Scientific Advisory Board of the European Journal of International Law. He has served as counsel of the Federal Republic of Germany in the LaGrand case (Germany vs. United States) and as Adviser to the German team in the Certain Property (Liechtenstein v. Germany) cases before the International Court of Justice.
In his post on the Legal Position of ICC Parties and Non-Parties Regarding Aggression, Dapo Akande has shown that it is by no means assured that the Assembly of States Parties will be able to agree on a procedure for agreeing on a definition of the crime of aggression in the ICC Statute, let alone on the substance of a definition itself. The purpose of this post is different, however. Based on a discussion of the crime of aggression at this year’s ASIL Annual Meeting, I continue to have serious reservations as to the very goal of defining the crime of aggression at the present stage of development of the international law of the use of force [for a more extensive treatment, see my piece "Peace Through Justice?" in the Wayne Law Review 50 (2004) 1-35]. The inclusion of the crime in the jurisdiction of the Court at this particular moment may not only be ineffective, but has considerable potential to harm both the ICC and general international law. In my opinion, it is simply not good enough, as one panel participant at the ASIL meeting put it, that we do not know the effects of such a definition, but that a formulaic compromise could be found and the rest be left to the Court itself. Rather, dealing with one of the most serious issues of all times, the crime of aggression should only be included when it promises to have positive effect. Not to be misunderstood: I have been a supporter of the Court from the beginning. But that does not mean that the Court is a panacea that can only do good.
According to the agreed definition in Article 8 bis of the proposal of the Working Group, “‘crime of aggression’ means the planning, preparation, initiation or execution, [...] of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” In my view, there are at least four reasons why this definition of the crime of aggression would do more harm than good at the present time:
1) The meaning of a “manifest” violation remains unclear, in spite of the attempt by the Working Group to clarify it. According to at least one member of the ASIL panel, “manifest” relates to the evidence for a violation. But that would amount to a confusion between evidence and substance of a crime. The terms “character, gravity and scale” rather suggest that certain acts of aggression are larger than others and therefore subject to prosecution. The drafting history would point to the inclusion of a threshold for prosecution “to exclude some borderline cases.” (see the Informal inter-sessional meeting of the Special Working Group on the Crime of Aggression, Special Working Group on the Crime of Aggression, 5 Sept. 2006) At least one member of the Working Group, namely Claus Kress, is on record as suggesting that the coalition war against Saddam Hussein does not constitute a “manifest” violation [Claus Kress, Strafrecht und Angriffskrieg im Licht des "Falles Irak", 115 Zeitschrift für die gesamte Strafrechtswissenschaft (2003) 294, at 331 (in German) (since a respectable view exists that holds the war for legal, the Iraq war does not constitute a war of aggression).]. The same would apparently have been true for the Kosovo war [Id, at 302-303] as Kress argues that only a “war of conquest and a hegemonial war” constitute historical precedents for a war of aggression. The element of “scale” should in both cases be met. Evidence was no question at all. “Gravity” – not so sure. And “character” is indeterminacy by another name. Should motives count at all (in a case of a genocide certainly not – but in aggression?). Does Kosovo not qualify because it was a “humanitarian intervention”? Some would maintain Iraq is a manifest violation because humanitarian motives were induced after the fact and evidence “who did it” is obvious. Others would disagree. Is it relevant that at least one of the current judges of the ICJ, Christopher Greenwood, opined at the time that the war was legal due to SC resolution 678 and apparently continues to maintain this view? [See Greenwood, in: Dieter Fleck, 'The Handbook of International Humanitarian Law', in (Oxford UP, 2008)., para. 101; and also here at 34-35.] But cannot any lawyer of some quality find reasons why almost anything is legal or illegal under prevailing circumstances? Think of Bush’s lawyers and torture. Or Serbia’s lawyers on genocide (Srebrenica was not genocide, but the NATO airfare was)? The draft solves precisely none of these problems; and the ASIL panel did not help by “arguments” such as “talk to your government”, “the members of the working groups did all agree”, or “trust the court”.
2) What happens to “ordinary” violations of the prohibition on the use of force? Are they less meaningful because they are not criminalized? Of course, I know that not all violations of international humanitarian law are crimes and IHL is nonetheless binding. But when one sees how some Western lawyers handled the Nuclear Weapons opinion by the ICJ [See, eg., Ronald Neubauer, Remarks, ASIL Proceedings (1997)11; Michael J. Matheson, id., at 14] or the ICTY Prosecutor report on the Serbia war, I am not very confident that non-criminal violations of the jus ad bellum would still maintain the opprobrium of illegality after they were sorted out from criminalization. Those who support the lawfulness of humanitarian intervention may approve that result. But they should beware that, in the absence of prosecution by the Court, the states will pretend that they have been given a bill of clean health.
3) Which leads me to the next point: the involvement of the Security Council. First, there is no agreement between the permanent members of the Council and other States on whether other organs than the Security Council could, under the Charter, substitute for a lack of SC determination of the existence of aggression. Consensus can thus only be reached by requiring a SC determination. The Working Group leaves the question open. But such a determination is unlikely to be forthcoming – the SC has hardly used its power under Chapter VII to do so yet, even without an explicit criminalization [the only cases in which the Security Council has condemned "acts of aggression" were not adopted under Chapter VII, see Res. 455 (1979) § 1, Res. 573 (1985) § 1, and 577 § 2 (1985]. Thus, the crime of aggression would more often than not remain dead letter – and only entail the consequence described above, namely a devaluation of the prohibition on the use of force.
But do we really want to make prosecution of one of the gravest crimes dependant on a political body, in which the great powers have veto power to shield themselves and their allies entirely from prosecution? Is this not a bit like requiring the consent of the government for a prosecution of murder? In case another organ could substitute a determination by the SC – would this not cost the support by the permanent members of the Council at a time when opinion in the US seems to be warming towards the Court [see the report of the ASIL Task Force available here]?
4) The next point is institutional, too, and goes against the apparent consensus in Rome to have one court for violations of jus ad bellum (aggression) and jus in bello (war crimes, but also crimes against humanity and genocide which apply regardless of the responsibility for the war). The very point of the separation of the two is that all fighting sides must under (almost, if you believe the ICJ analysis in Legality of the Threat or Use of Nuclear Weapons) any circumstance, independently of jus ad bellum, implement the jus in bello. In other words, all parties are equal before the jus in bello. Each violation will be prosecuted, if criminal. But if the leadership of one party has already been singled out by the Court as the culprit for an armed conflict, what incentive does it still have for upholding the jus in bello? It is difficult to imagine a “manifest” violation of the prohibition on the use of force not carrying life in prison. Thus, after the designation as aggressor, violations of jus in bello would be cost-free. Any deterrent effect through international criminal law, if any, will be lost. But the experience of the Nuremberg Trials was precisely that, while aggression is certainly a dangerous crime, violations of the jus in bello, and genocide, and crimes against humanity, may be even worse than aggression (for further references, see my contribution to the Wayne Law Review cited above). We should think twice before we reduce the pressure on all parties to the conflict to follow the jus in bello, and to make violations of the latter somewhat less punishable.
By way of conclusion, the inclusion of the crime of aggression into the jurisdiction of the Court costs too much, dividing the supporters of the Court, de-emphasizing the prohibitions of the current law, mingling jus ad bellum and jus in bello-issues, and gives too little, a merely theoretical possibility of an activist Security Council combined with a Court being able to act swiftly to deter acts of aggression. As long as the cost/benefit analysis remains as it is, and as long as the disagreement within the international community on jus ad bellum-issues persists, the time is not ripe for giving the International Criminal Court jurisdiction over the crime of aggression.