Comments on: Second Thoughts on the Crime of Aggression http://www.ejiltalk.org/second-thoughts-on-the-crime-of-aggression/ Blog of the European Journal of International Law Thu, 09 Feb 2012 00:55:12 +0000 hourly 1 http://wordpress.org/?v=3.3 By: Kevin Jon Heller http://www.ejiltalk.org/second-thoughts-on-the-crime-of-aggression/comment-page-1/#comment-196 Kevin Jon Heller Mon, 13 Apr 2009 11:17:02 +0000 http://www.ejiltalk.org/?p=798#comment-196 Andreas, If I take your point correctly, I agree that it is possible to see the "manifest violation" requirement as a contextual element instead of as a circumstance element. But that does not resolve the mens rea issue, because the Pre-Trial Chamber specifically held in its Bashir arrest-warrant decision that Article 30's default "intent and knowledge" requirement applies to contextual elements. Here is paragraph 123 n. 142, discussing the contextual element of genocide: "Some authors have referred to this element as a jurisdictional element insofar as the Elements of Crimes of genocide do not expressly require that it be covered by the knowledge of the perpetrator. According to these authors, this marks a significant difference with the provision on crimes against humanity because, according to article 7(1) of the Statute, the perpetrator must be aware that his or her actions or omission are part of a widespread or systematic attack against a civilian population. However, the Majority observes that, in the absence of an express subjective requirement in relation to the contextual element of genocide, the general subjective element provided for in article 30 of the Statute would be applicable." It will be interesting to see if the Appeals Chamber agrees. I think a strong case can be made that, in fact, Article 30 does not apply to contextual elements. Andreas,

If I take your point correctly, I agree that it is possible to see the “manifest violation” requirement as a contextual element instead of as a circumstance element. But that does not resolve the mens rea issue, because the Pre-Trial Chamber specifically held in its Bashir arrest-warrant decision that Article 30′s default “intent and knowledge” requirement applies to contextual elements. Here is paragraph 123 n. 142, discussing the contextual element of genocide:

“Some authors have referred to this element as a jurisdictional element insofar as the Elements of Crimes of genocide do not expressly require that it be covered by the knowledge of the perpetrator. According to these authors, this marks a significant difference with the provision on crimes against humanity because, according to article 7(1) of the Statute, the perpetrator must be aware that his or her actions or omission are part of a widespread or systematic attack against a civilian population. However, the Majority observes that, in the absence of an express subjective requirement in relation to the contextual element of genocide, the general subjective element provided for in article 30 of the Statute would be applicable.”

It will be interesting to see if the Appeals Chamber agrees. I think a strong case can be made that, in fact, Article 30 does not apply to contextual elements.

]]> By: Andreas Paulus http://www.ejiltalk.org/second-thoughts-on-the-crime-of-aggression/comment-page-1/#comment-195 Andreas Paulus Mon, 13 Apr 2009 10:44:38 +0000 http://www.ejiltalk.org/?p=798#comment-195 Kevin, thanks a lot for your kind words and an important contribution to the debate. In my understanding, the elements of Article 5bis para. 1 should not be part of intent, however, but something like objective conditions for the exercise of jurisdiction so that the mental element would not be applicable. Still, I maintain my opposition to such an element of "scale" or (more qualitative) "seriousness". Every violation of the prohibition is serious. Lesser degrees of culpabilitiy are a question of the right sentence, not of criminality in the first place. What we would need is a clearly defined qualitative element distinguishing criminal aggression from "mere" violatons of the prohibition on the use of force that would not be as arbitrary and indeterminate as the ones used in the proposal. But such an element seems not to be forthcoming. Thus, I would rather wait for an international consensus on which violations of the prohibition are justifiable in addition to Chapter VII and Article 51, if any. It is not for the ICC to make the law in these central areas, but to apply a social consensus on what is criminal and what is not. But, alas, I do not see such consensus at this point, and no formulaic compromise can substitute for it. Kevin, thanks a lot for your kind words and an important contribution to the debate. In my understanding, the elements of Article 5bis para. 1 should not be part of intent, however, but something like objective conditions for the exercise of jurisdiction so that the mental element would not be applicable. Still, I maintain my opposition to such an element of “scale” or (more qualitative) “seriousness”. Every violation of the prohibition is serious. Lesser degrees of culpabilitiy are a question of the right sentence, not of criminality in the first place.
What we would need is a clearly defined qualitative element distinguishing criminal aggression from “mere” violatons of the prohibition on the use of force that would not be as arbitrary and indeterminate as the ones used in the proposal. But such an element seems not to be forthcoming. Thus, I would rather wait for an international consensus on which violations of the prohibition are justifiable in addition to Chapter VII and Article 51, if any.
It is not for the ICC to make the law in these central areas, but to apply a social consensus on what is criminal and what is not. But, alas, I do not see such consensus at this point, and no formulaic compromise can substitute for it.

]]> By: Kevin Jon Heller http://www.ejiltalk.org/second-thoughts-on-the-crime-of-aggression/comment-page-1/#comment-192 Kevin Jon Heller Sat, 11 Apr 2009 13:55:16 +0000 http://www.ejiltalk.org/?p=798#comment-192 I second -- or third -- the praise for the post. Regarding the first point, I just wanted to add that the SWGCA's proposed elements of aggression are inconsistent with any attempt to paint the “manifest violation” requirement as simply some kind of evidentiary hurdle. The proposed elements first require the use of armed force to qualify as an act of aggression and then require the act of aggression to be a manifest violation of the Charter. It is obviously impossible to describe an element of the crime as a mere evidentiary requirement -- how would Article 30’s default mental element apply to that? The situation might be different if the act of aggression itself was defined as a manifest violation of the Charter, which is what I have suggested to members of the SWGCA on more than one occasion. But if they are separate elements, the only rational inference is that a use of force could be an act of aggression but still not be sufficiently serious to be criminal. I second — or third — the praise for the post. Regarding the first point, I just wanted to add that the SWGCA’s proposed elements of aggression are inconsistent with any attempt to paint the “manifest violation” requirement as simply some kind of evidentiary hurdle. The proposed elements first require the use of armed force to qualify as an act of aggression and then require the act of aggression to be a manifest violation of the Charter. It is obviously impossible to describe an element of the crime as a mere evidentiary requirement — how would Article 30’s default mental element apply to that? The situation might be different if the act of aggression itself was defined as a manifest violation of the Charter, which is what I have suggested to members of the SWGCA on more than one occasion. But if they are separate
elements, the only rational inference is that a use of force could be an act of aggression but still not be sufficiently serious to be criminal.

]]> By: Andreas Paulus http://www.ejiltalk.org/second-thoughts-on-the-crime-of-aggression/comment-page-1/#comment-191 Andreas Paulus Sat, 11 Apr 2009 13:05:50 +0000 http://www.ejiltalk.org/?p=798#comment-191 Dear Dapo, Thanks for your very valid comments. As to the Council, the argument by the P5 is that Article 39 gives the Council an exclusive role in determining the existence of a crime of aggression. In addition, it is difficult to think of another way for the Council to express itself in binding form, the rather ambiguous Namibia opinion by the ICJ notwithstanding. Finally, the Rome Statute cannot modify the Charter, it is rather the other way around. As to the last point, there may indeed mechanisms to get around the jus ad bellum/in bello conundrum, as well as the leadership problem. You seem to assume that most conflicts are entirely coming from a criminal leadership. I would rather doubt that. A criminal leadership can only thrive if circumstances permit this. If you accuse one leader, a whole group may feel that the Court is not balanced (look at Sudan). IN my opinion this problem gets worse with the crime of aggression which is going against a collective rather than individual violation of the law. I am not completely opposed to the crime of aggression as such, but I would argue for strong limits of criminal procedure that should see to it that aggression cannot be prosecuted too easily. But for the reasons stated, I do not think that the required clarity of definition and unity of condemnation within the international community is yet there for the court to exercise jurisdiction over the crime without endangering its mission. Dear Dapo,
Thanks for your very valid comments. As to the Council, the argument by the P5 is that Article 39 gives the Council an exclusive role in determining the existence of a crime of aggression. In addition, it is difficult to think of another way for the Council to express itself in binding form, the rather ambiguous Namibia opinion by the ICJ notwithstanding. Finally, the Rome Statute cannot modify the Charter, it is rather the other way around.
As to the last point, there may indeed mechanisms to get around the jus ad bellum/in bello conundrum, as well as the leadership problem. You seem to assume that most conflicts are entirely coming from a criminal leadership. I would rather doubt that. A criminal leadership can only thrive if circumstances permit this. If you accuse one leader, a whole group may feel that the Court is not balanced (look at Sudan). IN my opinion this problem gets worse with the crime of aggression which is going against a collective rather than individual violation of the law.
I am not completely opposed to the crime of aggression as such, but I would argue for strong limits of criminal procedure that should see to it that aggression cannot be prosecuted too easily. But for the reasons stated, I do not think that the required clarity of definition and unity of condemnation within the international community is yet there for the court to exercise jurisdiction over the crime without endangering its mission.

]]> By: Dapo Akande http://www.ejiltalk.org/second-thoughts-on-the-crime-of-aggression/comment-page-1/#comment-190 Dapo Akande Fri, 10 Apr 2009 04:06:30 +0000 http://www.ejiltalk.org/?p=798#comment-190 Andreas, Thank you for an excellent post. I share the concern that you address in your first objection. I was also at the ASIL panel and was baffled by statements made by one of those involved in the negotiations in response to questions about the text being negotiation. When ambiguities/concerns were expressed, the answer seemed to be - don't worry the negotiators are agreed that the text means x. It seems to me that this is a rather naive way of treaty making. Treaty drafters should pay very careful attention to the text as this is what will carry the greatest weight in treaty interpretation down the line. The supposed agreement of the drafters in closed door (or even open negotiations) will, in practice, carry little weight as compared to the text. I have what is perhaps a minor comment about your 3rd objection. You seem to think that if a Security Council determination that aggression has been committed is made a requirement for ICC prosecution, that determination needs to be made under Chapter VII. The text as it currently stands does not say that. All is says is that if the Prosecutor wishes to investigate with regard to aggression s/he should inform the SC. If the SC has made a determination that aggression has been committed then the investigation may proceed. So the types of determinations that the SC made in the resolutions you point to (except the one relating to Rhodesia) should suffice. Also, it still remains to be seen whether the other alternatives that have been proposed, ICJ or Gen. Assembly determination of aggression would be adopted. As regards your last point, I can't see why the case of aggression should be different from a prosecution for genocide or crimes against humanity. If the leadership of one side has been indicted for genocide or crimes against humanity then there is already an indication that the Court/international community considers them to be waging an unjust war (at least in terms of means, if not ends). Also, the leadership, if convicted would be facing a very lengthy spell in prison. But in such circumstances you would still favour prosecution or at least not rule prosecution out, out of hand. Andreas,

Thank you for an excellent post. I share the concern that you address in your first objection. I was also at the ASIL panel and was baffled by statements made by one of those involved in the negotiations in response to questions about the text being negotiation. When ambiguities/concerns were expressed, the answer seemed to be – don’t worry the negotiators are agreed that the text means x. It seems to me that this is a rather naive way of treaty making. Treaty drafters should pay very careful attention to the text as this is what will carry the greatest weight in treaty interpretation down the line. The supposed agreement of the drafters in closed door (or even open negotiations) will, in practice, carry little weight as compared to the text.

I have what is perhaps a minor comment about your 3rd objection. You seem to think that if a Security Council determination that aggression has been committed is made a requirement for ICC prosecution, that determination needs to be made under Chapter VII. The text as it currently stands does not say that. All is says is that if the Prosecutor wishes to investigate with regard to aggression s/he should inform the SC. If the SC has made a determination that aggression has been committed then the investigation may proceed. So the types of determinations that the SC made in the resolutions you point to (except the one relating to Rhodesia) should suffice. Also, it still remains to be seen whether the other alternatives that have been proposed, ICJ or Gen. Assembly determination of aggression would be adopted.

As regards your last point, I can’t see why the case of aggression should be different from a prosecution for genocide or crimes against humanity. If the leadership of one side has been indicted for genocide or crimes against humanity then there is already an indication that the Court/international community considers them to be waging an unjust war (at least in terms of means, if not ends). Also, the leadership, if convicted would be facing a very lengthy spell in prison. But in such circumstances you would still favour prosecution or at least not rule prosecution out, out of hand.

]]> By: Marko Milanovic http://www.ejiltalk.org/second-thoughts-on-the-crime-of-aggression/comment-page-1/#comment-189 Marko Milanovic Thu, 09 Apr 2009 19:17:14 +0000 http://www.ejiltalk.org/?p=798#comment-189 An excellent post Andreas! An excellent post Andreas!

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