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.” Read the rest of this entry…