Accountability for the Illegal Use of Force – Will the Nuremberg Legacy Be Complete?

Apr 11, 2017 | Content, Other Symposia

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By Rebecca F. Green, Federica D’Alessandra & Juan P. Calderon-Meza*

In 1946, the world witnessed the first-ever prosecutions of a state’s leaders for planning and executing a war of aggression. The idea of holding individuals accountable for the illegal use of force—the “supreme international crime”—was considered but ultimately rejected in the wake of the First World War.[1] A few decades later, however, following the even more destructive Second World War, the victorious powers succeeded in coming together in a court of law at Nuremberg to prosecute the leaders of Nazi Germany for waging an aggressive war against other states. Yet the Nuremberg trials were both the first and last time an international tribunal has adjudicated aggression. It took decades for the international community to take the steps necessary to institutionalize the prosecution of international crimes and to reconfirm the prohibition on aggression as a crime under international law.[2] Now, in 2017—seventy years after the Nuremberg prosecutions—the international community will gather to decide whether to activate the jurisdiction of the International Criminal Court (ICC) over the crime of aggression.[3]

Over seven decades, as the international community has debated how and whether to make the prosecution of aggression a practical reality, Benjamin Ferencz has worked tirelessly to ensure that the prevention and prosecution of aggressive war-making remain on the international agenda. As the Chief Prosecutor in the Einsatzgruppen case, Ferencz secured the convictions of twenty-two SS officers for the murders of over one million Jews, Roma, disabled persons, partisans, and others.[4] Between 1947 and 1957, as the Director of the Jewish Restitution Successor Organization and through the United Restitution Organization, he helped Jewish victims recover lost property, and through the Jewish Material Claims Against Germany, he helped negotiate the treaty between the Claims Conference, West Germany, and the State of Israel.[5]

Motivated by the horrors of the Holocaust and the Second World War, throughout his long career, Ben Ferencz has continued to push for the international community to reconfirm its commitment to replacing the “rule of force with the rule of law.”[6] He has done so by advocating strongly for the establishment of a permanent international criminal tribunal that would have jurisdiction over the same crimes he tried in Nuremberg[7] and by insisting that the “supreme international crime” remain judiciable as an offense under international criminal law.[8]

With his work in mind, and writing as the international community prepares to decide whether to activate the ICC jurisdiction over the crime of aggression, the authors in this symposium take stock both of what has been accomplished and of what remains to be done. This symposium is intended to build on the reflections of the scholars and practitioners of international law who came together in September 2015 at a meeting of international experts hosted by the Whitney R. Harris World Law Institute at the Washington University School of Law. This conference, “The Illegal Use of Force: Reconceptualizing the Laws of War,” served as both a source of inspiration and a starting point for many of the contributions in this symposium.[9] Similar to the Harris Institute debate, this symposium reflects on broader issues of accountability for the illegal use of force under international law, with the goal of influencing broader scholarly efforts that continue to shape the debate on the scope, nature, and future of the criminalization of the illegal use of force.[10]

***

The adoption, first of the Rome Statute establishing the ICC, and then of the Kampala Amendments defining the crime of aggression under that statute, represents a significant achievement in international law. Between 1945 and 1947, international law experienced a brief period in which illegal war making was justiciable both as a state act and as a crime carrying individual liability. During the following seventy years, however, aggressive war was no longer justiciable as a crime; it remained sanctionable only as a violation of the prohibition against the use of force for which individuals could not be held directly liable. It is for this reason that the 2010 Kampala amendments to the Rome Statute were a historic development. If activated in 2017, the amendments will make wars of aggressions and illegal war-making judiciable criminal offenses again, for the first time since Nuremberg. In her essay, Federica D’Alessandra analyzes the symbiotic and at times idiosyncratic normative history of aggression, from Nuremberg to Kampala.[11] As Anthony Abato details in his essay, the hard-fought adoption of the Kampala Amendments in 2010 occurred in the face of strong opposition from the five permanent members of the UN Security Council, which have taken the view that aggression is a non-justiciable political question.[12]

The inclusion of a defined crime of aggression in the Rome Statute sends a clear signal to state leaders that aggression is contrary to law and that it will be prosecuted as such. Ambassador Christian Wenaweser and Sina Alavi emphasize the rule of law benefits of the criminalization of aggression in their symposium essay, arguing that activating ICC jurisdiction over aggression “will allow the law to challenge the longstanding forces of power politics.”[13] In addition, Donald Ferencz echoes this sentiment in his symposium essay, noting that the inclusion of aggression in the Rome Statute provides a concrete basis for prosecutions—“a litany of specific acts of aggression”—assuming the parties to the Rome Statute choose to activate the ICC’s jurisdiction over the crime in 2017.[14] Finally, as William Schabas notes, the criminalization of unlawful war-making is a “corollary” of the human right to peace, which, Schabas argues, should be viewed as encompassing both the jus ad bellum and the jus in bello.[15]

Despite the significant steps taken at Rome and Kampala, however, questions remain about how the prohibition on acts of aggression will be—and should be—applied. In their symposium essay, Dapo Akande and Antonios Tzanakopoulos raise important jurisdictional issues the ICC may face in applying article 8 bis of the Rome Statute, given the statutory requirement that the ICC make a determination of state responsibility as a prerequisite for finding an individual liable for aggression.[16] Because the Court likely does not have jurisdictional authority to make the necessary determination of state responsibility for states that are not parties to the Rome Statute or have not ratified the Kampala Amendments, the ICC may not be able to exercise its jurisdiction effectively over acts of aggression committed by the nationals of such states. As another example, similar to this jurisdictional uncertainty, Marissa Brodney notes the lack of clarity concerning the nature of the victims of the crime of aggression as codified in the Rome Statute.[17] Assuming the Court’s jurisdiction over the crime of aggression is activated later this year, the Court will still face many such challenges in determining how the law may be applied.

Questions of how the prohibition on aggression should be applied are equally as important. For example, practitioners and scholars of international law have long debated the scope of actors who should face liability for acts of aggression. Historically, international law has conceived of aggression as a leadership crime. Photos of top Nazi officials like Hermann Goering listening to the trial proceedings at Nuremberg seem to embody the very heart of the “supreme international crime.” The nature of the “leaders” affected, however, remains a topic of discussion, however. In his symposium essay, Volker Nerlich considers whether liability for acts of aggression lies only with principals—or whether liability might reach state officials who are complicit in the aggressive “political or military action” but do not mastermind it.[18] Similarly, Juan Calderon-Meza also considers accessory liability for the crime of aggression and argues that once the jurisdiction over aggression is activated, the ICC could prosecute private individuals—particularly business leaders in the private military and security industry—who make a significant contribution to acts of aggression undertaken by heads of state.[19] In situations in which it is politically impractical to prosecute the heads of state responsible for acts of aggression, the prosecution of private persons under an accessory theory could provide a way to ensure that some party is held accountable for these crimes. At the same time, reflecting on the legal standards that facilitated the prosecution of industrialists at Nuremberg, MacKennan Graziano and Lan Mei caution against raising the bar for holding the officers and directors of corporations accountable, which is even more important now that modern warfare frequently involves corporate individuals.[20]

In contrast to the focus on accountability for individuals, which figures so prominently in debates on the crime of aggression, in another essay in the symposium, Frédéric Mégret argues that focusing on individual accountability for aggression may not always provide sufficient compensation for the injuries stemming from an act of aggression.[21] Indeed, focusing on individual accountability for the leaders of States that engage in aggressive war-making may ignore other critical participants in the act of aggression and obscure the broader structural forces that foster such violence.

Finally, related to the question of which actors should be held liable for acts of aggression is problem of which acts should give rise to liability. In their symposium essay, Hector Olasolo and Lucia Carcano examine the extent to which the ICC plays—and should play—a role in preventing acts of aggression, not merely adjudicating completed acts.[22]

In answering questions such as those posed by the authors in this symposium, it is imperative that the ICC—still a relatively young institution on the international stage—firmly ground any future decisions on the crime of aggression securely in law and in the way that law is understood by the international legal community. In his symposium essay, Judge Christopher Greenwood emphasizes this point, urging the ICC to become familiar with the jurisprudence of other international tribunals, such as the International Court of Justice, and to harmonize, as much as possible, its decisions with those of its fellow tribunals.[23]

***

The changing nature of warfare and geopolitics complicates these inquiries about the boundaries of the crime of aggression. In her essay, Leila Sadat notes that states’ response to the rise of global terrorism—particularly the movement toward a “perpetual war” paradigm among U.S. lawyers and academics—has challenged the basic framework of international law, in which peace is the default and war the exception.[24] Similarly, in their essays, Judge Sanji Mmasenono Monageng and Ambassador David Scheffer each stress that the changing nature of modern warfare exposes gaps in the definition of aggression as codified in article 8 bis of the amended Rome Statute.[25] The growing importance of non-state actors in armed conflicts and the emergence of cyber warfare, in particular, will require the definition of aggression to continue developing to fit the needs of a rapidly changing world. According to the perspective embodied in the essays by Judge Monageng and Ambassador Scheffer, aggression is an enduring, “core” international crime that simply requires periodic updates to fit the times.

Yet this view is not the only perspective on how the crime of aggression fits into the modern world. In contrast to the angle taken by Judge Monageng and Ambassador Scheffer, Cherif Bassiouni argues that the changing nature of warfare, in which the “classical form of aggression . . . is not likely to occur again,” should lead the international community to consider abandoning the project of criminalizing aggression.[26] In his essay, he notes significant changes in the nature of armed conflict over the last few decades, including the emergence of autonomous weapons systems and cyber technology and the overall decline in conflicts that meet the definition of aggression. In his view, this development should push international lawyers and academics to devote their efforts to creating the legal links between the use of new technologies and well-established international crimes like war crimes and crimes against humanity instead of continuing to focus on criminalizing aggression in its classical form.

Yet despite the challenges that changing conditions pose for the adjudication of aggression as a crime under international law, those very changes may make it more important than ever to ensure that parties are held accountable for violent international crimes generally, whether characterized as the crime of aggression, war crimes, crimes against humanity, or, indeed, something altogether new. As Ben Ferencz writes in his epilogue to this symposium, the very technologies that are “shrinking” the world “must gradually lead to the recognition that we are all inhabitants of one small planet and that we must share its resources so that all may live in peace and human dignity.”[27] To promote this end, “[a]ccountability for the illegal use of force is an indispensable prerequisite.”[28]

* This introductory essay incorporates Juan’s personal views and does not reflect the views of any of the institutions with which he is affiliated.

[1] 22 Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg 427 (1948).

[2] It was not until 1974 that the UN General Assembly finally adopted a definition of “aggression.” From 1974, it took another twenty-four years for the international community to create a permanent international tribunal—the International Criminal Court—and even then, the States Parties put off the actions necessary to activate the Court’s jurisdiction over aggression. See Definition of Aggression, G.A. Res. 3314 (XXIX), 29 U.N. GAOR Supp. No. 31, at 142, U.N. Doc. A/9631 (Dec. 14, 1974); Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002); International Criminal Court, Assembly of States Parties, Review Conference, The Crime of Aggression, ICC Doc. RC/Res. 6 (June 11, 2010).

[3] See Stefan Barriga & Niels Blokker, Entry into Force and Conditions for the Exercise of Jurisdiction: Cross-Cutting Issues, in The Crime of Aggression: A Commentary 634–37 (Claus Kreβ & Stefan Barriga, eds., 2017).

[4] “The Biggest Murder Trial in History”, U.S. Holocaust Memorial Museum, https://www.ushmm.org/wlc/en/article.php?ModuleId=10007155 (last visited Mar. 15, 2017).

[5] Benjamin Ferencz & Telford Taylor, Less Than Slaves: Jewish Forced Labor and the Quest for Compensation (1979).

[6] Id.

[7] Benjamin B. Ferencz, New Legal Foundations for Global Survival: Security Through the Security Council (1994); Benjamin B. Ferencz, An International Criminal Court: Step Toward World Peace (1980).

[8] Benjamin B. Ferencz, Defining International Aggression: The Search for World Peace (1975); Benjamin B. Ferencz, Enforcing International Law: a Way To World Peace (1983).

[9] The Illegal Use of Force: Reconceptualizing the Laws of War, International Experts Meeting, Washington University School of Law, Whitney R. Harris World Law Institute, Sept. 11–12, 2015, http://law.wustl.edu/harris/IllegalUseForce.aspx.

[10] See, e.g., Seeking Accountability for the Unlawful Use of Force (Leila Nadya Sadat, ed., forthcoming 2017); The Crime of Aggression: A Commentary 634–37 (Claus Kreβ & Stefan Barriga, eds., 2017).

[11] Federica D’Alessandra, Accountability for Violations of the Prohibition against the Use of Force at a Normative Crossroads.

[12] Anthony Abato, On the Adjudication of the Illegal Use of Force at the ICC.

[13] Christian Wenaweser & Sina Alavi, From Nuremberg to New York: The Final Stretch in the Campaign to Activate the ICC’s Jurisdiction over the Crime of Aggression.

[14] Donald M. Ferencz, Continued Debate over the Crime of Aggression: A Supreme International Irony.

[15] William Schabas, The Human Right to Peace.

[16] Dapo Akande & Antonios Tzanakopoulos, The Crime of Aggression in the ICC and State Responsibility.

[17] Marissa R. Brodney, Accounting for Victim Constituencies and the Crime of Aggression: New Questions Facing the International Criminal Court.

[18] Volker Nerlich, The Crime of Aggression and Modes of Liability – Is There Room Only for Principals?.

[19] Juan P. Calderon-Meza, Non-State Accessories Will Not Be Immune from Prosecution for Aggression.

[20] MacKennan Graziano & Lan Mei, The Crime of Aggression Under the Rome Statute and Implications for Corporate Accountability.

[21] Frédéric Mégret, State Responsibility for Aggression: A Human Rights Approach.

[22] Hector Olasolo & Lucia Carcano, The ICC Preventive Function in Respect of the Crime of Aggression in International Politics.

[23] Christopher Greenwood, What the ICC Can Learn from the Jurisprudence of Other Tribunals.

[24] Leila Nadya Sadat, Accountability for the Unlawful Use of Force: Putting Peacetime First.

[25] Sanji Mmasenono Monageng, The Crime of Aggression: Following the Needs of a Changing World?; David Scheffer, The Missing Pieces in Article 8 bis (Aggression) of the Rome Statute.

[26] M. Cherif Bassiouni, The History of Aggression in International Law, Its Culmination in the Kampala Amendments, and Its Future Legal Characterization.

[27] Benjamin B. Ferencz, Epilogue: A Nuremberg Prosecutor’s Summation Regarding the Illegal Use of Armed Force.

[28] Id.

The Crime of Aggression Under the Rome Statute and Implications for Corporate Accountability

Apr 11, 2017 | Content, Other Symposia

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By MacKennan Graziano* and Lan Mei**

The former prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, observed in 2003 that “investigation of the financial aspects of the alleged atrocities will be crucial to prevent future crimes and for the prosecution of crimes already committed. If the alleged business practices continue to fuel atrocities, these would not be stopped even if current perpetrators were arrested and prosecuted.”^[1]

Despite the acknowledged role of corporations in atrocity crimes, since 2003, and indeed since the Nuremberg trials in the mid-20th century, no corporate actors have been prosecuted for their roles in atrocity crimes.[2] The 2010 amendments to the Rome Statute, defining the crime of aggression, do nothing to change this reality. If anything, they have made it more difficult to prosecute corporate actors by treating the newly defined crime of aggression as a “special case when it comes to the criminal responsibility of transnational business corporations.”^[3]

As defined in the Rome Statute amendments, criminal liability for direct and indirect perpetration of the crime of aggression appears to be limited to those individuals who exercise control over a state. This limitation on criminal liability is an indication of the overriding concern states have about protecting their sovereignty from interference by other states. However, if the Rome Statute is to be a legal regime whose purpose is primarily to protect victims from atrocious crimes, liability should be extended to all those who participate in fueling conflict, not just those actors in leadership positions.

***

The crime of aggression. Renowned scholar Benjamin Ferencz observed that “[t]he most important accomplishment of the Nuremberg trials was the condemnation of illegal war-making as the supreme international crime. . . . Nuremberg was a triumph of Reason over Power. Allowing aggression to remain unpunishable would be a triumph of Power over Reason.”^[4]

The international community finally adopted article 8 bis to amend the Rome Statute to criminalize acts of aggression in 2010,^[5] thanks in large part to the efforts of Ferencz.^[6] This is an important step forward to criminalizing and preventing war. But more needs to be done to ensure full accountability for the crime of aggression and other instances of illegal use of force.

Article 8 bis of the Rome Statute defines the crime of aggression as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which . . . constitutes a manifest violation of the Charter of the United Nations.”^[7]

The crime of aggression, as defined by article 8 bis, must be committed by a person in a position to direct or control the actions of the state or military.^[8] Article 25(3) bis additionally seems to extend this actor limitation to accessory modes of liability, providing that “In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.”^[9]

In essence, the crime of aggression as defined in the Rome Statute is a crime committed against the sovereignty of a state. But in today’s world, war cannot be simplified to fighting between states. Non-state actors, including non-state armed groups and corporations, are increasingly entangled in armed conflicts around the globe.^[10] In light of the complexity of contemporary warfare and the involvement of non-state actors in armed conflicts, the limited nature of liability for the crime of aggression is regrettably inadequate.^[11]

***

The Extraordinary Nature of Article 25(3) bis. Article 25(3) bis, on its face, limits the individual responsibility for crimes of aggression in an extraordinary way, excluding the possibility of accessory liability except for those individuals who are in a position “effectively to exercise control or to direct” state and military action.^[12] This language seems to evoke the “effective control” standard from the international law of state responsibility, which requires a state either to have issued directions to or to have enforced the specific operations of an armed group or another state in order to be held liable for the actions of that other state.[13] The “effective control” standard is a high one and makes a finding of state responsibility an exceedingly difficult task. Interpreting article 25(3) bis analogously would make it extremely difficult to prosecute non-state and non-military officials for acting as accessories to the crime of aggression, because it would be difficult to find that such non-officials were in a position to issue directions to state organs or to the military, or to enforce the carrying out of operations.

An interpretation of article 25(3) bis in such a stringent way would thus run counter to the drafting history of the Rome Statute amendments and the legacy of the Nuremburg trials and would weaken other provisions within the Rome Statute itself. The drafting history of the Rome Statute suggests that the drafters did not want to exclude entirely liability for non-officials. While amendments related to the crime of aggression were being drafted, “[t]he view was also expressed that the language of this provision was sufficiently broad to include persons . . . who are not formally part of the relevant government, such as industrialists.”^[14]

Similarly, the Nuremberg tribunals explicitly contemplated the possibility that non-government officials, including industrialists, could be liable for the crime of aggression. One Nuremberg judge in Krupp et al. stated there were two essential elements to establishing criminal liability for aggression: “[T]here must be not merely nominal, but substantial participation in and responsibility for activities vital to building up the power of a country to wage war. To establish the requisite criminal intent, it seems necessary to show knowledge.”^[15]

Like the Nuremberg tribunals, article 25(3)(d)(ii) requires an actus reus of significant contribution^[16] and a mens rea of knowledge for accessory liability.^[17] Article 25(3) bis, however, requires, in addition to the mens rea and actus reus, that the individual be in a position effectively to exercise control over or to direct the state’s political and military actions.^[18] This additional requirement, that the suspect be a member of a particular class of individuals, guts the power of article 25(3) to hold all responsible accessories liable for the crimes of aggression to which they contribute.

Normally, under article 25(3)(d) an individual is liable for any Rome Statute crime if she “contributes to the commission or attempted commission of such a crime” and the contribution is both “intentional” and either “made with the aim of furthering the criminal activity or criminal purpose of the group . . . or made in the knowledge of the intention of the group to commit the crime.”^[19] Nuremberg precedent is analogous to this form of accessory liability.

With respect to other crimes, the ICC has already explained how contribution liability for corporate actors would work in practice:

[A] well intentioned arms dealer may decide to sell arms to State C instead of warring States A and B, since the arms dealer knows that both States A and B are committing war crimes. However, if State C is merely funneling all of the arms to State A unbeknownst to the arms dealer, then the arms dealer may meet all of the elements for 25(3)(d) liability for uncontroversial non-criminal conduct in the absence of some requirement that he at least be aware that his contribution is going to, in this example, State A.^[20]

The ICC’s analysis of contribution liability for corporate actors does not depend on the underlying crime. In fact, the analysis would not change if State A, in this example, were committing crimes against humanity or genocide instead of war crimes. Neither does the analysis need to change if State A were committing the crime of aggression. Article 25(3) bis does change this analysis, though, by requiring that the arms dealer be in a position effectively to control or direct State A’s government or military actions. In most situations, this arms dealer would very likely not be in such a position.

It is unnecessary to limit the modes of liability for the crime of aggression to those who have power to control or direct state action. The Protocol on the Statute of the African Court of Justice and Human Rights, although not yet in force,[21] provides a good example—it limits the direct perpetration of the crime of aggression to those who direct or control the military or political action of a state, while allowing for general modes of liability, including contribution liability, for “any of the crimes.”^[22] These general modes of liability are not limited to those in leadership positions. Additionally, the African Court paid particular attention to the issue of corporate accountability, giving itself jurisdiction over all “legal persons.”^[23]

Using the article 25(3)(d) standard for individual liability for aggression would not suddenly put all corporate actors at risk for liability. The level of liability has its own internal standards protecting defendants from unnecessary and unreasonable criminal prosecution, namely, proving the requisite mens rea of knowledge of the intent to commit the crime and a sufficiently “significant contribution” to the crime.

***

The crime of aggression should not be a “special case” in which accessory modes of liability otherwise available under article 25 are inapplicable.

The purposes of the Rome Statute include ensuring “that the most serious crimes of concern to the international community as a whole [do] not go unpunished” and “put[ting] an end to impunity for the perpetrators of these crimes and thus [contributing] to the prevention of such crimes.”^[24] If the Rome Statute aims to do more than simply protect the sovereignty of states, then the crime of aggression must also be defined to implicate more than just those individuals in positions to control or direct state or military action.^[25]

The evolution of modern combat has seen non-state actors and corporations becoming increasingly involved in armed conflict. Without addressing the role that private actors can have in aggression, a vast accountability gap will continue to exist. The exception to accessory liability in article 25(3) bis is thus unsatisfactory. The bar for liability for corporate actors is already set high. It should not be made even higher.

* MacKennan Graziano is a J.D. Candidate, 2017 at Harvard Law School. She has a B.A. in International Relations and German from Wheaton College (MA).

** Lan Mei is a J.D. Candidate, 2017 at Harvard Law School. She has a B.S. in Mathematics from Brown University. She is interested in international human rights law, international criminal law, and international humanitarian law.

^[1] Press Release, International Criminal Court, Communications Received by the Office of the Prosecutor of the ICC (July 16, 2003), https://www.icc-cpi.int/NR/rdonlyres/B080A3DD-7C69-4BC9-AE25-0D2C271A9A63/277502/16_july__english.pdf (noting that atrocities taking place within the Democratic Republic of the Congo appear to be linked to money laundering by various corporations through international banking organizations).

[2] Although the ICC has yet to prosecute any corporate actors for playing a role in atrocity crimes, the ICC has taken steps to improve its ability to conduct financial investigations. For example, in October 2015, the ICC hosted a workshop on financial investigations, particularly, on tracing, seizing, freezing, and forfeiting the financial assets of a suspect. Press Release, International Criminal Court, ICC Hosts Workshop on Cooperation and Financial Investigations (Oct. 28, 2015), https://www.icc-cpi.int/Pages/item.aspx?name=pr1161.

^[3] Volker Nerlich, Core Crimes and Transnational Business Corporations, 8 J. Int’l Crim. Just. 895, 906 (2010).

^[4] Benjamin B. Ferencz, Ending Impunity for the Crime of Aggression, 41 Case W. Res. J. Int’l L. 281, 290 (2009).

^[5] International Criminal Court, Assembly of States Parties, Review Conference, The Crime of Aggression, ICC Doc. RC/Res. 6 (June 11, 2010).

^[6] Beth Van Schaack, ASIL Cables: the ICC Crime of Aggression and the Changing International Security Landscape, American Society of International Law (Apr. 16, 2015), https://www.asil.org/blogs/icc-crime-aggression-and-changing-international-security-landscape.

^[7] Rome Statute of the International Criminal Court art. 8 bis, July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002), rev. 2010 (emphasis added) [hereinafter Rome Statute].

^[8] See, e.g., Nerlich, supra note 2, at 906.

^[9] Rome Statute, supra note 7, art. 25(3) bis (emphasis added). Although the language is not explicit, “the provisions of this article” appears to reference article 25 as a whole, and particularly article 25(3). This appears to be the case from the naming of this new provision as article 25(3) bis, but also from the travaux préparatoires to the amended Rome Statute. See Marie Aronsson-Storrier, Article 25(3) bis, Commentary on the Law of the International Criminal Court, Case Matrix Network (June 30, 2016), https://www.casematrixnetwork.org/cmn-knowledge-hub/icc-commentary-clicc/commentary-rome-statute/commentary-rome-statute-part-3/#c3063 (observing that “[t]he purpose of this paragraph [25(3) bis] is to clarify that the leadership requirement, discussed under Article 8 bis(1), applies also when making assessments under Article 25(3).”).

^[10] Examples of how corporations contribute to and fuel conflict include weapons manufacturing, private security contractors, and general corporate action in conflict zones partnering with states or acting independently. See, e.g., Mireille Delmas-Marty, Ambiguities and Lacunae: The International Criminal Court Ten Years On, 11 J. Int’l Crim. Just. 553, 558–59 (2013) (“The relationship between mass atrocities and economic activities was already a live issue at Nuremberg . . . Corporate criminal involvement in international crimes did not end with the Second World War. To the contrary, new developments in the available means of communication in a globalized and more interconnected world create new opportunities, particularly as some transnational corporations wield greater economic power than some states. These corporations have become major players, which have complex relationships with national governments and the local population…. throughout the world corporations are involved in the commission of serious crimes, either directly or as part of a larger group.” ); Martha Minow, Outsourcing Power: How Privatizing Military Efforts Challenges Accountability, Professionalism, and Power, 45 B.C. L. Rev. 993, 996 (2005). Cf. Shane Reeves, The Viability of the Law of Armed Conflict in the Age of Hybrid Warfare, Lawfare (Dec. 5, 2016), https://www.lawfareblog.com/viability-law-armed-conflict-age-hybrid-warfare.

^[11] See, e.g., Anouk T. Boas, The Definition of Aggression and Its Relevance for Contemporary Armed Conflict 1 (International Crimes Database Brief 1, June 2013), http://www.internationalcrimesdatabase.org/upload/documents/20141020T170547-ICD%20Brief%201%20-%20Boas.pdf .

^[12] See, e.g., Nerlich, supra note 2, at 906.

[13] See Antonio Cassese, The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia, 18 Eur. J. Int’l. L. 649, 652–653 (2007) (discussing International Court of Justice, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Merits), judgment of 27 June 1986).

^[14] Nerlich, supra note 2, at 908.

^[15] Special Concurring Opinion of Judge Wilkins on the Dismissal of Charges of Aggressive War, the Krupp Case, 9 Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Nuernberg 455–56 (1950). See also the Farben Case, 8 Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Nuernberg 1113 (1952) (noting that “participation in the rearmament of Germany was not a crime . . . unless that rearmament was carried out, or participated in, with knowledge that it was a part of a plan or was intended to be used in waging aggressive war”) (emphasis added).

^[16] Prosecutor v. Callixte Mbarushimana, Case No. ICC-01/04-01/10, Decision on the Confirmation of Charges, ¶ 277 (ICC Pre-Trial Chamber I, Dec. 16, 2011), https://www.icc-cpi.int/pages/record.aspx?uri=1286409

^[17] Rome Statute, supra note 7, art. 25(3)(d)(ii).

^[18] The standard set by article 25(3) bis has been justified by some scholars, who observe that lower-ranking officials also cannot be prosecuted for crimes of aggression because they cannot effectuate a waging of aggressive war against another state. See Sergey Sayapin, The Crime of Aggression in International Criminal Law 253, 284–87 (2014). But this is not any different from other crimes under the Rome Statute. Those who make the ultimate decision to carry out the crime can still be criminally liable, even if they could not have effectuated the crime on their own. For example, the OTP charged Joshua Arap Sang with contributing to crimes against humanity in Kenya by merely, “(i) placing his show Lee Nee Eme at the disposal of the organisation; (ii) advertising the organisation’s meetings; (iii) fanning violence by spreading hate messages and explicitly revealing a desire to expel the Kikuyus; and (iv) broadcasting false news regarding alleged murder(s) of Kalenjin people in order to inflame the violent atmosphere.” Prosecutor v. William Samoei Ruto and Joseph Arap Sang, Alleged Crimes (non-exhaustive list), Int’l Crim. Crt., https://www.icc-cpi.int/kenya/rutosang/pages/alleged-crimes.aspx.

The crime of aggression is no different. Individuals other than high-ranking State officials can be liable for contributing to the actions of officials who make the actual decision to wage aggressive war.

^[19] Rome Statute, supra note 7, art. 25(3)(d) (emphasis added).

^[20] Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10, Decision on the Confirmation of Charges, n. 681 (Pre-Trial Chamber I, Dec. 16, 2011), https://www.icc-cpi.int/pages/record.aspx?uri=1286409. The International Criminal Tribunal for Rwanda similarly acknowledged the role that corporate actors such as weapons manufacturers can have in contributing to genocide. “The ICTR trial chamber explicitly linked weapons to genocide, by stating that one may be complicit in genocide ‘by procuring means, such as weapons, instruments or any other means, use to commit genocide, with the accomplice knowing that such means would be used for such purpose.’ Thus a person who knowingly provides weapons to a group that he or she was aware was carrying out a genocidal campaign could in principle be tried as an accomplice to acts of genocide.” Lisa Misol, Weapons and War Crimes: The Complicity of Arms Suppliers 9, Human Rights Watch (citing Prosecutor v. Akayseu, Case No. ICTR-96-4-T, Judgment, ¶¶533–37 (Sept. 2, 1998)).

[21] The Protocol is not yet in force because the requisite number of states have not signed and ratified the treaty. See Status List: Protocol on the Statute of the African Court of Justice and Human Rights, African Union, https://www.au.int/en/treaties/protocol-statute-african-court-justice-and-human-rights (last visited Mar. 31, 2017). Nevertheless, the Protocol provides a comparative example to demonstrate that it is unnecessary to limit liability for the crime of aggression to those in leadership positions.

^[22] African Union, Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, art. 14 adding arts. 28M & 28N (June 27, 2014), https://au.int/en2/sites/default/files/treaties/7804-treaty-0045_-_protocol_on_amendments_to_the_protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights_e.pdf [hereinafter African Court of Justice Statute Protocol Amendments]. The Protocol defines the crime of aggression as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a state or organization, whether connected to the state or not of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations or the Constitutive Act of the African Union and with regard to the territorial integrity and human security of the population of a State Party.”

^[23] “Legal persons” does not include states. African Court of Justice Statute Protocol Amendments, supra note 25, art. 22 adding art. 46C. See also, Chang-ho Chung ,The Emerging Asia-Pacific Court of Human Rights in the Context of State and Non-State Liability, 57, Harv. Int’l L. J. (July 7, 2016), https://journals.law.harvard.edu/ilj/2016/07/the-emerging-asian-pacific-court-of-human-rights-in-the-context-of-state-and-non-state-liability/. It is also interesting to note that corporate liability does not exclude liability for individual corporate actors. Article 46C states that “[t]he criminal responsibility of legal persons shall not exclude the criminal responsibility of natural persons who are perpetrators or accomplices in the same crimes.”

^[24] Rome Statute, supra note 7, preamble.

^[25] A statute is to be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Vienna Convention on the Law of Treaties art. 31, opened for signature May 23, 1969, 1155 U.N.T.S. 331.

The ICC Preventive Function with Respect to the Crime of Aggression and International Politics

Apr 11, 2017 | Content, Other Symposia

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By Hector Olasolo* & Lucia Carcano**

In most national systems, criminal liability arises when a person agrees to commit an ordinary crime, participates in the design of a criminal plan, or contributes to establishing the conditions necessary for its execution. The extension of the scope of criminal law at the national level to criminalize preparatory acts for ordinary crimes, regardless of whether the crime is subsequently completed or even initiated, has been used, to an important extent, to confront situations in which a group of persons engages in criminal conduct to achieve economic (e.g., trafficking of human beings, drugs, and weapons, or money laundering) or political (e.g., terrorism) goals. The question that then arises is why preparatory acts for the international crimes that come under the jurisdiction of international criminal tribunals and hybrid tribunals are not criminalized in international criminal law, for the most part. In addition to constituting the most egregious attack on the core values of international society, such acts are of a unique magnitude, have a collective nature, and take place in an organizational context.

The interpretation of the definition of the crime of aggression adopted in 2010 at the Kampala Review Conference brings up this very same question.[1] According to article 8 bis(1) of the Rome Statute of the International Criminal Court (ICC), the crime of aggression consists of the “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”[2] Paragraph 2 of this provision completes the definition by further elaborating on what must be understood by an “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.”[3] It then includes a list of acts, “which regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression.”[4]

For an external observer, the ordinary meaning of this definition leaves no room for doubt concerning the criminalization of the preparatory acts (e.g. planning) for a state’s act of aggression against another state, regardless of whether the act of aggression is ultimately completed or even initiated through a “substantial step.” This interpretation is further supported by the purpose of the Rome Statute and the functions entrusted to the ICC Prosecutor to achieve it. In this regard, it is important to highlight that acts of aggression are not unavoidable and often are not unforeseen. They usually take extensive planning and preparation by the highest political and military ranks of the aggressing state, as they require collective effort and organization within the state.[5] Furthermore, the international community usually has substantial information about impending acts of aggression, which, regrettably, is ignored or minimized by high-level national and international decision makers with competing political agendas.

The ICC´s mandate has a dual nature. On one hand, the ICC aims to end impunity for international crimes both to uphold international criminal law and reinforce the core societal values it protects and to send the message to the world’s leadership that those who engage in crimes within its jurisdiction will not get away with them.[6] On the other hand, the ICC has a preventive function involving timely intervention in situations where there are tangible indicia of future crimes falling within the ICC’s jurisdiction, or where such crimes are already taking place.[7] This second function is discharged primarily by the ICC Prosecutor through her preliminary examinations, which cover a broad range of situations.[8]

Although the ICC Prosecutor cannot rely on coercive measures during her preliminary examinations and not all forms of States Party cooperation are available,[9] the potential of preliminary examinations to incentivize national authorities should not be underestimated. Indeed, using diplomatic and media channels to bring the world’s attention to the plans of a state´s most senior leaders to execute acts of aggression—and highlighting the possibility that these leaders could escape ICC prosecution, should they abandon their plans and take the necessary preventive measures—has the potential to be a powerful tool. Moreover, from the perspective of ensuring a timely reaction to credible threats of aggression, the Rome Statute appears to offer unprecedented opportunities. While other international bodies, such as the UN Security Council and the UN General Assembly, usually engage in long negotiations before deciding to intervene in a situation, the ICC Prosecutor has greater flexibility and does not depend on interested stakeholders to open a preliminary examination.[10]

Furthermore, article 15 bis of the Rome Statute does not prevent the ICC Prosecutor from discharging her preventive function regarding the execution of acts of aggression. Under this provision, the Prosecutor can proceed with an investigation after concluding her preliminary examination only when the United Nations Security Council has made a determination that an act of aggression has taken place or with the authorization of the Pre-Trial Division, when two conditions are met: (i) the Security Council has not made a determination within six months of the ICC Prosecutor´s notification to the UN Secretary General of her conclusion that there is a reasonable basis to proceed; and (ii) the Security Council has not requested that the ICC Prosecutor refrain from opening an investigation under article 16 of the Rome Statute.[11] The application of this provision, however, comes only at the end of the ICC Prosecutor´s preliminary examination. Therefore, it has no impact on the way in which the ICC Prosecutor may conduct her preliminary examination to discharge her mandate to prevent the execution of acts of aggression through timely intervention in situations where there are tangible indicia of their planning and preparation.

But, if an interpretation “in good faith in accordance with the ordinary meaning to be given to the terms”[12] of article 8 bis and the fundamental purpose of the ICC support the criminalization of preparatory acts, why is there so much opposition to this interpretation among scholars and practitioners?

For some, it is a question of positive law. The interpretation outlined above is contrary to the ICC Elements of Crimes, which require the actual commission of the act of aggression for criminal liability to arise for either the executed or the preparatory acts.[13] The ICC Elements of Crimes, however, cannot amend the content of the definition of the crimes provided for in the Rome Statute, as the elements must always “be consistent with . . . [the] Statute” and their role is limited to assisting the ICC in the Statute’s interpretation and application.[14]

For others, it is a question of the general theory of criminal law because the interpretation outlined above runs contrary to the “harm principle,”[15] as it leads to the criminalization of preparatory acts without “the actual causation of harm or the actual violation of a protected (legal) interest in order to justify the intervention of the criminal law without violating the principle of culpability.”[16] Yet one cannot assert that such preparatory acts do not affect a protected legal interest of the states concerned and international society at large when there are tangible indicia of the planning and preparation of an act of aggression by the most senior state officials. Moreover, if the planning of an illegal sale of weapons by a group of persons acting in a concerted manner is considered to fulfill the harm principle in many examples of domestic legislation, how is it possible that the planning of an act of aggression against another state by a state’s highest political and military ranks cannot fulfill this principle?

Finally, for many, it is a question of international politics. The most powerful military power in the international community (the United States) not only is unbound and unaffected by the definition of the crime of aggression in the Rome Statute, but it has also tried consistently to avoid any definition of this crime.[17] Other major world and regional military powers, both with nuclear weapons capabilities (such as China, India, Israel, North Korea, Pakistan, and Russia) and without such capabilities (such as Egypt, Indonesia, Iran, Saudi Arabia, and Turkey), also are not bound or affected by the definition of crime of aggression in the Rome Statute.

Furthermore, the only two nuclear powers and permanent members of the UN Security Council that are States Parties to the Rome Statute (the United Kingdom and France) want a myriad of safeguards to make sure that the ICC does not interfere with the UN Security Council’s power to decide when there is a threat to peace, a breach of the peace, or an act of aggression and to take any necessary diplomatic, economic, or military coercive measures to maintain and restore international peace and security.[18] Other important actors in the international community, like Japan, have also called into question the legality of the final agreement reached in Kampala by the States’ Parties,[19] even though article 15 bis ensures (i) that in the absence of a UN Security Council referral, the Kampala amendments apply only to acts of aggression committed by States Parties that have not lodged a declaration with the ICC Registrar declaring that they do not accept the ICC jurisdiction over the crime of aggression and (ii) that the ICC shall not exercise its jurisdiction over the crime of aggression when the acts are committed by nationals or in the territory of non-party states.[20]

In light of this opposition, one wonders whether there will ever come a time when the main state actors in international society will be prepared to have their use of armed force against third states reviewed by an international tribunal for the purpose of adjudicating the criminal liability of their most senior political and military leaders. Needless to say, only when such time comes will the ICC Prosecutor be in a position to carry out her preliminary examinations effectively, fulfilling her mandate to prevent the execution of acts of aggression by the main military powers of the world against third states through timely intervention in situations where there are tangible indicia of their planning and preparation.

* Law Degree, University of Salamanca; LL.M. in Law, Columbia University; Ph.D. in Law, University of Salamanca. Prof. Olasolo holds the Chair in International Law at the University of El Rosario (Colombia), and is chairman of the Ibero-American Institute of The Hague for Peace, Human Rights and International Justice (“IIH”) and director of the Anuario Iberoamericano de Derecho Internacional Penal (Ibero-American Yearbook of International Criminal Law). Prof. Olasolo previously held the Chair in International Criminal Law at the University of Utrecht (2010–2012) and served as Legal Officer in Chambers of the International Criminal Court (2004–2009) and the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (2002–2004). He was also Legal Adviser to the Spanish Delegation to the Preparatory Commission for the International Criminal Court (1999–2002).

** Law Student at El Rosario University (Colombia). Student Assistant for the Course on International Human Rights Law and International Humanitarian Law. Former member of El Rosario International Law Clinic.

[1] International Criminal Court, Assembly of States Parties, Review Conference, The Crime of Aggression, ICC Doc. RC/Res. 6 Annex I, art. 8 bis(1) (June 11, 2010).

[2] Rome Statute of the International Criminal Court, art. 8 bis(1), July 17, 1998, 2187 U.N.T.S. 90, rev. 2010 [hereinafter Rome Statute].

[3] Id., art. 8 bis(2).

[4] Id. On the perceived difficulties of defining the crime of aggression, see Benjamin B. Ferencz, A Nuremberg Legacy: The Crime of Aggression, 15 Wash. U. Global Stud. L. Rev. 555, 556 (2016).

[5] See Kai Ambos, Epilogue: Future Developments of International Criminal Law in relation to the Responsibility of Superiors for International Crimes, in Héctor Olásolo, The Criminal Responsibility Of Senior Political And Military Leaders As Principals To International Crimes 331, 331–336 (2009).

[6] Cf. R. Cryer et al., An Introduction to International Criminal Law and Procedure 27 (3d ed. 2014).

[7] Id.

[8] Héctor Olásolo, The Role of the International Criminal Court in Preventing Atrocity Crimes Through Timely Intervention, in Essays on International Criminal Justice 1, 3 (Héctor Olásolo ed., 2011).

[9] Upon the initiation of an investigation, the ICC Prosecutor can use coercive measures, as well as all forms of State Party cooperation provided for in Article 93 of the Rome Statute. See Rome Statute, supra note 3, arts. 54, 57, 93.

[10] See Rome Statute, supra note 2, arts. 13–15.

[11] See Rome Statute, supra note 2, art. 15 bis.

[12] Vienna Convention on the Law of Treaties art. 31(1), May 23, 1969, 1155 U.N.T.S. 331.

[13] See Cryer, supra note 6, at 329; Carvajal Corredor Ilich Felipe, El Crimen de Agresión en Derecho Penal Internacional: Responsabilidad del Individuo Por Acto de Estado [61-102] (2012); Rome Statute of the International Criminal Court: A Commentary [580-618] (Otto Triffterer & Kai Ambos eds., 3d ed. 2016).

[14] See Rome Statute, supra note 2, art. 9.

[15] Kai Ambos, 2 Treatise on International Criminal Law: The Crimes and Sentencing 208 (2014).

[16] Id.

[17] Harold Hongju Koh, Legal Adviser, U.S. Department of State, Statement at the Review Conference of the International Criminal Court, Kampala, Uganda (June 4, 2010), https://2009-2017.state.gov/s/l/releases/remarks/142665.htm.

[18] See Ambos, supra note 15, at 190–96.

[19] See Robert L. Manson, Identifying the Rough Edges of the Kampala Compromise, 21 Crim. L. Forum 417, 421–422 (2010); Claus Kreß & Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, 8 J. Int’l Crim. Just. 1179, 1212 (2010).

[20] See Rome Statute, supra note 2, art. 15 bis.

The Crime of Aggression and Modes of Liability – Is There Room Only for Principals?

Apr 11, 2017 | Content, Other Symposia

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By Volker Nerlich*

The crime of aggression is a “leadership crime.” Not anyone who participates in a war of aggression—for instance, as a member of an aggressor’s army—is to be held criminally responsible. Rather, in keeping with the precedents of Nuremberg and Tokyo, liability attaches only to those high up in the chain of command.[1] Nevertheless, the exact reach of the criminalization has remained largely unclear in post-World War II jurisprudence. The International Military Tribunal in Nuremberg (IMT) convicted twelve of the twenty-two high-level Nazi officials accused of crimes against peace or conspiracy to commit crimes against peace.[2] In the subsequent proceedings before American military tribunals in Nuremberg, crimes against peace and conspiracy to commit crimes against peace were charged in four cases,[3] resulting, however, in only five convictions, all in the Ministries Case.[4] According to Henry T. King, who, like Benjamin Ferencz, was one of the prosecutors in the Nuremberg follow-up trials, “the IMT judgment left open the question of how involved in the policy of aggression an individual would have to be in order to be convicted.”[5]

The definition of the crime of aggression in article 8 bis of the Rome Statute seeks to resolve this question by requiring that the perpetrator be “in a position effectively to exercise control over or to direct the political or military action of a State.”[6] This is a high threshold: The person planning, preparing, initiating, or executing the acts made criminal under article 8 bis must presumably hold a high-ranking position in the aggressor state. What is required is “control” or the ability to “direct” the state’s action. This suggests that only a small number of government leaders, perhaps only the head of state or government or the ministers of defense or foreign affairs, could ever be held guilty of the crime of aggression.[7]

Article 25(3) of the Rome Statute establishes a detailed and differentiated system of modes of liability, which distinguishes between principal perpetrators—who, either alone, together with, or through others commit a crime,[8]—and accomplices—who are involved in instigating, ordering, aiding and abetting, or otherwise contributing to the commission of a crime by one or more principal perpetrators.[9] It is noteworthy that the definition of principal liability in the International Criminal Court’s jurisprudence uses language that resembles the characterization, in article 8 bis(1), of the potential persons criminally responsible for a crime of aggression: According to the case law,[10] a principal is someone who has control over the crime, in the sense of possessing the ability to frustrate its commission. In contrast, all forms of accomplice liability require a lesser form of control over the crime.

During the negotiations on the crime of aggression, there was a debate as to whether article 25’s differentiated participation regime should be made applicable to the crime of aggression or whether the incriminated conduct should be set out comprehensively and conclusively in article 8 bis.[11] The former solution was eventually adopted. Article 25(3) bis provides the link between the crime of aggression and the modes of liability in article 25(3) of the Rome Statute.[12] The provision clarifies that article 25(3) applies to the crime of aggression as well, albeit, “only to persons in a position effectively to exercise control over or to direct the political or military action of a State,”[13] thus copying the language of article 8 bis(1). In light of this formulation, it has been argued that the effect of article 25(3) bis and the adoption of a differentiated approach is “virtually nil”—essentially all those participating in a crime of aggression would be principal perpetrators.[14] At first sight, this would appear to be a reasonable expectation, given the definition of principal perpetration in the case law of the ICC and the limitations that have been adopted on the persons potentially responsible for the crime of aggression.

However, such an understanding would lead to a surprising and arguably unreasonable result. While article 25(3) bis makes the whole range of modes of responsibility in article 25(3) applicable to the crime of aggression, the formulation of the provision would, in effect, negate the applicability of large parts of article 25(3). On this reading, rather than allowing for the application of all sub-sections of article 25(3) to the crime of aggression, article 25(3) bis would actually limit applicability to article 25(3)(a)—perpetration as a principal.

Perhaps a closer look at the interplay between article 25(3) bis and article 25(3) is needed. First, the level of control that is required has to be assessed. Is control only “effective” if it is complete—unified in one man or woman at the helm of a state? Such an understanding of “effective control” would essentially limit the crime of aggression to dictators holding absolute power in a state. This cannot have been intended. Indeed, arguably none of the accused in Nuremberg held such a high level of control over the war-making of Nazi Germany. In addition, political systems based on separation of powers and “checks and balances” would automatically be excluded, as none of the political leaders would, in fact, hold effective control. Thus, control in terms of article 8 bis and article 25(3) bis must be considered to be effective even if it is not complete, as long as the person in question has the power to shape political and military decision-making. Such an understanding would also align with the post-World War II case law, particularly the Nuremberg follow-up trials, in which the tribunals adopted a “shape or influence” standard.[15]

Further, it is noteworthy that, according to the plain language of article 8 bis(1) and article 25(3) bis, the object of control or direction is not the act of aggression itself, but the “political or military action” of a state. Arguably, this must be determined independently of the question of who was at the center of the decision-making with respect to the specific act of aggression giving rise to criminal responsibility. While there must certainly be some link to the exercise of military force—for example, it would be difficult to justify control over the cultural policy of a state as sufficient to make the person a potential perpetrator of or accomplice to a crime of aggression—the group of people controlling or directing the “political or military action” of a state may be larger than the group that actually made the decision to go to war.

If such an approach is accepted, it is conceivable that control over the “political or military action” and the control over the commission of the crime of aggression do not fully align. In a given situation, a government minister may have control over the political action of a state—including in matters of war and peace—but may be involved only indirectly in planning, preparing, initiating, or executing the act of aggression. She may thus be found to have been an accomplice rather than a principal perpetrator of the crime of aggression. The same may apply to high-ranking officials within the military.

Based on such an understanding of article 8 bis and article 25(3) bis, not only those who were at the center of a decision to wage aggressive war could be held accountable, but also those who, while not at the sidelines, were somewhat removed from the decision-making process, as long as they were sufficiently high up in the hierarchy to be able to shape the policy of the aggressor state in that regard. In turn, and depending on the facts of the case, this would allow for the application of different modes of liability to all those who were in a position of control; some might be considered principal perpetrators, while others might be mere accomplices, who, for example, aided and abetted the execution of an act of aggression. Thus, while the crime of aggression is a leadership crime, it is not necessarily a crime only of principals.

* Legal Adviser, International Criminal Court; honorary professor, Faculty of Law, Humboldt-University of Berlin. The views expressed are those of the author and cannot be attributed to the International Criminal Court.

[1] On the post-World War II jurisprudence in this regard, see Carrie McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court 168–83 (2013).

^[2] Namely, Göring, Hess, von Ribbentrop, Keitel, Rosenberg, Frick (no conviction for conspiracy), Funk (no conviction for conspiracy), Dönitz (no conviction for conspiracy), Raeder, Jodl, Seyss-Inquart, and von Neurath. See Judgment, 1 Trial of the Major War Criminals Before the International Military Tribunal 279–341 (1947).

[3] The Farben Case, the Krupp Case, the High Command Case, and the Ministries Case.

[4] Namely, von Weizsaecker, Keppler, Woermann, Lammers, and Koerner. See Judgment, 14 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 323–435 (1952). The convictions against von Weizsaecker and Woermann for aggression, however, were later set aside by the Tribunal on motions of error.

^[5] Henry T. King Jr., Nuremberg and Crimes against Peace, 41 Case W. Res. J. Int’l L. 273, 276 (2009).

[6] Rome Statute of the International Criminal Court art. 8 bis, July 17, 1998, 2187 U.N.T.S. 90, rev. 2010 [hereinafter Rome Statute].

^[7] Note, however, that the Elements of Crimes for the crime of aggression clarify in a footnote that “[w]ith respect to an act of aggression, more than one person may be in a position that meets these criteria.” Amendments to the Rome Statute of the International Criminal Court, Annex II, 21 n.1, June 11, 2010, A-38544 U.N.T.S.

[8] Rome Statute, supra note 6, art. 25(3)(a).

[9] Id., art. 25(3)(b)–(d).

[10] See, e.g., Prosecutor v. Lubanga, Case No. ICC-01/04-01/06 A 5, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against his conviction, ¶¶ 458–69 (Dec. 1, 2014), https://www.icc-cpi.int/CourtRecords/CR2014_09844.PDF.

[11] See Stefan Barriga, Negotiating the Amendments on the Crime of Aggression, in The Travaux Préperatoires of the Crime of Aggression 3, 19–24 (Stefan Barriga & Claus Kreβ eds., 2012); Roger S. Clark, Individual Conduct, in The Crime of Aggression: A Commentary 565, 566 (Claus Kreβ & Stefan Barriga eds., 2017).

[12] Rome Statute, supra note 6, art. 25(3) bis.

[13] Id.

[14] See Kai Ambos, 2 Treatise on International Criminal Law: The Crimes and Sentencing 206–208 (2014); see also Clark, supra note 11, at 582 (“[O]ne suspects that most of the real-life cases can be fitted within article 25(3)(a).”).

[15] See Kevin Jon Heller, Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression, 18 Eur. J. Int’l L. 477, 480–88 (2007). On the other hand, there were concerns during the negotiations that the “shape or influence” formula “would open the doors too far, especially in relation to democracies where a very large circle of persons could be said to ‘shape or influence’ the State’s action.” See Barriga, supra note 11, at 22.

From Nuremberg to New York: The Final Stretch in the Campaign to Activate the ICC’s Jurisdiction over the Crime of Aggression

Apr 11, 2017 | Content, Other Symposia

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By Christian Wenaweser* and Sina Alavi**

In his opening statement before the International Military Tribunal (IMT) in Nuremberg, Justice Robert Jackson, the Chief Prosecutor for the United States, recalled that common sense demanded that “the law’s condemnation of war reach deeper, and that the law condemn not merely uncivilized ways of waging war, but also the waging in any way of uncivilized wars—wars of aggression.”[1] The IMT set a precedent by prosecuting those most responsible for committing the crime against peace—which we now call the “crime of aggression,” and which Justice Jackson argued was the “supreme international crime.”[2] The decades following Nuremberg, however, did not live up to the expectations that the IMT had created for international justice. States fought for years to define an “act of aggression” before finally adopting UN General Assembly Resolution 3314 in 1974.[3] The creation of ad hoc tribunals by the UN Security Council in the 1990s created renewed momentum for the international criminal justice project in general, but none of those courts were given jurisdiction over the crime of aggression. Encouraged by the work of the ad hoc tribunals, in 1998, states succeeded in establishing the International Criminal Court (ICC), which was little more than a utopian dream just a few years earlier. Although the Rome Statute of the ICC included the crime of aggression within the Court’s competence from the beginning, it took nearly twenty more years before the ICC would actually be given the opportunity to exercise its jurisdiction over the crime.[4]

Seventy years after the IMT delivered its judgment, we can finally fulfill the promise of Nuremberg by criminalizing aggressive war-making. In December 2017, States Parties to the Rome Statute of the ICC have the historic opportunity to activate the Kampala amendments and thus to enable the ICC to exercise its jurisdiction over the crime of aggression. An affirmative activation decision will make aggression prosecutable before an international court for the first time since the Nuremberg trials. Consequently, ICC States Parties will not only remedy the current lack of individual criminal liability for committing the crime of aggression, but they will also complete the Rome Statute as originally drafted, helping to deter aggressive war-making and enforce a key provision of the Charter of the United Nations: the prohibition on the illegal use of force.[5]

In spite of the prohibition on the illegal use of force in the UN Charter and the definition of an act of aggression by the UN General Assembly in 1974, the collective mindset of the international community has continued to treat war-making as unfortunate and undesirable, rather than as illegal. At the 1998 Rome Conference, states had different views about whether to include the crime in the founding treaty of the ICC. Against strong opposition, in particular from Permanent Members of the UN Security Council, the crime of aggression was included within the jurisdiction of the Court by way of compromise, due in no small part to the tireless advocacy of Ben Ferencz.[6] But, in the absence of a definition of the crime, the Court’s exercise of jurisdiction was put on hold. At the ICC Review Conference in Kampala in 2010, States Parties finally agreed both to a definition of the crime of aggression as well as to the conditions for exercise of jurisdiction.[7] While the agreement by consensus in Kampala was regarded as remarkable and unexpected, it came again with a provision for delay: The exercise of the ICC’s jurisdiction over the crime of aggression was conditioned on achieving thirty ratifications of the Kampala amendments and a one-time activation decision, to be taken by ICC States Parties no earlier than January 1, 2017. In June 2016, the threshold of thirty ratifications was reached, allowing ICC States Parties to take the required activation decision in 2017.[8]

By activating the Court’s jurisdiction over the crime of aggression, ICC States Parties will make it possible to hold individuals in leadership positions accountable for the most serious forms of the illegal use of force—for the first time since Nuremberg in an international court, but also in national courts.^[9] Equally as important, activation will afford legal clarity to domestic discussions on the use of force, as the Kampala decision, for the first time in history, provides a consensually agreed upon definition of the crime of aggression codified in an international treaty. National decision-makers will be given a legal basis for deciding if prospective actions are in accordance with international law and will understand the possible consequences of their decisions, if they are not. The ability to investigate and hold to account those responsible for the most serious forms of the illegal use of force will constitute a significant achievement for the rule of law at the international level, as it will allow the law to challenge the long-standing forces of power politics. Empowering the ICC to prosecute crimes of aggression will also provide judicial protection to states against acts of aggression and thus deter the illegal use of force against them. This protection, however, is somewhat limited, as the compromise reached in Kampala established a far more restrictive jurisdictional regime for the crime of aggression when compared with the regime governing the other Rome Statute crimes.[10]

The task of completing the legacy of Nuremberg is long overdue. An affirmative activation decision taken by ICC States Parties at the sixteenth session of the Assembly of States Parties (ASP) in New York in December 2017 will strengthen the international rule of law by providing clarity on the legality of the use of force and realizing the full intent of Rome Statute as originally drafted. Activation will also help deter illegal uses of force in the future, as leaders will have to consider the ICC’s jurisdiction over the crime of aggression when making relevant decisions, and it will afford states legal protection from illegal war-making. We have watched the curve of international justice span from Nuremberg in 1946 to New York in 2017. The time has finally come to criminalize the most serious forms of the illegal use of force and to make the Nuremberg legacy complete.

* Ambassador Christian Wenaweser is the Permanent Representative of Liechtenstein to the United Nations, a position he has held since 2002. Between 2008 and 2011 he also served as President of the Assembly of States Parties to the Rome Statute of the International Criminal Court (ICC). In that role, he presided over the first Review Conference of the ICC in 2010, which adopted amendments to the Rome Statute on the Crime of Aggression and on extending the use of certain weapons as war crimes in non-international conflicts.

** Sina Alavi is a Legal and Political Adviser at the Permanent Mission of Liechtenstein to the United Nations. Sina holds a J.D. with a concentration in public international law from the University of California, Hastings and an LL.M. in European Union law from the Université Panthéon-Assas.

[1] See Robert Jackson’s opening statement at the IMT. Proceedings, Nov. 21, 1945, 2 Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg 145 (1947).

[2] Judgment, 1 Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg 186 (1947) (“To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”).

[3] Definition of Aggression, G.A. Res. 3314 (XXIX), 29 U.N. GAOR Supp. No. 31, at 142, U.N. Doc. A/9631 (Dec. 14, 1974). Resolution 3314, adopted on December 14, 1974, defines aggression as “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.” In the definition, the term “State” “s used without prejudice to questions of recognition or to whether a State is a member of the United Nations [and] ncludes the concept of a ‘group of States’ where appropriate.”

[4] Rome Statute of the International Criminal Court art. 5, July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002), rev. 2010 [hereinafter Rome Statute].

[5] Article 2(4) of the Charter of the United Nations (UN) prohibits the threat or use of force against the territorial integrity or political independence of any state. Two exceptions are made: First, individual or collective self-defense by states involving the use of force is authorized by article 51 of the Charter, and second, the use of force can be authorized by the UN Security Council as under Chapter VII of the UN Charter.

[6] In 1947–1948, Ben Ferencz was chief prosecutor in Nuremberg for the Einsatzgruppen case, which involved twenty-two defendants who were charged with murdering over one million people. All defendants were convicted, and the press hailed it as the “biggest murder trial in history.” “The Biggest Murder Trial in History”, United States Holocaust Memorial Museum, https://www.ushmm.org/wlc/en/article.php?ModuleId=10007155 (last visited Mar. 15, 2017).

[7] Rome Statute, supra note 4, arts. 8 bis, 15 bis, 15 ter.

[8] At the time of writing, thirty-two states have ratified the Kampala amendments on the crime of aggression.

[9] States that choose to implement the Kampala definition into their domestic legislation will not only give full effect to the principle of complementarity contained in article 1 of the Rome Statute, but such domestic rules could also help deter the leaders of that country from committing aggression in the first place. It also remains to be seen whether states that have adopted implementing legislation will be able to exercise universal jurisdiction over the crime of aggression.

[10] See Rome Statute, supra note 4, art. 15 bis. In the case of future state referrals or proprio motu investigations, particular conditions and procedures regarding the crime of aggression must be observed. First, acts of aggression that involve Non-States Parties to the Rome Statute—whether as victim or aggressor—are categorically excluded from the Court’s jurisdiction. Second, acts of aggression involving States Parties to the Rome Statute come within the Court’s jurisdiction under the following conditions: The amendments must have entered into force for at least one of the States Parties involved, whether as a victim or as an aggressor, because otherwise the Court would not be able to apply the amendments. And the aggressor State Party must not have made use of the possibility of opting out of the Court’s jurisdiction. Such an opt-out declaration must precede the presumed act of aggression itself. In the case of a future referral of a situation by the Security Council, the Court can investigate all four of the ICC’s core crimes, including the crime of aggression—consent is not required by the states involved.