Apr 11, 2017 | Content, Other Symposia
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By David Scheffer*
I have known Benjamin Ferencz personally since the 1990s when I was Senior Counsel to the U.S. Permanent Representative to the United Nations, Dr. Madeleine Albright, and then U.S. Ambassador at Large for War Crimes Issues heading the U.S. delegation to the United Nations talks that resulted in the Rome Statute of the International Criminal Court (ICC).[1] Throughout that decade, including to the end of the Bill Clinton Administration, and then for years leading up to the Kampala Review Conference of 2010,[2] which I attended as a law professor, he remained a fierce presence prepared at any moment to stare down skeptics of his cause.
Ferencz was a constant source of both inspiration and respectful criticism as he relentlessly sought to influence American policy on the crime of aggression and the ICC. When I signed the Rome Statute on behalf of the United States on December 31, 2000,[3] Ferencz was very much on my mind as one of the most instrumental voices on the illegality of aggression and the imperative need for international justice. He changed the world at Nuremberg, and he certainly influenced the creation of the Rome Statute. The American people owe Ferencz their heartfelt gratitude for a selfless life dedicated to upholding the most humane and noble values of the United States and of international law.
With the same spirit that Ferencz always demonstrates in his quest to rid the world of aggression, I believe that the definition of the crime of aggression (which includes defining an “act of aggression”) contained in article 8 bis of the Rome Statute[4] suffers from several shortcomings that ignore the modern realities of warfare. In this essay, I briefly set forth those defects.
Non-state actors. War during the twenty-first century often will not be fought conventionally between nations. Non-state actors like the Islamic State of Iraq and Syria (ISIS), Al Qaeda, Boko Haram, the Lord’s Resistance Army, and al-Shabab, to name only a few past and present, will dominate the theaters of conflict and hostilities. Unfortunately, because it is grounded in General Assembly Resolution 3314 (XXIX) of December 14, 1974,[5] article 8 bis(2) of the Rome Statute, defining “act of aggression,” is already exceptionally antiquated. The definition is relevant only for the actions of states (including “armed bands, groups, irregulars or mercenaries” sent by or acting on behalf of a state).[6]
Article 8 bis(1) defines the “crime of aggression” in terms of what a person does in holding a “position effectively to exercise control over or to direct the political or military action of a State.” There is no opportunity for the ICC to prosecute an individual for aggression when he acts in a leadership capacity to guide a non-state entity. The ICC Prosecutor thus is disarmed in connection with vast exercises of aggressive warfare waged by non-state entities across national boundaries. Internal aggression, which is a favorite tactic of ISIS and other non-state actors determined (sometimes successfully) to seize territory within a state, also escapes the article 8 bis definition.
Cyber warfare. The many manifestations of cyber warfare have become a common staple of international affairs[7] and yet the entire concept is absent from the article 8 bis definition. This is unsurprising given the fact that cyber warfare did not exist in 1974 when the General Assembly defined acts of inter-state aggression. But its absence from article 8 bis is a glaring omission in modern times and will cripple the ICC in how it will investigate aggression that may consist solely or largely of cyber warfare tactics.
Cyber warfare refers, at least by one definition, to “the actions by a nation-state or international organization to attack and attempt to damage another nation’s computers or information networks through, for example, computer viruses or denial-of-service attacks.”[8] The description of cyber warfare, however, continues to evolve and, in my view, certainly involves actions by non-state actors such as ISIS, other terrorist organizations, and even corporate interests that might one day engage in such actions to disrupt part of a nation’s infrastructure in a manner that imperils the national security or democratic integrity of that country.
For example, if a state or a non-state entity were to use cyber warfare to seriously undermine the democratic processes of a target state and perhaps significantly influence the outcome of elections, that action should not be immune from ICC investigation as an act of aggression.[9] The same could be said of cyber attacks that shut down a nation’s power grid or disable vital communications or transportation networks. All of this is currently the subject of intense speculation, protective measures, and action by governments. One must recognize, however, that the United States and its allies reportedly use cyber attacks to defend against major threats, such as nuclear ones, from such adversaries as North Korea and Iran.[10] The distinction between waging cyber aggression and engaging in cyber self-defense measures would rest upon the “character, gravity, and scale” that “constitutes a manifest violation of the Charter of the United Nations.”[11] This would surely be a complex calculation for the ICC to adjudicate, but to ignore it would be to miss the elephant in the room.
Responsibility to Protect. A parallel development in the years leading to the Kampala Review Conference, where the crime of aggression was defined for purposes of the Rome Statute, was the responsibility to protect principle (R2P),[12] endorsed by the UN General Assembly in 2005 and of the same legal authority as General Assembly Resolution 3314 of 1974. R2P has not been implemented as originally envisaged, with the war and humanitarian catastrophe in Syria being Exhibit A. The concern has long festered that an enforceable crime of aggression in the Rome Statute could undermine any chance for R2P to take firm hold among nations to prevent or end the commission of atrocity crimes. Policy-makers and military commanders likely would hesitate to intervene across borders to confront genocide, crimes against humanity (including ethnic cleansing), and war crimes imperiling a civilian population because of fear that the charge of aggression, involving individual criminal liability, would be levied against them if they act under R2P even with Security Council approval. Such approval may be interpreted as not endorsing some of the military actions a nation’s armed forces might take to end the atrocity crimes and protect civilians, particularly for the long term.
Article 8 bis does not explicitly accommodate R2P as an exception to aggression, although one might interpret article 8 bis to exclude R2P from any “manifest violation of the Charter of the United Nations” because of R2P’s requirement for Security Council approval for any military intervention. While that may suffice as a matter of strict legal interpretation, diplomats in capitals and at the United Nations may not see it that way as a practical matter. Their instinct will be to forego R2P because of the risk of an aggression charge, regardless of its likelihood of success at the ICC.
Each of these three shortcomings could be overcome easily with minor amendments to article 8 bis of the Rome Statute.[13] The ICC Assembly of States Parties should be encouraged to discuss such a prospect soon. The one certainty is that crimes of aggression will not abate and R2P will not be fully realized until there is a realistic recognition of these particular acts in the Rome Statute.
* David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law and Director of the Center for International Human Rights at Northwestern University Pritzker School of Law.
[1] Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002), rev. 2010 [hereinafter Rome Statute]. See also David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals 163–247 (2012).
[2] International Criminal Court, Assembly of States Parties, Review Conference, The Crime of Aggression, ICC Doc. RC/Res. 6 (June 11, 2010).
[3] Steven Lee Myers, U.S. Signs Treaty for World Court to Try Atrocities, N.Y. Times, Jan. 1, 2001, at A1, http://www.nytimes.com/2001/01/01/world/us-signs-treaty-for-world-court-to-try-atrocities.html.
[4] Rome Statute, supra note 1, art. 8 bis.
[5] Definition of Aggression, G.A. Res. 3314 (XXIX), 29 U.N. GAOR Supp. No. 31, at 142–44, U.N. Doc. A/9631 (Dec. 14, 1974).
[6] Rome Statute, supra note 1, art. 8 bis(2)(g).
[7] See, e.g., Rand Corporation, Cyber Warfare, www.rand.org/topics/cyber-warfare.html; W.J. Lynn, III, Defending a New Domain: The Pentagon’s Cyber Strategy’, Foreign Aff., September/October 2010, at 97; R.A. Clarke and Robert K. Knake, Cyber War (2010); Newton Lee, Counterterrorism and Cybersecurity: Total Information Awareness 99–118 (2013); Jeffrey Carr, Inside Cyber Warfare: Mapping the Cyber Underworld (2d ed., 2011).
[8] Rand Corporation, supra note 7.
[9] The prospect of Russian cyber warfare to influence the 2016 presidential elections in the United States is a prominent recent example. See, e.g., Eric Lipton, David E. Sanger & Scott Shane, The Perfect Weapon: How Russian Cyberpower Invaded the U.S., N.Y. Times (Dec. 13, 2016), https://www.nytimes.com/2016/12/13/us/politics/russia-hack-election-dnc.html; Ellen Nakashima, Obama Administration Is Close to Announcing Measures to Punish Russia for Election Interference, Wash. Post (Dec. 27, 2016), https://www.washingtonpost.com/world/national-security/the-white-house-is-scrambling-for-a-way-to-punish-russian-hackers-via-sanctions/2016/12/27/0eee2fdc-c58f-11e6-85b5-76616a33048d_story.html?utm_term=.7aeee7629570; David E. Sanger, Putin Ordered ‘Influence Campaign’ Aimed at U.S. Election, Report Says, N.Y. Times (Jan. 6, 2017), https://www.nytimes.com/2017/01/06/us/politics/russia-hack-report.html?rref=collection%2Fnewseventcollection%2Frussian-election-hacking&action=click&contentCollection=politics®ion=stream&module=stream_unit&version=latest&contentPlacement=9&pgtype=collection.
[10] See, e.g., David E. Sanger and William J. Broad, Trump Inherits Secret Cyberwar on North Korea, N.Y. Times, Mar. 5, 2017, at A1, https://www.nytimes.com/2017/03/04/world/asia/north-korea-missile-program-sabotage.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news&_r=0; Joseph Menn, Exclusive: U.S. Tried Stuxnet-style campaign against North Korea but failed – sources, Reuters, May 29, 2015, http://www.reuters.com/article/us-usa-northkorea-stuxnet-idUSKBN0OE2DM20150529.
[11] Rome Statute, supra note 1, art. 8 bis(1).
[12] G. A. Res. 60/1, 2005 World Summit Outcome Resolution, ¶¶138–39 (Sept. 16, 2005). See also Responsibility to Protect: The global Moral Compact for the 21st Century (Richard H. Cooper & J. Voinov Kohner eds.,2009); Global Centre for Responsibility to Protect, www.globalr2p.org/; United Nations Office on Genocide Prevention and Responsibility to Protect, http://www.un.org/en/genocideprevention/.
[13] See David Scheffer, Amending the Crime of Aggression under the Rome Statute, in The Crime of Aggression: A Commentary 1480 (Claus Kreβ & Stefan Barriga eds., 2017).
Apr 11, 2017 | Content, Other Symposia
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By Juan P. Calderon-Meza*
The prosecution of non-state actors accused of aggression was possible in the Nuremberg Trials under the special prosecutorial counsel of Benjamin Ferencz.[1] The Prosecution in the Krupp Case accused defendants who “held high positions in the political, financial, industrial, and economic life of Germany and committed crimes against peace in that they were principals in, accessories to, ordered, abetted, took a consenting part in, were connected with plans and enterprises involving, and were members of organizations and groups, including Krupp, connected with the commission of crimes against peace.”[2] As the international community considers activation of the International Criminal Court’s (ICC or Court) jurisdiction over the crime of aggression, it is worth recalling that non-state actors who contribute to atrocity crimes, such as some private military and security companies (PMSCs), should also be brought to justice.
While the crime of aggression’s leadership clause may result in liability for only a narrow scope of principals, such as heads of state, it should not limit the scope of liability for accessories. Indeed, article 8 bis(1) of the Rome Statute provides for an umbrella definition of the crime of aggression where the actus reus of the principals is restricted to “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.”[3] This limitation was also added to article 25(3) of the Rome statute.[4] This provision, however, does not specifically mention whether the accessories have to be state actors.
What does the silence of articles 8 bis and 15(3) bis with respect to accessories mean? In light of article 21(a) of the Rome Statute, once the Court has subject-matter jurisdiction over the crime of aggression, the law to be applied to cases addressing this crime would primarily be the “[Rome] Statute, Elements of Crimes and its Rules of Procedure and Evidence.”[5] In the alternative, relevant treaties, principles, and rules of international law, in the first place, as well as consistent principles of domestic law, in the second place, would apply as “subsidiary sources of law under article 21(1)(b) and 21(1)(c) of the Statute only where [the Trial Chamber] identifies a lacuna in the provisions of the Statute, the Elements of Crimes and the Rules.”[6]
The silence of the Kampala amendments must thus be systematically read in harmony with other provisions in the Rome Statute, the Elements of the Crimes and the Rules of Procedure and Evidence. In cases where the ICC judges have found lacunas, other provisions of the Rome Statute have served as the basis for concluding that “silence on a particular procedural issue does not necessarily imply that it is forbidden.”[7] Although procedural, these cases offer a basis for reading this substantial silence in the definition of the crime of aggression.[8] This article purports for a reading in tune with the core principle of complementarity as well as the plethora of modes of liability under article 25(3)(c) and 25(3)(d) of the Rome Statute.
This reading of the crime of aggression is in keeping with the core principle of complementarity enshrined in the Rome Statute and its framework. Crimes should be prosecuted and tried domestically, and the Court should complement these domestic efforts only when the domestic systems are unable or unwilling to bring prosecutions.[9] In other words, domestic courts should be able to try accessories to the crime of aggression, and only when this is not politically possible could the ICC try the individuals who would otherwise enjoy im(m/p)unity, whether they are state actors, under theories of direct and indirect liability, or non-state actors under a theory of accessory liability, including individuals in the private military and security industry, as well as other corporate actors who often facilitate Rome Statute crimes.
Otherwise, what would complementarity mean for the crime of aggression? One could already anticipate political obstacles to be faced by domestic prosecutors trying to investigate foreign heads of state. Authoritative commentary on the Kampala amendments supports domestic criminalization of foreigners who may be liable for aggression but at the same time foresees political obstacles:
Depending on the jurisdictional regime chosen by the implementing State, its domestic laws may criminalize aggression by foreign leaders, in particular when the act of aggression was committed against the prosecuting State (which could assert its own territorial jurisdiction). The implementing State should however bear in mind that the leadership clause of the crime of aggression will result in very low number of potential suspects, and that certain immunities may apply . . . Such an assertion of jurisdiction over foreign nationals could therefore turn out to be difficult to implement in a concrete case. States which limit jurisdiction solely to their own nationals may well avoid significant cross-border political and legal complexities related to prosecutions of foreign nationals.[10]
The immunity of incumbent heads of state may, indeed, be invoked as a principle under international law.[11] States Parties of the Rome Statute, on the other hand, have already waived this immunity.[12] As noted by the Court, however, “when the exercise of jurisdiction by the Court entails the prosecution of a Head of State of a non-State party, the question of personal immunities might validly arise.”[13] Although the Court may seek cooperation from non-state parties to waive the immunity of their heads of state,[14] this article considers an additional solution for difficult cases, such as aggression, where the liability of non-state parties might make the immunity waiver politically unrealistic.
This is not the case, however, for private individuals who are accessories to the crime of aggression. In difficult cases where aggression is likely to be committed by heads of powerful states that are not parties to the Rome Statute, the Court has an alternative. It could prosecute accessories who do not hold any state immunity for acts of aggression perpetrated within the territorial and temporal jurisdiction of the Court. In other words, the Court could adjudicate the liability of private individuals who acted as accessories.
Often, foreign private individuals lead corporations with the aim of facilitating or making significant contributions to the work of state actors who perpetrate atrocity crimes, including crimes of aggression. Take the case of PMSCs. “Such entrepreneurs have played a role in wars past and present, from ancient times to the conflicts of our day. But historians apparently considered them no more than an ancillary aspect of military affairs, their status and significance warranting no particular scrutiny.”[15]
Yair Klein’s leading role in Colombia’s armed conflict is a lamentable example of leading private individuals absconding from domestic justice. Klein is an Israeli national who retired the military and founded the PMSC Spearhead.[16] He was convicted in absentia by a Colombian court for “instruction in and teaching of military and terrorist tactics, techniques and methods, committed with mercenaries and accomplices.”[17] Klein personally gave Colombian villagers mercenary training in the midst of Colombian armed conflict.[18] As recently noted by authoritative reporters, Colombian mercenaries have been hired by Global Enterprises, another PMSC, to fight for the United Arab Emirates in Yemen’s ongoing war.[19]
Domestic judicial systems, however, have been unable to bring Klein to justice. The European Court of Human Rights refused to extradite Klein to Colombia on the basis “that the evidence before it demonstrates that problems still persist in Colombia in connection with the ill-treatment of detainees.”[20] It is worth noting that Klein has also been accused of “smuggling arms to rebels from the Revolutionary United Front (RUF)” in Sierra Leone.[21] Furthermore, he admitted in an interview that he was hired to overthrow former Panama’s president Noriega.[22]
It is time to reflect on the teachings from Nuremberg. The Nuremberg Tribunal was empowered to prosecute “[a]ny person without regard to nationality or the capacity in which he acted . . . deemed to have committed a crime . . . [against peace], if he . . . (b) was an accessory to the commission of any such crime or ordered or abetted the same.”[23] Crimes against peace, indeed, included “wars of aggression in violation of international laws and treaties.”[24]
In the Krupp Case, the prosecution charged industrialists with crimes against peace as well as with conspiracy to commit crimes against peace.[25] While the evidence did not support the liability of the defendants for these counts beyond a reasonable doubt, the panel did “not hold that industrialists as such, could not under any circumstances be found guilty upon such charges.”[26] In a concurring opinion, one of the judges explained:
To establish the requisite participation there 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 that the military power would be used in a manner which, in the words of the Kellogg [Briand] Pact, includes war as an “instrument of policy.”[27]
Once the crime of aggression is activated, article 25(3) of the Rome Statute allows prosecution of private accessories who made a significant contribution. The Pre-Trial Chamber has found “the level of contribution under article 25(3)(d) of the Statute cannot be as high as . . . an essential contribution.”[28] As the Chamber noted, “a person must make a significant contribution to the crimes committed or attempted.”[29]
As we reflect now on the Court’s jurisdiction over the crime of aggression,[30] we should pause to revisit lessons from the past. Adopted just after the Second World War, the Universal Declaration of Human Rights imposes duties on “every individual and every organ of society . . . to promote respect for these rights and freedoms and . . . to secure their universal and effective recognition and observance.”[31] Genocide, the crime of crimes, was collectively outlawed by the international community, which agreed that “[p]ersons committing genocide . . . shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”[32] Today there is an “emerging international consensus” on the corporate role played with regards to human rights, and a number of treaties have recognized and outlawed the role of non-state actors in wars.[33] With regard to the crime of aggression, experts who have reflected on the teachings from Nuremberg say:
In line with the dicta in Krupp, the door is left ajar—albeit in limited circumstances—for principal or accessorial liability of non-state actors, including business leaders and, therefore, business corporations.[34]
It is time to recall these teachings when jurisdiction over the crime of aggression is activated. In the words of a Master, whom we honor today, “never give up, never give up, never give up!”
* At the time of writing of this article, Juan was a Clinical Advocacy Fellow of the Harvard Law School’s International Human Rights Clinic. To honor his mother, Doris Meza’s memory, Juan’s work has been inspired by her teachings to speak truth to power. You can contact him at jpcalderonmeza@gmail.com. The views expressed herein are those of the author alone and do not reflect the views of any of the institutions with which he is affiliated.
[1] Proceedings, United States v. Alfried Krupp et al., 9 Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Nuernberg 5 (1950) (noting Benjamin Ferencz as Special Prosecution Counsel) [hereinafter Krupp Case Proceedings]. See also id. at 1185–87 (Benjamin Ferencz’s cross examination of a Krupp officer).
[2] Id. at 10.
[3] See International Criminal Court, Assembly of States Parties, Review Conference, The Crime of Aggression, ICC Doc. RC/Res. 6 (June 11, 2010); Rome Statute of the International Criminal Court art. 8 bis(3), July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002), rev. 2010 (emphasis added) [hereinafter Rome Statute].
[4] Rome Statute, supra note 3, art. 25(3) bis (“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.”).
[5] See Rome Statute, supra note 3, art. 21(a).
[6] Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, Judgment Pursuant to Article 74 of the Statute, ¶ 39 (Trial Chamber II, Mar. 7, 2014) (citing several cases), https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/04-01/07-3436-tENG.
[7] Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Case No. ICC-01/09-02/11, Decision on Witness Preparation ¶ 31 (Trial Chamber V, Jan. 2, 2013), https://www.icc-cpi.int/pages/record.aspx?uri=1533653.
[8] In Prosecutor v. Uhuru Muigai Kenyatta et al., Trial Chamber V was seized with the interesting issue of whether witnesses may be prepared by the calling party before trial. While the Chamber found no specific provision applicable to this matter, that silence was not construed as a prohibition. The Chamber relied on article 64 of the Rome Statute and other international tribunals’ jurisprudence to say that its discretion is ample in relation to silent procedural issues. See id., ¶¶ 31, 33 (“Article 64 of the Statute grants the Chamber flexibility in managing the trial. Its formulation makes clear that the Statute is neither an exhaustive nor a rigid instrument, especially on purely procedural matters such as witness preparation, and that silence on a particular procedural issue does not necessarily imply that it is forbidden. Article 64 is formulated so as to give judges a significant degree of discretion concerning the procedures they adopt in this respect, as long as the rights of the accused are respected and due regard is given to the protection of witnesses and victims. . . . [T]he fact that the ad hoc tribunals interpreted silence in their statutory provisions to confer flexibility regarding witness preparation is meaningful when evaluating the silence in this Court’s analogous statutory provisions.”). See also Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, ICC Trial Chamber III, Partly Dissenting Opinion of Judge Kuniko Ozaki on the Decision on the Unified Protocol on the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial ¶ 10 (Trial Chamber III, Nov. 24, 2010, https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/05-01/08-1039.
[9] See Rome Statute, supra note 3, arts. 1, 17.
[10] Handbook: Ratification and Implementation of the Kampala amendments to the Rome Statute of the ICC 15 (Princeton University’s Liechtenstein Institute on Self-Determination, ed., 2015), http://crimeofaggression.info/documents/1/handbook.pdf.
[11] See Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 2002 I.C.J. 3, ¶ 70 (“[G]iven the nature and purpose of the warrant, its mere issue violated the immunity which Mr. Yerodia enjoyed as the Congo’s incumbent Minister for Foreign Affairs. The Court accordingly concludes that the issue of the warrant constituted a violation of an obligation of Belgium towards the Congo, in that it failed to respect the immunity of that Minister and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by him under international law.”); id., ¶ 71 (“[T]he Court concludes that the circulation of the warrant, whether or not it significantly interfered with Mr. Yerodia’s diplomatic activity, constituted a violation of an obligation of Belgium towards the Congo, in that it failed to respect the immunity of the incumbent Minister for Foreign Affairs of the Congo and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by him under international law.”); id., ¶ 75 (“The Court has already concluded . . . that the issue and circulation of the arrest warrant of 11 April 2000 by the Belgian authorities failed to respect the immunity of the incumbent Minister for Foreign Affairs of the Congo and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by Mr. Yerodia under international law. Those acts engaged Belgium’s international responsibility.”).
[12] See Rome Statute, supra note 3, art. 27. See, e.g., Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, ¶ 66 (June 18, 2013), https://www.icc-cpi.int/pages/record.aspx?uri=1605793 (noting that there is a “contemporary norm of international law according to which public officials are no longer entitled to immunity for violation of international criminal law.”); Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, ¶ 25 (Apr. 9, 2014), https://www.icc-cpi.int/pages/record.aspx?uri=1759849 (“[I]t is not disputed that under international law a sitting Head of State enjoys personal immunities from criminal jurisdiction and inviolability before national courts of foreign States even when suspected of having committed one or more of the crimes that fall within the jurisdiction of the Court. Such personal immunities are ensured under international law for the purpose of the effective performance of the functions of sitting Heads of States.”).
[13] Prosecutor v. Omar Hassan Ahmad Al Bashir, supra note 12, ¶ 27 (emphasis added).
[14] Article 98 of the Rome Statute recognizes the State Parties’ international obligations not to surrender a head of state to the Court, in which case it will try to obtain cooperation of the third or surrender state. See Rome Statute, supra note 3, art. 98(1); Prosecutor v. Omar Hassan Ahmad Al Bashir, supra note 12, ¶ 27. (“It follows that when the exercise of jurisdiction by the Court entails the prosecution of a Head of State of a non-State Party, the question of personal immunities might validly arise. The solution provided for in the Statute to resolve such a conflict is found in article 98(1) of the Statute. This provision directs the Court to secure the cooperation of the third State for the waiver or lifting the immunity of its Head of State. This course of action envisaged by article 98(1) of the Statute aims at preventing the requested State from acting inconsistently with its international obligations towards the non-State Party with respect to the immunities attached to the latter’s Head of State.”).
[15] Fed. Dept. of Foreign Aff. of Switzerland (FDFA) and Int’l Comm. of the Red Cross (ICRC), The Montreux Document: On Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies during Armed Conflict 5 (2008), https://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf (“The presence of private military and security companies (PMSCs) in armed conflicts has traditionally drawn scant attention. In some ways this is surprising; as such, reliance on private entrepreneurs during war is nothing new.”).
[16] See, e.g., Jeff Grett, Report Says Mercenaries Aided Colombian Cartels, N.Y. Times (Feb. 28, 1991), http://www.nytimes.com/1991/02/28/world/report-says-mercenaries-aided-colombian-cartels.html.
[17] Klein v. Russia, App. No. 24268/08, ¶ 8, Eur. Ct. H.R. (Apr. 1, 2010), http://hudoc.echr.coe.int/eng?i=001-98010.
[18] Mercenario Condenado, Semana (Mar. 18, 2002), http://www.semana.com/nacion/articulo/mercenario-condenado/49999-3.
[19] See, e.g., Emily Hager & Mark Mazzetti, Emirates Secretly Sends Colombian Mercenaries to Yemen Fight, N.Y. Times (Nov. 25, 2015), http://www.nytimes.com/2015/11/26/world/middleeast/emirates-secretly-sends-colombian-mercenaries-to-fight-in-yemen.html?_r=0.
[20] Klein v. Russia, supra note 17, ¶ 53.
[21] See, e.g., Who Is Israel’s Yair Klein and What Was He Doing in Colombia and Sierra Leone?, Democracy Now (June 1, 2000), https://www.democracynow.org/2000/6/1/who_is_israels_yair_klein_and.
[22] Mercenario Condenado, supra note 18.
[23] Control Council Law No. 10, Punishment of Persons Guilty of War Crimes Against Peace and Against Humanity art. II(2), Dec. 20, 1945, 3 Official Gazette of the Control Council for Germany 50–55 (1946).
[24] Id., art. II(1)(a).
[25] Krupp Case Proceedings, supra note 1, at 391.
[26] Id. at 393. See also id. at 400.
[27] Id. at 455–56 (brackets in original).
[28] Prosecutor v. Callixte Mbarushimana, Case No. ICC-01/04-01/10, Decision on the Confirmation of Charges, ¶ 283 (Pre-Trial Chamber I, Dec. 16, 2011) (finding “that the contribution to the commission of a crime under article 25(3)(d) of the Statute cannot be just any contribution and that there is a threshold of significance below which responsibility under this provision does not arise”); id., ¶ 279 (noting that it “has already found that the level of contribution under article 25(3)(d) of the Statute cannot be as high as . . . an essential contribution”).
[29] Id., ¶ 285.
[30] See International Criminal Court, Assembly of States Parties, Review Conference, The Crime of Aggression, ICC Doc. RC/Res. 6 (June 11, 2010).
[31] See Universal Declaration of Human Rights, Preamble, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).
[32] Convention on the Prevention and Punishment of the Crime of Genocide art. 4, Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951).
[33] See Special Tribunal for Lebanon, Appeals Panel, Case No. STL-14-05/PT/AP/AR126.1, Case against New TV S.A.L. and Karma Mohamed Tahsin al Khayat, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, ¶ 46 (Special Tribunal for Lebanon, Oct. 2, 2014), https://www.stl-tsl.org/en/decision-on-interlocutory-appeal-concerning-personal-jurisdiction-in-contempt-proceedings (finding “evidence of an emerging international consensus regarding what is expected in business activity, where legal persons feature predominantly, in relation to the respect for human rights.”). See also African Union, Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, art. 14 adding art. 28A, art. 22 adding art. 46C(1) (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.
Although not yet in force, these amendments would allow the African Court of Justice and Human Rights to entertain “jurisdiction over legal persons” for genocide, crimes against humanity, war crimes, unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, illicit exploitation of natural resources and aggression. See also OAS Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Significance, Feb. 2, 1971, 1438 U.N.T.S. 191; Convention of the OAU for the Elimination of Mercenarism in Africa, O.A.U. Doc. CM/433/Rev. L. Annex 1 (1972), entered into force Apr. 22, 1985; International Convention against the Recruitment, Use, Financing, and Training of Mercenaries, G.A. Res. 34, U.N. GAOR, 44th Sess., Supp. No. 43, at 590, U.N. Doc. A/44/43 (1989), 29 I.L.M. 91; International Convention for the Suppression of the Financing of Terrorism, G.A. Res. 109, U.N. GAOR, 54th Sess., Supp. No. 49, U.N. Doc A/54/49 (Vol. I) (1999), S. Treaty Doc. No. 106-49 (2000), 39 I.L.M. 270 (2000), adopted Dec. 9, 1999, entered into force Apr. 10, 2002; Inter-American Convention Against Terrorism, AG/RES. 1840 (XXXII-O/02) (2002).
[34] Volker Nerlich, Core Crimes and Transnational Business Corporations, 8 J. Int’l Crim. Just. 895, 908 (2010).
Apr 11, 2017 | Content, Other Symposia
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By Marissa R. Brodney*
Which entities will legally qualify as “victims” of the crime of aggression at the International Criminal Court (ICC)? Because the Rome Statute accords victims the right to participate in proceedings[1] and affords victims the possibility of obtaining reparation,[2] identifying victim constituencies of crimes within the Court’s jurisdiction is foundational to adjudicating crimes under the Rome Statute. However, in contrast to other crimes under the ICC’s jurisdiction, individuals have generally not been recognized as victims of the crime of aggression under international law.[3] It remains unclear how the Rome Statute system’s definition of “victim” applies to article 8bis[4]—as well as whether and to what extent the ICC’s understanding of “victim” accords with conceptualizations of victimization underpinning the framing and incorporation of aggression as a crime under international criminal law. This piece aims to introduce readers to questions that various scholars have raised with respect to the interaction between victim identity and aggression as a crime. For in-depth discussion of legal questions surrounding recognition of individuals as victims of the crime of aggression under the Rome Statute and an argument for their recognition as such, see Erin Pobjie, Victims of the Crime of Aggression, in The Crime of Aggression: A Commentary.[5]
In describing an act of aggression as “a manifest violation of the Charter of the United Nations,”[6] article 8bis invokes article 2(4) of the United Nations Charter—a provision that calls upon member states to refrain “from the threat or use of force against the territorial integrity or political independence of any state.”[7] That the Rome Statute also codifies aggression as a leadership crime augments a state-centric understanding of aggression generally under the Rome Statute: To be held responsible for the crime of aggression, a person must be “in a position effectively to exercise control over or to direct the political or military action of a State.”[8] The crime of aggression’s state-centric nature, however, may lead to “complicated questions of accountability and means of reparation”[9] within the Rome Statute system.
While states figure prominently in the framing of article 8bis, this emphasis on states does not necessarily comport with the Rome Statute system’s definition of “victim.” Rule 85(a) of the ICC Rules of Procedure and Evidence defines victims as natural persons who suffered harm resulting from a crime within the jurisdiction of the Court.[10] Accordingly, will individuals qualify as victims of aggression under Rule 85(a)? Alternatively, as Pobjie suggests, might states qualify as victims of aggression at the ICC under an expansive interpretation of “institution” under Rule 85(b), which enables certain institutions serving a humanitarian function to attain victim status?[11] Should the ICC amend the Rules to account expressly for states as new victim constituencies with respect to the crime of aggression, or should states remain excised from the ICC’s victim participation and reparation frameworks?[12] Drafters of the crime of aggression did not consider “whether the victim provisions [of the Rome Statute] would apply to the crime of aggression or the impact of the proposed aggression amendments on the victim provisions in the Statute and Rules of Procedure and Evidence.”[13] Prospects for adapting the ICC’s victim participation and reparation mandates to the prosecution of aggression remain under-explored.
At Nuremberg, where aggression was prosecuted as a crime against peace, victims could be conceptualized as at once both local and global in scope. Aggressive war ruptured a global order—even as specific countries may have suffered more acutely, and even as individual victims mounted. In contrast to the ICC, the International Military Tribunal at Nuremberg did not allow for victim participation or reparation in the trial process. As a result, the Nuremburg Tribunal did not need to conceptualize crimes in relation to victim constituencies in ways that the ICC must. Arguably, the power and promise of prosecuting crimes against peace derived from the expansive victimization associated with aggression. Contained within aggression was the “accumulated evil of the whole” of aggressive war[14]—aggressive war harmed humanity writ large.
The ICC’s victim participation and reparation mandates preclude the Court from accepting the notion of a global victim. By incorporating victim participation and reparation within its framework for prosecuting international crimes, the Rome Statute invites—in fact demands—a focus on who may legally be considered a victim of the grave crimes within its jurisdiction. Mark Findlay and Ralph Henham have argued that it “has become essential for the legitimacy of [International Criminal Justice] that a victim constituency be centrally recognized,”[15] yet possibilities for defining that victim constituency for the crime of aggression under the Rome Statute remain uncertain.
ICC recognition of individuals as victims of the crime of aggression would be a conceptual and legal innovation under international law.[16] International law historically has recognized states, not individuals, as the victims of aggression.[17] Discussions of aggression as a violation of international law have long been replete with references to victims of aggression as “victim states” or “attacked states.”[18] These references persist, even as there may be an increasing focus on the humanitarian consequences of aggressive force on a state’s population.[19]
Victim status at the ICC could permit individuals to obtain reparation for aggression under the Rome Statute, in an era when, as Friedrich Rosenfeld has noted, “an individual right to reparation for violations of the [j]us ad bellum is still widely rejected among scholars.”[20] The United Nations Compensation Commission (UNCC) and Eritrea-Ethiopia Claims Commission (EECC) both enabled individuals to receive compensation in relation to violations of the jus ad bellum.[21] However, only governments and international organizations were permitted to submit claims to the UNCC,[22] and the EECC made awards only to states.[23]Compensation, furthermore, is a concept distinct from, even if related to, the broader concept of “reparation,”[24] which has yet to be awarded to individual victims of aggression on the world stage.
If the ICC were to recognize states as victims of the crime of aggression, under either an expansive interpretation of Rule 85(b)[25] or by amending the Rules,[26] a situation could plausibly arise in which in which a convicted person might be held liable for repairing harm to a victim state; this would be a profound development—if not inversion—of international law as we know it.[27] The Court’s evolving jurisprudence on reparation, furthermore, makes clear that the ICC will hold a convicted person monetarily liable for Court-ordered reparation even when a reparations judgment is funded by external sources, such as those provided by the Trust Fund for Victims.[28] In part owing to a recognition that victim status could allow a state to apply for reparations against a convicted person,[29] commentators have argued that the Court should decline to recognize states as victims.[30]
States resisted anchoring the Court’s reparations mandate in principles of state responsibility at the time of the Rome Statute’s drafting.[31] This resistance may indicate a more general aversion to anchoring the Rome Statute’s reparative justice framework in an expressly geopolitical frame.[32] Consistent with the notion that the ICC should enforce distance between individual and state-level liability and associated harm, Carsten Stahn suggests not only that “[e]xtending victim participation to state representatives in the context of aggression would give the reparations regime a completely new direction,” but also that doing so “would introduce a surrogate forum for interstate reparation through criminal proceedings before the ICC”—which might “ultimately run against the purpose and mandate of the court.”[33]
Enabling state representatives to claim victim status could also risk coopting mechanisms designed to serve a reparative or restorative function for individuals.[34] Recognizing a dissonance between state-centric conceptualizations of aggression and person-centric victim provisions of the Rome Statute, Carrie McDougall has questioned “whether restorative or reparative justice is a good fit with the crime of aggression”[35] at all. Separately if relatedly, an act of aggression causing catastrophic harm to large numbers of individual victims could pose logistical challenges for the Court’s already fragile victim participation regime,[36] augmenting existing and perhaps introducing new barriers to realizing victims’ procedural rights.
The ICC’s need to identify and work with certain victim constituencies to the exclusion of others may result in a conceptual narrowing of aggression, which Benjamin Ferencz has described capaciously as “the breeding ground for the most atrocious crimes against humanity.”[37] Alternatively, victim-centric provisions of the Rome Statute may afford new opportunities to frame and redress victimization associated with aggression, by accounting for and remedying harm to individuals in new ways. Conceptual, procedural, and normative challenges will infuse the Court’s efforts to square its jurisdiction over aggression with existing victim provisions of the Rome Statute and Rules of Procedure and Evidence.
* Harvard Law School, J.D. Candidate (2018); Princeton University Woodrow Wilson School of Public and International Affairs, Master of Public Affairs Candidate (2018) (mbrodney@jd18.law.harvard.edu). Thank you to Juan Calderon-Meza, Laura Gault, and Joanne Neenan for invaluable comments and conversation throughout the development of this piece.
[1] Article 68(3) of the Rome Statute provides that, “Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.” Rome Statute of the International Criminal Court art. 68(3), July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002), rev. 2010 [hereinafter Rome Statute].
[2] Article 75 of the Rome Statute empowers the Court to authorize reparation for victims of crimes within the Court’s jurisdiction, including restitution, compensation, and rehabilitation. Id., art. 75. REDRESS defines “reparation” as “the range of measures that may be taken in response to an actual or threatened violation; embracing both the substance of relief as well as the procedure through which it may be obtained.” REDRESS Trust, Reparation: A Sourcebook for Victims of Torture and Other Violations of Human Rights and International Humanitarian Law 8 (2003), http://www.redress.org/downloads/reparation/SourceBook.pdf. See also Marissa R. Brodney, Implementing International Criminal Court-Ordered Collective Reparations: Unpacking Present Debates, 2016 J. Oxford Cent. Socio-Legal Stud., https://joxcsls.com/2016/11/01/implementing-international-criminal-court-ordered-collective-reparations-unpacking-present-debates/ (providing an overview of reparation as a transitional justice mechanism within the International Criminal Court’s procedural architecture, and explaining: “[T]he ICC Rules of Procedure and Evidence outline procedures governing victim applications and Court motions for reparations (rules 94 and 95); publication of reparation proceedings (rule 96); assessment of reparations (rule 97); and the role of the Trust Fund (rule 98). Together, the Rome Statute and ICC Rules of Procedure and Evidence provide a general framework guiding the authorization of reparations.”).
[3] See Erin Pobjie, Victims of the Crime of Aggression, in The Crime of Aggression: A Commentary 816 (Claus Kreß & Stefan Barriga, eds., 2017) (“Unlike the other crimes within the Court’s jurisdiction—genocide, crimes against humanity and war crimes—individuals have never been recognised as victims of this crime, nor of the underlying state act of aggression.”). Rudolf Dolzer suggests that, “the appropriate treatment and resolution of war-related claims brought by individuals will depend on the doctrinal framework in which they are placed. The traditional approach assumes that war-related claims by individuals are dealt with in peace treaties or their functional equivalents. Another view holds that war-related claims by individuals are treated the same as individual claims against foreign governments arising in times of peace. A third position equates the status of war-related claims with human rights claims in general. . . . It is only under the third view, identifying war claims with human rights claims, that the affected individual himself would arguably have standing to raise a claim before a national court in a country other than that of the defendant government.” Rudolf Dolzer, The Settlement of War-Related Claims: Does International Law Recognize a Victim’s Private Right of Action? Lessons after 1945, 20 Berkeley J. Int’l L. 296, 296–97 (2002).
[4] “For the purpose of this Statute, ‘crime of aggression’ means 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.” Rome Statute, supra note 1, art. 8 bis(1).
[5] Pobjie, supra note 3.
[6] Rome Statute, supra note 1, art. 8 bis.
[7] U.N. Charter art. 2, para. 4 (emphasis added).
[8] Rome Statute, supra note 1, art. 8 bis(1) (emphasis added).
[9] Note, Leslie Esbrook, Exempting Humanitarian Intervention from the ICC’s Definition of the Crime of Aggression: Ten Procedural Options for 2017, 55 Va. J. Int’l L. 791, 799 (2015).
[10] Rule 85(a) of the ICC Rules of Procedure and Evidence states, “‘Victims’ means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court.” ICC Rules of Procedure and Evidence, Rule 85(a), https://www.icc-cpi.int/iccdocs/PIDS/legal-texts/RulesProcedureEvidenceEng.pdf.
[11] Rule 85(b) of the ICC Rules of Procedure and Evidence states, “Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.” ICC Rules of Procedure and Evidence, Rule 85(b), https://www.icc-cpi.int/iccdocs/PIDS/legal-texts/RulesProcedureEvidenceEng.pdf. For a detailed analysis of the argument that states may conceivably qualify as victims under 85(b), see Pobjie, supra note 3, at 847–52.
[12] Carrie McDougall, for example, maintains that, “States are . . . excluded from the definition of ‘victims’ under Rule 85 of the Rules of Procedure and Evidence.” Carrie McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court 293 (2013).
[13] Pobjie, supra note 3, at 823. See also McDougall, supra note 12, at 292–93 (“The [victim] provisions were given little consideration during the negotiation of the crime of aggression: an assumption was made that existing provisions would apply equally to the crime.”).
[14] Proceedings, Sept. 30, 1946, 22 Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg 427 (1948).
[15] Mark Findlay & Ralph Henham, Beyond Punishment: Achieving International Criminal Justice 87 (2010).
[16] An understanding adopted at Kampala attempted to bound the impact of the Rome Statute’s aggression amendments on international law beyond the Rome Statute: “It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.” International Criminal Court, Assembly of States Parties, Review Conference, The Crime of Aggression, ICC Doc. RC/Res. 6, Annex III, Understanding No. 4 (June 11, 2010). Nevertheless, Sean Murphy argues that, “Adoption of the definitions on ‘act’ and ‘crime’ of aggression may have collateral implications outside the criminal context, especially on rules relating to the jus ad bellum.” Sean D. Murphy, The Crime of Aggression at the ICC 38 (Geo. Wash. U. Law Sch. Pub. Law and Legal Theory Paper No. 2012-50; Legal Stud. Research Paper No. 2012-50, 2012).
[17] See Pobjie, supra note 3, at 816.
[18] See, e.g., Frédéric Mégret, What is the Specific Evil of Aggression?, in The Crime of Aggression: A Commentary 1403 (Claus Kreß & Stefan Barriga, eds., 2017).
[19] Id. at 1404.
[20] Friedrich Rosenfeld, Individual Civil Responsibility for the Crime of Aggression, 10 J. Int’l Crim. Just. 249, 262 (2012).
[21] “Jus ad bellum refers to the conditions under which States may resort to war or to the use of armed force in general. The prohibition against the use of force amongst States and the exceptions to it (self-defence and UN authorization for the use of force), set out in the United Nations Charter of 1945, are the core ingredients of jus ad bellum.” Int’l Comm. of the Red Cross, What Are Jus ad Bellum and Jus in Bello? (Jan. 22, 2015), https://www.icrc.org/en/document/what-are-jus-ad-bellum-and-jus-bello-0.
[22] UN Compensation Commission Governing Council, Decision Taken at the 27th Meeting, 6th Sess., June 26, 1992, U.N. Doc. S/AC.26/1992/10, art. 5(1)) (“Governments and international organizations are entitled to submit claims to the Commission.”).
[23] See Ari Dybnis, Was the Eritrea–Ethiopia Claims Commission Merely a Zero-Sum Game?: Exposing the Limits of Arbitration in Resolving Violent Transnational Conflict, 33 Loy. L.A. Int’l & Comp. L. Rev. 255, 267 (2011) (“[T]he Commission awarded the final monetary damages solely to the States, and not to the individual victims or to the States as trustees for the individual victims.”).
[24] Compensation may comprise one of various modalities of reparation. Reparation is generally understood to require some communication of social meaning to victims, often anchored in an acknowledgement of responsibility for causing harm. Communication of social meaning is part of what transforms compensation into reparation following crimes associated with oppression or conflict. See, e.g., Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (Dec. 16, 2005) (codifying a right to remedy and reparation and elaborating upon various modalities of reparation for victims of cross violations of human rights law and serious violations of international humanitarian law); Martha Minow, Between Vengeance and Forgiveness 110 (1998) (“Social and religious meanings rather than economic values lie at the heart of reparations.”). Separately, states incur an obligation under international law to provide reparation when one state’s breach of international law injures another state. See, e.g., Kenneth W. Abbott, Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter & Duncan Snidal, The Concept of Legalization, 54 Int’l Org. 401, 409 (2000) (“When breach leads to injury, legal responsibility entails an obligation to make reparation, preferably through restitution. If this is not possible, the alternative in the event of material harm is a monetary indemnity; in the event of psychological harm, ‘satisfaction’ in the form of an apology.”).
[25] See Pobjie, supra note 3, at 847–52.
[26] “[I]t might be suggested that special provisions may be needed, if only to enable the Court to function effectively in relation to aggression prosecutions. . . . [An] alternative [regarding victim participation] would be to establish a mechanism to allow the victim State to speak on behalf of the individual victims of the crime—perhaps through the modification of the existing mechanism in Rule 103 . . . [Regarding reparation] there may be a need to develop specific principles that recognise the special nature of the crime . . . .” McDougall, supra note 12, at 300–01.
[27] Literature on investor-state arbitration has grappled with questions related to claims and counter-claims involving individuals and states, discussing individuals’ ability to sue states alongside states’ inability to sue individuals under international law. See, e.g., Alexander Orakhelashvili, The Position of the Individual in International Law, 31 Cal. W. Int’l L. J. 241, 261 (2001) (“International law, owing to its inter-state structure (however conservative it may look) cannot offer an equal remedy to the State. The State cannot sue the private corporation under international law.”).
[28] The Trust Fund For Victims is an entity established by article 79 of the Rome Statute, which provides: “(1) A Trust Fund shall be established by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims; (2) The Court may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund; (3) The Trust Fund shall be managed according to criteria to be determined by the Assembly of States Parties.” Rome Statute, supra note 1, art. 79. In 2015, the ICC Appeals Chamber clarified that making a reparations order “through” the Trust Fund “does not exonerate the convicted person from liability.” Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeals against the ‘Decision Establishing the Principles and Procedure to Be Applied to Reparations’ of 7 August 2012, ¶ 5 (Appeals Chamber, Mar. 3, 2015), https://www.icc-cpi.int/CourtRecords/CR2015_02631.PDF. See also Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, Ordonnance de Réparation en Vertu de l’Article 75 du Statut, ¶¶ 326–30 (Mar. 24, 2017), https://www.icc-cpi.int/CourtRecords/CR2017_01525.PDF (setting the amount of Katanga’s liability for reparations at USD 1,000,000, even while declaring Katanga indigent for the purpose of reparations as of the date of the Trial Chamber’s reparations order; instructing the Registry to continue to monitor Katanga’s financial situation; and, at the same time, inviting the Trust Fund to consider using its resources to implement reparations for victims given Katanga’s indigence) [hereinafter Katanga Reparations Order].
[29] Pobjie, supra note 3, at 850.
[30] See, e.g., Pobjie, supra note 3, at 852 (“As the recognition of legal persons as victims under rule 85(b) is discretionary…the Court should exercise its discretion to decline to recognise states as ‘organizations or institutions’ meeting the definition of victim.”).
[31] “[A] significant number of delegations were not prepared to accept the notion of State responsibility to, or in respect of, victims. However, this refusal does not diminish any responsibilities assumed by States under other treaties and will not—self evidently—prevent the Court from making its attitude known through its judgments in respect of State complicity in a crime.” Christopher Muttukumaru, Reparations to Victims, in The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results 267 (Roy S. Lee, ed., 1999).
[32] At the same time, however, Friedrich Rosenfeld notes, “There is substantial overlap between the forms of reparation, which can be awarded according to Article 75 ICC Statute and those that are envisaged by the ILC Draft Articles on State Responsibility.” Rosenfeld, supra note 20, at 257. Additionally, as Trial Chamber II recently noted in its order for reparations in the Katanga case, ICC-issued reparations judgments do not absolve states of their responsibility to grant reparations to victims under other treaties or national legislation. Katanga Reparations Order, supra note 28, ¶ 323, https://www.icc-cpi.int/CourtRecords/CR2017_01525.PDF (“[L]es réparations accordées par une ordonnance n’exonèrent pas les États parties de la responsabilité d’octroyer des réparations à des victimes en vertu d’autres traités ou de leur législation nationale.”).
[33] Carsten Stahn, The ‘End’, the ‘Beginning of the End’ or the ‘End of the Beginning’? Introducing Debates and Voices on the Definition of ‘Aggression’, 23 Leiden J. Int’l L. 875, 881 (2010).
[34] “A key feature of the system established in the Rome Statute is the recognition that the ICC has not only a punitive but also a restorative function. It reflects growing international consensus that participation and reparations play an important role in achieving justice for victims.” ICC Report of the Court on the strategy in relation to victims, ICC-ASP/8/45, Nov. 10, 2009, para. 3, http://reliefweb.int/sites/reliefweb.int/files/resources/58901C8BE39F9B4749257673001BFFBB-ICC-ASP-8-45-ENG.pdf.
[35] McDougall, supra note 12, at 300.
[36] The victim participation application process has been described as “burdensome on the chambers, the parties, and the Registry, had created significant backlogs of applications, and appeared not to be effective for victims.” Mariana Pena, Victim Participation Decision in the Ntaganda Case: How Does the System Compare to Previous Experiences?, Int’l Just. Monitor (Feb. 17, 2015), https://www.ijmonitor.org/2015/02/victim-participation-decision-in-the-ntaganda-case-how-does-the-system-compare-to-previous-experiences/.
[37] Benjamin B. Ferencz, Can Aggression Be Deterred by Law?, 11 Pace Int’l L. Rev. 341, 358 (1999).
Apr 11, 2017 | Content, Other Symposia
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By Sanji Mmasenono Monageng*
No rational person today argues that the world is flat, that people should be slaves because of the color of their skin, that colonialism is a good thing, or that women should have no legal rights. We need new thinking and new legal institutions to enforce basic human rights.[1]
Benjamin Ferencz, Ninety-Fifth Annual Meeting of the American Society of International Law
Benjamin Ferencz used these words when he addressed the Ninety-Fifth Annual Meeting of the American Society of International Law in 2001. With the Kampala compromise, the world took a step toward this “new thinking” as a definition of the crime of aggression was adopted for the first time.[2] The definition was meant to complement and complete the International Criminal Court’s (ICC) jurisdiction over the core international crimes: genocide, crimes against humanity, war crimes, and finally, the crime of aggression.
When establishing the Nuremberg Charter after World War II (WWII), the London Conference chose, for the first time in history, to criminalize acts of aggression, meaning that individuals were tried and prosecuted for such acts in the Nuremberg Tribunal.[3] At the time of the proceedings in Nuremberg, there was “no agreed definition of what was meant by aggression,” and its criminalization thus led to extensive controversy.[4] According to article 6 of the Tribunal’s Charter, the Tribunal held the power to try persons acting in the interests of states. Article II of Control Council Law No. 10, which supplemented the Charter, stated that acts of aggression were acts directed against other states.[5] Since almost every case of aggression results in the commission of other international crimes,[6] the Tribunal considered the crime of aggression “the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”[7] In 1946, the United Nations (UN) General Assembly (GA) affirmed the legal principles laid down in the Nuremburg Charter and the judgment. It was held that these should serve as the basis for the codification of international law.[8]
WWII was a “total war”: It involved national mobilization, and warfare was focused on battles fought with costly, mass-produced firepower, tanks, and airplanes.[9] Today, armed conflicts often look very different. According to Mary Kaldor, armed conflict today encompasses many types of violence of a political nature, including organized crime and large-scale human rights violations, and the distinction between them is blurry. Often, it is not possible to distinguish between private and public, state and non-state, and formal and informal.[10] These armed conflicts are not fought solely by regular armies but also include, for example, warlords and criminal gangs with highly decentralized structures. Another difference between today’s wars and traditional armed conflict is the nature of warfare. It is influenced by guerrilla tactics and counter-insurgency and yet is distinct from both. In traditional armed conflict, territory is captured through battle. When the parties use guerrilla tactics, on the other hand, they avoid battle and capture territory through political control by winning “hearts and minds,” while in the new mode of armed conflict, parties seize control through destabilization and terror. This means they use mass killings, forced resettlement, and different types of intimidating techniques. The violence is directed mostly at the civilian population. Indeed, many acts that are prohibited under the laws of armed conflict are “essential component[s] of the strategies of the new mode of warfare.” [11]
It was stated at the Nuremberg trial that “[the prohibition of aggression] is not static, but by continual adaptation follows the needs of a changing world.”[12] As explained, warfare has undergone great changes since WWII, so ultimately, to follow the directions of the judges at the Nuremberg trial, the prohibition of aggression, including its definition, should have developed accordingly. The first agreement on a definition of aggression after the International Military Tribunals of WWII was not reached until 1974, when the General Assembly adopted Resolution 3314.[13] It took another thirty-six years before the global community could agree on a definition of aggression that was actually meant to be used for criminal prosecution. The definition agreed on at the Kampala Conference is based on pre-existing, decades old sources: the 1974 definition and article 2(4) of the UN Charter.[14] This definition recognizes only a person acting on behalf of a state as the perpetrator and only another state as the victim.[15] It is argued that the purpose of including the crime of aggression within the ICC’s jurisdiction is “to prevent the suffering caused by armed conflict by deterring state actors from using aggressive force.”[16] This aspect of the definition of aggression is based on the view, adopted at the Nuremberg Tribunal, that the act of aggression is a high-level crime that “contains within itself the accumulated evil of the whole”—in other words, that it is the “supreme international crime.”[17] This is supported by the fact that several experts refer to the crime of aggression as the “supreme international crime” or the “crime of crimes.”[18]
The concept of armed conflict that underlies the Kampala compromise, however, is arguably too narrow to capture “new armed conflict.” Noah Weisbord has argued that if the definition is not amended, then as a last resort, the definition in the Rome Statute can be interpreted so as to include non-state actors. He acknowledges, however, that his suggested interpretation still requires some state-like characteristics and that it fails to encompass all types of groups acting aggressively.[19] As Weisbord emphasizes, the definition of the crime of aggression ultimately has not developed at the same pace as aggression itself.
At the same time, with respect to the other core crimes, the law has developed significantly since Nuremberg. Genocide has been recognized as a separate international crime;[20] crimes against humanity do not require a link with an armed conflict;[21] and the concept of war crimes has been extended to violations of humanitarian law in non-international armed conflicts.[22] These are all concepts, however, that are not included within the current definition of the crime of aggression. While the objective of stopping the other core crimes from being committed by prosecuting aggressive actions is logical, for this to become a reality, the definition of the crime of aggression must keep up with the definitions of the other international crimes. One might wonder whether the Assembly of State Parties (ASP) heard Ferencz’s call for new thinking or whether the ASP focused, instead, on his statement almost thirty years earlier that “[t]he most important thing about defining aggression is to define it.”[23] For the global community to carry on the Nuremberg legacy—for the crime of aggression to remain the “supreme international crime” over the other international crimes—it will probably be necessary to develop the notion of the crime of aggression further.
* Judge Sanji Mmasenono Monageng is presently a Judge of Appeal in the Court’s Appeals Division and she has served as a Judge in the Pre-Trial Division of the Court. She has also served as the Court’s First Vice-President. Judge Monageng is a former Judge of the High Courts of the Republic of the Gambia and the Kingdom of Swaziland and a Magistrate in Botswana. She has also served as a Commissioner of the African Commission on Human and Peoples’ Rights, an organ of the African Union. She is the founder Chief Executive Officer of the Law Society of Botswana. Judge Monageng would like to thank Elisabeth Hammargren and Jasper Gwasira for assisting in the research for this article. This article reflects her personal views and not those of the International Criminal Court.
[1] Benjamin B. Ferencz, International Trials for Internal Armed Conflicts, 95 Am. Soc’y Int’l L. Proc. 35 (2001).
[2] International Criminal Court, Assembly of States Parties, Review Conference, The Crime of Aggression, ICC Doc. RC/Res. 6 (June 11, 2010).
[3] Charter of the International Military Tribunal art. 6, Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279.
[4] Muhammad Shukri, Will Aggressors Ever Be Tried before the ICC, in The International Criminal Court and the Crime of Aggression 33 (Maouro Politi and Giuseppe Nesi eds., 2004) .
[5] Control Council Law No. 10, Punishment of Persons Guilty of War Crimes Against Peace and Against Humanity art. II, para. 1(a), Dec. 20, 1945, 3 Official Gazette of the Control Council for Germany 50–55 (1946).
[6] Matthew Gillet, The Anatomy of an International Crime: Aggression at the International Criminal Court, 13 Int’l Crim. L. Rev. 829, 832 (2013); Patricia Grzebyk, Criminal Responsibility for the Crime of Aggression 251 (2013).
[7] Judgment, 1 Trial of the Major War Criminals Before the International Military Tribunal 186 (1947).
[8] Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremburg, 10 Pace Int’l L. Rev. 203, 218 (1998).
[9] Mary Kaldor, New and Old Wars: Organized Violence in a Global Era 27, 28, 31 (3rd ed., 2014).
[10] Id. at 1–2.
[11] Id. at 9.
[12] The Law of the Charter, 22 Trial of the Major War Criminals Before the International Military Tribunal 464 (1948).
[13] Definition of Aggression, Dec. 14, 1974, G.A. Res. 3314 (XXIX), 29 U.N. GAOR Supp. No. 31, at 142, U.N. Doc. A/9631 (1974).
[14] Rome Statute of the International Criminal Court art. 8 bis(1–2), July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002), rev. 2010 [hereinafter Rome Statute].
[15] Id.
[16] Anouk T. Boas, The Definition of Aggression and Its Relevance for Contemporary Armed Conflict 6 (International Crimes Database Brief 1, June 2013), http://www.internationalcrimesdatabase.org/upload/documents/20141020T170547-ICD%20Brief%201%20-%20Boas.pdf (emphasis in original).
[17] Id. at 6–7.
[18] See, e.g., Stefan Barriga, Negotiating the Amendments on the Crime of Aggression, in The Travaux Préparatoires of the Crime of Aggression 4 (Stefan Barriga & Claus Kreβ eds., 2012); Noah Weisbord, Conceptualizing Aggression, 20 Duke J. Comp. & Int’l L. 1, 1 (2009); Astrid R. Coracini & Pål Wrange, The Specificity of the Crime of Aggression, in The Crime of Aggression: A Commentary 338 (Claus Kreβ & Stefan Barriga eds., 2017).
[19] Weisbord, supra note 18, at 27–30.
[20] Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 260 (III) A, U.N. Doc. A/RES/3/260 A (Dec. 9, 1948).
[21] Rome Statute, supra note 14, art. 7.
[22] Id., art. 8(2)(c–f).
[23] Benjamin B. Ferencz, Defining Aggression – The Last Mile, 12 Colum. J. Transnat’l L. 430, 463 (1973).
Apr 11, 2017 | Content, Other Symposia
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By Leila Nadya Sadat*
Writing on the unlawful use of force in a symposium honoring former Nuremberg Prosecutor Benjamin B. Ferencz is daunting. Ben has devoted a lifetime to the subject and has alternately inspired and harangued the international community on the question of war and its evils. His views have been expressed in a multitude of writings, from essays and articles to books, radio, and television interviews. His has been a voice of sanity, of moral clarity, in a world where being clever and powerful is often valued more highly than being wise. It has been my privilege to have known Ben for more than two decades, and to carry forward, in some small way, his vision of a world at peace under the rule of law.
In this brief essay, I would like to make a few points about the relationship between peace and war as a legal matter and challenge the notion that peace is no longer the natural state of human affairs, at least insofar as international law is concerned. I write from an admittedly U.S. perspective, which seems apt given that the Nuremberg trials were, to some extent, an American “show,” in terms of material support and participation.[1] Additionally, a major challenge to the Nuremberg legacy emanates from the U.S. government as well as U.S. academics. This fight for the soul of the Nuremberg legacy—and perhaps the future of the world—is thus, in large part, an intra-country debate with a potentially profound global impact.
***
Under international law, peace is defined in the negative—as the absence of war. So when international lawyers discuss a peacetime paradigm, they are not reflecting on an emotional or blissful state of inner well-being, or even on positive relations between neighbors, but on the legal paradigm governing national and international relations in the absence of armed conflict.[2] The two concepts are related: peace (in the international law sense) leads to stability, which in turn may permit individuals to experience “life, liberty and the pursuit of happiness” or even “[a] state of public tranquility; freedom from civil disturbance or hostility.”[3] It is thus unsurprising that the traditional approach of public international law—even during an era in which war was considered lawful—has treated peace as the rule, with special legal regimes governing armed conflict as the exception. This is evidenced in treatises like Lassa Oppenheim’s, which divided the world of international law in two: Peace (volume I) and War and Neutrality (volume II),[4] and in the requirement that there be an “armed conflict,” for international humanitarian law to apply.
Crimes against peace were one of the three charges leveled against the Nazis at Nuremberg. This charge was defined as the “planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances . . . .”[5] Although there had initially been fierce internal debate in the United States as to whether the Nazis should be tried for aggressive war,[6] ultimately the U.S. prosecutorial team, led by Supreme Court Justice Robert H. Jackson, vigorously pursued the Nazis for crimes against peace, arguing that the aggressive war itself was “the crime which comprehends all lesser crimes . . . .”[7] The International Military Tribunal agreed, famously opining that aggression “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.”[8] That pronouncement was enshrined in article 2(4) of the U.N. Charter, not as a matter of criminal law, but as a fundamental—indeed, peremptory—norm of international law binding on all states.[9]
Yet defining aggression either as a matter of state or individual responsibility—and ensuring its prohibition—has turned out to be difficult. The ambivalence that plagued the drafting of the Nuremberg Charter continued to bedevil international efforts to definitively prohibit the unlawful use of force. The International Law Commission, charged with developing a draft code of crimes, struggled for fifty years with the task, only to include the crime of aggression, without definition, in its 1996 Draft Code.[10] The General Assembly fared somewhat better; in 1974, it adopted Resolution 3314, which includes both a general definition of aggression and a list of prohibited acts.[11] The International Court of Justice has occasionally been seized of disputes involving allegations of unlawful uses of force, and there have also been arbitral disputes, fact-finding commissions, human rights adjudications, and even some national legislation (and case law) defining and adjudicating situations involving the unlawful use of force. Many of these are the subject of chapters in the forthcoming volume, Seeking Accountability for the Unlawful Use of Force.[12] In spite of the progress made to date, however, enforcing the notion that prohibitions on the unlawful use of force represent binding legal norms rather than political objectives or even wishful thinking has been a constant struggle of the modern era, the Nuremberg trial and judgment notwithstanding.
A case in point, as chronicled by others in this symposium, was the struggle to include the crime of aggression in the Statute of the International Criminal Court (ICC). Aggression was not included in the jurisdiction of the International Criminal Tribunal for the former Yugoslavia, and the fight over its inclusion in the ICC Statute threatened to derail the Rome Conference.[13] Through the perseverance of many, including Ben, and in spite of the fierce opposition of the United States (as well as other nations),[14] the ICC Assembly of States Parties adopted amendments to the Rome Statute in Kampala on the crime of aggression that are likely to be “activated” later this year when the Assembly meets in December. These amendments represent an important step forward in achieving accountability for the unlawful use of force, as they define the crime of aggression and give the ICC jurisdiction over it in limited circumstances. Yet because states can opt out of them if they wish, and certain “understandings” were adopted in Kampala that constrain the applicability and enforcement of the aggression amendments, their inclusion in the ICC Statute came with costs as well as benefits.[15]
A second example has been the assault on the Nuremberg legacy by states responding to acts of international terrorism.[16] Prominent U.S. scholars writing about the so-called “war on terror” have recently suggested the need to eliminate the peacetime paradigm in favor of a state of “perpetual war,”[17] on the grounds that this realist approach will lead to greater protections for human rights[18] or a more sensible balance between human rights and the demands of national security.[19] Under this view, the U.S. government can use military force, even in peacetime and outside a theater of war, if a state in which the United States suspects terror activity is deemed “unable or unwilling” to address the threat under a broad understanding of the right to self-defense under article 51 of the U.N. Charter.[20] This has led to the use of drones and targeted killing in the fight against Al-Qaeda, ISIL and other groups, even in highly contested and controverted cases, which may violate jus ad bellum and jus in bello rules as well as international human rights law.[21] Although the slide towards loose understandings of jus ad bellum (and jus in bello) constraints on American power began in earnest following the September 11 attacks, it continued during the Obama administration, albeit with more self-restraint,[22] and it appears likely to worsen under the forty-fifth president, who is apparently seeking to reject Obama-era constraints and “open the throttle on using military force,” according to recent reports.[23]
This notion of a “boundary-less battlefield” could push the laws of war and the prohibition on the use of force to the breaking point,[24] making everyone, everywhere, liable to be killed as “collateral damage.”[25] It works harm to the fundamental importance of peace as the presumptive framework for international relations and the existence of the emerging “human right to peace.”[26] Echoing Ben’s experience of World War II and the judgment of the International Military Tribunal at Nuremberg, Steven Ratner recently argued that the first pillar of an ethical standard of global justice is whether a norm promotes the advancement of peace.[27] He writes:
War has unparalleled catastrophic consequences for overall human welfare. More than any other activity over which humans have control, war undermines the possibility of people to live decent lives. As an initial matter, its death toll is staggering. . . .
War also creates an atmosphere of havoc, fear, irrationality, and aggressive human behavior that facilitates the commission of horrible acts against individuals . . . actions that many governments and their opponents would not commit in peacetime.[28]
***
In this short essay I have tried to make the case for reinforcing rather than abandoning the Nuremberg legacy and the U.N. Charter in which it is enshrined. This requires states to “put peacetime first,” rather than viewing the world through the lens of military force and its projection. The creators of the post-war world understood that to prevent the next war, the world needed rules, institutions, and enforcement. Let us hope that the seeds that were planted by Ben and his compatriots in the ashes of that war continue to bear fruit. As Ben himself has stated:
Nuremberg taught me that creating a world of tolerance and compassion would be a long and arduous task. And I also learned that if we did not devote ourselves to developing effective world law, the same cruel mentality that made the Holocaust possible might one day destroy the entire human race.[29]
* James Carr Professor of International Criminal Law and Director, Whitney R. Harris World Law Institute, Washington University (in St. Louis) School of Law.
[1] Leila Nadya Sadat, The Nuremberg Trial, Seventy Years Later, 15 Wash. U. Global Stud. L. Rev. 575, 579 n. 23 (2016) (citing Elizabeth Borgwardt, A New Deal for the World: America’s Vision for Human Rights 233 (2005)).
[2] The United Nations defines the human right to peace as “life without war.” Right of Peoples to Peace, G.A. Res. 39/11, U.N. Doc. A/RES/39/11 (Nov. 12, 1984). See also Steven R. Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations 98 (2015); Alfred de Zayas, Independent Expert on the Promotion of a Democratic and Equitable International Order, United Nations Human Rights Council, Opinion on Occasion of the First Session of the Open-Ended Working Group on the Right to Peace (Feb. 14, 2013).
[3] Peace, Black’s Law Dictionary 1244 (9th ed. 2009).
[4] Oppenheim’s classic treatise on international law, divided into two volumes (the first dealing with peace and the second with war), reflects this distinction. See 1 Oppenheim’s International Law (Robert Jennings & Arthur Watts eds., 9th ed. 1996); 2 Oppenheim’s International Law (H. Lauterpacht, ed., 7th ed. 1952).
[5] Charter of the International Military Tribunal art. 6, Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279.
[6] William Schabas, Origins of the Criminalization of Aggression: How Crimes Against Peace Became the “Supreme International Crime”, in The International Criminal Court and the Crime of Aggression 17, 25–26 (Mauro Politi & Giuseppe Nesi, eds., 2004).
[7] Telford Taylor, The Anatomy of the Nuremberg Trials 54 (1992) (quoting Robert Jackson).
[8] International Military Tribunal (Nuremberg), Judgment and Sentences, 41 Am. J. Int’l L. 172, 186 (1947).
[9] U.N. Charter art. 2, para. 4.
[10] Draft Code of Crimes Against the Peace and Security of Mankind art. 16, Int’l L. Comm’n, U.N. GAOR, 48th Sess., U.N. Doc. A/CN.4/L.532 (1996).
[11] 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).
[12] Seeking Accountability for the Unlawful Use of Force (Leila Nadya Sadat, ed., forthcoming 2017).
[13] Leila Nadya Sadat & S. Richard Carden, The New International Criminal Court: An Uneasy Revolution, 88 Geo. L. J. 381, 437 (2000).
[14] See Harold Hongju Koh & Todd F. Buchwald, The Crime of Aggression: The United States Perspective, 109 Am. J. Int’l L. 257 (2015).
[15] Id.
[16] Sadat, supra note 1, at 587–90.
[17] See Rosa Brooks, There’s No Such Thing as Peacetime, Foreign Pol’y, Mar. 13, 2015, http://foreignpolicy.com/2015/03/13/theres-no-such-thing-as-peacetime-forever-war-terror-civil-liberties/. See also Rosa Brooks, How Everything Became War and the Military Became Everything (2016); Monica Hakimi, International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide, 33 Yale J. Int’l L. 369 (2008).
[18] Brooks, There’s No Such Thing as Peacetime, supra note 17.
[19] Id. Brooks refers to the “war on terror” in her writings, a phrase that was coined by the Bush administration but subsequently abandoned by it, and that was also not favored by the Obama Administration, which preferred the moniker “countering violent extremism.” See, e.g., President Barack Obama, Remarks at the Leaders’ Summit on Countering ISIL and Violent Extremism at the United Nations Headquarters (Sept. 29, 2015), https://obamawhitehouse.archives.gov/the-press-office/2015/09/29/remarks-president-obama-leaders-summit-countering-isil-and-violent.
[20] Brian J. Egan, State Department Legal Advisor, Keynote Address at the 110th ASIL Annual Meeting: International Law, Legal Diplomacy, and the Counter-ISIL Campaign (Apr. 1, 2016), transcribed at https://www.lawfareblog.com/state-department-legal-adviser-brian-egans-speech-asil.
[21] See, e.g., Leila Nadya Sadat, America’s Drone Wars, 45 Case W. Res. J. Int’l L. 215 (2012); Kevin Jon Heller, ‘One Hell of a Killing Machine’: Signature Strikes and International Law, 11 J. Int’l Crim. Just. 89 (2013).
[22] See Jack Goldsmith, Obama Has Officially Adopted Bush’s Iraq Doctrine, TIME (Apr. 6, 2016), http://time.com/4283865/obama-adopted-bushs-iraq-doctrine/. See also Exec. Order No. 13732, United States Policy on Pre- and Post-Strike Measures to Address Civilian Casualties in U.S. Operations Involving the Use of Force, 81 Fed. Reg. 44,483 (July 7, 2016), and corresponding Fact Sheet: https://obamawhitehouse.archives.gov/the-press-office/2016/07/01/fact-sheet-executive-order-us-policy-pre-post-strike-measures-address.
[23] See Charlie Savage & Eric Schmitt, Trump Administration is Said to be Working to Loosen Counterterrorism Rules, N.Y.Times, Mar. 13, 2017, at A15. See also Micah Zenko, Trump Could Take Obama’s Drone Policy Further into the Shadows, Foreign Pol’y (Feb. 2, 2017), http://foreignpolicy.com/2017/02/02/the-buck-doesnt-stop-with-trump-on-counterterrorism/.
[24] Naz Modirzadeh, International Law and Armed Conflict in Dark Times: A Call for Engagement, 96 Int’l Rev. Red Cross 737, 746 (2014).
[25] Id.
[26] See, e.g., Douglas Roche, The Human Right to Peace (2003); Anwarul K. Chowdhury, Human Right to Peace: The Core of the Culture of Peace, in Contribuciones regionales para una Declaracion Universal del Derecho Humano a la Paz 125 (Carlos Villán Duran & Carmelo Faleh Perez eds., 2010).
[27] Ratner, supra note 2.
[28] Id. at 67.
[29]“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).
Apr 11, 2017 | Content, Other Symposia
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By Cherif Bassiouni*
The term aggression first appeared in official international legal literature in connection with the definition of “crimes against peace” in article 6(a) of the Charter of the International Military Tribunal (IMT),[1] followed by article 5(a) of the Statute for the International Military Tribunal for the Far East (IMTFE),[2] and in article II(a) of Control Council Law No. 10 (CCL No. 10).[3] But there was no legal precedent for such an international crime, even though much effort was made to link “crimes against peace” as it appeared in the IMT, IMTFE and CCL No. 10 to the Kellogg-Briand Pact of 1928, which does not, contrary to its plain terms, criminalize aggression or renounce “war as an instrument of national policy.”[4] Between 1928 and 1945 nothing occurred to criminalize aggression or any state action by which war was an instrument of national policy. It was therefore an unjustifiable legal argument for IMT, IMTFE, and CCL No. 10 to take for granted that aggression or “crimes against peace” were indeed internationally criminalized. Certainly, if nothing else, such an extrapolation violates the principles of legality that are part of general principles of international law.
This author, as well as many of his contemporaries, joined this effort to criminalize aggression, though always raising doubts about the international community would meet this hopeful expectation.
The United Nations undertook a codification effort following World War II, as a fulfillment of the Nuremberg Principles and a continuation of international accountability and international criminal justice. That effort, which started with the Draft Code of Offenses Against the Peace and Security of Mankind in 1947,[5] faced obstacles as of 1948 with the onset of the Cold War.
Disagreement between states leading the two opposing blocs spilled into this legal effort. The realpoliticians of the time were able to separate the definition of aggression from other crimes, placing it into a committee of government-appointed representatives that took its sweet time (twenty-six years) to reach a definition of aggression. Even at that time, however, rather than adopting a convention, the UN General Assembly adopted a resolution on the definition by consensus in 1974.[6] In the opinion of this writer, this does not make the definition of aggression, contained in that resolution, an international crime. Most significantly, neither the General Assembly nor the Security Council ever relied on that definition, notwithstanding the number of conflicts and issues regarding war and peace that they have had to deal with over these many years. Aggression thus remained in a legal and political limbo. Then came the International Criminal Court, and again a definition for aggression could not be reached either during the General Assembly’s four years of preparatory work or at a later diplomatic conference. It took twelve years for diplomatic initiatives, and the dedicated efforts of a few working behind the scenes, to develop a text with which that major states could agree. That text was included in the 2010 Kampala Review Conference work plan.[7] The text was adopted as an amendment to article eight of the Rome Statute, but it would only be binding upon those States Parties that have specifically adhered to and elected to be bound by it. This left a considerable number of States Parties out of the scheme altogether. The thirty states required for the amendment to enter into force have since been reached (which includes Palestine).
With some poetic license, I can say that aggression has been a crime in the minds of many for such a long time that they have come to take it for granted, as if it were a legal reality. Unfortunately it was not, and there does not seem to be much of a reason to continue that illusion.
There are two powerful reasons why aggression should finally be abandoned. The first is that, over the last thirty years, the number of conflicts between states that could fall within the definition of aggression have become few and far between. States that use their armed forces outside their territory always find some legal basis under international law to justify their foreign presence. This was the case with the United States in its invasion of Iraq in 2003[8] and its intervention in Afghanistan as of 2001.[9] It was the case with respect to Russia in Ukraine,[10] though that was more blatantly in violation of international law and had much less legal justification. Russia’s direct military involvement in Syria advances this trend one step beyond anything international law could find permissible, but it is more about its consequences, namely the crimes against humanity and war crimes committed by its troops against civilians in the country.
There are no other known cases of one state invading another or using force against another, except for the cases cited above and the United States’ use of drones and autonomous weapons systems (AWS). If we consider the use of cyber technology by one state against another, and its harmful effects, then that includes a number of states such as the United States, Russia, North Korea, China and possibly other states.
The second reason is that the classical form of aggression, or any of its variations, is not likely to occur again in this age of globalization. Now AWS and cyber technology can be used as a way for states to accomplish goals for which they historically had to resort to the type of aggression witnessed in World War One and World War Two to achieve. It is, therefore, not aggression as we knew it that should be pursued by those in the international community who want to advance international accountability and international criminal justice. They should, instead, focus on these new forms of violence and the more traditional, and well-established, crimes, e.g., war crimes and crimes against humanity. We therefore need to develop a new legal concept for linking these two crimes and uses of AWS and cyber technology so as to increase the international criminal responsibility of those engaging in violence. This is especially important for the policymakers and technical operators of these new devices. This is our new challenge.
* Emeritus Professor, DePaul University College of Law; Honorary President, International Institute of Higher Studies in Criminal Sciences; Honorary President, Association Internationale De Droit Pénal.
[1] Charter of the International Military Tribunal art. 6(a), Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.
[2] Charter of the International Military Tribunal for the Far East art. 5(a), Jan. 19, 1946, 4 Bevans 20.
[3] Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Control Council Law No. 10 (Dec. 20, 1945), Official Gazette Control Council for Germany 50–55 (1946).
[4] Kellogg-Briand Pact, Aug, 27, 1928, 6 U.S.T. 3516, 75 U.N.T.S. 287.
[5] G.A. Res. 177(II), ¶1(b), U.N. Doc. A/RES/177(II) (Nov. 21, 1947).
[6] 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).
[7] International Criminal Court, Assembly of States Parties, Review Conference, The Crime of Aggression, ICC Doc. RC/Res. 6 (June 11, 2010).
[8] Letter from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, S/2003/351 (Mar. 20, 2003).
[9] Letter from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, S/2001/946 (Oct. 7, 2001).
[10] Ukraine Crisis: Does Russia Have a Case?, BBC News (Mar. 5, 2014), http://www.bbc.com/news/world-europe-26415508.
