Defining Aggression for the International Criminal Court ... · J. Gewehr Defining Aggression for the International Criminal Court : A Proposal 3 It is the aim of this paper to produce

Name: Joachim Gewehr Student Number: GWHJOA001 Degree: LLM in International Law Title: Defining Aggression for the International

Criminal Court: A Proposal Supervisor: Professor Tom W. Bennett Research dissertation presented for the approval of Senate in fulfilment of part of the requirements for the Master of Laws in approved courses and a minor dissertation. The other part of the requirement for this qualification was the completion of a programme of courses. I hereby declare that I have read and understood the regulations governing the submission of Master of Laws dissertations, including those relating to length and plagiarism, as contained in the rules of this University, and that this dissertation conforms to those regulations.

January 2003

J. Gewehr Defining Aggression for the International Criminal Court: A Proposal

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Table of Contents

Introduction.......................................................................................................................... 2

Part I: The Development of the Crime of Aggression...................................................... 4

1. The Evolution of the Doctrine of Aggression............................................................ 4

(a) The Right to War (ius ad bellum) .......................................................................... 4

(i) The Traditional Concept .................................................................................... 5

(ii) Outlawing War................................................................................................... 6

(b) Aggression: An International Crime...................................................................... 8

(i) State Responsibility ........................................................................................... 9

(ii) (Establishing) Individual Criminal Responsibility: Nuremberg and Tokyo .... 10

(c) The Work of the ILC and the 1974 General Assembly Definition...................... 16

(d) Post-Nuremberg Cases of Aggression................................................................. 22

2. The Status of Aggression in Customary International Law..................................... 24

3. Aggression under the Rome Statute of the ICC....................................................... 25

Part II: Defining Aggression............................................................................................. 30

1. Introduction.............................................................................................................. 30

2. The Principle of Legality......................................................................................... 31

3. Approaches to Defining Aggression........................................................................ 32

4. Aggression as a Crime in Municipal Law ............................................................... 34

(a) The German Criminal Code................................................................................. 34

(b) The Criminal Code of the Russian Federation .................................................... 35

(c) The Japanese Criminal Code ............................................................................... 35

(d) The Austrian Criminal Code................................................................................ 36

(e) The Swedish Criminal Code ................................................................................ 36

(f) The Swiss Criminal Code .................................................................................... 37

5. The Definition of Aggression.................................................................................. 39

(a) Ratione Materiae: Use of Armed Force and Related Acts .................................. 40

(b) The Purpose of Committing Aggression ............................................................. 42

(c) The Scale on Which Aggression is Committed ................................................... 43


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(d) Enumerated Acts.................................................................................................. 43

(e) Actus Reus............................................................................................................ 44

(f) Ratione Personae ................................................................................................. 45

(i) Acts of State..................................................................................................... 46

(ii) Responsible Persons ........................................................................................ 47

(g) Legal Conditions under Which Aggression is Committed .................................. 48

(h) Mens Rea ............................................................................................................. 49

(i) The Principle of Priority...................................................................................... 50

6. Determining Aggression: The Security Council versus the ICC............................. 51

Conclusion.......................................................................................................................... 59

Bibliography ....................................................................................................................... 62

1. Books ....................................................................................................................... 62

2. Articles..................................................................................................................... 63

3. Cases ........................................................................................................................ 64

4. Websites................................................................................................................... 65


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Defining Aggression for the International Criminal Court: A Proposal

‘It is not peace which was natural and primitive and old, but rather war. War appears to be as old as mankind, but peace is a modern invention.’1

1 The Whewell Lectures, ‘International Law’, 1887, by Sir Henry Sumner Maine (London 1888), at p. 8, cited in Ahmed M. Rifaat, International Aggression: A Study of the Legal Concept: Its Development and Definition in International Law (1979), at 3.


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Introduction

On 1 July 2002 a milestone in the development of international law has been reached, as

the Rome Statute2 entered into force.3 Finally, an International Criminal Court (ICC) with

jurisdiction ratione materiae over ‘core’ internationa l crimes had been established. These

crimes, which the Statute describes as ‘most serious crimes of concern to the international

community as a whole’4 are war crimes, crimes against humanity, genocide, and

aggression. Yet not all cases of such crimes will be automatically tried before the ICC. A

rather complex system of admissibility limits jurisdiction to cases where national systems

do not themselves investigate or prosecute, or where they are unable or unwilling to do so

genuinely.5 This criterion was one of the least controversial aspects of the Rome

Conference,6 since it does not dangerously undermine the effectiveness of the court.

Rather, it preserves State sovereignty to the highest possible degree and ensures that the

ICC has jurisdiction in relevant cases where perpetrators would otherwise remain

unpunished. With war crimes, crimes against humanity, and genocide frequently

incorporated in municipal criminal law, the mesh of criminal sanctions seems almost

complete.

Yet there is one shortcoming to the Statute concerning a scenario where an ICC is

needed the most: The crime of aggression. This crime can be committed by heads of State

who wage war illegally. It has never been prosecuted before municipal courts and is hardly

even found municipal criminal law. A deadlock during the discussion at the ICC

negotiations lead to this rather unfortunate exclusion of what was once called the supreme

international crime. But as shall be discussed infra, the inclusion was merely postponed,

but not denied permanently.

2 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9. 3 Entry into force on 1 July 2002, in accordance with article 126. On 07 January 2003, there were 139 signatories and 87 parties. See http://www.un.org/law/icc/index.html for details. 4 Art. 5 of the Rome Statute. Similarly, art. 1 speaks of ‘most serious crimes of international concern’. 5 Art. 17 of the Rome Statute. 6 1998 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome.


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It is the aim of this paper to produce a workable definition of the crime of

aggression for an ultimate adoption into the Rome Statute. To accomplish this, a review of

the development of the crime will be presented in Part I, including an account of relevant

findings established by the precedents at Nuremberg and Tokyo, which can today be seen

as firmly established.7 Part II will be dedicated to a detailed analysis of central issues not

resolved as of today and yet vital to a definition. 8 Finally, a proposal which this author

deems consistent with higher norms of international law, morality, and political reality will

be produced. Lastly, it is hoped that this paper can contribute to the discussion and serve as

a reminder not to allow fatal retrogressive law-making.

7 Namely the illegitimacy of aggressive war per se and individual criminal responsibility for acts committed by a State. 8 Namely the status of the crime with respect to today’s modern system of collective security in international law.


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Part I: The Development of the Crime of Aggression

1. The Evolution of the Doctrine of Aggression

Albeit efforts to limit the use of force can be traced back as far as 400 years before Christ,9

the development of the concept took place predominantly in the twentieth century.

Imbedded into the context of a swiftly (at least in comparison to previous periods)

developing body of international law, the essential question involved herein is: To what

extent can a State lawfully inflict force on another State? Discussions during preceding

centuries produced starkly contrasting ideas about the legality of the use of force, mostly

with the result that permitted it for various purposes. However, due to speedy development

of potent weapons of mass destruction, and linked to a change in tactics of warfare during

the early twentieth century, the need for a radically different approach arose. It became

clear that wars could no longer be contained to belligerent countries or even to single

continents. Traditional theories of war and warfare became obsolete. Legal tools to outlaw

warfare had to be found as well as enforcement mechanisms.

(a) The Right to War (ius ad bellum)

The ius ad bellum must be strictly distinguished from the ius in bello. Whereas ius ad

bellum concerns the question of whether a State can lawfully engage in hostilities, ius in

bello is the law regulating the modalities with which a war may be fought. A breach of ius

ad bellum entails possible criminal (individual) responsibility for the crime of aggression.

A breach of ius in bello leads to criminal responsibility for war crimes. These two notions

are entirely independent of one another. Thus, a war instigated in violation of ius ad bellum

still requires adherence to ius in bello. Conversely, a war that was as such lawfully entered

9 Benjamin B. Ferencz, Aggression, in: Rudolf Bernhard (ed.), Encyclopedia of Public International Law, Vol. 1, 1992, at 58.


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into in accordance with ius ad bellum, can still lead to condemnation and prosecution of

war crimes according to ius in bello.

(i) The Traditional Concept

The idea that wars can be categorised to be either just (bellum iustum) or unjust (bellum

iniustum) originates from the writings of Aristotle and Cicero.10 Early Catholic theologians

considered a war to be just and thus lawful, if its cause was just. A just cause was believed

to be the avenging of wrongs received and injuries suffered.11 Lacking an international

court, it was left to each State to reach that determination from within itself.12 Clearly, with

this approach a number of causes could be conceived to begin a just war, often leading to a

position where both belligerent countries claimed to be fighting a just war.13 Aside from

this criterion, it was generally believed that every State has authority to declare war.

Lacking that authority, a war declared by anyone else was inherently unjust.14 From the

doctrine of just and unjust wars followed that no one could be forced to fight an unjust war

even if his sovereign demanded so and that reparations had to be paid by the one waging

unjust war.15

Hugo Grotius (1583-1645) agreed with the theologians’ learning, in that only a

wrong received could justify the use of force.16 He added further restraints in the form of a

recommendation – rather than legal criteria – claiming that only supreme necessity or a

most favourable opportunity should necessitate war.17 Under the anarchic system of

Westphalia, non-aggression treaties were drawn up and something like a ‘world

10 M. Cherif Bassiouni (ed.), International Criminal Law, Vol. 1 Crimes, 2nd ed. (hereinafter: Bassiouni, Crimes), at 313. 11 St. Augustine, cited in Rifaat, supra note 1, at 5. 12 Rifaat, supra note 1, at 5. 13 This finding was indeed backed by Franciscus de Vittoria, maintaining a theory of ‘probabilism’, see Rifaat, supra note 1, at 6. 14 Ibid, at 12. 15 Bassiouni, Crimes , supra note 10, at 314. 16 Grotius, De Iure Belli ac Pacis Libri Tres, in The Classics of International Law (Oxford, 1925), Bk. II, ch. I, sec. I, 4, cited in Rifaat, supra note 1, at 12, footnote 67. 17 Ibid. Ch. XVIV, sec. IX.


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consciousness for the prevention of war’ emerged.18 Yet the just-war doctrine was upheld

and continued to constitute the only non-treaty limitation to the right to resort to force.

However ineffective in preventing war, these few established limitations were

brushed aside by the demands of realpolitik, buttressed by legal positivist ideas of State

sovereignty in the nineteenth century. With the predominance of raison d’état in

international relations recognised at the time, war was seen as a natural expression of

competition between States. Its value was thus sorting out the weak from the strong:19

‘War is nothing else than the continuation of State policy with other means.... We see,

therefore, that war is not merely a political act but a real political instrument, a

continuation of political intercourse, a carrying out of the same by other means.’20

(ii) Outlawing War

After World War I international law underwent a significant change concerning its concept

of ius ad bellum. The treaty of Versailles renounced the instigation of World War I as ‘a

supreme offence against international morality and the sanctity of treaties.’21 With the

establishment of the League of Nations, the concept of maintaining peace through a

collective system was introduced. Article 10 of the Covenant of the League of Nations

obligated State parties to respect and preserve the territorial integrity and existing political

independence of each member against external aggression. Moreover, multilateral efforts

were undertaken to contain the eagerness with which States went to war. A 1923 Draft

Treaty on Mutual Assistance22 and a 1924 Protocol for the Pacific Settlement of

International Disputes23 were the first efforts to codify the illegality of aggressive war. Due

to a lack of ratifications these treaties never entered into force. A 1927 resolution of the

Assembly of the League of Nations stated that ‘a war of aggression can never serve as a 18 Bassiouni, Crimes , supra note 10, at 314. 19 Carl von Clausewitz, cited in Lyal S. Sunga, The Emerging System of International Criminal Law (1997), at 33. 20 Ibid, cited in Bassiouni, M. Cherif, International Criminal Law III – Enforcement (1987), at 25. 21 Art. 227 Treaty of Versailles. The Treaty of Versailles and After – Annotations of the Text of the Treaty, United States Government Printing Office 371 (1947). 22 League of Nations O.J. Spec. Supp. 7, at 16 (1923), cited in Grant M. Dawson Defining Substantive Crimes Within the Subject Matter Jurisdiction of the International Criminal Court: What Is the Crime of Aggression? 2000 New York Law Journal of International & Comparative Law 413, in footnote 91. 23 League of Nations O.J. Spec. Supp. 23, at 498 (1924), cited in ibid, in footnote 92.


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means of settling international disputes, and is, in consequence, an international crime.’

More successful at least in terms of its actual entry- into-force, the 1928 General Treaty for

the Renunciation of War,24 which was also ratified by Germany and Japan, introduced a

comprehensive prohibition of war:

Article 1. The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.

Article 2. The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.

More commonly known as ‘Pact of Paris’ or ‘Kellogg-Briand Pact’, this treaty

allows a State to determine unilaterally whether it is being subjected to aggressive war.25

Yet it remains unclear whether the proscription encompasses armed force not amounting to

war.26 Even though not expressly mentioned, the right to self defence remains

unimpaired.27

A 1933 Soviet proposal became the first attempt to define what constitutes

aggression and may thus well be considered a milestone in outlawing war.28 This proposal

lead to the discussion of a similar draft before the League of Nation’s Committee on

Security Questions, where it encountered definitional and political problems. The

commencement of German and Japanese activities leading to Word War II put a halt to all

further efforts in the matter until the end of the war.

With the adoption of the United Nations’ (UN) Charter after World War II, the Pact

of Paris lost its practical relevance.29 Article 2 (4) of the UN Charter provides:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.

24 U.K.T.S. 29 (1929), Cmnd. 3410; Aug. 27, 1928, 94 LNTS 57. 25 Dawson, supra note 22, in footnote 88. 26 See David J. Harris, Cases and Materials on International Law, 5th ed. 1998, at 861. 27 See ibid at 862. 28 Reprinted in Bassiouni, Crimes, supra note 10, at 317. 29 The Pact of Paris was never terminated and is arguably still in force with 67 State parties. See Harris, supra note 26, at 861. But see Bassiouni, Crimes, supra note 10, at 317 for a contrary opinion.


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Article 1(1) of the Charter declares the ‘suppression of acts of aggression or other

breaches of the peace’ to be the foremost purpose of the UN. Yet the UN Charter

consciously did not define the term ‘aggression’, as it was feared that a precise definition

would undermine efforts to restrain wars by allowing loopholes, which could be exploited

through rapidly progressing techniques of modern warfare. It was felt by leaving the

responsibility of determining this fact to the Security Council greater flexibility in response

to changing technology could be guaranteed.30

Among forty-nine multilateral treaties which have been drawn up with the

aspiration of prohibiting war and preserving peace between 1899 and 1998,31 the UN

Charter plays the central role. Today the prohibition of unilateral resort to force is

universally accepted as a rule of ius cogens.

(b) Aggression: An International Crime

The term ‘international crime’ is defined as a violation of an obligation to the ‘international

community as a whole’.32 Article 19(2) of the International Law Commission’s (ILC) Draft

Articles on State Responsibility (1996) defines an international crime (somewhat

circularly) as an ‘internationally wrongful act which results from the breach by a State of

an internationa l obligation so essential for the protection of fundamental interests of the

international community that its breach is recognised as a crime by the community as a

whole.’33

The moral need for a notion of international crimes resides in the fact that States

interact amongst each other much in the same way as citizens do within their own

municipal State. If States can behave in a wrongful way, sanctions have to be imposed

30 Kriangsak Kittichaisaree, International Criminal Law, 2001, at 211. 31 Bassiouni, Crimes , supra note 10, at 315. 32 Jarat C. Chopra, Establishing Universal Jurisdiction, The Brown Journal of World Affairs, Winter/Spring 1999, Vol. VI, Issue I, at 4. 33 ILC’s 1996 Report, UN G.A.O.R., 51st Sess., Supp. No. 10, at 125 .


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upon those acting wrongfully. Drawing a ‘domestic analogy’, States as members of an

international society are subjects of rights and must thus also be objects of punishment.34

A distinction has to be made between the terms ‘international crimes’ and ‘crimes

under international law’. Whereas the former is the attribution to a State of an

internationally wrongful act, the latter is used to describe certain heinous individual

crimes.35 International crimes, committed by a State, may lead to the incrimination of

individuals in connection with their commission, but only crimes under international law

require States – by treaty – to provide for punishment of the guilty. 36 If a State resorts to

force in violation of international law, it incurs responsibility to make reparation. If the

resort to force was made as a deliberate option of the government of that State to further

national policy, the possibility of holding individuals criminally responsible exists.37 Thus

aggression is an international crime that entails both State responsibility and individual

criminal responsibility.

(i) State Responsibility

It is a generally accepted principle that States are responsible for internationally wrongful

acts.38 Deduced from this theory is the responsibility of States perpetrating international

law to cessation, non-repetition hereof and finally reparation for wrongs committed. Aside

from this widely recognised delictual responsibility of States, a more controversial notion

of holding States criminally responsible has arisen. Criminal responsibility of States has

been defined as the susceptibility of the State concerned

to certain penalties in the form of indemnities and various measures of security such as military occupation, demilitarization, and destruction of existing war potential, and international control of certain aspects of governmental activity.39

34 Michael Walzer, Just and Unjust Wars. A Moral Argument with Historical Illustrations, second ed., New York, 1992, at 58, 61: ‘Domestic analogy’ means seeing the interaction of States analogous to that of citizens in a municipal State. 35 1979 ILC Yearbook Vol. I, p. 253, Commentary. 36 1979 ILC Yearbook Vol. II, pp. 109, 119. 37 Constantine Antonopoulos, Whatever Happened to Crimes against Peace? Journal of Conflict and Security Law (2001) Vol. 6 No. 1, 33, at 43. 38 See ICJ Corfu Channel Case, Merits, ICJ Rep. (1948) at 18. 39 Ian Brownlie, International Law and the Use of Force by States, 1963, at 150.


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Article 19 of the 1996 ILC Draft Articles on State Responsibility40 provided that States

may incur criminal responsibility. Even though legal consequences envisaged by the draft

fell short of allowing use of force or military occupation against the delinquent State, they

were far-reaching enough to amount to collective punishment.41 Upon meeting criticism

both by governments and literature, the ILC abstained from including similar provisions in

its 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts.42

Criminal responsibility of States in connection with the crime of aggression has thus

become a largely academic debate, with no relevance in connection with issues

surrounding the definition of aggression for the Statute of the ICC.

(ii) (Establishing) Individual Criminal Responsibility: Nuremberg and Tokyo

‘There can be no justice in war if there are not, ultimately, responsible men and women.’43

Napoleon Bonaparte was probably the first head of State to be held personally respons ible

for violations of international peace.44 The punishment received was expulsion to Elbe and

St. Helena. Kaiser Wilhelm II of Germany became the first individual to be officially

charged with instigation of war, with article 227 of the Versailles Peace Treaty45

envisaging his prosecution. However, he was never tried. The Netherlands granted refuge

and refused extradition on the basis that the Kaiser enjoyed immunity with respect to acts

committed in his official capacity as head of the German State. Moreover it was generally

felt that the principle nulla poena, nullum crimen sine lege barred prosecution, for

imposition of ex post facto law was generally seen as impermissible. Therefore the

effective contribution to the development of the crime of aggression was limited to calls

for introduction of penal sanctions in the future to address ‘such grave outrages against the

40 ILC’s 1996 Report , supra note 33. 41 See arts. 51 et seq. of the 1996 ILC Draft Articles on State Responsibility, supra note 33. 42 UN G.A.O.R., 56th Sess., Supp. No. 10 (A/56/10). 43 Walzer, supra note 34, at 288. 44 Antonopoulos, supra note 37, in footnote 1. 45 See supra note 21.


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elementary principles of international law.’46 During the inter-war period that followed, the

notion of individual criminal responsibility was not significantly furthered.

When Europe was again besieged by war, the allies declared in 1943 that all

German war criminals would be tried. But again it was uncertain whether indictments were

to include individual responsibility for the crime of aggression. The illegality of aggressive

war as such was not so much the subject of dispute. Numerous instruments in international

law had established the outlawing of aggressive wars.47 The main concern was whether

aggression had been an act punishable under international law prior to the outbreak of

World War II. The nulla poena, nullum crimen sine lege principle thus became the central

issue of litigation. Indeed, there was little evidence that the notion of ‘crimes against

peace’ had existed prior to World War II. The most renowned instrument outlawing

aggressive war, the Kellogg-Briand Pact, only rendered aggression an illegal act for States,

not a criminal act for which individuals could be tried. Yet morally it seemed unbearable to

let those who brought the greatest man-made calamity upon the word walk away with

impunity. The chief prosecutor to be, Justice Robert H. Jackson, argued that common sense

of justice must prevail over sterile legalism. 48 But not all State parties involved took a

comparably firm stand. To elude legal problems the envisaged Tribunal would have to

tackle, the British went so far as to favour summary executions of German leaders without

formal trial.49 Much like after World War I, some again wanted to limit legal consequences

to ‘formal condemnation in the peace-treaties’ and introduce penal sanctions only for the

future.50 Concerned more with the impunity of its own leaders, the Soviet Union only

agreed to the idea after receiving reassurance that the trial would take place before an ad

hoc Tribunal with jurisdiction limited to crimes committed by European Axis leaders.

The problem of ex post facto law continued to influence the drafting of the statute

for the Tribunal as well as the quest for a suitable definition for crimes against peace. The

U.S. favoured a precise definition of the crime, to preclude potential defences on the

argument that crimes against peace lacked precise elements and were thus not enforceable. 46 See Benjamin Ferencz, The Crime of Aggression, in Gabrielle Kirk McDonald / Olivia Swaak-Goldman, Substantive and Procedural Aspects of International Criminal Law, Vol.1: The Experience of International and National Courts, at 39 (hereinafter: Ferencz, The Crime of Aggression). 47 See supra section ‘Outlawing War’. 48 Bassiouni, Crimes , supra note 10, at 319. 49 Ferencz, The Crime of Aggression, supra note 46, at 42. 50 Ibid, at 42.


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However, France and the Soviet Union opposed such an inclusion of a definition as they

doubted whether any established norm of international law prescribed individual criminal

responsibility for aggressive war. The statute finally agreed on was annexed to the London

Agreement 51 and defined crimes against peace in Article 6 (a) as follows:

[N]amely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.52

At the Nuremberg proceedings, the Tribunal characterised the waging of aggressive

war as an ‘essentially an evil thing.... To initiate a war of 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.’53

The adoption of the charter and the definition contained therein did certainly not

end the discussion surrounding the nulla poena principle. When the issue was raised before

the Nuremberg Tribunal, the judges formulated the much cited assertion that:

Crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.54

This Statement reflects the standard of morality which was felt sufficient to sweep aside

serious concerns regarding legality. Questionable as it may have been at the time, the

principle of individual criminal responsibility for aggression under international law was

finally established at Nuremberg. The Tribunal backed its rejection of the nulla poena sine

lege objection with an argument relating to the more firmly established concept of

individual responsibility of those guilty of committing war crimes: Hague Convention IV

of 1907 makes no express provision for individual criminal responsibility for its violations.

51 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug.8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279, reprinted in (1945) 39 American Journal of International Law 259. 52 Charter of the International Military Tribunal and Protocol of 6 October 1945, Aug. 8, 1945 (hereinafter: Nuremberg Charter) . 53 Trial of the Major War Criminals, Judicial Decisions, International Military Tribunal (Nuremberg), Judgment and Sentences (hereinafter: Nuremberg Judgment), (1947) 41 American Journal of International Law 172, at 186. 54 Ibid, at 221.


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Nonetheless there have not been any objections to individual responsibility for war crimes

based thereon. Therefore the same must hold true in relation to the Pact of Paris.55

At Nuremberg the traditional understanding of the theory of State sovereignty,

according to which States have no superior, became obsolete. It was thus no longer true

that sovereign States cannot accept external judgments. Consequently as for the frequently

invoked defence of ‘acts of State’ the Tribunal held that ‘the principle of international law,

which under certain circumstances protects the representatives of a State, cannot be applied

to acts which are condemned as criminal by international law. The authors of these acts

cannot shelter themselves behind their official position in order to be freed from

punishment....’56 As to the role of international law and its effects on individuals, the

judgment found that ‘individuals have international duties which transcend the national

obligations of obedience imposed by individual States.’57 International law is thus not, as

had long been the prevalent view, concerned only with actions of sovereign States. Rather,

it creates duties for individuals and under certain circumstances provides for their

punishment. Although it may seem that heads of State should be allowed to escape

responsibility because they act not out of their own selfish interest, but rather for the sake

of other people, it would be wrong to assume that political functions are morally (and

legally) risk-free.58

The vagueness of the definition of aggression contained in article 6 (a) of the

Nuremberg Charter posed surprisingly little difficulty during the actual trial. Apparently,

the French and the Soviets had been right to assume that a vague definition would assist

the Tribunal better than a comprehensive one. This may well be attributed to the fact that

the acts of Nazi Germany qualified as aggression no matter what the general definition of

initiating and / or waging aggressive war. The severity of the offences tried thus made it

possible for the Tribunal to skirt the issue of the actual definition. 59

55 Ibid, at 218-219. 56 Ibid, at 221. 57 Ibid. 58 Walzer, supra note 34, at 290. 59 Dawson, supra note 22, at 431.


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The Nuremberg Charter made it necessary for the Tribunal to distinguish between

‘aggressive acts’ and ‘aggressive war’.60 Only aggressive war constituted a crime as such

according to the Charter. The individuals responsible for the use of force against Poland,

Denmark, Norway, the Netherlands, Belgium, Luxembourg, Yugoslavia, Greece, the

USSR and the U.S. were held guilty of waging aggressive war. In these cases the

respective governments had resisted Hitler’s demands. The annexation of Austria and the

imposition of German administration on parts of Czechoslovakia were considered

aggressive actions or steps ‘in furthering the plan to wage aggressive wars against other

countries.’61 These countries’ respective governments had submitted to Hitler’s demands.

The individuals responsible were convicted of conspiracy to commit crimes against peace.

The Tribunal left unanswered the question of whether the conflict with France and Britain

constituted aggressive war.

With respect to the circle of responsible persons, the wording of the Nuremberg

Charter allowed for far-reaching prosecution of ordinary combatants and even citizens. But

the Judges found that the scope had to be restricted to individuals at a policy-making

level.62 As the Nuremberg Tribunal stated, ‘Hitler could not make aggressive war by

himself. He had to have the co-operation of Statesmen, military leaders, diplomats, and

business men.’63 Therefore it was found that the circle of persons subject to prosecution

should be drawn rather loosely around the head of State. Further narrowing the scope of

responsible persons, the Tribunal did not prosecute defendants who had been absent from

the decisive conferences at which Hitler had presented his ideas concerning the acquisition

of new territory. They were not considered to have been in a position enabling them to

influence the policy of aggressive war. Ernst von Weizsaecker’s initial conviction was

reversed upon review with respect to limitations of ratione personae.64 Having been State

Secretary of the German Foreign Ministry and second only to von Ribbentrop, the Tribunal

60 Nuremberg Judgment, supra note 53, at 186 et seq. 61 Ibid, at 192-196. 62 Notably, a wide interpretation was indeed subscribed to by the President of the Tokyo Tribunal in a Separate Opinion; In Re Hirota and Others (International Military Tribunal for the Far East, Tokyo Trial, 1948), 15 Annual Digest and Reports of Public International Law Cases 356 (hereinafter: Tokyo Trial) at 373. 63 Nuremberg Judgment, supra note 53, at 223. 64 Von Weizsaecker was convicted and sentenced to seven years in prison on charges of war crimes and crimes against humanity. See In re von Weizsaecker and Others, U.S. Military Tribunal at Nuremberg, 14 April 1949 (1955), 16 Annual Digest and Reports of Public International Law Cases 344 (hereinafter: The Ministries Case).


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found that von Weizsaecker had been diplomatically active in ‘aiding and abetting’

German war plans, but that he took no part in actual policy planning and opposed Nazi

aggression from within the Foreign Ministry. In addition to that there had been some

involvement in underground resistance. The court would not follow the position of the

prosecution, who required active and open resistance to the point of being positively

obligated to reveal plans of aggression to the victims. Likewise in the High Command

Case, the Tribunal formulated that a person can be held responsible if he had ‘actual power

to shape and influence the policy of their nation.’65 In the IG Farben Trial the decisive

criterion was formulated to be a position which entails responsibility ‘for the formulation

and execution of policies.’66

Of twenty-four defendants accused before the Tribunal, eight were convicted and

executed for having committed the crime of aggression. The remaining defendants were

either convicted on other charges like war crimes and crimes against humanity or acquitted

of all charges.67

Like the Nuremberg Charter, the Tokyo Charter did not provide an extensive

definition of crimes against peace.68 But it added the words ‘declared or undeclared’ before

‘wars of aggression’ to block arguments that Japan had not been technically at war. The

formulation ‘international treaties’ was replaced with ‘international law, treaties’. Notably,

when the nulla poena sine lege issue was raised in the Tokyo trial, it drew objections from

the bench leading to dissenting opinions of two judges.69

Utilising the momentum created by the Nuremberg and Tokyo Tribunals, several

other cases of aggression were tried before special U.S. and French military Tribunals as

well as municipal courts in some States.70 Control Council Law No. 1071 was passed to

establish the legal basis for prosecution of crimes against peace and the other ‘Nuremberg 65 United States of America v von Leeb and Others, 15 Annual Digest and Reports of Public International Law Cases 380 (1948). 66 United States of America v Krauch and Others, 15 Annual Digest and Reports of Public International Law Cases 669 (1948). 67 See Ferencz, The Crime of Aggression, supra note 46, at 45. 68 Charter of the International Military Tribunal for the Far East (hereinafter: Tokyo Charter), art. 5 (a), reprinted in 15 Annual Digest and Reports of Public International Law Cases. 356, 357. 69 See the Tokyo Trial, supra note 62, at 375, 376. 70 See Antonopoulos, supra note 37, at 33. 71 Law No. 10 of the Control Council for Germany, reprinted in Benjamin Ferencz, 1 Defining International Aggression-The Search for World Peace 522 (1975).


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crimes’ by each occupying authority in Germany. The only alteration made in relation to

the Nuremberg Charter was the inclusion of ‘initiation of invasions’ which were not

resisted. Thus it was possible to treat the German conduct towards Austria and

Czechoslovakia as crimes against peace per se.72

(c) The Work of the ILC and the 1974 General Assembly Definition

Subsequent to the Nuremberg proceedings time seemed ripe to firmly establish the notion

of the crime of aggression in international law. 73 Thus, the ILC elaborated the so called

Nuremberg Principles and the UN General Assembly affirmed these principles in 1946.74

The definition contained in Principle VI a. was taken verbatim from the Nuremberg

Charter.75 With the ultimate goal of developing a criminal code to be used by a future

international criminal court, the ILC began working on a Code of Offences against the

Peace and Security of Mankind. Relying on the widely accepted Nuremberg Principles as a

basis, the ILC presented a draft in 1954.76 Unlike the Nuremberg Principles, the 1954 Draft

resorts to a detailed list of acts77 constituting aggression and other crimes which would

come under the heading ‘crimes against peace’:

(1) Any act of aggression, including the employment by the authorities of a State of armed force against another State for any purpose other than national or collective self-defence or in pursuance of a decision or recommendation of a competent organ of the United Nations. (2) Any threat by the authorities of a State to resort to an act of aggression against another State. (3) The preparation by the authorities of a State of the employment of armed force against another State for any purpose other than national or collective self-defence or in pursuance of a decision or recommendation of a competent organ of the United Nations.

72 The Ministries Case, supra note 64, at 347. 73 Along with other landmark developments such as the adoption of the 1948 Convention of the Prevention and Punishment of the Crime of Genocide. 74 Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, UN G.A.O.R., 5th Sess., Supp. No. 12, UN Doc. A/1316, 11-14 (1950). 75 Technically, Principle VI a. was divided in two subparagraphs, separately naming ‘participation in a common plan…’ in subparagraph ii. 76 1954 YILC, Vol. II (Part Two), at 151 (hereinafter: 1954 Draft). 77 In furtherance of the idea of the Tokyo Charter, that a war need not be a declared war, and with respect to the trend of States to not label their resort to force ‘war’, all post-Nuremberg definitions omit the requirement that there be a state of war.


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(4) The organization, or the encouragement of the organization, by the authorities of a State, of armed bands within its territory or any other territory for incursions into the territory of another State, or the toleration of the organization of such bands in its own territory, or the toleration of the use by such armed bands of its territory as a base of operations or as a point of departure for incursions into the territory of another State, as well as direct participation in or support of such incursions. (5) The undertaking or encouragement by the authorities of a State of activities calculated to foment civil strife in another State, or the toleration by the authorities of a State of organized activities calculated to foment civil strife in another State. (6) The undertaking or encouragement by the authorities of a State of terrorist activities in another State, or the toleration by the authorities of a State of organized activities calculated to carry out terrorist acts in another State. (7) Acts by the authorities of a State in violation of its obligations under a treaty which is designed to ensure international peace and security by means of restrictions or limitations on armaments, or on military training, or on fortifications, or of other restrictions of the same character. (8) The annexation by the authorities of a State of territory belonging to another State, by means of acts contrary to international law, (9) The intervention by the authorities of a State in the internal or external affairs of another State, by means of coercive measures of an economic or political character in order to force its will and thereby obtain advantages of any kind.78

In stark contrast to the Nuremberg Charter, the 1954 Draft comprehensively lists acts

constituting aggression as such and other acts which are not labelled aggression but which

also come within the scope of a wide definition of aggression. Thus, not only a war of

aggression, but any act of aggression short of war gives rise to criminal responsibility. The

threat of aggression and even preparation of the employment of armed force suffice.

Moreover, a wide range of acts of indirect aggression are included: participation in civil

strife and backing of terrorism as well as breach of treaties designed to ensure international

peace and security. Even intervention through coercive measures of economic and political

character was deemed to constitute an international crime.

A definition as comprehensive as the one proposed by the ILC in 1954 leaves little

loopholes and provides an effective deterrent in maintaining peace if backed by

international enforcement mechanisms. Making the breach of disarmament treaties a

criminal act would certainly be a valuable contribution to international law by at last

attaching a ‘real’ consequence to such conduct. Needless to say, the ambitious 1954 Draft

Code was never adopted, and political reality at the outset of the cold war soon made

obsolete even most modest efforts at finding a code for an international criminal court.

78 Article 2 of the 1954 Draft, supra note 76.


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Twenty years passed until the UN General Assembly adopted Resolution 3314.79

The purpose of the Resolution was ‘to formulate basic principles’ to guide the Security

Council in achieving the determination under article 39 of the UN Charter. It was hoped to

deter future perpetrators by pointing out authoritatively how far a State can go before

entering illegal grounds.80 The definition reads as follows:

Article 1 Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition. Explanatory note: In this Definition the term "State": (a) Is used without prejudice to questions of recognition or to whether a State is a member of the United Nations; (b) Includes the concept of a "group of States" where appropriate. Article 2 The First use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity. Article 3 Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof, (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

79 G.A. Resolution 3314 (XXIX), 14 December 1974, UN G.A.O.R. 29th Sess., Supp. No. 31, at 142. 80 See preamble to Resolution 3314, para. 9.


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(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. Article 4 The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter. Article 5 1. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression. 2. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility. 3. No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful. Article 6 Nothing in this Definition shall be construed as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning cases in which the use of force is lawful. Article 7 Nothing in this Definition, and in particular article 3, could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration.

Article 8 In their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions.

While some acclaim the achievements of the definition, 81 most authors are rather

critical. Resolution 3314 has thus been criticised for maintaining controversy surrounding

the prohibition of the use of force and its permissible exceptions, achieving little more than

the maintenance by consensus of the differences in State practice concerning the use of

81 Rifaat, supra note 1, at 279.


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force.82 Resolution 3314 may indeed have turned out to be an ‘agreement on phrases with

no agreement as to their meaning.’83 The priority which political interests took over legal

diligence in particular during the Cold War, gave the definition little chance to become

more than a mere ‘by-product of power politics’.84 Consequently, the outcome of the

process that started twenty-two years earlier, when a special Committee had been

appointed by the General Assembly in 1952, resembles more a description than a

definition. 85 But without an open-natured definition the consensus that was necessary for

the adoption would have been impossible altogether. In the long run Resolution 3314 may

yet prove to be a significant contribution in the slow and tedious development of

international law.

The Resolution did not, however, contribute to the concept of aggression as a crime

entailing individual responsibility. Article 5 (2) bluntly states that ‘[a] war of aggression is

a crime against international peace. Aggression gives rise to international responsib ility.’

No guidance is offered as to where the dividing line between the two notions is to be

drawn and what their respective consequences are. There is no clarification whether this

‘crime’ is committed by States or individuals or both, and whether ‘international

responsibility’ refers to responsibility of State or individuals or both. Some would like to

have seen Resolution 3314 provide for individual criminal responsibility, 86 while others

interpret the definition as providing for criminal responsibility of individuals only in

connection with a war of aggression; and mere State responsibility for acts of aggression.87

But the ambiguities of the definition seem to rule out this possibility. If the definition had

meant to establish individual criminal respons ibility, it would have at least had to include

an element of intent with respect to the potential perpetrator.88 Whereas it has been

rightfully observed that the Nuremberg Charter provided for individual criminal

82 Antonopoulos, supra note 37, at 39. 83 Julius Stone, Hopes and Loopholes in the 1974 Definition of Aggression, 71 American Journal of International Law 225, at 243 (1977). 84 T.W. Bennett, A Linguistic Perspective of the Definition of Aggression, German Yearbook of International Law, Vol. 31 (1988), at 49. 85 Ibid, at 55. 86 See Benjamin B. Ferencz, The United Nations Consensus Definition of Aggression: Sieve or Substance, 10 Journal of International Law and Economics 701. 87 Irina Müller-Schieke, Defining the Crime of Aggression, 14 Leiden Journal of International Law 409 (2001), at 417. 88 Justin Hogan-Doran / Bibi T. van Ginkel, Aggression as a Crime under International Law and the Prosecution of Individuals by the Proposed International Criminal Court, 43 Netherlands International Law Review 321 (1996), at 335.


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responsibility regardless of the lack of respective provisions with respect to mens rea,89

somewhat stricter principles should be applied to a modern criminal code. It does not

follow from this, however, that the crime of aggression no longer gives rise to individual

responsibility. On the contrary, subsequent to Nuremberg and the adoption of Resolution

3314, the possibility to lawfully hold individuals responsible (before an ad hoc forum to be

established) for committing aggression was less doubtful than ever before.

When the ILC produced its 1991 Draft Code of Crimes against the Peace and

Security of Mankind,90 it incorporated almost verbatim the definition of Resolution 3314 in

article 15 of the draft. The only alterations made by the ILC are:

Article 15 (1) establishes individual criminal responsibility, which had not been

provided for in Resolution 3314. The list of acts constituting aggression starts off in

paragraph 4, prescribing that ‘due regard’ be paid to the priority principle of paragraph 391

and to the general definition of paragraph 2.92 The latter reference is a mere clarification

similar to that of article 8 of Resolution 3314, which was not incorporated into the draft as

a separate article. The 1991 Draft further omits the explanatory note to article 1 of

Resolution 3314, and addresses the non-exhaustiveness of the enumeration93 in paragraph

4 (h) through different wording. The omission of article 5 of Resolution 3314 was

necessary, since the provisions of article 5 (2) and (3) cannot be part of a criminal code,

and the non-admissibility of justification for aggression (paragraph 1) can be addressed

only together with other relevant defences.

Both the 1954 Draft and the 1991 Draft include threats of aggression, 94 with article

16 (2) of the 1991 Draft for the first time offering a definition such threat:

Threat of aggression consists of declarations, communications, demonstrations of force or any other measures which would give good reason to the Government of a State to believe that aggression is being seriously contemplated against that State.

89 Benjamin Ferencz, Can Aggression be Deterred by Law? Pace International Law Review, Fall 1999, text avail. at http://www.benferencz.org/pacearti.htm, visited on 05 July 2002, after footnote 25. 90 1991 YILC, Vol. II (Part Two), at 94-97 (hereinafter: 1991 Draft). 91 Respective article 2 of Resolution 3314. 92 Respective article 1 of Resolution 3314. 93 Respective article 4 of Resolution 3314. 94 Article 16 (1) of the 1991 Draft.


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Indirect aggression is featured under the heading ‘intervention’ in article 17 of the

draft. The scope is more restrictive than in the 1954 Draft, and the only relevant form of

‘intervention’ is direct or indirect engagement in subversive or terrorist activities.

Only five years later, the ILC adopted its 1996 Draft Code of Crimes against the

Peace and Security of Mankind.95 Reflecting uncertainties with respect to the preferable

approach to a definition of aggression, the drafters chose the general definition option and

thus comprised the definition in only one sentence:

Article 16 - Crime of aggression An individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression.

Resembling in its shortness the definition of the Nuremberg Charter, the 1996 Draft takes

into account the strict interpretation applied by the Nuremberg Tribunal and post-

Nuremberg developments, expressly limiting the scope of the crime to leaders and

organisers and to aggression committed by States.

(d) Post-Nuremberg Cases of Aggression

The establishment of the UN did not finally achieve as much as its founders envisaged

with respect to effectively ending wars. Subsequent to World War II, there have been

countless incidences of unilateral resort to force by States which were not in conformity

with the UN Charter and thus unlawful. Yet there has been an appalling scarcity of

application of the tools provided by chapter VII of the Charter. The only formal

condemnations of aggression made by the Security Council were either addressed at South

Africa96 or Israel.97 South Africa was politically isolated at the time and in the

condemnation of Israeli aggression the U.S. (just this once) abstained from voting (and

95 UN G.A.O.R., Supp. No. 10, A/51/10 (1996) (hereinafter: 1996 Draft). 96 Regarding the condemnation of South African aggression against the People’s Republic of Angola, see e.g. Resolutions 387 (1976), 454 (1979), 567, 571, 574, 577 (all 1985), and 602 (1987). Text avail. at http://www.un.org/documents/scres.htm, visited on 24 November 2002. 97 Regarding the condemnation of Israeli aggression against Tunisia, see e.g. Resolutions 573 (1985) and 611 (1988). Text avail. at http://www.un.org/documents/scres.htm, visited on 24 November 2002.


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vetoing). Due to the nature of the Security Council as a political body, most other States

seem rather unlikely to become the addressee of a determination of aggression. The

Security Council’s permanent members can use their right to veto to fend off their being

labelled an aggressor.98 And most other States can rely on one of the permanent members

to exercise a friendly veto in their favour.99 Thus it is little surprising, that many cases were

ignored by the Security Council, even though they bore characteristics of the instances

dealt with by the Tokyo and Nuremberg Tribunals.100

Whereas war crimes and crimes against humanity have been prosecuted rather

frequently,101 post-Nuremberg prosecution for aggression, even subsequent to one of the

above mentioned instances involving a formal condemnation by the Security Council, is

non-existent. With respect to war crimes and crimes against humanity municipal courts

have – at least in theory – universal jurisdiction. Moreover, there have been a far greater

number of these crimes committed.102 But there are other reasons which make prosecution

of aggression an elusive task. Even though perpetrators of aggression are easy to identify,

they remain difficult to apprehend. The highly political nature of the crime has so far made

it impossible to initiate proceedings against alleged perpetrators. Evidence of aggression is

hard to obtain and even though unconditional surrender of the aggressor is probably not the

only condition which would facilitate actual proceedings, nothing short of complete

political isolation and actual custody over the accused will suffice. Furthermore, there are

alternatives to prosecution, for example the imposition of sanctions by the Security

Council or a competent regional organisation. 103

98 As to the legality of such behaviour see infra at 56. 99 The Vietnam War, the Afghanistan War waged by the Soviet Union in the 1980s and the continuing Arab-Israeli conflict are the most prominent examples to illustrate this dilemma. 100 Antonopoulos, supra note 37, at 47. Concerning some obvious cases like the Korean War, the Falkland War, the Iran-Iraq War and the Iraq-Kuwait crisis, the Security Council determined ‘only’ a breach of peace. See ibid at 46. Recent conflicts which may well fall within the scope of aggression are NATO’s bombing of Kosovo, the U.S.-lead operation in Afghanistan, China’s occupation of Tibet and the Russian engagement in Chechnya. 101 See ibid, in footnote 9 for references. 102 Despite the seemingly great number of prosecutions of these crimes, the overall ratio of commission and prosecution of these ‘Nuremberg crimes’ probably comes close to the one found with respect to aggression. 103 Antonopoulos, supra note 37, at 36.


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2. The Status of Aggression in Customary International Law

When the Nuremberg Tribunal stated in 1946 that the Nuremberg Charter ‘is the

expression of international law existing at the time of its creation; and to that extent is itself

a contribution to international law, ’104 doubts as to the recognition of the crime of

aggression in international law seemed legitimate and necessary. Yet after the judgment,

these doubts could no longer persevere. For ‘every custom has its origin in some single act

and every agreement has to be initiated by the action of some State.’105 Therefore today,

the status of aggression as an international crime is almost undisputed.106 Specifically with

respect to article 3 (g) of Resolution 3314, the International Court of Justice (ICJ) has held

that it mirrors customary law. 107 Carefully formulated, this may be seen as indicative that

the other subheadings of article 3 are equally declaratory of customary law. 108

The fact that no proceedings based on aggression took place subsequent to the post-

war trials does not mean that aggression no longer constitutes an international crime

incurring individual criminal responsibility. To support this assumption, it has been

submitted that the concept of the crime of genocide perpetuated despite a complete lack of

prosecution until ICTY / ICTR. Therefore the same can be valid with respect to

aggression. 109 This argument, even though correct in result, fails to differentiate treaty-law

and customary law. Whereas the crime of genocide is codified in the respective

convention, aggression – lacking a binding definition – can only persevere within the realm

of customary law. If constant State practice, supported by opinio iuris, were to reveal that

aggression is no longer a criminal act, the crime would cease to exist. Customary law is

created by custom. Therefore it must be possible to alter or even terminate it by custom.

With the crime of aggression, it cannot be said that it underwent this process. The fact that

no individual was prosecuted since immediately after World War II should not be 104 Nuremberg Judgment, supra note 53, at 216. 105 Justice Jackson’s opening speech, The Trial of German Major War Criminals, Opening Speeches of the Chief Prosecutors 40 (1946), cited from Müller-Schieke, supra note 87, in footnote 23. 106 Dinstein, Yoram, War, Aggression, and Self-defence, 3rd ed., 2001, at 109 and 118; Nina H. B Jorgensen, The Responsibility of States for International Crimes, 2000, at 239; Müller-Schieke, supra note 87, at 428. Arguing against the status of aggression as customary law: Christian Tomuschat, Das Strafgesetzbuch der Verbrechen gegen den Frieden und die Sicherheit der Menschheit, 24 Europäische Grundrechtszeitschrift 5 (1998). 107 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Merits), 1986, I.C.J. Rep. 14 (hereinafter: Nicaragua Case), at 103. 108 Dinstein, supra note 106, at 118. 109 Antonopoulos, supra note 37, at 34/35.


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attributed to the absence of opinio iuris in the matter. If the hurdles undermining

prosecution110 are to be overcome in one of the potential cases,111 the argument that

individual criminal responsibility for the crime of aggression is not sufficiently established

will be brushed aside more swiftly today than ever before.

3. Aggression under the Rome Statute of the ICC

Three major problems surfaced with respect to aggression at the Rome Conference. They

concerned the questions whether to include the crime of aggression at all, what the

respective definition should be and which role, if any, the Security Council should have in

the determination of aggression. Press releases of statements made at the Rome Conference

showed at least eight positions of States with respect to aggression. 112 Some delegations

favoured the inclusion without limitations, on the reasoning that not to include the

‘supreme international crime’ would encourage war rather than peace. Others insisted that

an inclusion would only be possible if the actual crime was clearly defined. A third

position wanted a definition to follow the definition contained in Resolution 3314, in part

wishing to see a distinction between aggression and the ‘legitimate struggle of peoples for

self-determination’. A further proposal wanted a more extensive definition to include

blockade of ports, coasts, territory, and air routes of a State by the armed forces of another

State. There were calls for an inclusion of the crime of aggression and the ‘threat or use of

force’; even an inclusion of ‘aggression to the environment’ was proposed. There were

States that would include aggression only under the condition that the Security Counc il

make a determination of aggression prior to the exercise of jurisdiction by the ICC. Finally,

it was suggested that the ICC should not have jurisdiction with respect to aggression, since

it was thought to be a political issue of which the ICC should steer clear.113

As to the first problem, it had been expected that certain States would vehemently

oppose the inclusion of aggression. Those States that use force as a means of foreign policy

110 See supra section ‘Post-Nuremberg Cases of Aggression’. 111 Ibid. 112 Kittichaisaree, supra note 30, at 208. 113 See ibid, at 208 et seq. for references.


26

on a regular basis were naturally reluctant to have such actions examined by the ICC and to

give the court jurisdiction over their own nationals. The position of the U.S. at the Rome

Conference closely resembles that of the Soviet Union when the London Agreement was

drafted.114 The leader of the American delegation to the Rome Conference stated that the

U.S. was subject to ‘special responsibilities and special exposure to political controversy

over [its] actions,’ a factor which ‘cannot be taken lightly when issues of international

peace and security are at stake,’ and that the U.S. was ‘called upon to act, sometimes at

great risk, far more than any other nation.’115 The U.S. argued that the inclusion of the

crime ‘alone could fatally compromise the ICC’s future credibility. ’116 The two new

nuclear powers India and Pakistan, busy testing new weapons, were not inclined to subject

themselves to possible charges of aggression. China felt that its national sovereignty was in

jeopardy. 117 But such objections raised against the inclusion of aggression constitute a

gathering of objections against the ICC in general. Another argument raised was that the

crime was superfluous, since individual State leaders guilty of aggression are also likely to

be guilty of committing one of the other, well-defined core crimes.118 Failing to take into

account the value of the criminalization of the aggression itself,119 this argument was

refuted on the grounds that to exclude aggression would be a major repudiation of the

Nuremberg Principles, making retrogressive development of international law. 120

Moreover, aggressive war itself can lead to other core crimes. Thus the initial prevention of

war could accelerate compliance with other international law.

During the Conference it was feared that the whole process of establishing an ICC

would be jeopardised by uncertainty about the status and definition of aggression. 121

114 James Podgers, War Crimes Court under Fire, 84 American Bar Association Journal 64 (1998), at 69 (quoting M. Cherif Bassiouni, chair of the drafting committee at the ICC conference, as stating that the United States did not sign the ICC Statute in large measure because it could not get ‘a stamp across the front of the treaty that says this will never apply to the United States, but the United States can use it whenever it wants’). 115 David J. Scheffer, The United States and the International Criminal Court, 93 American Journal of International Law 12 (1999), at 20. 116 Rachel Peirce, Which of the Preparatory Commission’s Latest Proposals for the Definition of the Crime of Aggression and the Exercise of Jurisdiction Should be Adopted Into the Rome Statute of the International Criminal Court? 15 Brigham Young University Journal of Public Law 281, at 282. 117 Benjamin B. Ferencz, Can Aggression be Deterred by Law?, supra note 89, after footnote 18. 118 Patricia A. McKeon, An International Criminal Court: Balancing the Principle of Sovereignty Against Demands for International Justice, 12 St. John’s J. Legal Comment 535 (1997), at 564. 119 Dawson, supra note 22, at 446. 120 Antonopoulos, supra note 37, at 39. 121 Ved P. Nanda, The Establishment of a Permanent International Criminal Court: Challenges Ahead, 20 Human Rights Quarterly 418 (1998).


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Indeed most States, including the European Union and about 30 nations united in the Non-

Aligned Movement, were unwilling to support the establishment of the ICC without the

inclusion of aggression. 122 In the end, the majority of States favoured the inclusion of

aggression, confirming the argument that without a definition of aggression no criminal

code would be complete and that if there was no code there would be no need for a court to

enforce it.123

More difficult than the question of whether to include aggression was the finding of

a definition. A 1994 ILC Draft Statute124 and a 1998 Draft Statute by the Preparatory

Committee on the Establishment of an International Criminal Court125 were foundations

for the drafting of the final Statute. Whereas the 1994 Draft Statute offers no definition of

aggression,126 article 5 of the 1998 Draft Statute extensively deals with the issue, providing

for several options:

[127Crime of aggression128 Note: This draft is without prejudice to the discussion of the issue of the relationship of the Security Council with the International Criminal Court with respect to aggression as dealt with in article 10. Option 1 [For the purpose of the present Statute, the crime [of aggression] [against peace] means any of the following acts committed by an individual [who is in a position of exercising control or capable of directing political/military action in a State]: (a) planning, (b) preparing, (c) ordering, (d) initiating, or (e) carrying out [an armed attack] [the use of armed force] [a war of aggression,] [a war of aggression, or a war in violation of international treaties, agreements or assurances,

122 Ferencz, Can Aggression be Deterred by Law?, supra note 89, after footnote 18. 123 Ferencz, The Crime of Aggression, supra note 46, at 51. 124 Report of the International Law Commission on the Work of Its Forty-Sixth Session, Draft Statute for an International Criminal Court, 49 UN G.A.O.R., 49th Sess., Supp. No. 10, UN Doc. A/49/355 (1994) (hereinafter: 1994 Draft Statute). 125 Report of the Preparatory Committee on the Establishment of the International Criminal Court, U. N. Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/2/Add.1 (1998) (hereinafter: 1998 Draft Statute). 126 This apparent insufficiency was later amended through the distribution of the ‘Siracusa Draft’ at the Rome Conference. See Bassiouni, Crimes, supra note 10, at 344 for details. 127 (Original footnote 5, stating:) This square bracket closes at the end of paragraph 2. 128 (Original footnote 6, stating:) The proposal reflects the view held by a large number of delegations that the crime of aggression should be included in the Statute. The Preparatory Co mmittee considered this crime without prejudice to a final decision on its inclusion in the Statute.


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or participation in a common plan or conspiracy for the accomplishment of any of the foregoing] by a State against the [sovereignty,] territorial integrity [or political independence] of another State [when this] [armed attack] [use of force] [is] [in contravention of the Charter of the United Nations] [[in contravention of the Charter of the United Nations as determined by the Security Council].] Option 2 1. [For the purposes of this Statute, the crime of aggression is committed by a person who is in a position of exercising control or capable of directing political/military actions in his State, against another State, in contravention to the Charter of the United Nations, by resorting to armed force, to threaten or violate the sovereignty, territorial integrity or political independence of that State.] [2. [Acts constituting [aggression] [armed attack] include the following:]129 [Provided that the acts concerned or their consequences are of sufficient gravity, acts constituting aggression [are] [include] the following:] (a) the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) bombardment by the armed forces of a State against the territory of another State [, or the use of any weapons by a State against the territory of another State]; (c) the blockade of the ports or coasts of a State by the armed forces of another State; (d) an attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) the use of armed forces of one State which are within the territory of another State with the agreement of the receiving State in contravention of the conditions provided for in the agreement, or any extension of their presence in such territory beyond their termination of the agreement; (f) the action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.]] Option 3 [1. For the purpose of the present Statute [and subject to a determination by the Security Council referred to in article 10, paragraph 2, regarding the act of a State], the crime of aggression means either of the following acts committed by an individual who is in a position of exercising control or capable of directing the political or military action of a State: (a) initiating, or (b) carrying out an armed attack directed by a State against the territorial integrity or political independence of another State when this armed attack was undertaken in [manifest]

129 (Original footnote 7, stating:) Paragraph 2 of the text reflects the view held by some delegations that the definition should include an enumeration of the acts constituting aggression.


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contravention of the Charter of the United Nations [with the object or result of establishing a [military] occupation of, or annexing, the territory of such other State or part thereof by armed forces of the attacking State.] 2. Where an attack under paragraph 1 has been committed, the (a) planning, (b) preparing, or (c) ordering thereof by an individual who is in a position of exercising control or capable of directing the political or military action of a State shall also constitute a crime of aggression.]

After various compromise solutions had failed to receive sufficient support and

with time running out, Chairman Philippe Kirsch of Canada found the only compromise

possible: the resolution of the differences was to be postponed to a later day. 130 Thus,

whereas under article 5 (1) of the Rome Statute the ICC has jurisdiction over the crime of

aggression, article 5 (2) states:

The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.

Aggression is as a result included de iure but not de facto. Even though the

inclusion generally manifests a willingness to have this crime prosecuted, actual

establishment of jurisdiction will not come easily. After the Statute’s entry into force

subsequent to its sixtieth ratification,131 seven years must pass before the Review

Conference will be conducted to consider amendments.132 To adopt an amendment, a two-

thirds majority of parties is required.133 One year after ratification, the amendment will

enter into force in relation to the respective State party. 134 Even then, the ICC will only

have jurisdiction over crimes involving the territory or nationals of States who have

ratified the change.135

130 Ferencz, Can Aggression be Deterred by Law?, supra note 89, after footnote 19. 131 The Rome Statute entered into force on 1 July 2002, see supra note 2. 132 Article 123 (1) of the Rome Statute. 133 Article 121 (3) of the Rome Statute. 134 Article 121 (5) of the Rome Statute. 135 Article 121 (5) of the Rome Statute. The amendment procedure applicable to the subject matter jurisdiction of the ICC (articles 5-8) differs in this from the amendment procedure concerning other issues, under which all States are to be bound by the amendment [unless that State party wishes to withdraw from the statute altogether under article 121 (6)].


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Part II: Defining Aggression

1. Introduction

Analogous to domestic systems, there are crimes, perpetrators and victims on the

international plane. From this, the need for effective law and law enforcement originates.

International criminal law derives from human rights law, regional norms on inter-State

co-operation, emerging international criminological and penological considerations and

from general principles of law recognised by the world’s major criminal law systems.136 In

consequence, domestic law and applicable principles of criminal law respectively, must be

taken into account when drafting an international criminal code. Part II of this paper thus

aims at proposing a feasible definition of aggression, including achievements of the past.

Simultaneously, the focus will be on the future in an attempt to contribute to the

development of the crime; a development which will be far from completed even after the

ultimate incorporation of a definition into the Rome Statute.

The ICC has jurisdiction ratione temporis and ratione personae exclusively with

respect to crimes committed subsequent to its entry into force.137 Therefore, in defining

crimes under the Rome Statute, customary law and previous codifications can serve as

guidelines, but they cannot legally confine the definition. However, a definition drafted

closely along established guidelines set by pre-existing norms can receive wider support.

For that reason, it became a generally accepted principle during the Rome Conference to

focus on codification of rules of customary international law. 138

136 Bassiouni, Crimes , supra note 10, at 14. 137 Arts. 11 (1), 24 (1) of the Rome Statute. A different situation was encountered when drafting the statutes for the ad hoc Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR), where the drafters were bound to stay within the proscriptions firmly established under customary international law. 138 Zimmermann in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article 1999, at 99.


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2. The Principle of Legality

The principle of legality determines that no one is to be accused, tried or convicted on the

basis of conduct which did not constitute a criminal offence under the law at the time of its

commission (nullum crimen, nulla poena sine lege). From this results the prohibition of

retroactive criminal legislation (ex post facto criminalisation). Furthermore, the principle of

legality bars legal proceedings on grounds for which such proceedings have already taken

place against an individual and of which he has either been acquitted or convicted (ne bis in

idem). Its aim is the protection of individuals from arbitrary punishment. Even though it is

recognised in general, interpretations of the content of the principle differ considerably.

Continental legal systems interpret the principle as requiring criminal laws to be written,

prohibiting punishment on the basis of customary law or general principles of law. In

international human rights law, much like in common law legal systems, the principle of

legality does not go so far as to prohibit punishment in accordance with general principles

of law recognized by the international community. 139 The Rome Statute endorses the

stricter continental interpretation, limiting the applicable scope of crimes to the statute

itself:

A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.140

And [a] person convicted by the Court may be punished only in accordance with this Statute,141

thus ruling out any application of general principles and other sources of law. 142 In order to

satisfy the principle of legality, definitions of crimes must be specific enough to let

potential perpetrators know which particular conduct is prohibited.143 This means that the

139 See article 15 of the International Covenant of Civil and Political Rights, Dec. 19, 1966, 993 U.N.T.S. 3. 140 Article 22 (1) of the Rome Statute. 141 Article 23 of the Rome Statute. 142 Article 22 (3) of the Rome Statute declares with respect to these sources of law: ‘This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.’ 143 Bassiouni, Crimes , supra note 10, at 33.


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identification of prohibited conduct must be clear and unambiguous.144 To ensure that

possible ambiguities do not facilitate extensive interpretation, the Rome Statute states:

The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.145

3. Approaches to Defining Aggression

Most States agreed that aggression should be included into the jurisdiction of the new

ICC.146 However, when it came to finding a definition, views in general were divided

between those favouring a definition of the crime in general terms as provided for in the

Nuremberg Charter, and those endorsing an enumerative approach. Confronted with

seemingly irreconcilable views on a possible definition, it has been submitted that a case-

by-case approach might be preferable over an ‘all-sweeping and pre-existing’

formulation. 147 It is true that the utilisation of a less precise definition coupled with an ex-

post determination of whether aggression has been committed, allows for a more flexible

approach in the determination. However, it is at the same time certain to meet even greater

resistance by all States. Every State should have an interest in the precise definition of the

crime of aggression because it will deem certain acts by its government criminal. The

scope of criminal acts of State should be clear beyond the shadow of a doubt in advance,

since governments must be able to assess the legal consequences of their action prior to

making decisions.148

Since a solely enumerative definition entails the danger of leaving loopholes, this

approach cannot be recommended. On the other hand, a general definition gives rise to

concerns regarding its conformity with the principle of legality, more specifically the

principle of legal certainty. Even though it is technically possible to construe general

144 Ibid, at 33. 145 Article 22 (2) of the Rome Statute. 146 See Christopher K. Hall, The Third and the Fourth Sessions of the United Nations Preparatory Committee on the Establishment of an International Criminal Court (1997) 91 American Journal of International Law 124, at 129. 147 As suggested by Antonopoulos, supra note 37, at 40. 148 Ibid, at 35.


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definitions strictly enough to achieve a high level of certainty and specificity, the highly

political content of the crime of aggression leaves this approach extremely susceptible to

criticism with respect to the charge of biased jurisprudence. Therefore, an approach similar

to that of Resolution 3314 should be taken: A general definition of aggression to be

illustrated by a non-exhaustive list of specific acts. An illustrative enumeration will help to

add legal certainty dually: first, most acts conceivable as aggression will be directly within

the scope of one of the enumerated acts, making recourse to the general part of the

definition obsolete. Secondly, should an aggressive act occur which is not included in the

list, the question will be whether it fulfils the criteria established by the general definition.

Here, the enumeration can serve as a guideline by providing comparable acts and

establishing a threshold.

It has been suggested that even with the Statute lacking an enumeration, the ICC

would still have the power to resort to the enumeration provided by Resolution 3314 in

order to define the crime of aggression. 149 Article 21 of the Rome Statute provides that the

court may, under certain circumstances, refer to ‘applicable treaties and the principles of

the law of armed conflict.’ It however cannot be sufficiently established that Resolution

3314 constitutes an applicable treaty or even a principle of the law of armed conflict. It is

more than doubtful whether the reference to this non-binding guideline can serve as a

satisfactory basis for conviction of perpetrators by the ICC. Furthermore, such inclusion of

treaties and principles from outside of the Rome Statute would undermine the strict

limitations imposed by articles 22 and 23. Article 21 should be interpreted as referring to

non-substantive matters rather than permitting the expansion of list of crimes under the

jurisdiction of the ICC through the back door.

149 Müller-Schieke, supra note 87, at 416.


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4. Aggression as a Crime in Municipal Law

When defining international crimes, municipal criminal law can serve as guidance,

provided the crime in question is somewhat further developed on that level. With respect to

aggression, several States have included the crime into their codes; the most prominent

examples will be discussed in this section.

(a) The German Criminal Code

Section 80 Preparation of a War of Aggression Whoever prepares a war of aggression (Article 26 subsection (1), of the Basic Law) in which the Federal Republic of Germany is supposed to participate and thereby creates a danger of war for the Federal Republic of Germany, shall be punished with imprisonment for life or for not less than ten years. Section 80a Incitement to a War of Aggression Whoever publicly incites to a war of aggression (Section 80) in a meeting or through the dissemination of writings (Section 11 subsection (3)) in the territorial area of application of this law shall be punished with imprisonment from three months to five years. 150

Under Sec. 80 of the German Criminal Code, only a war of aggression constitutes a

punishable crime, not mere acts of aggression. Yet it is not required for war to have

actually taken place. There is not even a provision to address this scenario, since the

preparation of aggressive war alone is to be punished with the maximum penalty,

imprisonment for life. With the exception of murder and genocide, such harsh punishment

for inchoate crimes is unequalled in the German Criminal Code. But in the aftermath of

World War II, no punishment seemed strict enough in order to deter future perpetrators.

Relying on the same rationale, ratione personae of the crime is no t limited to persons on a

policy-making level. Rather, anyone can commit the crime of aggression.

150 Translation from the website of the Federal Ministry of Justice, avail. at http://www.bmj.bund.de/images/10927.pdf, visited on 2 September 2002. § 80. Vorbereitung eines Angriffskrieges. Wer einen Angriffskrieg (Artikel 26 Abs. 1 des Grundgesetzes), an dem die Bundesrepublik Deutschland beteiligt sein soll, vorbereitet und dadurch die Gefahr eines Krieges für die Bundesrepublik Deutschland herbeiführt, wird mit lebenslanger Freiheitsstrafe oder mit Freiheitsstrafe nicht unter zehn Jahren bestraft. § 80a. Aufstacheln zum Angriffskrieg. Wer im räumlichen Geltungsbereich dieses Gesetzes öffentlich, in einer Versammlung oder durch Verbreiten von Schriften (§ 11 Abs. 3) zum Angriffskrieg (§ 80) aufstachelt, wird mit Freiheitsstrafe von drei Monaten bis zu fünf Jahren bestraft.


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(b) The Criminal Code of the Russian Federation

Article 353. Planning, preparation, initiation or waging of a war of aggression 1. The planning, the preparation or the initiation of a war of aggression shall be punished with imprisonment for the duration of seven to fifteen years. 2. The waging of a war of aggression shall be punished with imprisonment for the duration of ten up to twenty years.

Article 354. Public incitement to initiate a war of aggression151 […]

This provision closely resembles the formulation used by the Nuremberg Charter. Acts of

preparation (para. 1) are penalised less strictly than actual waging of aggressive war (para.

2). Sentences to be imposed are less severe than those provided for by the German Code,

but they seem adequate to serve as an effective deterrent. The provision also does not

restrict the scope of the crime to persons on a policy-making level.

(c) The Japanese Criminal Code

Article 93. (Preparations and Plots for Private War) A person who prepares or plots to wage war privately upon a foreign State shall be punished with imprisonment without forced labour for not less than three months nor more than five years; provided that the punishment of a person who surrenders himself to authorities concerned shall be remitted.152

This provision should not be confused with a ‘real’ codification of the crime of aggression.

Limited in its scope to ‘private war’, aggression committed by a government in its legally

recognised capacity is excluded. The provision arguably comprises cases where a

government official abuses his power to wage war contrary to the national interests of

Japan. Moreover, it may cover cases in which relevant national procedures are ignored 151 Own translation from a German translation published in: Strafgesetzbuch der Russische Föderation, Sammlung ausländischer Strafgesetzbücher in deutscher Übersetzung, CVIII, Freiburg i. Br. 1998. The original Russian version reads: Ñòàòüÿ 353. Ïëàíèðîâà íè å , ïîäãîòîâêà , ðàçâÿçûâà íè å èëè â åä å íè å àãðåññèâí îé â îé íû 1. Ïëàíèðîâàíèå , ïîäãîòîâêà èëè ðàçâÿçûâàíèå àãðåññèâíîé âîéíû - í àê àçûâà þòñÿ ëèø å íè åì ñâ îá îäû í à ñð îê îò ñ åìè ä î ïÿò í àäöàòè ë åò . 2 . Âåäå íè å àãðåññèâí îé â îé íû - í àêàçûâàåòñÿ ëèø å íè åì ñâîáîäû í à ñðîê îò äåñÿòè äî äâàäöàòè ëåò. Ñòàòüÿ 354. Ïóáëè÷íûå ïðèçûâû ê ðàçâÿçûâàíèþ àãðåññèâí îé â îéíû 152 Translation taken from United Nations Asia and Far East Institute for the Prevention of Crime and The Treatment of Offenders (UNAFEI); Criminal Justice Legislation of Japan.


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when leading the country into war. But the protection of the territorial integrity of an

attacked State is only an indirect result of Japan’s penal legislation. The provision mainly

aims at protecting the government’s monopoly to use force against other States.

(d) The Austrian Criminal Code

§ 316 Treasonable attacks against a foreign State (1) Whoever undertakes from Austrian territory (§ 242, para. 2) to change the constitution of a foreign State or to divide off territory which is part of a foreign State by force or threat with force, shall be punished with imprisonment from six months up to five years.153

The Austrian provision constitutes a proscription of aggression with limited scope.

Whereas acquisition of territory amounts to a criminal act, resort to force in furtherance of

other goals (with the exception of a change of constitution) remains outside the scope of

the provision. Since most historical examples of aggressive war were indeed aimed at the

acquisition of territory the provision covers practically all relevant options. Yet it seems

somewhat incomplete. A change of government pursued for political reasons, for example,

could not be prosecuted under the provision.

(e) The Swedish Criminal Code

Chapter 19 On Crimes against the Security of the Realm Section 2 A person who by violent means or foreign aid causes a danger of the Realm being involved in war or other hostilities, shall, unless it is high treason, be sentenced for instigating war to imprisonment for at least two and at most eight years.154

Under the Swedish provision, the danger of the (Swedish) State being involved in war is

deemed sufficient. However, from the wording and the inclusion of utilisation of foreign

aid to that end, it must be deduced that this provision predominantly envisages the

153 Own translation. The original version reads: § 316 Hochverräterische Angriffe gegen einen fremden Staat (1) Wer es im Inland unternimmt (§ 242 Abs. 2), mit Gewalt oder durch Drohung mit Gewalt die Verfassung eines fremden Staates zu ändern oder ein zu einem fremden Staat gehörendes Gebiet abzutrennen, ist mit Freiheitsstrafe von sechs Monaten bis zu fünf Jahren zu bestrafen. 154 Source: http://justitie.regeringen.se/propositionermm/ds/pdf/Penalcode.pdf, visited on 28 August 2002. No original version was available.


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protection of the integrity of Sweden. The protection of other States from Swedish

aggression is a mere by-product of a rather wide wording. No criteria are laid down for the

lawfulness of the resort to force, i.e. that a war must be aggressive to be criminal. Thus, it

has to be doubted, whether the Swedish provision would actually suffice to convict a

perpetrator waging aggressive war from within the territory of Sweden.

(f) The Swiss Criminal Code

Article 299 Violation of foreign territorial sovereignty 1. Whoever violates the territorial sovereignty of a foreign State, in particular through forbidden assumption of official duties within the foreign national territory; whoever enters foreign national territory in violation of international law, shall be punished with imprisonment or with a fine. 2. Whoever attempts to disrupt the State order of a foreign State by force from the territory of Switzerland shall be punished with imprisonment.155

This provision again constitutes a clear proscription of aggressive war. Moreover it even

establishes Swiss jurisdiction over non-violent crimes committed solely on foreign soil,

such as forbidden assumption of official duties (para. 1). Disruption of the State order of a

foreign State by force (para. 2) includes in its wide wording the present understanding of

the crime of aggression. Clearly, any use of armed force in contravention to the UN

Charter would disrupt the attacked State’s order and thus fall under paragraph 2. Notably,

the attempt as such is sufficient to establish individual criminal responsibility and ratione

personae is unlimited. There are no exceptions where a resort to force would be legal, but

the self defence rule applies through the general provision of the code. With no

requirement that the use of force be aggressive, measures under UN authority would also

amount to the crime. However, until recently such measures were irrelevant with respect to

Switzerland 156 and could therefore be omitted from the Swiss Criminal Code.

155 Own translation. The original (German) version reads: Art. 299 Verletzung fremder Gebietshoheit 1. Wer die Gebietshoheit eines fremden Staates verletzt, insbesondere durch unerlaubte Vornahme von Amtshandlungen auf dem fremden Staatsgebiete, wer in Verletzung des Völkerrechtes auf fremdes Staatsgebiet eindringt, wird mit Gefängnis oder mit Busse bestraft. 2. Wer versucht, vom Gebiete der Schweiz aus mit Gewalt die staatliche Ordnung eines fremden Staates zu stören, wird mit Gefängnis bestraft. 156 Swiss membership to the UN was established only in 2002.


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Remarkably, of the States directly involved with World War II, only Germany and

the Russian Federation have embraced the concept of the crime of aggression into their

municipal codes. The criminal codes of most other States contain provisions aimed at the

protection of their own territorial and political integrity, but not at that of a foreign State.157

Waging aggressive war by nationals from a foreign territory against their own State is thus

frequently penalised, not however waging aggressive war by nationals through their own

State against another State. Likewise, there are provisions prohibiting waging war without

the government’s consent, providing for the criminality of perpetrators acting from outside

the government. But with the government’s consent, aggressive war as such does not

constitute a crime.

No different from the international level, aggression on the municipal level is an

issue with high political potential. It is thus unlikely, that persons in power will be tried for

the crime of aggression before their own municipal courts during the near future. Only

profound changes of political situations can facilitate such proceedings. But even then, the

prosecution will arguably face the usual charges of using the crime of aggression as a

political tool to eliminate opponents. Nonetheless, the fact that some States included this

crime into their criminal codes demonstrates at least a general willingness to have actions

of their own governments examined by a court of law and when justice so demands, to

punish the perpetrators.

As seen, even though aggression is recognised as a crime under international law,

most States have not (yet) incorporated the prohibition into their municipal penal codes.

Codifications of aggression found in national lega l systems emerge rather randomly, and

seem to constitute mere reproductions of international precedents. The crime has not been

developed nor advanced unilaterally. Therefore, the examples discussed above are

rudimentary codifications of the crime. They do not establish new ideas useful in finding a

definition of aggression for the ICC.

157 Besides Japan, this approach was taken by, inter alia, France, England, China, the Netherlands, Canada and Nigeria.


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5. The Definition of Aggression

In the following section elements that should be part of a definition of aggression shall be

discussed. Due regard will be given to feasibility of the proposed elements in the light of

the political controversy encasing the crime. The discussion will focus on the main

elements of the crime, shortly outlining reasons why they should be included or not.

Whereas each element in its own deserves a lengthy discussion, space limitations

accommodate only short remarks. Thus, the focus in the controversy will remain on

providing a definition fit for inclusion into the Rome Statute rather than on minutely

detailed accounts.

The crime of aggression requires two different acts by two different actors: the

actors being a State and an individual. 158 The act of aggression by a State is a sine qua non

condition for the attribution of individual criminal responsibility for the crime of

aggression. 159 The act of decision-making by an individual, on the other hand, is the reason

for an act of aggression by a State. Thus, in defining the crime of aggression, the foremost

essential question is: what acts must a State commit as a prerequisite to individual criminal

responsibility?

Concerning somewhat varying terminology,160 a clarification seems appropriate:

For the purpose of the following discussion, ‘aggression’ as such refers to the act of State.

‘Crime of aggression’ refers to conduct by individual perpetrators, more specifically to the

concept of criminal proscription. The equally suitable term ‘crime against peace’ seems to

have become obsolete and shall therefore not be invoked.161

158 Antonopoulos, supra note 37, at 37. 159 1996 Draft Code, supra note 95, art. 16 commentary, para. 4. 160 See supra Part I. 161 Even though Antonopoulos supra note 37, at 34, applies the term, rightfully observing that ‘aggression’ or ‘war of aggression’ or war in violation of international treaties is a fundamental element of crimes against peace.


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(a) Ratione Materiae: Use of Armed Force and Related Acts

Among different types of conduct that could fall within the scope of the crime, only the use

of armed force is unchallenged.162 Consequently, there have been calls to leave all other

forms of coercive interference, whether direct of indirect, to the field of political

condemnation. 163 This view arguably reflects the minimum content of the crime of

aggression undoubtedly established under customary law. 164 If it were indeed necessary to

confine a definition to the bounds of customary law, this argument would be the end of the

line. But since with the Rome Statute States have the power to codify new law, the

inclusion of aggressive acts previously not within the scope of the aggressive war cannot

be excluded per se.165 The chance to close existing gaps through codification must not be

waived carelessly.

Short of the use of armed force, but equally worthy of criminalisation is the threat

of force.166 As the post World War II proceedings have shown, it is not sufficient to

criminalise solely the waging of war of aggression. 167 Militarily inferior States, which

surrender at the threat of force, must not be left unprotected by international criminal law.

Leaving threats of force unpunished indirectly encourages armed resistance by States even

in militarily hopeless situations. Such encouragement of armed conflict with all its

consequences cannot be the aim of international criminal law. A non- inclusion of threats of

force can be expected to be beneficial mostly to the powerful nations of the world, making

it detrimental to the very idea of an international criminal court and the criminalisation of

aggression.

162 The requirement of a ‘war’ in a technical sense has been omitted ever since the Tokyo Charter, and shall therefore not be reintroduced, see supra footnote 77. 163 Müller-Schieke, supra note 87, at 418. 164 Ibid. 165 It was noted above (see ‘Introduction’ to Part II) that the generally accepted approach at the Rome Conference was to codify norms of customary law. But these limitations need not necessarily apply to a definition of aggression which is to be codified subsequent to the Rome Conference. Moreover, there are good reasons to believe that the range of acts constituting aggression under customary law is considerably wider (see supra ‘The Status of Aggression in Customary International Law’). 166 The inclusion of threats of force has been proposed by the 1954 and 1991 ILC Draft codes. 167 A shortcoming of the Nuremberg Charter, which was recognised and consequently rectified in CCL No. 10 through the inclusion of the ‘initiation of invasions’ which were not resisted. See supra section ‘(Establishing) Individual Criminal Responsibility: Nuremberg and Tokyo’.


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Furthermore, the need to include threats of force can be derived directly from the

Rome Statute. Article 5 (2) calls for a definition of aggression in conformity with the

relevant provisions of the UN Charter. Under this directive, threats of aggression can be

included, as they are condemned by article 2 (4) of the UN Charter. But moreover, article 5

(2) of the Rome Statute should not merely be interpreted as establishing limitations to the

definition, but also as prescribing a minimum level of punishable acts. Therefore, to omit

threats of force not only means to again leave a loophole in the sanctioning of the

prohibitions contained in article 2 (4) of the UN Charter. It also directly undermines article

5 (2) of the Rome Statute. The proscription of aggression in international law is needed

mainly to protect militarily weaker States from arbitrary acts by more powerful States.

However, criminalisation of threats of force must stop short of any act of cross-

border movement of troops. A graspable physical act to follow the threat of force is

essential as a guarantee for judicial certainty.168 Waiving such acts and criminalising

threats of force as such would create dangerous ambiguity detrimental to the effectiveness

of the Rome Statute. An isolated threat of force as such is too much subject to

interpretation and cannot serve as a basis for punishment. A threat of force by a State must

thus be criminalised only if it is followed by an invasion which is not resisted.

Other types of non-friendly conduct among States should not be included into the

definition of aggression. Creating further uncertainties, the benefits of such extension of

the scope of the crime are questionable. In balancing effectiveness and comprehensiveness

of the definition, the line should be drawn short of inclusion of economic pressure, political

disrespect and incitement of other States to military interference. It must be remembered,

that the definition of aggression for the purpose of the Rome Statute can only constitute a

first step in the enforceable criminalisation of aggression. Once States have accepted a core

prohibition of aggression, further conduct can be criminalised through subsequent

amendments of the Rome Statute.

168 This or a similar restrictive criterion had not been included into the 1991 ILC Draft Code, which for the first time defined threats of aggression.


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(b) The Purpose of Committing Aggression

It is common understanding of a number of definitional attempts that aggressive behaviour

must be directed against protected interests directly derived from article 2 of the UN

Charter: namely the sovereignty, territorial integrity or political independence of another

State. During the Rome Conference, this notion remained rightfully uncontested. But

proposals were made to further the list of possible victim-entities. A group of Arab States

wanted to see aggression directed against ‘the inalienable rights of peoples’169 and

aggression committed ‘to deprive other peoples of their rights to self-determination,

freedom and independence’170 to be included into a definition. Whereas these proposals are

a laudable attempt to overcome the somewhat inflexible criterion of a ‘State’ as the only

possible victim of aggression, they create considerable practical and doctrinal problems.

First, the need for a new definition within the definition would arise. That alone might be

enough to delay the definition of aggression for a long time. Moreover, customary law

does not recognise the direction of aggression against a non-State victim within the

territory of the aggressor State as a punishable offence. Finally, indirectly endorsing

independence movements would lead to further civil wars, entailing a potential of

destabilising entire continents. Where State demarcations were arbitrarily drawn without

respect to the territories of peoples, functional political structures would be thwarted. It

cannot be the goal of international criminal law to redesign political landscapes. This

should be reserved for political actions and not be deferred to battlefields. The focal point

of the crime of aggression therefore must remain on inter-State conflicts. Moreover, the

protection of the most fundamental rights of peoples through the proscription of the crime

of genocide is sufficient.

169 A/CONF.183/C.1/L.56: Proposal submitted by Algeria, Bahrain, Iraq, Kuwait, Lebanon, Libyan Arab Jamahiriya, Oman, Qatar, Saudi Arabia, Sudan, Syrian Arab Republic, Tunisia, United Arab Emirates and Yemen, reissued for technical reasons, 8 July 1998. 170 A/Conf.183/C.1/L.37: proposal submitted by Algeria, Bahrain, the Islamic Republic of Iran, Iraq, Kuwait, Lebanon, the Libyan Arab Jamahiriya, Oman, Qatar, Saudi Arabia, the Sudan, the Syrian Arab Republic, the United Arab Emirates and Yemen, 1 July 1998.


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(c) The Scale on Which Aggression is Committed

Option 2 of the proposals brought into the Rome Conference171 provides for a de minimis

clause. Accordingly, only acts or consequences thereof of ‘sufficient gravity’ amount to the

crime of aggression. A similar provision is found in article 2 of Resolution 3314. Likewise,

the ILC seems to endorse this assumption in its commentary to article 16 of the 1996 Draft

Code.172 Proponents of a de minimis clause rely on the Nuremberg and Tokyo precedents

to support their view. 173 Undoubtedly, these precedents amount to sufficient gravity. Yet

there is no compelling reason to derive from these precedents the need to limit the scope of

the crime for the purpose of the ICC. First, a de minimis clause is not needed to relieve the

court of having to deal with minor cases. This is already sufficiently insured through article

17 (1) (d) of the Rome Statute, which relies on sufficient gravity as a criterion of

admissibility. Secondly, establishing a substantive threshold specifically for the crime of

aggression leaves loopholes for ‘smaller’ violations of the UN Charter, such as concise

military operations. Whereas this may be the aspiration of States which resort to such

measures, the uncertainty imminent to the criterion runs counter to the principle of legality.

Ultimately, leaving it to the discretion of judges to decide whether an operation meets the

criterion enables powerful States to exercise political influence over the court through the

back door. The definition of aggression must be designed to counteract such politicisation

of the court. The scale of acts of aggression can thus only be a circumstance to be

considered in sentencing.

(d) Enumerated Acts

As explained above,174 including an illustrative list of acts constituting aggression serves a

dual purpose: It helps to identify the most common acts of aggression as such without

making recourse to the general definition necessary. Furthermore, it sets a standard for

behaviour amounting to aggression and can thus be resorted to as a guideline in more

171 See supra section ‘Aggression under the Rome Statute of the ICC’. 172 1996 Draft Code, supra note 95, Commentary, para. 5. 173 Ibid. 174 See supra section ‘Approaches to Defining Aggression’.


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difficult cases concerning conduct not enumerated. But there is another decisive advantage:

the enumerated acts amount to aggression as such. The purpose of their commission, i.e.

their being directed against the sovereignty, territorial integrity or political independence

territorial integrity is accounted for by the act as such and need not be proven separately.

The list of Resolution 3314 has, unlike the general part of that definition, received

little criticism and seems to reflect what is widely accepted as constituting aggression. This

list should therefore be incorporated into the Rome Statute’s definition of aggression.

(e) Actus Reus

The actus reus is not aggression (the act of a State) itself, but rather acts by an individual

which result in unlawful resort to armed force by a State.175 Direct liability for aggression

can undoubtedly be incurred through ‘carrying out176 or initiating’ use of armed force.

These two forms of action describe the conduct of military personnel involved. To

adequately establish liability of non-military perpetrators, it is necessary to also include

acts of ‘planning and preparation’. To trace liability further back along the chain of

command, ‘ordering’ of use of armed force should therefore also constitute a variation

incurring direct liability. Even though ‘ordering’ is included into the regime of accessory

liability, which is comprehensively established under the general provisions of the Rome

Statute,177 the ordering of use of armed force is an intrinsic element of committing such

175 Antonopoulos, supra note 37, at 61. 176 This corresponds with the formulation ‘waging of aggressive war’ used in the Nuremberg Charter. 177 Article 25 (3) of the Rome Statute insofar states (emphasis added): In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime , aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime;

(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;


45

attack. It is worthy of punishment in the same way as the initiation of the attack. Since

aggression starts out as a political scheme, subsequently to be implemented through

military action, ‘ordering’ must hence be included as a criminal act within the crime itself,

thus entailing direct liability.

As to acts of ‘planning, preparation or ordering’ aggression, a restriction seems

necessary. Whereas municipal criminal law178 can criminalise the preparation of

aggression per se, other considerations apply at international level: To criminalise these

acts as such interferes greatly with internal affairs of a State. Moreover, it is nearly

impossible to prove and prosecute such behaviour, unless aggression actually takes place.

The contemplation of resort to force is a regular element of political procedures. When

international conflicts develop, both sides involved must to a certain extent consider the

use of armed force. This as such cannot be the subject of criminalisation, because at that

stage the planning of employment of force can serve both aggressive and defensive

purposes. What was once planned as aggression can turn out to be self-defence and what

was planned merely to be self-defence can turn out to be aggression. Therefore, ‘planning,

preparation or ordering’ of an armed attack should be criminalized only when the attack

actually takes place.

(f) Ratione Personae

The Nuremberg Judgment reveals that commission of aggression by a State need not

necessarily lead to individual responsibility. But if individual responsibility was

established, then it always required aggression by a State as a necessary precondition. 179

This concept differs from the one found in war crimes, crimes against humanity and

(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. 178 See the criminal codes of the Russian Republic and Germany, supra section ‘Aggression as a Crime in Municipal Law’. 179 Antonopoulos, supra note 37, at 40.


46

genocide. With these crimes, one single activity pertains to both a State and individuals.180

The dual nature of aggression, however, requires the examination of dual perpetrators: the

State and the individual.

(i) Acts of State

With the new quality of terrorism on the international level, it can be asked whether the

scope of suitable actors should be extended to include terrorist and revolutionary groups,

who have the potential to use force much in the same way as States. The exclusion of the

use of force by non-State entities is seen as a potential shortcoming by at least one author,

criticising the limited deterrent effect.181 But this assumption fails to see the context in

which terrorist crimes are embedded. Terrorism is a treaty crime under international law,

accounted for in several international instruments.182 These instruments define offences

and establish regimes with the obligation of States to prosecute or extradite (aut dedere aut

iudicare), thereby establishing a framework of international cooperation and preventive

law enforcement. Crimes themselves are sanctioned in municipal criminal codes. At the

Rome Conference, there had been attempts by a number of States to include terrorism as a

crime under the statute.183 These attempts were finally rebutted, with growing consensus

that it was the chief objective of the Conference to codify the ‘core crimes’.184 With respect

to existing criminalisation of terrorist crimes under municipal law, at this stage, there is no

need to incorporate terrorism into the Statute through the back door via the crime of

aggression. Moreover, customary law does not recognise the commission of aggression by

non-State actors as a punishable offence. The issue is going to resurface at the review

conference,185 but should then be dealt with as a separate issue and not be intertwined with

the crime of aggression.

180 Ibid, at 37, noting that this inextricable link between individual criminality and a violation by a State of obligations towards other States exists because international law obliges States to refrain from acts that are actually committed by individuals. 181 Dawson, supra note 22, at 440. 182 Bassiouni, Crimes , supra note 10, at 767, counts 14 conventions and two draft conventions. 183 Zimmermann, supra note 138, at 98. 184 Ibid. 185 See the recommendation made in Resolution E, adopted as part of the Final Act at the Rome Conference, U.N Doc. A/CONF.183/10.


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(ii) Responsible Persons

Article 27 of the Rome Statute declares under the heading ‘[i]rrelevance of official

capacity’ that ‘[t]his Statute shall apply equally to all persons without any distinction based

on official capacity. In particular, official capacity as a Head of State or Government, a

member of a Government or parliament, an elected representative or a government official

shall in no case exempt a person from criminal responsibility….’ This provision broadens

the scope of international criminal responsibility to include heads of State. With the crime

of aggression, the situation is somewhat converse. Based on the findings of the Nuremberg

Tribunal, subsequent drafts, Resolution 3314 and on customary law,186 aggression can a

priori be committed only by persons exercising an official capacity. 187 The definition must

therefore exclude persons lacking such official position, requiring a restriction of article

27. A person subject to responsibility for aggression should hence be defined as ‘an

individual who is in a position of exercising control or capable of directing the political or

military action of a State.’

This definition as such does not restrict article 28, which introduces command

responsibility to the Rome Statute. It however arguably reduces the number of relevant

scenarios to a minimum. Article 28 requires the commission of a crime by subordinates.

With respect to aggression, suitable actors can only be persons on a policy-making level in

the first place. On such high level, superiors are only to be found within the government

itself. One conceivable scenario of command responsibility for aggression would therefore

arise if aggression is committed by high ranking military officials, where the responsible

minister fails to exercise control properly. 188

186 As discussed supra in Part I. 187 With respect to aggression, the heading of article 27 would consequently have to read ‘necessity of official capacity.’ 188 Additional requirements of article 28 are knowledge or potential knowledge of the crime and the possibility of prevention. Even where no military relationship exists between superior and subordinate, para. b) provides for punishment of superiors under somewhat stricter conditions.


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(g) Legal Conditions under Which Aggression is Committed

Legality of the use of force is governed by the UN Charter and customary international

law. Therefore, only acts in contravention to international law can serve as a precondition

to the crime of aggression. The definition has to spell out this fact and therefore should be

equipped with the phrase ‘Acts not in contravention to international law do not constitute

aggression.’189 By choosing a negative wording, emphasis is put on the fact that resort to

force is generally a violation of international law and tha t its legality is the exception.

Moreover, short as the reference to legal conditions may be, conceivable scenarios where

an act of force directed against one of the protected interests190 at the same time constitutes

a recognised exception are sufficiently addressed within this criterion. Since the Charter is

the superior body of law, express reference in the definition to individual concepts such as

unilateral or collective self-defence, chapter VII or VIII measures and the right to self-

determination, freedom and independence should be avoided.

Admittedly this still does not answer the question which exceptions are to be

recognised. With respect to the principle in dubio pro reo, such ambiguity will mainly

serve offenders. But with an enumeration as proposed above, controversial cases can be

reduced to a minimum, regardless of the open-ended discussion on legal use of force.

Furthermore, it cannot be the objective of a criminal statute to resolve this issue, nor is it

the function of the ICC to establish new rules in international law. It is therefore strongly

recommended that the competent organs of the UN deal with the question and codify

applicable exceptions. Until then, the ICC will inevitably have to deal with controversial

legal concepts such as unilateral humanitarian intervention and anticipatory self-defence. It

can be hoped that, once transferred from the level of rather abstract academic debate to the

decisive criterion of delimiting criminal behaviour, pressure on States to clearly define the

legality of force within the framework of the UN will increase. In this way, the adoption of

a definition of aggression can add crucial impetus to long overdue development in

international law.

189 The approach taken by Resolution 3314, to declare acts ‘in any other manner inconsistent with the Charter of the United Nations’ is not suitable for the definition of a crime. Criminal definitions must not leave such doubts as to the scope of the crime. 190 See supra section ‘The purpose of Committing Aggression’.


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(h) Mens Rea

The mere material fact of committing an act of aggression is not sufficient to establish the

guilt of a perpetrator. Rather, such commission must be accompanied by a mental element.

Accordingly, the Nuremberg Tribunal held that only those respective persons could be

punished who had co-operated with Hitler in knowledge of his intentions.191 The ILC’s

1996 Draft affirmed that participation [in acts of aggression] must have been intentional

and have taken place knowingly as part of a plan or policy of aggression. 192 Generally,

there is no doubt as to the requirement of a mental element.

Article 30 (1) of the Rome Statute generally provides with respect to the mental

element of crimes: ‘Unless otherwise provided, a person shall be criminally responsible

and liable for punishment for a crime within the jurisdiction of the Court only if the

material elements are committed with intent and knowledge.’193 Commonly described as

animus aggressionis, there is no substantive difference between the mens rea of aggression

and that of other crimes. A separate requirement within the definition is therefore not

needed. Lowering the threshold to the level of recklessness194 seems to unduly broaden the

scope and to disregard the exclusivity of the crime. It would run counter to the Nuremberg

Judgement and thus arguably to customary law.

Lack of mens rea can be translated into respective defences.195 Defences can relate

to self-defence, insanity, mistake of fact, mistake of law, duress, superior orders, and

national law. Under articles 31-33 of the Rome Statute, generally admissible defences are

insanity, self-defence, mistake of fact and duress. Generally inadmissible defences are

mistake of law and superior orders. National law cannot serve as a defence per se, but may

relieve the accused in connection with superior orders. Respective article 33 reads:

191 Nuremberg Judgement, supra note 53, at 223. 192 1996 Draft, supra note 95, commentary, Art. 16, para 3. 193 Paras. 2 and 3 specify as follows: 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly. 194 As invoked by Hogan-Doran / van Ginkel, supra note 88, at 337. 195 Dinstein, supra note 106, at 126.


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1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

Interestingly, paragraph 2 excludes the defence of superior orders for the crimes of

genocide and crimes against humanity, not however for war crimes. This distinction is

based on the exceptional severity of genocide and crimes against humanity and on

considerations that in the special circumstances of war (and thus with respect to war

crimes) individuals can hardly question orders. Regarding aggression, this rationale does

not apply. Article 33 (2) should therefore be amended to exclude the defence of superior

orders for the crime of aggression as well, making orders to commit aggression manifestly

unlawful. Other than that, there is no need to modify the general provisions of the Statute

to accommodate the crime of aggression. In particular the only other distinction made in

article 31 (1) (c) with regard to war crimes committed under self-defence must not be

extended to cover aggression. 196

(i) The Principle of Priority

In order to help resolve the question of who is the aggressor in complex cases, inclusion of

a provision similar to article 2 of Resolution 3314 seems reasonable. A prima facie rule

consolidates two extreme positions: an ipso facto interpretation of the first use of force as

aggression and a complete disregard of the first strike altogether. Furthermore, such

interpretation will compel States opting for a first strike to ensure that they have the

necessary evidence to refute the assumption, giving them the burden of proof. It will thus

196 Article 31 (1) (c) excludes criminality if: ‘The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected.’


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make it more difficult to invoke controversial doctrines such as anticipatory self-defence or

humanitarian intervention as justification, while at the same time not blocking these new

developments altogether.

6. Determining Aggression: The Security Council versus the ICC

Apart from the contentious issue of defining the crime of aggression, in today’s system of

collective security established under the UN, it is necessary to ask which international

body should be entrusted with the determination of a case of aggression. This question

would be superfluous if it were possible to prosecute an individual for his role in the

unlawful resort to force by a State without prior determination of a commission of

aggression by that State. But it is essential to rule on the lawfulness of the legality of the

use of force by the individual’s State.197 The act committed by a State is a precondition for

the criminal responsibility of individuals.198 Since it is the Security Council who under the

UN Charter is primarily designed to maintain international peace and security, and

situations wherein the crime of aggression arises are intertwined with the maintenance of

international peace and security, it seems logical to entrust the Security Council with the

determination of whether aggression by a State has occurred. Also, the dedication of the

definition in Resolution 3314 to the Security Council implies this assumption. However,

with a permanent international criminal court in place, it may no longer be necessary for

the Security Council to exercise this function as a prerequisite to establishing jurisdiction.

This section contemplates the role of the two international bodies in the determination of

aggression, taking into consideration possible consequences thereof and concluding with a

workable compromise derived from these findings.199

197 Antonopoulos, supra note 37, at 50. 198 See supra section ‘The Definition of Aggression’. 199 A noteworthy proposal in favour of a judicial determination to a third body is to delegate the determination of aggression to the ICJ. In the absence of Security Council action, the General Assembly could ask the ICJ for an advisory opinion on whether aggression has occurred. See Marjorie Cohn, The Crime of Aggression: What is it and Why Doesn’t the U.S. Want the International Criminal Court to Punish it? Avail. at http://www.jurist.law.pitt.edu/forum/forumnew18.htm, visited on 27 Nov. 2002. It is not clear, however, what the respective advantages of a determination by the ICJ over a determination by the ICC are. On the contrary, delegating the question to a third body will further obscure the issue. Therefore, if a judicial determination is to be given preference over a political one, it should be the ICC to make that determination.


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The 1994 Draft Statute200 granted the Security Council comprehensive powers by

providing in Article 23 (2) that ‘[a] complaint of or directly related to an act of aggression

may not be brought under the Statute unless the Security Council has first determined that

a State has committed the act of aggression which is the subject of the complaint.’ Under

Article 23 (3), ‘no prosecution may be commenced under this Statute arising from a

situation being dealt with by the Security Council as a threat to or breach of the peace or an

act of aggression under Chapter VII of the Charter, unless the Security Council otherwise

decides.’ Under these provisions, a single State that is member to the Security Council

could prevent the ICC from entertaining a matter by merely placing an item on its

agenda.201

At the Rome Conference views were divided between States. The permanent

members to the Security Council espoused the view that a determination by the Security

Council that aggression has occurred be a precondition to the exercise of jurisdiction by the

ICC. Most other States were opposed to the potential politicisation of the ICC.202 Roughly

aligned with the position of the permanent member States to the Security Council, the 1998

Draft Statute203 provides in article 10 (4) that the Security Council must act prior to the

prosecution of any alleged crime of aggression:

Option 1 [A complaint of or directly related to [an act] [a crime] of aggression [referred to in article 5] may [not] be brought [under this Statute] unless the Security Council has [first] [determined] [formally decided] that the act of a State that is the subject of the complaint, [is] [is not] an act of aggression [in accordance with Chapter VII of the Charter of the United Nations]. Option 2 [The determination [under Article 39 of the Charter of the United Nations] of the Security Council that a State has committed an act of aggression shall be binding on the deliberation of the Court in respect of a complaint, the subject matter of which is the act of aggression.]

200 See supra note 124. 201 William A. Schabas, An Introduction to the International Criminal Court, 2001, at 65. 202 For the different views of the respective delegations, see the Report of the Preparatory Committee on the Establishment of an International Criminal Court, Volume I (Proceedings of the Preparatory Committee during March-April and August 1996) UN G.A.O.R., 51st Sess., Supp. No. 22, A/51/22 (1996). 203 See supra note 125.


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Optional article 10 (7) provides that no prosecution is to be commenced where the

Security Council is exercising its Chapter Seven authority, unless the Security Council

waives or consents.

But there are substantive objections to leaving the determination to the Security

Council. In the aftermath of the World War II, the five big (and victorious) nations were

granted permanent membership to the Security Council along with a veto right204. At the

time, this was arguably in the best interests of international peace and security. Almost

sixty years later, it can legitimately be asked if this rationale is still valid. If the Security

Council is solely entrusted with the determination of aggression as a prerequisite to the

exercise of jurisdiction by the ICC, those States privileged with a veto right are bound to

abuse this political tool to the detriment of the impartiality and independence of the ICC.

No citizen of one of the permanent member States to the Security Council will conceivably

be indicted with the crime of aggression committed in connection with the use of force by

that State as long as that State has the power to prevent this by way of veto.

It is thus the political nature of the Security Council that leads to concerns that the

determination of aggression for the purpose of prosecuting individuals be better left to

another body. Whereas during the Cold War the Security Council was more or less

permanently paralysed in deadlock, using its chapter VII powers on merely three

occasions,205 there has been a remarkably frequent application of the procedure after 1990;

a change in attitude amongst the Security Council’s member States and an

acknowledgment of the Security Council’s inherent purpose, brought about through

liberation from Cold-War restraints. The Security Council can therefore no longer be

considered ineffective solely because of deadlock. But the prospect of a deadlock situation

remains, and in international politics it is highly uncertain when the next conflict will

surface. Furthermore, the fact that the Security Council has so far made a determination

only in certain cases on a highly selective basis206 would render unlikely any

comprehensive prosecution for the crime of aggression. And a determination of a threat to

204 Under article 27 (3) of the UN Charter, decisions by the Security Council on non-procedural matters ‘shall be made by an affirmative vote of nine members including the concurring votes of the permanent members’. 205 The authorisation of military action in North Korea became possible through the Soviet Union’s temporary abstention from the Security Council; the two other cases involve the imposition of non-military sanctions on South Rhodesia and South Africa. See Antonopoulos, supra note 37, at 49. 206 See supra notes 96 and 97.


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or a breach of peace would not be suitable to advance criminal proceedings. Moreover,

despite an apparent increase in efficiency, the Security Council remains subject to political

interests of States. National concern continues to be the primary motivation in the casting

of votes in the Security Council.

But it may be the strength rather than the weakness of the Security Council, which

comes from this apparent dilemma. In the interest of world peace and security it may be

desirable to let decisions based on political pragmatism prevail over those prescribed by a

strictly legal interpretation of the law. A politically motivated decision not to prosecute a

case of aggression leaves the door open to a ‘reversal of aggression’. In this, the crime of

aggression differs from war crimes, crimes against humanity and genocide. Unlike these

‘core crimes’ under international law, the crime of aggression can be reversed. If

reparation is awarded to the victim State, either by the aggressor State itself or by the

Security Council, and international peace and security is thus maintained or restored, the

Security Council has accomplished its role.207 The argument is that if every case of

aggression is consequently labelled as such and the blame for a use of force allotted to a

specific State, politically undesirable consequences may ensue, with a potential to further

destabilise the situation to the detriment of peace and security. Consequently, it should be

up to the Security Council to decide whether it is wise to prosecute a specific incident of

aggression. In this, the Security Council may exercise wide discretion and is not bound by

any legal instrument, including Resolution 3314. It is restricted only by the obligation to

respect the principles of the UN and international law. 208

Furthermore, certain provisions in the UN Charter and the Statute of the ICC have

been interpreted as an indication that the Security Council should legitimately have a say in

the matter. From the wording of the Charter, the determination of aggression has been

delegated to the Security Council under article 39. Moreover, article 5 (2) of the Rome

Statute requires a future definition of aggression to be consistent with the relevant

provisions of the UN Charter. This formulation can be interpreted as directly referring to

article 39 of the UN Charter, thus prescribing a Security Council determination prior to the

207 Antonopoulos, supra note 37, at 50. 208 Ibid, at 49.


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exercise of jurisdiction. 209 However, article 5 (2) of the Rome Statute has also been

interpreted as merely requiring that the ICC make no finding which contradicts a

determination, if any, made by the Security Council.210 Yet, an even wider interpretation

seems permissible. It is not clear from article 5 (2) of the Rome Statute whether it makes

reference to procedural law of the UN Charter at all. The formulation ‘the relevant

provisions’ of the Charter arguably constitutes a mere reference to substantive norms

governing the legal use of force. It cannot conceivably be argued that this provision refers

to the Charter’s procedure employed in connection with the determination of aggression.

There have been incidents amounting to aggression under substantive UN law, which were

never labelled as such by the Security Council.211 Irrespective of this; they were clearly

aggression under the relevant provisions of the Charter. Therefore an act of aggression can

be defined and consequently treated as such by the ICC in absence of a Security Council

determination, as long it respects substantive UN law. Unless the definition of aggression

itself undermines these norms, article 5 (2) of the Rome Statute is satisfied. For that reason,

article 5 (2) of the Rome Statute should be interpreted as not prescribing prior

determination by the Security Council.212

Another norm addressing the relationship between the Charter and other

instruments is article 103 of the UN Charter, which provides that ‘[i]n the event of a

conflict between the obligations of the Members of the United Nations under the present

Charter and their obligations under any other international agreement, their obligations

under the present Charter shall prevail.’ This provision has also been interpreted as

requiring prior Security Council determination. 213 However, no such incompatible

obligations arise with respect to States which are members of the UN and at the same time

parties to the Rome Statute. States do not undermine the authority of the UN Charter by

endorsing an ICC definition of aggression that excludes mandatory consultation with the

Security Council. The fact that the Charter exclusively empowers the Security Council

with the determination of aggression as a prerequisite to Chapter VII measures does not

209 Lionel Yee in Roy S. Lee (ed.). The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results, 1999 at 145. 210 Ibid. 211 See supra section, ‘Post-Nuremberg Cases of Aggression’. 212 The discussion about article 5 (2) of the Rome Statute should in any case not be given too much meaning, for the amendment procedure necessary to include the crime of aggression can also be employed to amend this article. 213 Antonopoulos, supra note 37, at 51.


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imply that no other authority may determine aggression for purposes other than those

envisaged by Chapter VII. In other words, no conflicting obligations in the sense of article

103 of the UN Charter will follow from the events before the ICC. As a result, the

provisions of the UN Charter and the Rome Statute do not undermine an equal and

autonomous role for the ICC.

As a compromise it has been submitted that an ‘accused’ member State should

abstain from consideration or voting on the matter (as is customary).214 By nonetheless

vetoing a Security Council determination that State would put itself in violation of article 1

of the UN Charter, which sets forth the goal of suppressing acts of aggression ‘in

conformity with the principles of justice and international law.’ The veto should be

interpreted as incompatible with the principles of justice, giving the ICC judges the right to

disregard such improper Council resolutions.215 Highly theoretical and legally dubious as it

may be, this solution would still not eliminate cases where a State makes a courtesy veto in

favour of a friendly State.

Remarkably, the different versions within Option 1 of draft article 10 (4) of the

1998 Draft Statute permit both a positive and a negative determination by the Security

Council. The consequences resulting from this minute distinction are immense with respect

to the probability of the ICC exercising jurisdiction over the crime of aggression in a

specific case. Under the positive option, and it is this option which has been the subject of

the controversy surrounding the issue, the Security Council would have to determine that

aggression has occurred as a prerequisite to ICC jurisdiction. Consequently, any Security

Council member State could singly thwart jurisdiction by casting a veto. It is obvious that

the positive option gives a single member State immense powers to interfere with the

ICC’s jurisdiction, and to abuse this power in the interest of politics. On the other hand,

under the negative option, the Security Council would have to determine that aggression

has not occurred in order to block jurisdiction of the ICC. Thus, a Security Council

member State could use the veto power only to permit jurisdiction contrary to the votes of

the other Security Council members, but not to obstruct it. Arguably, this solution more

appropriately reflects the structure of the Security Council in requiring a positive

214 Ferencz, Can Aggression be Deterred by Law?, supra note 89, after footnote 25. 215 Ibid.


57

resolution. Under chapter VII of the UN Charter, it is the purpose of the Security Council

to determine situations detrimental to international peace and security. Only if the Security

Council finds such to be the case and if it deems the pursuance of justice to be of

secondary importance to a political solution to the situation, should it have the power to

stall the work of the ICC. Otherwise, the ‘principles of justice’ can hardly be upheld. To

grant the right of veto with respect to the prosecution of the crime of aggression to each

State represented in the Security Council not only means arbitrarily awarding these States

power over the ICC, but also undermines the structure and purpose of the Security Counc il

and more immanently, the purpose of the veto right.

But even the requirement of a negative determination by the Security Council is not

necessary in order to ensure that the international order under the UN remain unimpeded.

For the relationship between the ICC and the Security Council in determining aggression is

not as starkly exclusive as it may seem, and a consolidation of both sides is possible.

Indeed, both bodies can fulfil their purposes and remain legally unimpeded by each other

at the same time.

Hence, a determination by the ICC of a case of aggression need not prejudice the

work of the Security Council. The ICC is a court outside the system of the UN and its

Statute is not an integral part of the UN.216 And the ICJ in the Nicaragua Case has proved

that a court can determine that aggression has occurred without prior determination by the

Security Council.217 Admittedly, reaching contrary conclusions regarding one and the same

instance would put one or both bodies in a dubious light. But it may just be worth taking

that risk in the hope of prosecuting the crime of aggression when judicial examination

deems this necessary, while at the same time leaving the necessary discretion to the

Security Council in determining acts of States in the light of political reality. This would

allow the Security Council to find the best solution in the interest of peace and security. At

the same time, this proposal will ensure that the interests of justice are served without

interfering with politically necessary measures. Therefore, no Security Council

determination, be it positive or negative, that aggression has occurred is needed as a

prerequisite to the exercise of jurisdiction by the ICC.

216 Antonopoulos, supra note 37, at 51. 217 Nicaragua Case (Preliminary Objections) , ICJ Rep. 1984, 393, at 434-436. See also Peirce, supra note 116, at 297.


58

Not to be forgotten, if the Security Council (not a single member State!) is indeed

of the opinion that a certain act of force should not be tried before the ICC, it has the power

to defer prosecution. Under article 16 of the Rome Statute ‘no investigation or prosecution

may be commenced or proceeded with … for a period of 12 months after the Security

Council, in a resolution adopted under Chapter VII of the Charter of the United Nations,

has requested the Court to that effect; that request may be renewed by the Council under

the same conditions.’218 Even though in practice this provision would make it very difficult

for the Security Council to block prosecution, the Security Council in principle retains the

possibility to let political decisions prevent prosecution. This provision largely resembles

the negative determination option in the 1998 Draft Statute, with two modifications. It

applies not only to the determination of aggression, but also to jurisdiction in general.

Furthermore, it is subject to yearly renewal.

Even though there are rightful concerns that criminal cases could encompass

complex, politically laden factual inquiries ill-suited for courts, it is still the courts which

have proven to be the most effective forum in dealing with justiciable matters. And the

determination of aggression is such a justiciable matter, according to the rulings of the

Nuremberg Tribunal and the ICJ in the Nicaragua Case.219 Therefore, the determination of

aggression should be left to the ICC, with the limitation under article 16 of the Rome

Statute that the Security Council may defer proceedings by positive resolution. This

solution should ensure that the prosecution of cases of unlawful resort to force will become

the rule and not the exception. Hard as it may be for States to give up privileges they have

attained and subsequently grown accustomed to, it is up to the permanent members to the

Security Council to budge from their position and waive their supremacy. It will take hard

work and persuasion on the part of other States to reach a solution that ensures

independence and impartiality of the ICC. But if jurisdiction over aggression is to be

dependent on the concert of the members of the Security Council, it might well be better to

exclude it from the ICC’s jurisdiction altogether. Arguably, a complete lack of jurisdiction

will lead to less injustice than the recognition of inhibited and arbitrary jurisdiction.

218 This provision does indeed imply that justice can undermine international peace and security. Unfortunate a confession as this may be, it arguably reflects the current status of international law. Notably, justice is not a universal remedy, and much like in the award of pardons and guarantees of immunity in transitional societies, other values are sometimes more important than justice. 219 See supra note 217.


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Conclusion

From the above findings, a feasible and integral definition reads as follows:

1. For the purpose of the present Statute the crime of aggression means either of the

following acts committed by an individual who is in a position of exercising control

or capable of directing the political or military action of a State:

(a) initiating or carrying out an armed attack directed by a State directed against the

sovereignty, territorial integrity or political independence of another State, or

(b) occupying territory of another State subsequent to a threat with any of the acts

mentioned under (a).

2. Where an act under paragraph 1 has been committed, the

(a) planning,

(b) preparing, or

(c) ordering

thereof by an individual mentioned under paragraph 1 shall also constitute the

crime of aggression.

3. With respect to paragraph 1 (a), any of the following acts shall qualify:

a) the invasion or attack by the armed forces of a State of the territory of another

State, or any military occupation, however temporary, resulting from such invasion

or attack, or any annexation by the use of force of the territory of another State or

part thereof,

(b) bombardment by the armed forces of a State against the territory of another

State or the use of any weapons by a State against the territory of another State;

(c) the blockade of the ports or coasts of a State by the armed forces of another

State;

(d) an attack by the armed forces of a State on the land, sea or air forces, or marine

and air fleets of another State;

(e) the use of armed forces of one State which are within the territory of another

State with the agreement of the receiving State, in contravention of the conditions


60

provided for in the agreement or any extension of their presence in such territory

beyond the termination of the agreement;

(f) the action of a State in allowing its territory, which it has placed at the disposal

of another State, to be used by that other State for perpetrating an act of aggression

against a third State;

(g) the sending by or on behalf of a State of armed bands, groups, irregulars or

mercenaries, which carry out acts of armed force against another State of such

gravity as to amount to the acts listed above, or its substantial involvement therein.

4. Acts not in contravention to international law do not constitute aggression.

5. The first use of armed force by a State shall constitute prima facie evidence of an

act of aggression

Logical and convincing as the definition of aggression given above may be to this

author, and, it is hoped, to the reader, it is as likely as any other definition to receive stern

opposition from many international actors. Political reality has the power to undermine

every definitional attempt. Yet, as is indicated by the final establishment of a fiercely

opposed ICC, no political opposition is strong enough to forever delay progress of

international criminal law. If incumbent leaders are not yet willing to take the necessary

steps, their successors will be.

Waging war has always been the business of State leaders, never that of ordinary

citizens. The same is true for the imposition of sanctions for criminal conduct. No one,

above all not a State leader, would gladly criminalise conduct he knows he is apt to

commit. Aggression is the only international crime which can a priori be committed only

by this exclusive circle. From this point of view alone it will be remarkable, if aggression

can finally be punished on a regular basis through a permanent ICC.

The precedents of Nuremberg and Tokyo were branded with the blemish of victor’s

justice. In a way, this charge will continue to be a companion of proceedings based on

aggression. Under the auspices of a permanent ICC, such charges will not reflect public


61

world opinion, as the ICC is an independent body and not a tribunal composed by

victorious countries. There should be no illusions, though, that with the adoption of this

definition, only a first step has been made in the long way to the final abolition of war.

International criminal law is but at an infant stage. It cannot be expected to accomplish

miracles, and will certainly not put an end to the commission of crimes it proscribes. But

second only to the adoption of the UN Charter, the establishment of the ICC is probably

the most important step to regulating the state of anarchy under which inter-State relations

have been for so long.

Success and failure of the Rome Statute depend on continuing support for the ICC.

International criminal law can only be as effective as its enforcement. What matters most,

is the political will of States to bring to life the definition and to strengthen the concept of

holding heads of State responsible for aggression (and the other core crimes). Despite all

achievements, the world can never be sure that States will not retrogressively denounce the

Rome Statute at a later stage and fall back into the ‘dark ages’ in international relations.

But by providing a definition of aggression which leaves as little loopholes as possible

while receiving the broadest conceivable support, international law has made its

contribution to keep that from happening.

Waging war will never be the business of ordinary citizens. All the more, they

should have a strong interest in seeing those punished, who wage aggressive war.

Therefore, aside from all legal implications associated with enforcement of the crime of

aggression, it can be assumed, that the adoption of aggression as a crime under the Rome

Statute will at last serve all victims of war. In the end, this will be the most important

achievement of the inclusion of the ‘supreme crime’ under the statute of the ICC.


62

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