by Carrie McDougall
[Carrie McDougall is a Research Fellow at the University of Melbourne’s Asia Pacific Centre for Military Law. She has been a member of the Australian delegation to the Special Working Group on the Crime of Aggression.]
Quantity rather than quality characterises the literature on the crime of aggression. Surprisingly little analytical work has been undertaken that studies its jurisdictional and definitional issues in any real depth or with any imagination. Professor Glennon’s recent article in the Yale Journal of International Law joins a relatively small number of notable exceptions.
I share, by and large, Glennon’s concerns about the SWGCA’s draft definition. Indeed, I would go further and add that it is inconsistent with: (1) Article 5(1)’s requirement that the Court’s jurisdiction be limited to the most serious crimes of concern to the international community as a whole; (2) the jus ad bellum’s understanding of an ‘act of aggression’ (namely grave ‘breaches of the peace’); and (3) the customary definition of the crime (as to the existence of which Glennon and I clearly disagree, but which I argue is based on the definition of crimes against peace (for the record, I also disagree with Glennon when he says that the Nuremberg and Tokyo Tribunals failed to define the crime, as I have argued elsewhere)).
This, however, is where Professor Glennon and I part ways.
Glennon’s conclusion that Security Council involvement in the prosecution of crimes of aggression would make individuals retroactively criminally responsible ignores the fact that none of the options currently before the SWGCA allow for prejudicial determination by the Council. What is proposed is only that the adoption of a Council resolution would be an essential precondition to the exercise of the Court’s jurisdiction.
There is, moreover, no basis for interpreting the Security Council’s powers in relation to the determination of the existence of acts of aggression as either pre-emptive or plenary under Articles 39 and 103 of the UN Charter:
- Other provisions of the Charter, particularly Articles 36(3), 37, 38 and 40 indicate that the Security Council does not have the ability to make decisions that have the function of allocating responsibility, or that are an integral part of a judicial process.
- UNCIO debates about defining the terms in Article 39 were all about whether Council action would be automatic or not – as such they say nothing about the identification of acts of aggression by other entities for purposes other than triggering Council action under Chapter VII.
- The Council’s responsibilities under Article 24 of the Charter are only primary and not exclusive. The GA’s adoption of the Uniting for Peace Resolution and its identification of acts of aggression on numerous occasions clearly demonstrate that the Assembly itself is of the view that it has the ability to identify acts of aggression.
- In the Tehran Hostages Case, the ICJ declared that it has the ability to decide any legal questions that arise between the parties to a dispute before it. In the Nicaragua (Jurisdiction) Case, it emphasised the fact that it could exercise its judicial functions concurrently with the Council’s political ones. Moreover, Justice Schwebel in the Nicaragua Merits decision, and Justices Elaraby and Simma in the Armed Activities Case all explicitly held that the ICJ is able to determine the existence of acts of aggression.
By his own admission, it is ultimately Glennon’s horror at the prospect of conflicting decisions on the part of the ICC and the Security Council that is the crux of his jurisdictional argument. This is not a valid reason to ignore the usual rules of treaty interpretation. What’s more, the small risk of contrary decisions has been blown out of proportion: it assumes that the international community is incapable of appreciating that the Council is a political body that acts for political reasons, as distinct from the Court, which must act according to the law.
Once it is understood that there is no legal requirement for the Council to play a role in the prosecution of crimes of aggression it can be seen that any politically motivated compromise proposal that provides for a role for the Council would place no limitation on the Council’s prerogatives – on the contrary, it would only limit the freedom of the Court. For my money, I support what is known in the SWGCA as a ‘green-light’ proposal – my justification for which you can find in this article.
As for the definitional dilemma: ultimately, Professor Glennon’s conclusion that it is impossible to define the State act element of the crime hangs on his well-known view on the effectiveness (or lack thereof) of Article 2(4). Scholars of the jus ad bellum will know that while Glennon is in good company with the likes of Thomas Franck, theirs is a club with few members: a majority of commentators (and the ICJ) agree that even if the boundaries of the prohibition are uncertain, its core is not.
The existence of genuine (and well-established) areas of dispute in relation to the prohibition is not fatal to the definitional endeavour. While it would be completely inappropriate for the jus ad bellum to be developed via international criminal law, it is entirely possible for the crime of aggression to be limited to conduct that unquestionably violates the prohibition.
Indeed, a narrow definition is essential due to the need for any definition adopted to be not only consistent with the nullum crimen principle and the requirement of certainty, but also Article 5(1) of the Rome Statute, the jus ad bellum understanding of an ‘act of aggression’, and the customary definition of the crime, as noted above. As Glennon himself suggests, the trick is to describe the narrow range of acts that meet these criteria in legalist terms with great specificity. The list would certainly start with annexation but should be extended to cover all acts that have the effect of extinguishing, or constitute an attempt to extinguish, another State. Such acts could never be excused on the basis of self-defence (however defined) meaning that controversial issues such as the legality of anticipatory self-defence would be entirely sidestepped. They could equally never be legitimately affected for the purpose of rescuing nationals, and there could be no confusion between such acts and interventions staged on the basis of the responsibility to protect. Indeed, if each limb of the definition is closely circumscribed there is little or no possibility of the definition capturing conduct that is genuinely of contested legality.
Professor Glennon is right when he says that to date a majority in the SWGCA have opposed a narrow definition. But, faced with a choice between a narrowly defined crime of aggression and no crime at all, it seems likely that such States would agree to compromise.
The upcoming Review Conference offers an unprecedented opportunity to criminalise acts of aggression. That said, provisions could be adopted at a later date. Like Glennon I would urge States to reject the SWGCA definition – but unlike him I hope that such a move would not signal the end of the definitional endeavour.