Abstract
The new crime of aggression in the Rome Statute of the International Criminal Court poses a puzzle for constructivism. Although the norm against aggression has the support of a critical mass of states for it to cascade, the crime against aggression is predicted to have no significant effect. The reason is that the crime is overbroad; it makes no provision for humanitarian intervention and other quasi-legal but arguably legitimate operations. Despite the intent of the crime’s drafters, the statutory safeguards that prevent prosecutions for such operations are actually illusory. The crime as codified chills such quasi-legal but necessary operations, therefore it will not garner the support of a critical mass of frequent users of force that would be necessary for this norm to cascade also. Furthermore, the history of double-standards in other UN political and judicial bodies erodes confidence in the crime’s impartial application.
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Notes
I do not claim that the most vocal supporters of the crime of aggression (whether in delegations of states or NGOs) have actually claimed that it would eliminate aggression, only reduce it significantly.
Specifically, the act must be committed ‘by a person in a position effectively to exercise control over or to direct the political or military action of a State’. Thus in addition to the head of state/government, the crime could cover acts by ministers and the highest military officers.
Indeed, the problems encountered in applying old rules to new environments plague the UN Charter as well. Rosalyn Higgins (1994, p. 239) points out that the drafting of Article 2(4) pre-dated the rise of guerilla warfare, terrorism, national liberation movements and nuclear weapons.
Other delegates of states and NGOs to the Special Working Group expressed such sentiments to me privately; their identities are withheld in the spirit of non-attribution.
I acknowledge that the Cambodia and Iraq cases are not clean cases of humanitarian intervention: Cambodia because the invader, Vietnam, installed a puppet regime there; Iraq because the invader, the United States, expressed greater concern for Iraq’s weapons of mass destruction than its human rights.
Three other states contributed combat troops to the initial invasion (Australia, Poland, United Kingdom). An additional 30 states contributed combat troops to the Multi-national Force in 2003 (GAO, 2007, p. 9).
For further documentation of the similarities between the human rights situations in Uganda and Iraq, see Brown (2004). There are differences in these two cases, of course. The atrocities in Uganda under Idi Amin took place over a shorter time period than those in Iraq under Saddam; and Uganda had invaded Tanzania a few months before Tanzania’s invasion (though by the time of Tanzania’s invasion Uganda has withdrawn its forces; see Hassan, 1981). However, both Tanzania and the United States believed, rightly or wrongly, that their respective targets were threats to them (Uganda because of the risk that it would invade Tanzania again; Iraq because of its revanchist motives combined with fear that its WMD development was ongoing).
The Security Council further has a role in the process of the Prosecutor opening a case on its own initiative. Under article 15bis, the Prosecutor may proceed with an investigation immediately if the Council has made the determination of an act of aggression (otherwise the Prosecutor must wait 6 months).
The Iranian security personnel that were routinely posted around the embassy were conspicuously absent (para. 17), the attack took place over a 3-hour period without any government intervention whatsoever (para. 57), and the Iranian government made efforts to stop attacks on other embassies before and after the attack on the US embassy (paras. 14 and 20).
This holding flowed from the duty in international law diligently to prevent and punish wrongdoing by its people that injures other states (Jennings and Watts, 1992, p. 550).
It is conceivable that the US judge might have done the same in cases in which the Soviet Union were a party (though the strong American tradition of rule by law seems to me to make that outcome less likely). However, unlike the United States, the Soviet Union never accepted the jurisdiction of the ICJ and consequently has never appeared before the Court as a party to a case, therefore we shall never know how the American judge would have treated it.
Several sections of the majority opinion are devoted to this question. To summarize, the Court held that rebel movements in El Salvador and Honduras had been supported from Nicaragua up until 1981, but that support was not necessarily imputable to the Nicaraguan government (Nicaragua Case, 1986: paras. 152–153). The Court did hold that certain trans-border incursions from Nicaragua into those countries in 1983 and 1984 were attributable to the government of Nicaragua (id.: para. 164). However, the Court did not substantiate a number of allegations made by the United States during the jurisdictional phase of the case. This was partly a consequence of the United States failing to appear in the merits phase of the case, but at the end of the day, the Court was aware of Nicaragua’s mischief in El Salvador and Honduras, and could have substantiated more of it had it desired to do so.
The legal basis for hearing the case at all was a 1955 commerce treaty between the United States and Iran; any judgment against the United States could only stem from a violation of that particular treaty, namely an adverse effect on the freedom of commerce between the two countries. As there was no direct commerce between them (the distinguishing factor between this case and the Nicaragua case), the treaty was not violated and the Court could thus not render a judgment against the United States.
The British, Japanese and American judges made similar complaints.
See also Moore, 2012 (arguing that the Court’s overly restrictive interpretation of jus ad bellum does not effectively distinguish between aggression and defense, particularly where covert and/or low-level warfare is concerned).
It is the more generalized norm against aggression, not the crime of aggression in the Rome Statute, that inhibits most strong states from invading weak states more often than they do (though admittedly in a few cases, strong states are deterred from doing so by the weak states’ stronger allies (see Huth, 1988 (on extended deterrence))).
The opting in will take place pursuant to Article 121, paragraph 5 of the Rome Statute, which provides that whenever the crimes listed in the Statute are changed, the Court cannot exercise jurisdiction over crimes by or in a state that has not accepted the change. During the negotiations of the Special Working Group, a contingent of states and NGO delegates favored adopting the crime of aggression under Article 121, paragraph 4 instead. This procedure would have caused all state parties to be bound by the crime of aggression, whether they accepted it or not, if seven-eighths of the state parties accepted it. In my view, such a procedure would have been fundamentally unfair to states that dissented from the definition of aggression. Adoption of the crime of aggression under paragraph 5 was the more equitable procedure.
One of the Understandings that accompanied the Amendment raises some concern for states who do not wish to be bound by the crime of aggression as defined in the Statute: ‘It is understood that the Court shall exercise jurisdiction over the crime of aggression on the basis of a Security Council referral … irrespective of whether the State concerned has accepted the Court’s jurisdiction in this regard’. This Understanding is directly contrary to art. 121, para. 5 of the Statute itself!
More precisely, they committed acts of aggression without Security Council authorization (a rare event after 1945). The figures offered exclude acts of aggression by the Republic of Vietnam, which no longer existed when the Rome Statute opened for signature.
By way of example, the first state to ratify the Amendment was Liechtenstein, on 8 May 2012 (Permanent Mission of Liechtenstein, 2012).
The eight states are China, Iran, Iraq, Israel, North Korea, Russia, Syria and the United States. For these purposes, an ‘act of aggression’ is simply the first militarization of an inter-state dispute at a HiAct level of 12 of higher (see above).
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Acknowledgements
I thank the following individuals for their thoughtful guidance and feedback at various stages of this project: Dave Benjamin, Jutta Bertram-Nothnagel, the Coalition for the International Criminal Court, Michael Cox, Yoram Dinstein, Robbie Manson, Larry May, Jennifer Trahan, Noah Weisbord and an anonymous reviewer. Apologies to anyone I have missed. The viewpoints expressed herein are my own and do not necessarily reflect those of the above-mentioned persons.
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Brown, D. Why the crime of aggression will not reduce the practice of aggression. Int Polit 51, 648–670 (2014). https://doi.org/10.1057/ip.2014.29
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DOI: https://doi.org/10.1057/ip.2014.29