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The Crime of Aggression: Making Operative the Jurisdiction of the ICC—Tendencies in the PrepCom
Published online by Cambridge University Press: 28 February 2017
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- The Definition of Aggression and the ICC
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- Copyright © American Society of International Law 2002
References
1 The original Greek-Portuguese proposal is contained in UN Doc, PCNICC/1999/DP.13 (July 30, 1999). See also UN Doc. PCNICC/2000/WGCA/D.P.5, which contains the same proposal together with an explanatory note prepared by the Greek delegation.
2 Un Doc. A/AC.249/1997/WG1/DP.6 (Feb. 21,1997).
3 A similar proposal has been tabled by Algeria, Bahrain, Iran, Iraq, Kuwait, Lebanon, Libya, Oman, Qatar, Saudi Arabia, Sudan, Syria, the United Arab Emirates and Yemen (UN Doc.A/CONF.183/C.1/L.56 (July 8,1998)).
4 UN Doc. PCNICC/1999/DP.12 (July 29, 1999).
5 Charter of the International Military Tribunal for the European Axis, Aug. 8, 1945, Article 6.
6 Charter of the International Military Tribunal for the Far East, Apr. 25, 1946, Article 5.
7 However, Allied Control Council Law No. 10 of December 20, 1945, which was the basis of the trials against special groups of accused, defines, in article II, para. 1 (a), crimes against peace as follows:
Initiation of invasions of other countries and wars of aggression in violation of international laws and treaties, including but not limited to planning, preparation, initiation or waging 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 above.
This definition proves that there is no irrefutable truth in the assertion that at Nuremberg the crime was perceived and qualified only as “war of aggression.” The notion of “initiation of invasions of other countries” in Control Council Law No. 10 is clearly aimed at furthering the ambit of die jurisdiction of the Nuremberg Tribunal to include not only a war but also something short of war, which it describes as “initiation of invasions of other countries.” On the other hand, there is no detectable reason why the particular law should differ in any way from die other instruments applicable in those trials. What one can at least infer from those differences is, therefore, that the phrase “war of aggression” is used radier loosely and that no steadfast distinction from “aggression” as such can be securely founded on it.
8 Benjamin B. Ferencz, commenting on the discussion of the definition of aggression in Resolution 3314 art. 2, notes that the insertion of the word “war” “raised the problem of who was to decide whether or not a state of war existed and seemed to make a distinction between aggression and aggressive war, despite the fact that no such distinction had appeared in the Nuremberg principles or in the discussions of the International Law Association or the UN General Assembly” 1 Encyclopedia of Public International Law, I, 58-64, 62 (Rudolf Bernardt ed., 1992). Yoram Dinstein, on the other hand, admits that “ [o]bviously, some of the acts of aggression itemized in Article 3 [of die 1974 definition of aggression] may consist of measures short of war, which are not crimes against peace under the Definition. Yet, as observed, the current trend (at least in theory) is to broaden crimes against peace to acts of aggression in general.” Yoram Dinstein, War, Aggression and Self-Defence 118 (2001).
9 The revised formula has not been tabled officially.
10 It should be noted that die Russian proposal incorporates the question of the relationship between the Icc and the Council into the definition itself. It does so by inserting into die definition of “subject to a determination of the Security Council,” thus making the very definition conditional upon the will of the Council.
11 It could be recalled, in this respect, that the ICJ in its Advisory Opinion of 1962 on the case of certain expenses of the United Nations (art. 17, para. 2 of the Charter), has found that under article 24, the responsibility of the Security Council in the matter was “primary”—not exclusive. The Court went on to find that the Charter made it abundantly clear that the General Assembly was also to be concerned with international peace and security. Certain Expenses of the UN, 1962 ICJ Rep. (July 20).
12 See in this respect the Sixth Preamble paragraph of the ICC Statute, which states, “[r]ecalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,” as well as the penultimate preambular paragraph stating, “[e]mphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions”. Rome Statute of the International Criminal Court, UN Doc. A/Conf.183/94* (1998).
13 See Pellet, Alain, Le Glaive et la Balance, in International Law at a Time of Perplexity, Essays in Honour of Shabtai Rosenne, 539-66 (Dinstein, Yoram ed., 1989 Google Scholar).
14 Nicaragua v. United States, Merits, Judgment, 1986 ICJ Rep. 118-23.
15 See also the Case concerning questions of interpretation and application of the 1971 Montreal Convention arising from the aerial incident at Lockerbie (Libyan Arabjamahiriya v. United Kingdom) Judgment of 27 February 1998 on preliminary objections, 1998 ICJ Rep. 23-26.
16 Prosecutor v. Tadic, Decision on the defense motion for interlocutory appeal on jurisdiction, Case No. IT-94-1-AR72 2 October 1995, paras. 20-22.
17 See Alain Pellet in his Rapport Introductif, Peut-on et doit-on controller les actions du Conseil de Securité? in Le Chapitre Vii de la Charte des Nations Unies, Colloque Des Rennes, Société française pour le droit international (SFDI), 1995, at 221-38. In his report Pellet points out that “On peut penser par exemple au tribunal international pour 1’ ex-Yougoslavie qui ne saurait certainement se dérober si, à 1’ occasion d’ un procès, un accusé conteste la validité des résolutions 808 et 827 1’ instituant . . .” (See also the explanatory note to of the Greek/Portuguese proposal, fn. 4 [supra notes 3 and 8].) This is another instance where he refers to the possibility of controlling the actions of the Security Council. Indeed, he refers not only to the powers of the ICJ to analyze the validity of the resolutions of United Nations organs but to those of other international tribunals as well. See also M. Bedjaoui, Un contrôle de la légalité des actes du Conseil de Sécurité est-il possible? Ibid.
18 Supra note 1. The text of the proposal is as follows:
For the purposes of the present Statute, aggression means the use of armed force, including the initiation thereof, by an individual who is in a position of exercising control or directing the political or military action of a State, against the sovereignty, territorial integrity or political independence of a State in violation of the Charter of the United Nations.
The Court shall exercise its jurisdiction with regard to this crime subject to a determination by the Security Council, in accordance with article 39 of the Charter, that an act of aggression has been committed by the State concerned.
When a complaint related to the crime of aggression has been lodged, the Court shall first seek whether a determination has been made by the Security Council with regard to the alleged aggression by the State concerned and, if not, it will request, subject to the provisions of the Statute, the Security Council to proceed to such a determination.
If the Security Council does not make such a determination or does not make use of article 16 of the Statute within 12 months of the request, the Court shall proceed with the case in question.
19 Even when Iraq invaded Kuwait, the resolutions issued by the S.C. did not refer to “aggression” as such. They did use the expression “acts of aggression” in the case of South African attacks in Angola, and similar expressions can be traced in a few other cases; see S.C. Res. 577 (Dec. 6, 1985).
20 Proceedings of the Preparatory Commission at its seventh session, Feb. 26- Mar. 9, 2001, UN Doc. Pcnicc/2001/L.1/Rev.l, Annex Vi Pcnicc/2001/WGCA/DP.1 (Feb. 23, 2001). See proposal submitted by Bosnia and Hercegovina, New Zealand and Romania, at <http://www.iccnow.org/html/prepcomreport20010312.html>. The proposal purports to resolve the matter by having the ICC requesting the ICJ, through the General Assembly, for an advisory opinion on whether there has been aggression by a state.
21 Though the Greek/Portuguese proposal suggests a maximum of one year, a shorter period might be preferable, as has been discussed by discussions in the PrepCom. Supra note 18, at para. 4.