Tuesday, July 18, 2006

Crime of Aggression

By Otto Spijkers

The International Criminal Court (ICC) does not have jurisdiction over the crime of aggression, at least not until the crime is defined (see Article 5(2) of the ICC Statute). Why is it so difficult to define the crime of aggression?

A Special Working Group on the Crime of Aggression listed the main difficulties in defining the crime in a recent report. The main difficulties are:

  1. How to define the State act of aggression (see Annex IId);
  2. how to define the individual's act of aggression (in the context of the state act);
  3. the role of political bodies (mainly the UN Security Council) in adjudicating the crime of aggression (Annex IIc).

I will briefly explain these three difficulties. A more detailed account can be found in the various reports of the Working Group (please use the hyperlinks in the text above to read these reports).

Ad.1: Although a state cannot commit crimes (i.e. a state cannot be criminally liable), aggression may be considered the classic ‘state crime’. In very general terms, the state act of aggression refers to an armed attack of one state on another, for reasons other than self-defence. But this definition is too vague; many questions remain unanswered. Such as: What exactly is an "armed attack"? Is it the same as a "war" in the classic sense (sending troops to another country etc.)? What is the importance of the (intended) result of the act of aggression? Some reasons to go to war seem much more sympathetic than others (compare a ‘humanitarian intervention’ with a war over natural resources).

Ad. 2: The ICC cannot prosecute a State for aggression; it can only prosecute individuals. How can an individual commit the ‘state crime’ of aggression? If an individual cannot commit the 'state crime' of aggression, what then is the right description of the individual's role in the aggression? Does a head of state ‘lead’ in the planning, preparation, initiation or execution of an act of aggression? And what does that mean exactly? It must be possible to define in specific terms what conduct constitutes aggression, otherwise it will not be possible to prosecute. The exact relationship between the state act and the act of the individual remains problematic.

Ad 3.: The Security Council of the United Nations has “primary responsibility for the maintenance of international peace and security” (see Article 24 of the UN Charter). The Security Council “shall determine the existence of any threat to the peace, breach of the peace, or act of aggression” and act to “maintain or restore international peace and security” (Article 39). Must the UN Security Council determine the existence of an act of aggression before the ICC can prosecute? Or should politics (the Security Council) and law (the ICC) be strictly separated?

These are some of the difficulties. To conclude, I will cite, from the most recent report of the Working Group, a possible definition of the crime of aggression (changes must be made depending on the answers to the above questions):

Crime of Aggression
1. a person commits a “crime of aggression” when, being in a position effectively to exercise control over or to direct the political or military action of a State, that person leads the planning, preparation, initiation or execution of an act of aggression which, by its character, gravity and scale, constitutes a flagrant violation of the Charter of the United Nations.

2. For the purpose of paragraph 1, “act of aggression” means an act referred to in United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, which is determined to have been committed by the State concerned.

In the General Assembly resolution referred to above, the following are listed as state acts 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;
(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.

On the pictures you see the International Criminal Court, located in The Hague, Netherlands; and the United Nations Security Council, located in New York, USA.