Deterring Aggression By Law - A Compromise Proposal
The Nuremberg Precedent
In his opening address before the International Military Tribunal at Nuremberg in 1945, Robert Jackson, Chief of Counsel for the United States, declared: "This trial represents mankind's desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world's peace and to commit aggressions against their neighbors." Jackson, on leave from the US Supreme Court, was convinced that domestic tyranny and war could only be curbed "when we make all men answerable to the law." He appealed for judicial action to assure that those who start a war will be held to personal account. He made it explicitly clear that the law of peace had to apply to all nations "including those who sit here now in judgment."
After reviewing the precedents and the existing law, the learned Judges on the international Tribunal concluded:
"The charges of the indictment that the defendants planned and waged aggressive war are charges of the utmost gravity... To initiate a war of aggression, therefore, 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."
Germany's illegal acts were spelled out in detail but neither in the Nuremberg Charter nor the Judgment was the crime of aggression specifically defined. In what the world has come to recognize as a fair trial, five Nazi leaders were sentenced to death for planning and supporting Germany's aggressions. Jackson reported to the President of the United States that "at long last the law is now unequivocal in classifying armed aggression as an international crime instead of a national right."
The Nuremberg precedent was followed by many similar tribunals and its judgment was unanimously affirmed by the first General Assembly of the United Nations. UN committees were appointed to codify international criminal law based on the approved Nuremberg principles and to create a new international criminal court to enforce the code (Res. 95(I), 11 Dec. 1946). The Soviet Union proposed a simple test: the nation that fired the first shot should be branded the aggressor. The United States insisted that subversion and assistance to foreign-armed bands that threatened US interests should also be criminalized.
Diplomats from both sides of the ideological divide argued that as long as there was no agreed definition of "the supreme crime”, no code would be complete and until there was a code there was no basis for a new criminal court. Definition, code and court were thus linked and put on ice by the "cold war." Powerful nations were not ready to yield vital sovereign rights to an untried security system based on the rule of law. While committees quibbled, the world went back to killing as usual. It seemed easier to commit aggression than to define it.
The 1974 Consensus Definition of Aggression
After almost 30 years of wrangling, with the political freeze beginning to thaw, a definition of aggression was reached by consensus and approved by the General Assembly on 14 December 1974 as Resolution 3314 (XXIX). Its imprecision was a product of compromise. Consensus was reachable because the definition was laced with clauses of such delicate ambiguity that nations might interpret the text to serve their own political purposes. The Preamble merely called upon states to refrain from aggression and other uses of force, and recommended that the Security Council "take account of that Definition as guidance...” Nations seemed to have forgotten, or chose to overlook, the fact that the 1946 General Assembly mandate was to draft a definition, not merely to serve as a guide to the Council, but as the most important provision of a new criminal code that would legally bind everyone and serve the cause of world peace.
The eight substantive articles began with a generic declaration: "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 UN." The first use of armed force would be "prima facie evidence of an act of aggression". But the Council could conclude that it should not be characterized as aggression "in the light of other relevant circumstances." Illustrations of flagrant forms of aggression, such as invasion, military occupation, bombardment, blockade, or attack were listed, but the list was not exhaustive and the Council could determine that other acts were also aggression. In effect, the decision whether aggression by a State had taken place was left to the Security Council acting "in conformity with the Charter".
Many States insisted upon assurances that they would not be criminally condemned for actions they regarded as lawful because they were in pursuit of objectives specifically approved in the UN Charter. To meet these concerns, a number of exculpating clauses had to be included in the definition. It was finally agreed that nothing in the definition could prejudice the efforts of peoples under alien domination in their struggle for "self-determination, freedom and independence." It was stipulated however that such actions had to be "in accordance with the principles of the Charter..." (Art.7). The view was thereby accepted that certain actions taken for legitimate purposes and consistent with the Charter should not be branded as aggression. The fact that lawful goals could only be legitimately pursued by lawful means was not made quite clear. Achieving a definition of aggression was the key needed to open the door to further work on the international code and court.
The International Law Commission Definition
The International Law Commission (ILC), composed of 34 distinguished legal experts, had been drafting the Code of international crimes and the Statutes for the Court for decades. In 1996, they completed their draft criminal Code listing five categories of crimes that they felt threatened the peace and security of mankind and should, therefore, be subject to international criminal jurisdiction. Aggression led the list. The Commissioners concluded that 50 years after Nuremberg it would be retrogressive to exclude individual responsibility for the crime of aggression. They were fully aware that the Nuremberg convictions were obtained despite the absence of a detailed and precise definition of the crime. They concluded that it could be left to practice to determine the exact contours of the offense.
The experts on the ILC agreed that war was intrinsically and inextricably linked to actions by a State but they recognized that nations are abstract entities that can act only through individuals. They felt that criminality could be imputed to persons who participated in a conspiracy for " planning, preparation, initiation or waging of a declared or undeclared war of aggression...."By restricting culpability to those leaders who had the necessary authority, knowledge and power to plan and carry out a policy of aggression, the essential elements of criminal intent would necessarily have to be present. Holding such individuals accountable in a court of law would not violate any principles of legality or fairness.
As an added safeguard (and to make the consensus acceptable to the 5 Permanent Members) it was agreed that no individual could be convicted of aggression unless there was a prior finding by the Security Council, acting pursuant to its Charter responsibility under Article 39, that aggression by a State had occurred. But many nations were not prepared to trust the Security Council to make a fair determination on politically-charged issues. They feared that if the ICC were tied to the Council, the Court would lose its independence and become a tool of major powers that might commit aggression with impunity. Various UN Preparatory Committees tried for years to reconcile conflicting views on how to create a fair and independent international criminal court. It was a grinding and slow process that culminated in a meeting of Plenipotentiaries that took place in Rome in 1998.
What Happened to Aggression in Rome?
Other enormous procedural and substantive difficulties were finally resolved and the international community stands on the verge of establishing a permanent international criminal court based on a Statute adopted in Rome by overwhelming vote on 17 July 1998. A Preparatory Commission (Prep/Com,) composed of all interested States, is now charged by the General Assembly with responsibility for taking steps necessary to bring the ICC into existence. Whether aggression would be included as one of the four "core crimes" within the new Court's jurisdiction remained one of the most controversial questions. Faced with the inability to reach general agreement, the issue was deftly deferred. The Rome Statute mandates that before the Court can deal with that crime, aggression must first be redefined, its elements stipulated and the conditions assuring the Court's independence must be set forth in an amendment that is consistent with the UN Charter. Amendments require near-unanimous agreement by the Parties and can only be considered seven years after the Court is established - following ratification of the Rome Treaty by at least 60 nations. Until all these pre-conditions are met, those who commit aggression will remain immune from prosecution by the new Court.
By 30 June 2000, the Prep/Com, in addition to drawing up the detailed Rules of Procedure that were to serve as guides for the ICC, had succeeded in listing the Elements of Crimes that had to be established before an accused could be convicted. Regarding the three core crimes of Genocide, Crimes against Humanity and War Crimes, it was agreed that the essential elements of consent and knowledge could be inferred from relevant facts and circumstances. How to specify and identify the elements of actions that constitutes Crimes against Peace, and how to be sure that the Security Council could carry out its UN Charter mandate without detracting from the independence of the Court, remained formidable obstacles still to be overcome.
Prep/Com Debates on Defining Aggression and the Role of the Security Council
(1) Some Views on Revising the Definition
Discussions on the definition and the role of the Security Council continued during formal and informal sessions in 2000. Many views were expressed but no one spoke out against including aggression as a punishable crime. The Russian Federation proposed a simple one-sentence definition saying: "the crime of aggression means any of the following acts: planning, preparing, initiating, carrying out a war of aggression." Colombia welcomed an Italian proposal on methodology and proposed a general definition that would provide more flexibility than a detailed list. Greece and Portugal submitted a brief proposal based on the broad generic terminology of the 1974 consensus. The German delegation, led by the creative and energetic Hans-Peter Kaul, proposed several accommodating compromises that relied on the most important ingredients from the Nuremberg precedents, Resolution 3314, and the mandates of the UN Charter.
Iran, on behalf of the "Non-Aligned Movement" (NAM) of some 30 Arab and African states, stressed the importance of retaining Resolution 3314. That consensus had listed any military occupation or territorial annexation as possible acts of aggression and had endorsed struggles for self-determination and freedom from alien domination - providing such efforts were "in accordance with the principles of the Charter". In 1999, a coalition of eight Arab States, going beyond the definition agreed upon in 1974, took a reverse and more categorical approach. Instead of stipulating that actions in pursuit of Charter goals would not be regarded as aggression, they wanted the definition to specify that acts in opposition to Charter goals are criminal. They would specifically categorize as aggressors those leaders responsible for depriving "other peoples of their rights to self-determination, freedom and independence in contravention of the Charter of the UN... “According to their proposal, using armed force to threaten "the inalienable rights of those people" should also be characterized as criminal aggression.
US Ambassador David Scheffer warned against moving into uncharted territory that sought to criminalize deeds that were not already sanctioned by customary international law, were not generally followed by the practice of States, and were not included as violations under any domestic legislation. He echoed his British colleague's argument that the definition should focus only on the traditional war of aggression. The US felt strongly that only the Security Council could determine when aggression by a State had occurred and that only the Council should decide whether any action was "in contravention of the Charter." He argued that the agreed definition of 1974 was not a declaration of universal law but only a guide for the Security Council that had no legally binding effect. He particularly cautioned against other nations trying to straightjacket Member States in their acts of humanitarian intervention. The permissible limits to humanitarian intervention without Security Council authorization became another major issue that threatened to block US support for the Court
(2) Views on the Role of the Security Council and the ICC
There can be no doubt that Article 39 of the United Nations Charter assigns primary responsibility to the Security Council to determine whether an act of aggression by a State has occurred. The Council is also vested with authority to determine what actions should be taken to restore peace. No Treaty can derogate from that responsibility and authority that binds all members of the United Nations. If the Council were to be by-passed by the ICC before it had determined that a State had committed the acts of aggression for which an individual defendant had been charged, the argument could be made by the accused that the Court was exceeding its authority by usurping a responsibility that all UN Members had legally delegated to the Security Council. A conviction by the Court under such circumstances might have to be set aside as illegal and could not be enforced. That legal and political reality should not be overlooked.
A dilemma is faced where individual national leaders are suspected of committing the crime of aggression and the Council, for whatever reasons, fails to make any determination that aggression by a State has taken place. Must the ICC remain paralyzed until the Council reaches such an enabling conclusion? In 1998, Cameroon proposed that under such circumstances the ICC, after a reasonable period of time, could commence its investigation of the crime. Egypt suggested that the ICC might be able to turn for help to the International Court of Justice for an Advisory Opinion or to the General Assembly for authorization under "Uniting for Peace" precedents that allowed the Assembly to intervene if the Council became disabled. Not surprisingly, all attempts to limit or by-pass the powers of the Council were vehemently opposed by the Permanent Members, whose support for the ICC was vital.
A Compromise Proposal to Break the Impasse
If agreement by consensus is to be reached, a greater effort must be made to reconcile remaining major points of contention. The foundation stones must remain the Nuremberg precedents, the 1974 consensus definition, and the recommendations of the International Law Commission, UN Charter and the Rome Statute itself. Using past experience as a guide, and adopting techniques that proved successful when the definition of aggression was finally accepted in 1974, it may be possible to reach a new consensus. The technique is to focus on the major concerns still outstanding and to try to find language that moves toward accommodating those divergent views yet is based on terminology that has already been accepted in the foundation-stone instruments.
Arab and African States seek stronger condemnation of foreign domination, annexation or occupation. The United States insists on immunity for acts of humanitarian intervention. Permanent Members of the Security Council refuse to diminish their privileged powers. There is general agreement that somehow the independence of the new Court must be assured. Given sufficient political will, and drafting skill, all of these concerns can surely be met. The attached draft - which does not purport to be the last word - points to a direction that may lead to agreement The clauses shown in italics are drawn verbatim from the existing agreements that have been universally accepted.
The author was a prosecutor at the Nuremberg trials. He received his doctorate in law from the Harvard Law School in 1943, has been a professor of international law and is the author of many books and articles dealing with aggression and an international criminal court.
ATTACHMENT: SUGGESTED COMPROMISE
(1) The Definition of Aggression:
For purposes of this Statute, aggression shall be defined as set forth in General Assembly Resolution 3314 (xxix) on December 14, 1974.
Particular attention is drawn to the reaffirmations contained therein of "the duty of States not to use armed force to deprive peoples of their right to self-determination, freedom and independence, or to disrupt territorial integrity," and that "the territory of a State shall not be violated by being the object even temporarily of military occupation taken by another State in contravention of the charter". Furthermore, "any annexation by the use of force of the territory of another state or part thereof" may qualify as an act of aggression. Nothing can prejudice the above rights. Particularly of "peoples under colonial and racist regimes or other forms of alien domination."
(2) Elements of the Crime of Aggression:
1- The perpetrator was a leader or organizer who actively participated in or ordered the planning, preparation, initiation or waging of acts of aggression by a State.
2- The perpetrator occupied a position of such authority or power that the elements of intent and knowledge can reasonably be inferred from the facts and circumstances.
3- The aggression was of sufficient gravity to be comparable, in magnitude, intensity and actual injurious consequences, to be equivalent to a war, whether declared or not.
(3) Role of the Security Council:
No complaint of aggression may be brought under this Statute unless the Security Council has first determined that a State has committed the act of aggression which is the subject of the complaint. Failure of the Council to respond to allegations of aggression within a reasonable time shall not prevent the court from investigating the charges and publishing its findings and recommendations.
Particular attention is drawn to the fact that humanitarian intervention by the use of force without prior authorization by the Security Council shall not constitute an act of aggression if it is shown that the intervention was a last resort after other available means had been exhausted, that the intervention was for purely humanitarian purposes and not motivated by the self-interest of the intervening party, and to the maximum extent possible, was carried out in a manner designed to protect the human rights of all persons concerned.
Particular attention is drawn to the fact that both the Security Council and the Court are bound by article 1 of the United Nations Charter that calls for the suppression of acts of aggression "in conformity with the principles of justice and international law." In determining whether an individual is guilty of the crime of aggression, the Court shall be completely independent in its judgment.