Enabling the International Criminal Court to Punish Aggression
According to Article 5 of its governing Statute adopted in Rome in 1998, the International Criminal Court in the Hague (ICC) cannot exercise its jurisdiction over the crime of aggression until amendments are adopted 1-defining the crime and 2- setting out the conditions, consistent with the United Nations Charter, under which the Court will act. This essay analyzes the problems and suggests solutions to meet the stipulated requirements.
I- Defining The Crime Of Aggression
A- Brief Historical Review:
(1) The Nuremberg Precedents
On August 8, 1945, after intensive negotiation by very distinguished jurists representing the United States, France, the United Kingdom, and the Soviet Union, an agreement was reached in London in which these victorious powers of World War Two, "acting in the interests of all the United Nations," drew up the Constitution for a new International Military Tribunal (IMT) "for the "just trial and punishment of major war criminals of the European Axis." The IMT Charter, was endorsed by 21 nations with diverse systems of jurisprudence. The first offense within the Court's jurisdiction was described as
Crimes against Peace: namely, planning, preparation, initiation or waging of 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 foregoing.
Justice Robert M. Jackson, on leave from the US Supreme Court, was the principle architect for the trial. He was designated by President Harry Truman to be Chief Prosecutor for the United States. From the historical record and many existing treaties, such as the 1928 Kellogg Pact outlawing the use of force, Jackson became convinced that "No political, military or other considerations, excuse going to war." "Whatever grievances a nation may have, " he said, "warfare is an illegal means for settling those grievances." After several drafts were debated, Jackson concluded that, rather than listing the treaties prohibiting the use of force, it would be better to leave it to the judges to consult the sources. Professor Andre Gros, who represented France, noted that "there are plenty of documents in actual international law defining aggression" The British, eager to avoid political debates, were hesitant. The Soviets argued that the one who fired the first shot was obviously the aggressor and the judges should focus on punishing those responsible. The final text was the best compromise that could be reached.
In his opening statement to the IMT, Jackson emphasized: "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.") In its final and comprehensive Judgment in October, 1946, the Tribunal held that to initiate a war of aggression "is not only an international crime; it is the supreme international crime... It contains within itself the accumulated evil of the whole." Rejecting defense arguments that it was applying ex-post-facto law, the Tribunal held that the IMT Charter was not an arbitrary exercise of power by victorious nations but "the expression of international law existing at the time of its creation." There was nothing unfair, said the Judges, about not having a more precise definition of the crime of aggression; to allow the accused to remain immune would have been unfair. "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." Leading German officials were found guilty of planning and waging aggressive wars against 10 nations. Five of the 22 defendants were sentenced to death. Jackson reported to his President: "... at long last the law is now unequivocal in classifying armed aggression as an international crime instead of a national right."
The legal principles of the IMT Charter and Judgment - including the brief definition of aggression - became foundation stones for later trials by the Allied Powers in Japan and other countries. A dozen "Subsequent Proceedings" conducted by the US in Nuremberg were authorized by quadripartite Control Council Laws that adopted the IMT definition of Crimes against Peace but inserted one additional illustration: "Initiation of invasions of other countries..."The 1946 Charter of the Military Tribunal for the Far East adopted the exact wording of the IMT Charter regarding aggression, adding only a clarifying clause that a war of aggression could be "declared or undeclared." The Tokyo Judgment in November 1948, finding defendants guilty of the crime of aggressive war, conformed completely with the definitions laid down in Nuremberg. Nations were beginning to live up to Jackson's hope that a firmer enforcement of the laws of international conduct would "make war less attractive to those who have governments and the destiny of peoples in their power."
(2) UN Searches for a Consensus Definition of Aggression
At its first session, on 11 December 1946, the General Assembly (GA) of the United Nations established Committees for the Progressive Development of International Law and its Codification, as required by the UN Charter. It also affirmed the principles of international law recognized by the IMT Charter and Judgment. As "a matter of primary importance," the Assembly called for the formulation of a general Code of Offenses against the Peace and Security of Mankind, or of an International Criminal Code, based on the Nuremberg precedents. Furthermore, Genocide, on any grounds, was affirmed as a crime under international law for which principals and accomplices would be punishable.
After considerable discussion by UN Delegates, and little progress, the dual problems of drafting the Criminal Code and creating the related Criminal Court were referred to the International Law Commission (ILC) composed of many legal experts from different parts of the world. In 1950, the Commission formulated the Nuremberg Principles and simply noted the absence of a precise definition for a "war of aggression." In 1952, a Special Committee on the Question of Defining Aggression was formed b the GA. Until there was a Definition, the Criminal Code would be incomplete, and without a Code the Court could not function. Definition, Code and Court were thus linked and made dependent upon each other. The problems were interconnected but opinions on how to resolve them remained sharply divided. By the end of 1954, the chilling winds of the cold war placed Definition, Code and Court into the deep-freeze.
New Committees reported annually to the growing number of UN Member States. Extended debates were continued in the Assembly's Sixth (Legal) Committee. In 1967, the Special Committee was expanded to 35 Members representing all legal systems. Most nations agreed that an international Criminal Court would be highly desirable but many doubted that it was realistic or attainable. Some powerful countries really didn't want to yield any portion of their sovereignty to any untested new institutions. Nations were so busy committing or contemplating aggression that they had no time, or desire, to define the crime. The high moral and legal principles of Nuremberg were ignored as aggression continued to be committed with impunity by nations large and small. The best that could be done was to continue indecisive discussions or postpone problems that could not be resolved. The world lacked an International Criminal Court competent to hold to account the perpetrators and planners of the supreme international crime. War-making, instead of being condemned as criminal, was still glorified as heroic. The cost in human lives and suffering was incalculable.
The original General Assembly resolutions of 1946, inspired by Nuremberg, envisaged the creation of a code of international offenses, including the supreme crime of aggression, to be enforced by a new International Criminal Tribunal. After over a quarter of a century of contentious debates by lawyers, scholars and diplomats, the UN Special Committee to Define Aggression finally arrived at a consensus definition that was accepted by the General Assembly on 14 December 1974 as GA Resolution 3314. The compromises obtained after many years of stalemate left much to be desired. The Preamble called upon States to refrain from all acts of aggression. It then, recommended, as though by afterthought, that the Security Council (SC) should "as appropriate take account of that Definition as guidance..." It made no reference whatsoever to an International Criminal Court. It did not address the question of criteria for individual culpability. Delegates seemed to have forgotten, or chosen to ignore, the General Assembly mandates of 1946.
Article 1 set forth a generic definition:
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 United Nations, as set out in this Definition.
The following seven articles contain illustrations of acts of aggression, which "regardless of a declaration of war," include such traditionally war-like acts as invasion, annexation, bombardment, blockade, and attack. Art. 2 requires acts to be "of sufficient gravity" but it also allows the Security Council "in conformity with the Charter" to determine that there was no aggression "in the light of other relevant circumstances." On the other hand, the enumerated acts are not exhaustive and the Council may also determine that "other acts constitute aggression." In short, it was left to the Council to decide whether aggression by a State has occurred or not. Repeated reference to the UN Charter was intended to make the pill more palatable.
Art. 5 (reminiscent of Jackson) provides::
No consideration of whatever nature, whether political, economic, military or otherwise, may serve as justification for aggression.
Art. 7 was an exculpatory paragraph designed to exempt from a charge of aggression peoples struggling for "self-determination," and "freedom from "alien domination"... "in accordance with the principles of the Charter."
The UN Charter itself was ambiguous. Article 2(4) sought to restrain the use of force yet Article 51 allowed an undefined "inherent right" of self-defense against an armed attack. It was little noticed that when war-making ceased to be an inherent right, unrestrained self-defense also ceased to be an inherent right. The contradictions and vagaries entwined throughout the Charter and the consensus definition opened the door to conflicting interpretations. No court existed that was competent to enlighten nations and hold wrongdoers to account. The Permanent Members of the Council, particularly the US and the UK, with the right of veto, would not have accepted any definition of aggression without retaining the last word in determining when aggression by a State had occurred. Powerful nations remained unwilling to yield their power, and weak nations had no power to change it.
No legal code can be effective unless the society in which it operates is prepared to be bound by common restraints. With nations in different stages of social, political and economic evolution, it proved impossible to obtain clear agreements defining the legal limits of permissible force. The consensus gave some indicators of conduct that should have been prohibited. What was produced was a mere guide recommended for consideration by the Council. Even that weak consensus became acceptable only after inserting exculpating clauses of such dexterous ambiguity that parties could interpret the document in ways designed to justify their own illegal use of armed force. The wording left no doubt that the 1974 consensus definition of aggression was not binding on anyone. It reflected the fears, doubts and hesitations of its time; yet remained a cautious and faltering step toward a more rational world order.
(3) The International Law Commission Defines Aggression
The wheels of justice may grind slowly but law gradually changes to meet the needs of a changing world. As it began to become apparent in the 1990's that an International Criminal Court might become a reality, the General Assembly stepped up its pressure on the International Law Commission to come forward with a definition of individual culpability for aggression that would meet the standards of criminal law. Decision makers had to give fair notice that those responsible for the illegal use of massive force would no longer be immune from prosecution. The ILC had, for years, been deliberating and trying to agree upon general Statutes for an International Criminal Court as well as a separate Code of specific international crimes. In September 1994, the Commission completed its work on a draft Statute for an ICC. That draft became the subject of intensive debate by various UN Preparatory Committees planning for a Conference of Plenipotentiaries that might finally resolve the differences. In July 1996, after more than 15 years of discussion, the ILC also completed its work on the Draft Code of Crimes.
Article 16, dealing with the Crime of Aggression stated:
An individual, who as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State, shall be responsible for a crime of aggression.
The ILC Commentary made plain that the 34 learned members of the Commission felt that, fifty years after Nuremberg, it would be retrogressive not to include aggression along with the three other crimes over which the ICC was to have jurisdiction. ILC's brief definition is consistent with the Charter and Judgment of the Nuremberg Tribunal. Only an individual who played a decisive role as leader or organizer could be culpable and only if he actively participates (which implies intentionally and knowingly) in planning and preparation of aggression. States can act only through individuals. The violation of the law by a State, said the Commission Report , "is a sine qua non condition for the possible attribution to an individual of responsibility for a crime of aggression." Thus, a successful prosecution would require proof that a State had committed the act of aggression, as well as proof that the individual defendant met the stated requirements for personal criminal responsibility.
(4) What Happened to Aggression at the Rome Conference in 1998
The ILC drafts became the basis for intense negotiations. By the time the Prep/Com met in Rome in the summer of 1998, there were still about a thousand points of difference that had to be reconciled regarding the structure and competence of an ICC. The crime of aggression was probably the most obdurate and difficult point of contention. Many States advanced many reasons why aggression should not be included in ICC's jurisdiction. The US and UK were among those that were hesitant about accepting new legal restraints that might hamper their freedom of military or humanitarian intervention. Arab States seemed eager to retain protections they perceived in the exculpatory clauses of the 1974 consensus definition. Many others, including the European Union and about 30 "nonaligned" countries, argued that without including aggression, the ICC would be unacceptable. There was a stalemate.
After five weeks of hectic effort at the Diplomatic Conference in Rome, the UN was able to announce on 17 July 1998, that for the first time in human history, a permanent International Criminal Court had been created. It was a bit of an exaggeration since the treaty still needed at least 60 ratifications before it could go into effect. Article 5 listed the crime of aggression, together with genocide, crimes against humanity and war crimes, as the only crimes within the ICC's jurisdiction. But, it was stipulated that the Court could not exercise its jurisdiction with respect to the crime to aggression until certain new provisions were adopted. Agreement on a definition of aggression was needed as well as "setting out the conditions" under which the ICC could exercise its jurisdiction with respect to the crime. The required additions had to be "consistent with the relevant provisions" of the UN Charter. Any amendments to the Rome Statute required approval by 7/8th of the State Parties and none could be considered for at least 7 years after the Statute went into effect. Lacking ability and time to resolve differences, the problem of aggression was thus sent back to committee and placed on the back burner.
(5) The Assembly of State Parties Considers the Crime of Aggression
Having received more than the required number of ratifications, the Rome Statute went into effect on July 1, 2002. It was a very historic occasion. The first Assembly of State Parties (ASP) appointed new Preparatory Commissions to continue debates about the unresolved problems concerning aggression. Many dissents were heard; few agreements were reached. In due course, the ASP established a Working Group (WG) to seek reconciliation of conflicting views. Although not specifically required by the wording of Article 5, WG meetings at Princeton and the Hague, began to consider improvements or clarifications of several old problems and principles of law that still seemed ambiguous. It should have come as no surprise that lengthy discussions produced few agreed alterations on points that had been debated for decades. Despite the merits of several carefully prepared scholarly submissions, the prospects of getting near- unanimous concurrence were not particularly promising. It seemed to be overlooked that the test was not whether a suggested change was better, but whether it would be overwhelmingly accepted at an amendment conference that was on the horizon.
B- A COMPROMISE PROPOSAL: A COMPREHENSIVE DEFINITION
In response to the first mandate of Art. 5. the following text is suggested for consideration by the ASP:
Because the forms of aggression may be so variable and unpredictable that it has not been possible to reach universal agreement on a more precise definition of the crime, it is proposed that the following amendment be adopted:
In determining whether an individual has committed the crime of aggression, the ICC judges shall apply the following:
- Relevant provisions of the UN Charter;
- The Charter and Judgment of the International Military Tribunals as affirmed by the UN General Assembly in 1946;
- The consensus definition of aggression in GA Res. 3314 of 1974;
- The definition of aggression by the International Law Commission in 1996;
- Rules for interpreting international law as laid down for the International Court of Justice established by the Charter of the United Nations;.
- Relevant judicial decisions by other competent international criminal tribunals;
- National laws and decisions relating to the crime of aggression;
What is here proposed relies only on declarations and precedents drawn verbatim from the UN Charter, the Statutes of the International Court of Justice, the Nuremberg precedents, General Assembly resolutions, recommendations of the International Law Commission and legal principles that have already been generally accepted. Many experts agree that the crime of aggression has already been recognized as an international common law crime. It is not necessary to try to invent a new statutory definition beyond what is prescribed in the official instruments listed above. Since nothing new is being proposed, it is hoped that nations will be willing to accept what they have already accepted and move forward from there.
The consolidated comprehensive definition meets every principle of legality and fairness by putting potential aggressors on notice that they tread a very perilous path. Since deterrence is the primary goal of criminal law, an all-inclusive definition should not be objectionable to those who are prepared to be bound by the rule of law. Of course there is room for improvement of wording and substance, as there is in every great historical document, but the more amendments that are now proposed, the greater will be the difficulty of getting universal acceptance of alterations. Competent judges must be relied upon to reach wise decisions or suggest legislative changes should they appear necessary in the future. In the meanwhile, unless the ICC is given authority to act on the crime of aggression, malevolent or misguided leaders may continue to commit aggression with impunity.
II- Conditions For ICC Jurisdiction Over The Crime Of Aggression.
As noted, Article 5 of the Rome Statute also stipulated that before aggression could be prosecuted by the ICC, an amendment would have to be adopted "setting out the conditions under which the court shall exercise jurisdiction with respect to this crime." Furthermore, "Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations."
A- Provisions of the UN Charter Relevant to Aggression
The United Nations system of collective security, as originally perceived, was relatively simple. Peace-loving nations would agree upon certain fundamental principles for a more humane, just and tranquil international society. Nations would disarm and an international military force would be created for their protection. A few of the most powerful States, acting as agents for the others, would be entrusted with enforcement. The UN Charter that was signed in San Francisco on 24 June 1945 made no reference to criminal prosecutions. Justice Robert Jackson and allied jurists were then negotiating in London for the IMT Charter that was accepted on 8 August 1945. The trial against major war criminals began three months later and Judgment was rendered in October 1946. When the first General Assembly of the UN met in New York at the end of December, 1946, it affirmed the Nuremberg principles and promptly began to move toward the creation of a permanent international criminal jurisdiction to close the gap in the international legal order.
To gain widespread acceptance, the UN Charter had to include compromises, inequities and inconsistent principles expressed in language subject to various interpretations by nations with conflicting interests and perceptions. The Preamble, in the name of "We the Peoples," expressed the determination "to save succeeding generations from the scourge of war." (The undefined term "war" appears nowhere else.) It also reaffirmed faith in "the equal rights...of nations large or small." But some nations were more equal than others. Those major powers that had won the war (US, UK, USSR, China and France,) felt entitled to reserve unto themselves a right to veto any future enforcement action that might require their troops to return to battle. Without such a privileged entitlement, the US would surely not have been politically able to muster the 2/3 Senate majority needed to ratify the UN treaty. The Security Council, with its unfair veto rights, was charged with the duty of determining "the existence of any threat to the peace, breach of the peace, or act of aggression" and to decide on measures to restore international peace and security. The lofty Charter plan could only be effective if those who were allies in war would remain allies in peace.
Unfortunately, it didn't quite work out that way.
The problem of agreeing on a Code of international crimes and a Court to enforce the Code was wending its way slowly through the United Nations when an unanticipated event brought about a sudden and dramatic transformation. In 1991, civil wars broke out in Yugoslavia as rival ethnic groups sought sovereignty and independence. It was widely reported that mass rapes were occurring and captives were treated under conditions reminiscent of Auschwitz and Dachau. It did not take the Security Council long to set up a special tribunal, in 1993, to bring to justice those who had committed such atrocities. A similar temporary tribunal of very limited jurisdiction was also created by the Security Council in 1994 to cope with genocide in Rwanda where some 800,000 innocent civilians were brutally murdered. Since these were internal conflicts, the crime of aggression was not involved, but the need for a permanent international criminal court became increasingly obvious.
As the plans for an ICC began to take shape, it became clear that there were two separate, but linked, problems that had to be resolved before the crime of aggression could be punished. The act of aggression, requiring a high threshold of violence to be of concern to the international community as a whole, could only be committed by a State or similar entity. Yet, as noted at Nuremberg, crimes are committed by individuals and not by abstract entities. Only after prohibited acts occurred, could individuals responsible for the illegal deeds be held to account before a criminal court. The act of aggression by a State and the crime of aggression by an individual were mutually interdependent. You could not have one without the other and the distinctions were by no means clear. The International Law Commission had been studying the problem of aggression for years. The "independent" experts, including nationals from major powers, finally concluded, in 1996, that a determination that an act of aggression by a State had occurred was an absolute pre-requisite before any individual could be convicted of the crime of aggression. This meant that, as long as the Security Council first had to decide whether an act of aggression had been committed by a State, the Permanent Members could, in effect, control whether anyone could stand trial for commission of the crime. It was not clear how the ICC could maintain its desired judicial independence regarding the crime of aggression if it had to await a prior determination by another body. And there's the rub!
The Charter vested in the Security Council "primary responsibility for the maintenance of international peace and security" and all Members agreed to carry out the Council's decisions. (Art.24 and 25) To be sure, the Council was not given a completely free hand. It was obliged to act "in conformity with the principles of justice and international law" and "in accordance with the Purposes and Principles of the United Nations." (Art. 1 and 24.) Unfortunately, ideological and other differences soon caused some principles of justice and international law to be subordinated to political considerations. The Council fell into disrepute - particularly among smaller States that often felt like little fish being eaten by big fish. The distrust led many States to seek ways of avoiding Council controls when it came to punishing aggressors.
B- Assuring the Independence of the Criminal Court
It was noted that, although the Security Council had primary jurisdiction to determine if an act of aggression by State had occurred, that prerogative was not exclusive. The General Assembly also had a role to play. When North Korean troops, aided by China, invaded South Korea in 1950, the Council seemed paralyzed by the absence of the Soviet representative who had walked out in protest. The US declared that the attack was "an act of aggression." A US Army counter-attack was mobilized under a UN flag. The Assembly, in its "Uniting for Peace" resolution found that "...China, by giving direct aid and assistance to those who were already committing aggression in Korea... has itself engaged in aggression in Korea." Economic sanctions were authorized by the General Assembly.
There were other illustrations that where there was a political will, there was a way to interpret, or reinterpret, the Charter to achieve a desired goal. For example, it became standard practice of the Council to treat abstention as a positive vote, even where the Charter specifically required an affirmative vote. Recently, new concepts like the "duty to protect" held forth the possibility that moral arguments could justify humanitarian interventions requiring the use of force even though no prior Security Council authorization was obtained. Noting the flexibility of the Charter, it is argued that when the Council fails to act, the General Assembly can unite and take measures in the cause of peace. If the GA is competent to authorize economic and military sanctions in response to acts of aggression by a State, why should it not be permissible to authorize a criminal trial against aggressors? Whether it is advisable to stretch the Charter in that direction is another question. The General Assembly is not a judicial body and may be even more politically oriented than the Security Council. There is not much advantage in jumping from the frying pan into the fire.
A better suggestion is that the International Court of Justice in the Hague (known as The World Court) could, on request from the GA, issue an Advisory Opinion that might be more acceptable as a legal determination that an aggressive act by a State had occurred. The ICJ had issued Opinions regarding the legality of a US naval blockade of Nicaragua, the crime of genocide, and the legality of nuclear weapons. There is no reason in principle why the ICJ could not render an objective juridical opinion concerning the legality of an act of aggression by a State. In its deliberations, the ICJ would, of course, take into consideration whatever arguments are presented in customary written memorials to justify the alleged aggression by the nation concerned. If, on the basis of an ICJ Opinion, the ICC Prosecutor decides, and the panel of ICC judges agrees, that those responsible for the act should be indicted personally for the crime of aggression, there is no injustice to the accused since, on a criminal trial, the defendants can always present their exculpatory arguments and evidence to the ICC. There is nothing to prevent the ICC judges, indeed it is their duty, to acquit the accused if they are convinced that fairness and justice so requires.
Referrals from the ICC to the General Assembly, or the ICJ, or any another international agency such as Courts of Human Rights, add costly and undesirable time-consuming procedures. Victims cry out, and not without cause, that justice delayed is justice denied. The ICC is a self- contained entity governed by a treaty signed by over a hundred nations. It should not be made dependent upon other organizations outside its control. But there is no assurance that substitute agencies would be willing or able to accept such delicate and burdensome assignments, directly or indirectly, from the criminal court. Efforts to bypass the Security Council reflect the frustration and desperation of many small States that have been waiting for very many years for legal protection against aggression. They are now demanding an end to the impunity that has encouraged aggressors to defy the rule of law. The Security Council's vested role under the UN Charter is an obstacle. Experience indicates that fundamental Charter alterations that are badly needed are nowhere in sight. Misinterpreting or stretching the law is a dangerous practice. A way can be found to respect the Charter, as correctly interpreted by the International Law Commission, and yet bring to justice those leaders responsible for the supreme international crime.
C- Alternative Ways to Achieve Justice
It should be recalled that national courts will, under the Rome Statute principles of complementarity, always be given priority in trying their own nationals for any crime within the jurisdiction of the ICC. If the national State is willing and able to provide a fair trial, the accused will never be judged by the ICC. The nature of the act and crime of aggression is such that nations are not likely to try their own national leaders unless there has been a change of government. Even if the International Law Commission conclusion is correct, that there can be no prosecution by the ICC for the crime of aggression until there is a Security Council determination that an act of aggression by a State has taken place, it does not mean that the ICC will be indefinitely paralyzed. There are 2 things that can be done to bring the wrongdoers to timely justice.
(1)- Public Reports by the ICC Prosecutor
The ICC Prosecutor, subject to the statutory pre-trial judicial controls, can start an investigation of the crime of aggression and issue a Report of his findings. If the evidence so adduced is insufficient to support a finding of guilt, the accused should be released. If the opposite is true, the Report should be made public. If the issue has been referred by the ICC to the Security Council for a determination regarding the act of aggression by the State involved, and there has been no response, the release of the Report will add additional pressures on the Council to react promptly. An attempt by the Council to halt an ICC investigation for a renewable 12-month period, as the Statute allows, must be related to the Council's peace-keeping responsibilities. It should not be forgotten that the SC is also bound by UN Charter obligations to respect principles of justice and international law. The ICC would be justified in ignoring Council decisions or actions that clearly violate these Charter mandates. Admittedly, the ICC, like the ICJ and other human rights courts, has no independent enforcement power. Abuse of the Council's Charter responsibilities for political reasons is bound to encounter public outrage. The "shame factor" may hasten the Council's decision regarding the legality of the acts under consideration. In the final analysis, the rule of law can only be sustained by the fairness of its procedures and the judicial pronouncements that earn the respect of victims and observers. A Council that shows contempt for the Court will bring contempt upon itself.
(2)- Prosecute for Other Crimes in addition to the Crime of Aggression
It has become customary in war crimes prosecutions that the indictment to contain a number of multiple crimes based on the same facts. Nuremberg defendants were indicted, and convicted, for the Common Plan or Conspiracy to commit Crimes Against Peace (aggressive war), War Crimes and Crimes Against Humanity. It would be perfectly fitting for the ICC Prosecutor to charge the accused with the Crime of Aggression, and, in addition, with War Crimes, Crimes against Humanity and even Genocide if the evidence so warrants. The Prosecutor has the burden of proof at the trial. He need not remain helpless and immobilized while waiting for a Security Council determination that an act of aggression has taken place. Nor need he wait for the General Assembly or the ICJ, or any other body that may have been asked for an opinion that may take years to reach. The trial can proceed promptly on any or all of the other three related charges. These are all crimes within ICC's statutory jurisdiction with no pre-requisites that require Security Council intervention. The maximum penalty for genocide, crimes against humanity, war crimes or aggression are all limited to a term of life imprisonment. There is no affront to the victims, or benefit to the accused, if the aggression charge remains pending, if necessary, while the other counts of the indictment proceed to judgment and sentence.
III- Summary And Conclusion: The Importance of Criminalizing Aggression
The most important achievement of the Nuremberg trials, after over 40 million people had died in World War Two, was the confirmation that war-making was no longer a national right but had become, and henceforth would be condemned, as an international crime. That great historical step forward toward a more rational and humane world order under law must not be allowed to perish.
The distinguished jurists on the International Law Commission agreed that the crime of aggression should be actionable by the ICC, even without a more detailed definition. Adopting a broad consolidated definition of the crime of aggression, to reflect norms that have already been universally accepted, is a clear demonstration that illegal war-making will no longer be tolerated. It should be acceptable to those concerned about giving fair notice to the accused.
The use of armed force is only permissible when approved by the Security Council in accordance with the UN Charter that binds all nations. The Charter mandates must be respected, even when Council responses seem inadequate. Illegal deeds cannot be corrected by illegal means. In the long run, human lives are endangered and not protected when the rule of law is ignored. The Charter principles calling for justice under international law can still be upheld by other means without waiting for SC confirmation regarding the act of aggression. The Prosecutor can proceed to trial promptly on the related war crimes charges that are clearly within the independent jurisdiction of the International Criminal Court.
To be sure, punishing aggression will not, by itself, eliminate wars but it is an important component of a vast matrix which must encompass social justice, disarmament, new institutions and a system of effective enforcement. If peace is to be protected, it is essential that all national leaders be made aware that those individuals responsible for the crime of aggression will be held criminally accountable before the bar of international justice - no matter how long it takes.
Unauthorized war-making is neither legal nor inevitable. Humankind has glorified wars since time immemorial. Admittedly, it will take a very long time to reverse ingrained habits of thought and substitute a "peace ethic" for the prevailing "war ethic." Unpredictable events often determine the course of history. Many great military leaders have come to recognize that nations can no longer rely on the use of force but must turn to the rule of law if they are to survive. New forms of violence and terror pose increasing threats that emphasize the need for new thinking. Advanced technologies offer improved ways to educate the public that law is better than war. As part of the forward movement toward a more just and humane world, those responsible for aggression must learn that they will no longer be immune, but will be held accountable by an International Criminal Court acting in the name of all peace-loving nations.
Benjamin B. Ferencz, J.D. Harvard Law School, 1943
Former Prosecutor at the Nuremberg war crimes trials