In depth
On the definition of aggression
Antonio Remiro Brotons
The Statute of the International Criminal Court left open the definition of the crime of aggression due to the major disagreements between those parties seeking to restrict it, and subject its application to the prior control of the Security Council, and those who wanted a broader definition and freedom for Criminal Court to prosecute offenders. The Rome Conference ended by establishing a working group to continue the debate on the question.
In the light of the authoritative definition of aggression included in the appendix to resolution 3314 (XXI) of the General Assembly, there was no shortage of proposals to define a crime according to the generic terms in article 1 of that definition (worded similarly to article 2.4 of the United Nations Charter); or to copy it, including the indicative list of acts of aggression in article 3, or even to extend it. In view of these proposals, the States attempting to impose absolute control by the Security Council on the Court's actions once again proposed more restrictive definitions for the crime.
An option limited to the war of aggression, suggested by Russia, did not meet with the agreement of the other permanent members of the Security Council. In its favour was the fact that it was the crime against peace prosecuted in Nuremburg (and in Tokyo), the only one which according to its sponsors could be claimed to have a customary legal nature that can be defended erga omnes. However, it did not take into consideration the changes in international rules on the prohibition of the threat or use of force in article 2.4 of the United Nations Charter which in terms of individual criminal liability, made redundant the definition of aggression agreed upon in 1974 (res. 3314-XXI), upon which the proposals of a majority of countries were based.
Another restrictive option was presented by Germany, which was an attempt to limit the crime to armed attack, with the objective of military occupation or territorial annexation. If this point of view had been accepted, the remote destruction of a country or its destruction from the air without the intention of setting foot in it would not be liable to criminal prosecution. By coincidence, this proposal was formulated a few months before the aerial bombardment of Serbia by some members of NATO, including Germany. Germany subsequently maintained that the crime of aggression presupposed a large-scale armed attack against the territorial integrity of another State, manifestly unjustified in international law. It thereby aimed to emphasize the importance or seriousness of the attack, and its undoubted illegality, two considerations that were also present in the proposals by other States. It would be interesting to consider how some of the proponents of these definitions describe armed attacks like the one by Israel on the Gaza Strip in January 2009.
The idea of the threshold after which aggression becomes a crime is reasonable in itself, and all the proposals mentioned here can be considered as manifestations of it. However, they may also be redundant to the extent that the importance and seriousness of the aggression:
- is implicit in the types of article 39 of the Charter of the United Nations, which mentions the act of aggression after the breach of the peace;
- is stated in res. 3314 (XXIX), according to which "the fact that the acts concerned or their consequences are not of sufficient gravity" are relevant circumstances for the Security Council to conclude "that a determination that an act of aggression has been committed would not be justified"; and
- is also mentioned in the Statute of the Criminal Court, when it affirms its jurisdiction over more serious crimes.
Is the aim now to suggest that only the most serious acts involved in the most serious crimes are to be subject to the Court's jurisdiction? Or rather - something which seems obvious - that there are uses of force prohibited by international law that can be described as aggression only when they cross a given threshold of seriousness, as the International Court of Justice ruled in the case of military and paramilitary activities in and against Nicaragua? If this is the case: 1) the act of aggression is the premise of the crime; 2) if there is aggression, there is a crime; and 3) the definition of the crime only requires those who were involved in the aggression, how, and to what extent to be determined.
In view of the imminent Review Conference of the Statute of the Criminal Court (Kampala, May-June 2010), the final report of the Working Group (13 February 2009) made some progress in the definition of the act of aggression in terms of determining who commits a crime. Article 8 b) of the draft amendment to the Statute of the Criminal Court, which has broad-based support, declares (1) that the crime is committed by those who "in a position effectively to exercise control over or to direct the political or military action of a State ... plan, prepare, initiate or execute an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations" (emphasis added). It is therefore a crime by leaders; the attack and violating the Charter is not enough; it has to be done on a large scale. The raising of the threshold over which the act of aggression may lead to individual criminal liability is one of the concessions that have to be made in the interests of consensus.
In order to help the Court to interpret and apply this provision, article 8 bis, in section number two, reproduces, the contents of articles 1 and 3 of the definition of aggression in the Appendix to Resolution 3314 (XXI) of the General Assembly in its entirety in successive paragraphs, thereby combining a generic definition with a non-exhaustive list of acts of aggression.
It goes further, and makes a proposal regarding the elements of the crime. This includes: 1) the statement that the description of a violation as "manifest" is an objective description; and 2) the requirement to prove that the perpetrator of the crime was aware of the factual circumstances that: a) established that such a use of armed force was inconsistent with the United Nations Charter, and b) constituted a manifest violation of the Charter. However, there is no requirement to prove that the perpetrator has made a "legal evaluation" of either consideration.