The Aggression Question — Comments

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Comment on the Aggression Question: “What should be the policy and approach of the Office of the Prosecutor in conducting investigations and prosecutions with regard to the crime of aggression?”

Preemptive Nuclear Strikes and the Crime of Aggression: Evaluating the Reach of the ICC’s Jurisdiction

Introduction

At the 2010 International Criminal Court (ICC) Review Conference in Kampala, the crime of aggression was defined under Article 8 bis in the Rome Statute.1 It requires three elements:

  1. the perpetrator is a political or military leader;

  2. the perpetrator was involved in the planning, preparation, initiation or execution of the State act of aggression; and

  3. the State act amounts to an act of aggression according to the definition in General Assembly Resolution 3314 and constitutes a manifest violation of the United Nations Charter.2

An “act of aggression” is defined as: “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or any other manner inconsistent with the Charter of the United Nations.”3 This excludes acts of lawful individual or collective self-defense and acts authorized by the Security Council.4

If States Parties decide to activate the ICC’s jurisdiction over the crime of aggression at the 26th session of the Assembly of States Parties in December 2017, the ICC will have to consider whether preemptive action in self-defense constitutes lawful self-defense, or, if such acts may constitute crimes of aggression.

The debate surrounding the legality of preemptive self-defense,5 or the inter-State use of force in anticipation of an imminent armed attack, has amplified in recent years with the advancement of weapons of mass destruction (WMD). It is frequently argued that with the advancing capabilities of nuclear weapons to destroy populations in number of seconds, States facing an imminent nuclear threat should not have to wait to suffer an attack before responding. Even if a nuclear State indicates the capacity and will to launch a nuclear strike, it is difficult to determine a threshold for measuring when threats are credible enough to justify a preemptive strike. If States are allowed to unilaterally determine when this threshold is reached, there is an enormous risk that a State may act prematurely or based on false information, leading to devastating consequences.

In this comment, I argue that neither Article 51 of the UN Charter nor customary international law provide a right of preemptive self-defense, whether or not WMD are involved. However, there is a right of interceptive self-defense that does not require actual missiles to have been shot before responding. Given this, preemptive nuclear strikes may constitute crimes of aggression within the ICC’s jurisdiction. Determining whether a use of force is either lawful interceptive self-defense or a crime of aggression will depend on a fact-intensive inquiry to pinpoint the moment of first attack. In Part I of this comment, I will discuss the right of self-defense under international law and whether this applies to actions taken in anticipation of an armed attack. Then, in Part II, I will explore how a preemptive strike may constitute a crime of aggression within the ICC’s jurisdiction. Finally, in Part III, I will briefly apply this analysis to the legality of a preemptive nuclear strike by the United States (US) against North Korea.

I. Is There a Right of Preemptive Self-Defense?

A. The Right of Self-Defense

Under Article 2 (4), the UN Charter prohibits: “the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”6 The UN Charter provides two exceptions for use of inter-State force:

  1. when the Security Council has granted authorization under Chapter VII,7 or

  2. in self-defense under Article 51.8 Article 51 provides the right to both individual and collective self-defense if an armed attack occurs.9

The prohibition of the threat or use of inter-state force, as well as the right of self-defense in reaction to an armed attack, are now accepted as part of customary international law.10

It is less clear whether the right of self-defense permits the use of nuclear weapons. In its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice stated that regardless of the means used in self-defense, the customary international law principles of necessity and proportionality, and other relevant rules of armed conflict, still apply.11 However, the Court was divided on how these principles and rules applied to nuclear weapons.12 The Court held that although the use of nuclear weapons “seems scarcely reconcilable” with the rules of armed conflict, it could not reach a definitive conclusion on whether their use would be at variance with the rules of armed conflict in any circumstance, particularly in self-defense “when [a State’s] survival is at stake.”13

B. The Right of Preemptive Self-Defense

1. Customary International Law

Some argue the right of preemptive self-defense has developed over centuries, perhaps dating back to as early as 1625, and is now widely accepted as customary international law.14 The Caroline incident of 1837 is often pointed to as the origin of the modern day right to anticipatory self-defense, when British soldiers seized an American ship in American waters for sending assistance to Canadian insurrectionists.15 US Secretary of State Daniel Webster’s response became known as the Caroline standard, and stated necessity, imminence, and proportionality were required to justify an act of anticipatory self-defense.16 In other words, a State must have no lesser alternatives to thwart an attack, no time to pursue nonmilitary alternatives, and if it does act, the force used must be the minimum required to repeal the attack.17

While many point to the Caroline standard as the origin for the right of anticipatory self-defense under customary international law, Yoram Dinstein argues this reliance is misplaced. Before Britain’s attack on the Caroline, the boat had been used regularly to transport men and supply materials to the anti-British uprising in Canada; moreover, the attack happened at a moment just “short of war.”18 He argues: “the question was not whether Britain had a right to go to war against the United States in the exercise of self-defense (after all, any State then had a right to go to war against another State for any reason),” but rather, “whether Britain could use forcible measures of self-defense within American territory without plunging the two countries into war.”19 Nonetheless, even if the Caroline standard is accepted as a statement of anticipatory self-defense, any preemptive nuclear strike would require necessity, imminence, and proportionality.20

Since the adoption of Article 51 of the UN Charter, the US has increasingly asserted a right to preemptive self-defense, particularly in response to the threat of nuclear weapons.21 In 2002, the US declared its policy on preemptive action in self-defense, known as the “Bush Doctrine,” which was “intended to ‘adapt the concept of imminent threat’ by allowing ‘anticipatory action’ to ‘forestall or prevent’ hostile acts.”22 This policy adapted the earlier concept of “imminent threat” to the danger posed by nuclear weapons and permitted preemptive action in self-defense even if there was still uncertainty about the opposing State’s impending attack.23 In December 2016, the Obama Administration asserted in its report guiding the US’s use of force: “the traditional conception of what constitutes an ‘imminent’ attack must be understood in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.”24

2. UN Charter

Despite these statements, a preemptive nuclear strike based on an opposing State’s possession of nuclear weapons is not justified under international law. Any preemptive nuclear strike, even if it satisfies the Caroline criteria, would still need to comply with the UN Charter.25 And because the UN Charter requires self-defense as a reaction to another State’s use of force, there is no right to preemptive strikes even if the opposing State has indicated its will and capacity to launch a nuclear strike.26 For an act of self-defense to be lawful, assuming there has been no prior Security Council authorization, it must be in response to an attack already in motion.

3. Risk Factors

Moreover, providing a right of preemptive self-defense creates an alarming danger that that any false warning, accidental step, or misperceived military exercise could lead to war.27 For example, during the Cuban Missile Crisis, both the US and Soviet Union were prepared to launch preemptive attacks, creating a danger termed by strategist Thomas Shelling as “the reciprocal fear of surprise attack.”28 This fear was realized when a US U-2 spy plan accidentally flew through Soviet airspace; Khrushchev stated to President Kennedy that this plane could have easily been interpreted as a nuclear bomber and led the Soviet Union to attack.29

There is a similar, and even worse, danger with current situation between the US and North Korea. It may be difficult to distinguish between a preemptive-war plan and a first-strike plan: for example, would the movement of Pyongyang’s nuclear missiles out of storage be interpreted as a defensive precaution or the initiation of an attack?30 This risk increases with US President Donald Trump and North Korea’s leader Jong-un Kim, two leaders who are both “prone to lash out impulsively at perceived enemies, a tendency that can lead to reckless rhetoric and behavior.”31 Both South and North Korea have expressed their right of preemptive self-defense, which begs for greater clarity on whether this right exists under international law.32 The troubling reality is that any right of preemptive self-defense, even if it is a constrained right, heightens the risk of a global nuclear war.

4. Right of Interceptive Self-Defense

Although neither Article 51 of the UN Charter nor customary international law justify a preemptive nuclear strike, there is a right of interceptive self-defense that a State may invoke “in response to an armed attack at an incipient stage, as soon as it becomes evident to the victim State…that the attack is actually in the process of being mounted.”33 Dinstein argues that even if bombs have not fallen or shots have not been fired, a State has the right to intercept under Article 51 if it is certain an armed attack is under way (even in a preliminary manner).34

As a concrete example, Dinstein illustrates a hypothetical Pearl Harbor scenario: consider if the US had detected the Japanese Carrier Striking Force en route to its location to attack Pearl Harbor, contained reliable information regarding the nature of the mission, and attacked in response.35 Even if the US was the first to hit Japan, the US would not have been charged with inflicting an armed attack, but rather, determined as acting in interceptive self-defense.36

This restriction on the right of self-defense mitigates the risk of accidental war, while still providing a right to self-defense in the face of an impending attack. In accordance with Article 51 of the UN Charter, it provides the right of self-defense only in reaction to the use of force by an adverse State.37 It prevents attacks in response to threats that may be real, but perhaps not imminent, and minimizes the risk that a State will initiate an attack based on assumptions, speculation, or fear. Likewise, the UN High-Panel to Consider Collective Responses to Contemporary Threats argued:

In a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral prevention action, as distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all.”38

5. Should There be a Right of Preemptive Self-Defense?

There is a strong counterargument that the unique and destructive power of nuclear weapons necessitates a reinterpretation of the traditional self-defense doctrine to prevent tremendous human suffering and damage.39 Under the Caroline standard, and its principles of imminence, necessity, and proportionality, many argue the current definition of imminence should be relaxed to account for the nature of a nuclear threat.40 In other words, given nuclear weapons’ potential to cause enormous destruction, a State should not be required to wait until it is attacked to act in protection of its own security. This is especially true where a State has made credible threats indicating its will and capacity to launch a nuclear strike.

However, the danger and uncertainty in allowing States to unilaterally decide when threats are credible enough to justify a preemptive strike outweigh these arguments. Precluding a right of preemptive self-defense, even when there are WMD involved, reflects not only the most accurate interpretation of international law, but also the most responsible. Consider the alternative: if State A has expressed its will and capacity to launch a nuclear strike and State B launches a preemptive nuclear strike based on its speculation of an attack somewhere in the future, State A will strike back, and the world will succumb to a global nuclear war. Because WMD have the capability to annihilate, it would be unwise to allow action based on a State’s unilateral determination that its security is at risk.

Determining whether a nuclear strike constitutes lawful interceptive self-defense or preemptive self-defense will require a fact-intensive inquiry to determine the exact moment of attack. It is critical that any act of self-defense is in reaction to an actual threat, not just the fear of one. The exact moment of initial attack will reveal the aggressor, whose use of force may then qualify as a crime of aggression within the ICC’s jurisdiction.

II. Preemptive Strikes and the Crime of Aggression

Dinstein argues that to pinpoint the exact moment of attack, it is necessary to look beyond the “first shot.”41 In other words, even if State A fires the first shot at State B, State B may have had troops invade the territory of State B days earlier. Here, State B would be the initial attacker and guilty of committing an act of aggression. Likewise, consider if State A aimed laser beams at State B’s target.42 Even if State A had not fired a missile yet, an armed attack would be deemed in progress, and State B may respond timely with an act of interceptive self-defense.43

While a preemptive strike may be in response to a mere threat or foreseeable attack, an interceptive strike is in response to “an armed attack which is already in progress, even if it is still incipient and its consequences have not yet been suffered.”44 In other words, a lawful act of self-defense cannot be in response to mere speculation or fear, but only when an armed attack is actually underway, even if not fully matured.45 In regards to the crime of aggression, this distinction is critical. If a strike is determined to have been preemptive, it may constitute a crime of aggression; but if a strike is determined to have been interceptive, it is a lawful act of self-defense.

If a use of force is found to be lawful self-defense, then it is excluded from the definition for the crime of aggression; if it is not lawful self-defense, then the Court will have to determine whether the act amounts to the crime of aggression. This analysis focuses on the third element of the crime referenced in the introduction: the act amounts to an act of aggression according to the definition in General Assembly Resolution 3314 and constitutes a manifest violation of the UN Charter.46

First, Article 8 bis provides that an “act of aggression” refers to “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or any other manner inconsistent with the Charter of the United Nations.”47 It lists seven acts that qualify as an act of aggression when committed by one State against another:

  1. invasion or attack by armed forces against territory;

  2. bombardment or use of weapons against territory;

  3. blockade of ports or coasts by armed forces;

  4. attack by armed forces on land, sea or air forces, or marine or air fleets;

  5. use of armed forces in contravention of conditions provided in an agreement;

  6. allowing territory to be used by another State to commit an act of aggression;

  7. sending armed bands, groups, irregulars, or mercenaries to carry out acts of armed force.48

A preemptive nuclear strike falls within category (b).

However, for an act of aggression to qualify as a crime of aggression, the act, based on its character, gravity, and scale, must “constitute[] a manifest violation” of the UN Charter.49 Even if not present equally, the three conditions of character, gravity, and scale must be sufficient to justify a “manifest violation” of the Charter.50 Each condition evaluates an act of aggression from a different angle: “the intrinsic nature of the acts (‘character’), their seriousness (‘gravity’), and their magnitude (‘scale’).”51 These conditions indicate a high threshold for individual accountability, but it is still not clear how they will guide the Prosecutor’s decisions regarding what acts of aggression may qualify as a crime of aggression.52 However, the character, gravity, and scale of a preemptive nuclear strike would amount to more than a minor act of aggression and unequivocally constitute a threat to international peace and security.

III. Preemptive Nuclear Strikes, the US, and North Korea

A. The ICC’s Limits on Jurisdiction

It should be noted that because neither the US or North Korea are State Parties to the Rome Statute,53 there are important limitations on the exercise of the Court’s jurisdiction over any preemptive nuclear strike. The ICC could not exercise jurisdiction based on State Party or Prosecutor referral; it may only act upon a referral from the Security Council.54 And, common Paragraph 2 of Articles 15 bis and 15 ter exclude the ICC’s jurisdiction over past crimes of aggression; only acts that occur after two-thirds of States Parties decide to activate the Court’s jurisdiction may fall within the Court’s jurisdiction.55

Because it is outside the scope of this comment to examine the ICC’s jurisdictional limits in depth, I will proceed with my analysis under the assumption that if an act of aggression were to happen, the Court would have jurisdiction to act. Although this analysis focuses on the third element of the crime of aggression (whether there is an act of aggression in manifest violation of the UN Charter), it should be noted that in order for the Court to have jurisdiction over a preemptive nuclear strike by either the US or North Korea, the first two elements described in the introduction will also have to be satisfied.

B. Current State of Events

The current crisis between the US and North Korea has been described as a “Cuban Missile Crisis in Slow Motion,” yet more dangerous.56 Both the US and North Korea have indicated their capacity to launch a nuclear strike. Most recently, North Korea launched a new missile capable of traveling eight thousand miles and reaching anywhere in the US.57 US intelligence agencies believe North Korea has as many as sixty nuclear warheads.58 One assessment found that if the US enters nuclear war with North Korea, as many as one million people could die on the first day.59 The US has tried unsuccessfully to persuade North Korea to give up its nuclear weapons or missile program. Since 2006, there have been nine rounds of sanctions against North Korea, leaving much doubt that any further sanctions will be effective.60

In addition to their capacity, the US and North Korea have both indicated their will to initiate a nuclear strike. President Trump threatened if that North Korea made any more threats to the US, they will be met with “fire and fury like the world has never seen.”61 Trump has also stated that in case North Korea acts “unwisely,” the US military is “locked and loaded” to respond.62 Likewise, Kim Jong-un threatened to create “an enveloping fire” around Guam.63 And in an interview with an American journalist, Choe Kang-Il, a North Korean Senior Foreign Ministry official, stated:

If the US shows even a hint of a strike against North Korea, we will proceed with a preemptive attack on the US. To put it very simply, our county is just about on the eve of the outbreak of war.64

C. Interceptive Self-Defense or Crime of Aggression?

Many Americans are asking: if the US accepts complete denuclearization is impossible, and economic sanctions are ineffective, what options remain to defend itself against an imminent nuclear attack by North Korea?

Of particular importance to this question is an imminent attack. As explained above, it would be both unwise and incorrect to interpret international law in a way that would permit either the US or North Korea to initiate a nuclear strike unilaterally based on its belief that an attack is imminent. To do so would create far too much risk of an accidental war. Similar to the Cuban Missile Crisis where tensions are already enormously high, any small misstep could lead to global nuclear warfare.

Under international law, the US has the right of self-defense where it is interceptive, but not preemptive; only if North Korea initiates an attack can the US legally use force to intercept it. The application of this rule to any nuclear strike will not be clear cut, particularly because of the speed at which events may progress, and will depend on a fact-intensive inquiry into the exact moment of initial attack. Both sides will likely argue the other was the first aggressor. It will be the Prosecutor’s role to pinpoint the exact moment of initial attack and then evaluate whether the aggressor’s act constitutes a crime of aggression. In the case of a preemptive nuclear strike, it would likely qualify.

Without the right to act preemptively, if North Korea decides to launch a nuclear strike, there is risk the US will not be able to intercept it in enough time to prevent its destruction, and will instead respond with an additional nuclear strike that will cause even greater destruction. Millions of lives could be lost. Nevertheless, the risk in granting States’ a preemptive right of self-defense does not mitigate this danger, but may only make it worse. Deterrence appears to be the best option: the US should deter North Korea until it collapses under its own regime, just like the Soviet Union before it.65

IV. Conclusion

Despite the threat many States face in the age of WMD, neither Article 51 of the UN Charter nor customary international law provide a right of preemptive self-defense. Nonetheless, there is a right of interceptive self-defense that does not require shots to have been fired or bombs to have dropped, but only that an attack has been initiated. This limitation on self-defense influences the ambit of uses of force that may fall within the ICC’s jurisdiction under the crime of aggression. Dinstein argues it is plausible that “a day may come when States will agree to dispense completely with the use of force in self-defence, exclusively relying thenceforth on some central authority wielding an effective international police force.”66 If this day ever comes, then any nuclear strike, whether preemptive or interceptive, would constitute an act of aggression. But until that day, the determination of the legality of a nuclear strike will require a fact-intensive inquiry that pinpoints the moment of attack, and thereby, the aggressor. And hopefully, this will help prevent unleashing the fire and fury of global nuclear war.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Definition of the Crime of Aggression, The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression, [hereinafter Crime of Aggression], available online (last visited Dec. 2, 2017).

  2. 2.

    Id.

  3. 3.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 8 bis available online..

  4. 4.

    Crime of Aggression, supra note 1.

  5. 5.

    See Yoram Dinstein, War, Aggression and Self-Defence 223 (6th ed. 2017).

    (It should be noted that both preemptive and anticipatory have been used to discuss the right of self-defense prior to an armed attack. Although their precise definitions may differ, for the purposes of this comment, I will use the terms interchangeably to refer to the use of force to prevent an adversary State’s imminent armed attack).

  6. 6.

    Charter of the United Nations, [hereinafter UN Charter], Article 2, available online.

  7. 7.

    Id. at Chapter 7, available online.

  8. 8.

    Id. at Article 51, available online.

  9. 9.

    Id.

  10. 10.

    See generally Case Concerning Military and Paramilitary Activites In and Against Nicaragua (Nicaragua v. U.S.), Merits, Judgment, 1986 I.C.J. Reports 14 (Jun. 27, 1986), available online.

  11. 11.

    See Dinstein, supra note 5, at 221.

  12. 12.

    Id.

  13. 13.

    Id.

  14. 14.

    Kelly J. Malone, Preemptive Strikes and the Korean Nuclear Crisis: Legal and Political Limitations on the Use of Force, 12 Pacific Rim L. Pol’y J. 807, 809 (May 2003), available online; see also David A. Sadoff, Striking a Sensible Balance on the Legality of Defensive First Strikes, 42 Vand. J. Transnat’l L. 441, 447–53 (Mar. 2009), available online.

  15. 15.

    Malone, supra note 14.

  16. 16.

    Sadoff, supra note 14, at 449.

  17. 17.

    Id. at 450–51.

  18. 18.

    Dinstein, supra note 5, at 225.

  19. 19.

    Id.

  20. 20.

    Malone, supra note 14, at 807.

  21. 21.

    Dinstein, supra note 5, at 222.

  22. 22.

    Id.

  23. 23.

    Malone, supra note 14, at 807.

  24. 24.

    The White House, Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations (Dec. 2016), available online.

  25. 25.

    Malone, supra note 14, at 807.

  26. 26.

    Id.

  27. 27.

    Scott D. Sagan, The Korean Missile Crisis: Why Deterrence Is Still the Best Option, 96 Foreign Aff. 72 (Nov. 2017), paywall.

  28. 28.

    Id.

  29. 29.

    Id.

  30. 30.

    Id.

  31. 31.

    Id.

  32. 32.

    Id.

  33. 33.

    Dinstein, supra note 5, at 222–8.

  34. 34.

    Id. at 228.

  35. 35.

    Id. at 231–2.

  36. 36.

    Id.

  37. 37.

    Id. at 228.

  38. 38.

    Jeffrey L. Dunoff, Steven R. Rattner & David Wippman, International Law: Norms, Actors, Process: A Problem-Oriented Approach 743–4 (4th ed. May 20, 2015).

  39. 39.

    Rachel A. Weise, How Nuclear Weapons Change the Doctrine of Self-Defense, 44 N.Y.U. J. Int’l L. & Pol. 1331, 1356 (2012), available online.

  40. 40.

    Id.

  41. 41.

    Dinstein, supra note 5, at 229.

  42. 42.

    Id. at 231.

  43. 43.

    Id.

  44. 44.

    Id. at 233.

  45. 45.

    Id. at 235.

  46. 46.

    Crime of Aggression, supra note 1.

  47. 47.

    Rome Statute, supra note 3.

  48. 48.

    Id.

  49. 49.

    Id.

  50. 50.

    Dinstein, supra note 5, at 143–44.

  51. 51.

    Id. at 144.

  52. 52.

    Id. at 144–45.

  53. 53.

    The States Parties to the Rome Statute, ICC, available online (last visited Feb. 8, 2018).

  54. 54.

    See Conditions for Action by the ICC, The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression, available online (last visited Feb. 8, 2018).

  55. 55.

    Rome Statute, supra note 3, at Art. 15 bis and Art. 15 ter.

  56. 56.

    David E. Sanger & William J. Broad, A ‘Cuban Missile Crisis in Slow Motion’ in North Korea, N.Y. Times, Apr. 16, 2017, available online.

  57. 57.

    Nicolas Kristof, Are We Headed Toward a New Korean War?, N.Y. Times, Nov. 29, 2017, available online.

    (Kristof notes that even if North Korea currently lacks the capacity “to attach a nuclear warhead to the missile so that it could survive the heat and friction of re-entering the atmosphere,” it is advancing towards that goal).

  58. 58.

    Sagan, supra note 27.

  59. 59.

    Id.

  60. 60.

    Kristof, supra note 57.

  61. 61.

    Maggie Astor & Christine Hauser, A Timely Guide to the North Korea Crisis, N.Y. Times, Aug. 10, 2017, available online.

  62. 62.

    Id.

  63. 63.

    Id.

  64. 64.

    Adam B. Ellick, John Woo & Jonah M. Kessel, From North Korea, With Dread, N.Y. Times, Nov. 28, 2017, available online.

  65. 65.

    Sagan, supra note 27.

  66. 66.

    Dinstein, supra note 5, at 223.

Selected Approaches and Policies for Prosecuting the Crime of Aggression

I. Introduction

After many years of uncertainty, the International Criminal Court (Court) may finally exercise jurisdiction over the crime of aggression. The Court faces a variety of complex issues when it decides to prosecute individuals who allegedly committed the crime of aggression.

When the Office of the Prosecutor (Prosecutor) may exercise jurisdiction over the crime of aggression and the precise definition of aggression has been hotly contested by countries since the Court’s inception.1 At the 1998 Rome Conference, State Parties were unable to determine when the Prosecutor may exercise jurisdiction over acts that constitute the crime of aggression. They were also unable to agree what is the definition of the crime of aggression.2 The United States, backed by its western allies, has been a vocal advocate against the Court from investigating and prosecuting the crime of aggression.3 On the other hand, the European Union and roughly thirty non-aligned states would not support the Court without including the crime of aggression in the Rome Statute.4 To say the least, no matter the approach the Prosecutor implements when exercising jurisdiction over the crime of aggression, the Prosecutor is likely to anger powerful countries.

In addition to the debates over whether the Prosecutor should exercise jurisdiction over the crime of aggression, the Court continuously faces criticism and opposition from individuals who question the legitimacy of the Court. Oft recited criticisms of the Court include that the Court and the Prosecutor are both unproductive,5 who conduct biased investigations and prosecutions against members of the African continent.6 Further, some individuals continuously dispute the Courts’ jurisdiction over individuals and crimes committed in different countries. As a young institution operating since July 1, 2002,7 the Court continuously pursues acceptance and legitimacy on the international level, while concurrently attempting to achieve its ultimate goal of providing justice to the victims who suffered mass atrocities. Ultimately to not fail in the courts achieving the Courts goals, the Prosecutor must be wary when deciding to investigate or prosecute the crime of aggression. If it fails, the Court will drift further from achieving legitimacy and bringing justice to victims of mass atrocities.

This Comment will discuss certain policies and approaches that the Prosecutor should implement prior to investigating and prosecuting the crime of aggression. Part II of this comment will provide an overview of the mission of the Prosecutor, the role of the Court, and criticisms the Court faces that will continuously target the Prosecutor when exercising jurisdiction over an individual who committed the crime of aggression. I note that these criticisms and roles obligate the Prosecutor to be wary before exercising jurisdiction over the crime of aggression. Part III discusses previous difficulties the Court has faced with arresting indicted individuals. I argue that it should be the policy of the Prosecutor to keep a short list of indicted individuals for the crime of aggression until issues with arrest are well settled.

In Part IV, I discuss the effect international tribunals have during ongoing conflicts, focusing on the conflict in Kosovo. I argue that it should be the policy of the Prosecutor to first defer to diplomacy despite receiving the green light to exercise its jurisdiction over the crime of aggression by the Security Council.

II. The Courts Mission, Role, and Criticisms

Whether the Prosecutor decides to be aggressive or neutral in its approach of prosecuting the crime of aggression, the results are unclear. If aggressive in its policies, the Court may ultimately be viewed as political and biased against certain countries and individuals. On the other hand, if too neutral in its work, the Court may be viewed as inefficient, illegitimate, and unable to properly bring justice to victims of atrocities. Regardless of the course of action the Prosecutor elects to take, the role and mission of the Court is important to keep in mind when exercising jurisdiction over the crime of aggression.

The Prosecutor has multiple missions including:8

  1. to fairly, effectively, and impartially investigate, prosecute, and conduct trials of the most serious crimes;

  2. to contribute to long lasting respect for and the enforcement of the international criminal justice, the prevention of crime, and the fight against impunity; and

  3. to do so transparently and efficiently.

Although these missions are extremely important, in the context of the crime of aggression, satisfying one mission may prevent the Prosecutor from achieving others. For example, assume that the Prosecutor effectively investigates, and prosecutes an individual who committed the crime of aggression. This may send a message to other war criminals that even if they negotiate a peace deal to stop further crime, they will later be prosecuted for the crime of aggression. Given how difficult it is to define specifically what the crime of aggression is; war criminals may be reluctant to negotiate cease fires or peace deals. This is because they may feel that they have nothing to lose if they are later prosecuted for the crime of aggression. Diplomacy may become obsolete. Therefore, any type of attempt by the Prosecutor to exercise jurisdiction over the crime of aggression may directly prevent the Prosecutor from achieving its goal of preventing future crimes.

The Prosecutor and the Court itself face constant criticisms and threats from individuals who don’t believe the ICC is effective in its pursuit of justice. Skeptics of the Court claim that the Court blows through an immense amount of resources while not achieving justice because it cannot arrest individuals. If the Prosecutor fails when prosecuting the crime of aggression, skeptics of the Court will have even more reasons to try to end the Courts existence.

Ultimately, since the Court has undertaken the role as an international tribunal to bring peace and justice to victims of horrible atrocities, the Prosecutor must be strategic before exercising jurisdiction over the crime of aggression. This may include electing not to prosecute the crime despite receiving the green light from the Security Council if non-prosecution will protect more victims. Many countries have their own political agendas and interests that they prioritize over bringing international justice and ending horrible international atrocities. The Court is faced with severe political pressure from powerful countries against intervening in international matters, specifically the crime of aggression. This directly imposes on the Courts role of assisting countries to bring justice to victims of mass atrocities, when the country is not equipped to domestically pursue justice. Mass atrocities and tragedies occur too often. Many victims are commonly left with no support, hint of justice, or closure in order to move on with their lives. These victims have high expectations for the Court and hope that the Court delivers on its promises. Therefore, it is essential that the ICC Prosecutor is wary when prosecuting the crime of aggression to not:

[D]isappoint people’s expectations leaving communities feeling abandoned and disinclined to trust the other work of the Court.9

III. The Prosecutor must keep a Short list of Individuals Indicted for the Crime of Aggression Until the Courts Issues with Arrest Are Settled

The Prosecutor notoriously suffers from a lack of support from States when it attempts to arrest an indicted individual.10 The Court relies on state parties to arrest individuals in the Courts’ pursuit of justice.11 Currently, the Court does not have the support of an independent police force that can execute Court warrants.12 Failure to arrest indictees has been a prime criticism of the court, as it results in the loss of respect from victims of mass atrocities. It also prevents the Prosecutor from successfully prosecuting and preventing the most serious crimes.13

The ICC’s Issues with arrest was exemplified following the indictment of Omar Hassan Ahmad al-Bashir (Omar al-Bashir). Omar al-Bashir is currently Sudan’s head of state.14 Although the ICC did not have territorial jurisdiction over the alleged crimes committed by Omar al-Bashir, the ICC obtained jurisdiction when the Security Council referred the Darfur matter to the ICC.15 The ICC Prosecutors charged Omar al-Bashir with crimes against humanity, war crimes, and genocide based on the destruction believed to have occurred in Darfur, Sudan between 2003–2008. Despite being indicted in 2009, Omar al-Bashir has not been arrested yet. Omar al-Bashir has even visited various countries following his indictment; including Chad, Egypt, Iran, Iraq, Qatar.16 Even worse, Omar al-Bashir has traveled to countries who are State Parties.17 Despite repeated political pressure and efforts to limit Omar al-Bashir’s travel, Omar al-Bashir is left free.18 The Court simply does not have sufficient methods that would help it bring justice to the victims of crimes committed in Darfur. There are no members of the opposition in Sudan that are willing to stand up against him.19 Issues with arrest will directly infringe on any attempt by the Prosecutor to indict, arrest, and conduct the trial of an individual who allegedly committed the crime of aggression.

The road to international justice is a murky one. State Parties have previously had difficulties navigating the complexities of international law to determine their obligations owed to the Court. For instance, obligations owed to the Court may directly contradict customary international or domestic obligations. Since the Court is a relatively new institution, customary international obligations may trump State Party obligations owed to the Court.

This problem was exemplified in June 2015 when South Africa hosted the Summit Meeting of the African Union.20 Omar al-Bashir attended the summit and departed from South Africa without being arrested.21 When Omar al-Bashir arrived to South Africa, the Southern Africa Litigation Centre requested a South African court to order South African authorities to arrest and turn in Omar al-Bashir.22 The South African Court noted that South African was under an obligation to fulfill the requirements under the Rome Statute including: “that a state, faced with a request to arrest and surrender a person, shall…comply with the request to arrest and surrender.”23 South Africa’s duty to arrest pursuant to the Rome Statute was implicated by its obligations under customer international law.24 Negotiations and issues present between State Parties and non-State Parties is governed by customary international law.25 Since Sudan is a non-State Party, the arrest of Omar al-Bashir may have resulted in a violation of customary international law by South Africa.26

Ultimately, South Africa succumbed to the uncertainty revolving its obligations to the Court and did not arrest Omar al-Bashir. This is despite South Africa being a State Party that enacted domestic legislation providing its support to the Court, and that has continuously attempted to better the relationship between the African Union and the Court.27 Even more interesting, the Rome Statute provides instructions on:

[H]ow a state should deal with competing requests for the arrest and surrender of a person, as well as the procedural modalities for giving effect to the obligation to arrest and surrender.28

These complexities threaten the effectiveness and legitimacy of the Court because the Court depends on outside institutions to enforce its arrest warrants and laws. To say the least, there is complete uncertainty regarding the issues of arrest. Prosecuting the crime of aggression will only further complicate matters, especially since acts of war may be justified under certain circumstances.

To remedy these difficulties with arrest, it should be the policy of the Prosecutor to keep the list of individuals indicted based on allegations of the crime of aggression short. The Prosecutor should refrain from maintaining a long list of indicted individuals until there is better support from State parties and others who will support the Prosecutor in arresting war criminals. Keeping a short list of indicted individuals may help make the Court look less inefficient. Critics of the Court will be unable to point out a long list of individuals unable to be caught. War criminals will not feel that they can operate with impunity when committing the crime of aggression, or provide evidence that the Court is illegitimate. Thus, the Prosecutor and the Court will heavily benefit from keeping the list of indicted individuals short until there is a concrete legal standard for arresting indicted individuals.

Alternatively, some may argue that by indicting an alleged war criminal, they may stop perpetrating crimes out of fear of being arrested when they go into hiding. Therefore, by maintaining a lost list of indicted individuals, the Court effectively may stop conflicts and individuals from subsequently committing the crime of aggression. Even if true, the Court must focus on maintaining its legitimacy and effectiveness. By maintaining a short list of indicted individuals until the arrest issue has clear cut legal guidelines, the Prosecutor may prevent the Court from being further criticized. Adding another crime to prosecute in the Courts arsenal may expose the court to further criticisms, especially if it is unable to arrest indicted individuals. This is crucial because of the backlash the Court will receive from power world wide powers when it starts to exercise jurisdiction over the crime of aggression.

IV. Prosecutor Must Defer to Diplomacy Before Prosecuting the Crime of Aggression

The Prosecutor should implement a policy or approach when prosecuting individuals for the crime of aggression in which the Prosecutor first defers to efforts at diplomacy, even if the Prosecutor receives a green light from the Security Council. The Prosecutor may damage efforts at diplomacy when it proceeds to indict, arrest, and prosecute an individual for the crime of aggression. Indicted individuals may have no incentive to negotiate a peace deal or a cease fire if they believe that they will be arrested and prosecuted later. Even more worrisome is the nature of an alleged crime of aggression. The use of force by one country against another country is justified under various circumstances. What if the use of force against an unprovoked country may stop a potential atrocity? Jack Snyder and Leslie Vinjamuri argue that:

[T]hat a norm-governed political order must be based on a political bargain among contending groups and on the creation of robust administrative institutions that can predictably enforce the law. Preventing atrocities and enhancing respect for the law will frequently depend on striking politically expedient bargains that create effective political coalitions to contain the power of potential perpetrators of abuses.29

Not all crimes must be prosecuted.30 Therefore, the Prosecutor should implement an approach that defers to efforts by different countries at diplomacy before indicting and starting court proceedings.

Although not specifically a crime of aggression prosecution, this issue was implicated when the International Criminal Tribunal for the former Yugoslavia (ICTY) operated in Bosnia, Serbia, and Kosovo. The ICTY was established in 1993 by the United Nations as a response to mass atrocities committed in Croatia and Bosnia Herzegovina.31 As explained in the ICTY website:

The key objective of the ICTY is to try those individuals most responsible for appalling acts such as murder, torture, rape, enslavement, destruction of property, and other crimes listed in the Tribunal’s Statute. By bringing perpetrators to trial, the ICTY aims to deter future crimes and render justice to thousands of victims and their families, thus contributing to a lasting peace in the former Yugoslavia.32

Roughly two years after the ICTY was formed, Bosnian Serb forces committed genocide in Srebrenica, Bosnia.33 In May 1997, the tribunal began to convict individuals related to actions committed in the former Yugoslavia.34 While these prosecutions and convictions were on-going, Serbian President Slobodan Milošević committed war crimes in Kosovo. Additionally, Milošević’s pushed his efforts at ethnic cleansing further after the United States bombed Serbia in response to Serbia’s actions in Kosovo.35 Ultimately, proponents of the ICTY discouraged violence in Kosovo and left war criminals with no choice but to abandon tactics that would spark interest from the ICTY’s prosecutors.36 However, critics argue that the ICTY promoted the perpetrators to cover their atrocities by hiding evidence, dispersing bodies from mass graves to other areas.37 The fact that war crimes occurred after prosecutions were on-going evidences that there may be room for diplomacy efforts before prosecuting. Following the signing of the 1995 Dayton peace accords on Bosnia, the ICTY’s actions divided the Serbs and Croats, further complicating the objective of obtaining peace.38 Ultimately, Snyder and Vinjamuri argue that the ICTY, “may have hindered efforts to defuse ethnic tensions.”39 Therefore, victims of atrocities may even benefit if the Prosecutor defers for a certain period of time to diplomacy efforts before prosecutions.

This is a prime example that pushing forward with indictment and prosecuting alleged war criminals may accelerate and hinder the peace process, rather than bring justice. Even if the ICTY’s work resulted in convictions, the Bosnian Serbs may have ultimately achieved their goals during the Bosnian-Serbian conflict. The victims of the war will never return, and the Bosnian Serbs may have gotten rid of a substantial number of the Muslim population in that region forever.

Therefore, the Prosecutor, before indicting an individual based on the crime of aggression, must analyze whether the conflict is still ongoing, and what would be the effect of an indictment. If an indictment would accelerate the fighting and hinder diplomacy, the Prosecutor must defer to other countries for as long as needed to negotiate a peace agreement or cease fire. If talks are undergoing, the Prosecutor should not indict alleged war criminals. It should be the Prosecutors policy to first let countries use their power to deal with conflicts. If people fear prosecution, they may be deterred from entering a peace agreement and will accelerate aggression. Also, a countries interpretation of justice may ultimately be different then what the court views justice to be. Victims of a country may feel vindicated if there are negotiations, a peace deal, or admitted guilt by perpetrators. If these perpetrators are indicted, they may never admit that they committed a wrong. Rather, they feel that they themselves are the victims, being prosecuted by a biased international tribunal. Even if a war criminal is convicted, the victims may never feel vindicated if the war criminal does not accept responsibility for the crimes. These victims may just want the fighting to end, so if prosecution is likely to accelerate fighting, the Prosecutor is doing a disservice to those victims. Therefore, although the Prosecutor may receive the green light from the Security Council to prosecute individuals for the crime of aggression, the Prosecutor must be wary and defer to diplomacy for as long as they are able to.

V. Conclusion

It should be the policy of the Prosecutor to keep the list of indicted individuals for the crime of aggression short until the issue with arrests is better determined universally.

The Omar al-Bashir case exemplifies the deep rooted issues with arrest of which the ICC suffers from. Adding on the highly politicized crime of aggression to crimes under which the ICC actively prosecutes may worsen its issues with arresting individuals. Citizens of a country may feel a sense of pride over what their government or military did in a conflict, and feel vindicated. Quite simply, if Omar al-Bashir was indicted for the crime of aggression today, he is not more likely to be arrested. This would be another loss for the court and provide further reasons to delegitimize it. Therefore, the ICC Prosecutor should be wary before indicting a long list of alleged criminals, and maintain the list of indicted individuals short.

Also, the Prosecutor should implement a policy or approach of deference to diplomacy before starting investigations or prosecutions of a conflict. A proper analysis should always be implementing to determine if the Prosecutors actions may accelerate an on-going conflict. Sometimes victims may heavily benefit more from prosecutorial deference. Therefore, even if the Prosecutor receives a green light from the Security Council, it must provide a period of deference to efforts at diplomacy.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Noah Weisbord, Prosecuting Aggression, 49 Harv. Int’l L.J. 161, 170–1 (2008), available online; see also Harold Hongju Koh & Todd F. Buchwald, The Crime of Aggression: The United States Perspective, 109 Am. J. Int’l L. 257 (2015), available online.

  2. 2.

    Weisbord, supra note 1, at 170–1.

  3. 3.

    Id.

  4. 4.

    Id.

  5. 5.

    M. Cherif Bassiouni & Douglass Hansen, The Inevitable Practice of the Office of the Prosecutor, ICC Forum (Mar. 17, 2013), available online.

  6. 6.

    Id.

  7. 7.

    Id.; Rome Statute.

  8. 8.

    Weisbord, supra note 1, at 178–9.

  9. 9.

    Jack Williams, Biting Off More Than It Can Chew? The International Criminal Court and the Crime of Aggression, 30 Austl. Year Book Int’l L. 201, 222 (2012), available online.

  10. 10.

    Id. at 223–4.

  11. 11.

    Id. at 222.

  12. 12.

    Dire Tladi, The Duty of South Africa to Arrest and Surrender President Al-Bashir under South African and International Law: A Perspective from International Law, 13 J. Int’l Crim. Just., 1027, 1032 (2015), available online.

  13. 13.

    Richard Dicker, Ramping Up Strategies for ICC Arrests: A Few Lessons Learned, ICC Forum (Feb. 13, 2014), available online.

  14. 14.

    Beth Van Schaack, ICC Fugitives: The Need for Bespoke Solutions, ICC Forum (Feb. 13, 2014), available online.

  15. 15.

    Tladi, supra note 12, at 1034.

  16. 16.

    Van Schaack, supra note 14, at § 3(B).

  17. 17.

    Id.

  18. 18.

    Id.

  19. 19.

    Id.

    (“To date, no state has had the courage, political will, or wherewithal to arrest him where he has traveled, in part because he has enjoyed the support of the AU.”).

  20. 20.

    Tladi, supra note 12, at Abstract.

  21. 21.

    Tladi, supra note 12, at 1028.

  22. 22.

    Id.

  23. 23.

    Id. at 1033; see also Rome Statute, Art. 98 (1).

  24. 24.

    Tladi, supra note 12, at 1035.

  25. 25.

    Id.

  26. 26.

    Id.

  27. 27.

    Id. at 1030.

  28. 28.

    Id. at 1033.

  29. 29.

    Jack Snyder & Leslie Vinjamuri, Trials and Errors: Principle and Pragmatism in Strategies of International Justice, 28 Int’l Sec. 5, 6 (2003), available online.

  30. 30.

    Id. at 12.

  31. 31.

    About, ICTY, available online (last visited Feb. 9, 2018).

  32. 32.

    Id.

  33. 33.

    Snyder & Vinjamuri, supra note 29, at 20.

  34. 34.

    Id.

  35. 35.

    Jack Goldsmith & Stephen D. Krasner, The Limits of Idealism, 132 Daedalus 47, 60 (2003), paywall.

  36. 36.

    Snyder & Vinjamuri, supra note 29, at 21.

  37. 37.

    Id.

  38. 38.

    Id. at 23.

  39. 39.

    Id. at 24.

I. Introduction

In 2010, at the review conference in Kampala, the state parties to the Rome Statute of the International Criminal Court proposed seven amendments. These proposed amendments are the first steps to enable the Court to exercise jurisdiction over the crime of aggression. We have been asked: “How should the Office of the Prosecutor (OTP) approach prosecution of the crime of aggression if it is fully adopted as an amendment to the Rome Statute?” This comment argues that the OTP should consider the concerns presented by the United States (US), even if they were politically or selfishly motivated.1 In doing so, the OTP should be very hesitant in taking opportunities to prosecute the crime of aggression.

II. US Concerns Surrounding the Kampala Amendment

The US has two key concerns with the proposed changes to the Rome Statute: 1) that the jurisdiction is too broad, and 2) that the definition of the crime of aggression is unclear and overly expansive.

A. Jurisdiction is Too Broad

In negotiations, the US argued that International Criminal Court (ICC) should not have jurisdiction over the crime of aggression unless the United Nations Security Council (UNSC) first acts to determine that a state act of aggression has, in fact, occurred. The US argument is anchored in the language of the UN Charter, which gives the UNSC the exclusive responsibility to determine whether a state has committed “aggression.”2 The US points out that, unlike the crimes of atrocity, to prosecute an individual for the crime of aggression, the determination must first be made that the state committed aggression. Under the Charter of the United Nations, the UNSC is has the sole power to declare whether a state has committed aggression. The US, however, is aware that its views in this regard are shared only by a few of the member states. As an alternate means of narrowing jurisdiction, the US proposes that the ICC should have jurisdiction for the prosecution of aggression only if both the victim and the aggressor states had consented to the jurisdiction.3

B. The Definition is Unclear and Over-Expansive

The Kampala amendments propose a two-part definition for the crime of aggression: First there is a definition for the state act of aggression. Second, there is a definition of the individual crime of aggression. This is how they are related to one another: The state’s act of aggression is the act, the “planning, preparation, initiation or execution” of which a “person in a positon…to direct the political or military action of a State,” must have engaged in to be guilty of the individual crime of aggression.4

1. State Aggression

The US argues that this definition of a state act of state aggression expands the traditional definition. The definition of state aggression in the Kampala Amendment draws heavily from the language in the annex to the General Assembly Resolution 3314 (XXIX) of December 1974 (Resolution 3314). However, the US argues that Resolution 3314 contains clear limitations on what state acts count as acts of aggression—limits that are not included in the Kampala Amendment.5 In the view of the United States, Resolution 3314 requires review of a number of additional factors before illegal use of armed force can be deemed an “act of aggression.”6 These additional factors would mean that not all illegal uses of armed force would constitute an act of aggression. The language of Resolution 3314 demanded consideration of the gravity of the illegal use of force, the intent of the use of force, and other relevant circumstances in deciding whether or not an illegal use of force constituted an act of aggression.7 The definition for the state act of aggression in the Kampala Amendment does not have any of these additional required considerations.8 The United States sees this as an expansion of the definition of what constitutes an act of aggression by a state.

2. Individual Aggression

The crime of aggression for which an individual would be criminally liable, as set forward in proposed Article 8 bis of the Kampala amendment, would mean:

[T]he planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or direct the political or military action of a state, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.9

This definition raises an array of questions. First, individual liability for involvement with acts of aggression—rather than wars of aggression—substantially lowers the threshold for liability. A war of aggression is something akin to Nazi Germany’s instigation of World War II, while an act of aggression (as we have seen above) can be a much lesser state action.10 This would allow an individual to prosecuted for his or her involvement in a much less significant state act. The US is concerned that this expansive definition is a departure from customary international law.11

Second, the language of the proposed amendment in regard to the “gravity and scale” of the state act of aggression required to establish individual liability is unclear. It appears that the test for whether an act is of sufficient gravity or scale is whether it is a “manifest” violation of the Charter of the United Nations. This does not add much clarity. Standard definitions of “manifest” simply suggest something that is plain or obvious.12 There persists a lack of clarity. How does one determine what state acts are plain or obvious violations of the Charter of the United Nations? The ambiguity surrounding this language is another point of concern for the US.13

C. United States’ Political Concerns

Having active duty military personnel in over 150 countries, the leaders of the US are uniquely exposed to liability under the crime of aggression.14 The US fears that what they see as expansive and vague language of the Kampala Amendment will leave it and its citizens even more vulnerable to allegations of aggression. It fears that politically motivated prosecutions or investigations could threaten either US citizens or the legitimate foreign policy those citizens may desire to implement.15 Generally these concerns seem to be centered around the domestic interests of the United States.

III. US Concerns for Global Impact

The US government has publicly expressed several concerns (beyond the possible political concerns) with what it sees may result from the active use of the crime of aggression by the ICC.16 These concerns, as expressed by negotiators, academics, and government officials, focus on the damage that the implementation of the crime of aggression could cause to global security and the stability of the ICC.

A. Chilling Effect on Multilateral Military Action

The US is concerned that the amendment establishing the crime of aggression could stall the willingness of states to engage in cooperative, multilateral, military actions. If the legal basis of military aggression could be investigated or prosecuted by the ICC, states which might fall under the ICC’s jurisdiction will be more hesitant to engage in said action.17 Presumably, this sort of deterrence is one of the goals of the Kampala amendments. But, what if the contestable military action had a worthwhile goal—for example, intervening to stop the commission of atrocities? The US is concerned that the breadth and vagueness of the definitions in the Kampala amendments may inhibit the formation of future military alliances to accomplish positive goals—like, for example, the military interventions in former Yugoslavia. Many already see the exercise of military force in the protection of humanity as a not only allowable, but as the responsibility of those states that are able to do so.18

B. Harder to Resolve Ongoing Conflicts

Additionally, the US argues that ICC activism in prosecuting crimes of aggression would hamper the ability of the international community to resolve ongoing conflicts. While amnesties for atrocities are illegitimate, it could be detrimental to conflict resolution to adopt a similar attitude towards the crime of aggression. In the past, it was possible to negotiate a more or less peaceful exit of leaders like Chile’s Pinochet or the Philippine’s Marcos. They left their countries to what they expected would be safe and prosperous exile in another country. If that option does not exist, discredited leaders may be forced to fight to the bitter end, because their only other option is criminal prosecution. Already, some think that the ICC’s threat of arrest, conviction, and incarceration for crimes of atrocity will cause criminals to persist in their crimes against humanity and/or war crimes.19 In June of 2011, the Pre-Trial Chamber of the ICC issued warrants against Muammar Gaddafi on charges of murder and persecution as crimes against humanity. The war in Libya dragged on for two more months, finally ending when Gaddafi fled Libya in late August. Did the decision of the Court have an effect on Gaddafi’s decision making? Did it cause him to flee sooner, or did the threat of prosecution further entrench him in his position, serving to prolong the war? Some theorize that the ICC’s threat of prosecution serves to prolong the conflicts that lead to atrocities because their perpetrators are hesitant to give up their positons of comparative power and safety in exchange for a prison cell in The Hague.20

In its concerns, the US applies this same rationale to the crime of aggression. It argues, without disputing the need to prosecute crimes of atrocity, that the crime of aggression is of fundamentally different character. If the ICC pursued prosecution of the crime of aggression as actively as it does the prosecution of crimes of atrocity, the US argues that perpetrators will feel “cornered,” be afraid to stop fighting and forced to continue be their aggression to avoid being hauled before the ICC on charges of crimes of aggression. This will needlessly drag out ongoing conflicts.

C. The ICC Will be Less Effective at its Core Mission

The third US concern is that broadening the ICC’s jurisdiction will dilute its effectiveness. In the view of the US, the ICC’s core mission is to deter and punish genocide, crimes against humanity, and war crimes. Broadening its jurisdiction to include ill-defined crimes of aggression will make it more difficult for the ICC to accomplish its core functions. In making this argument, the US reaffirms its support of the ICC, and the ICC investigations and prosecutions currently underway.21 However, the US argues, the ICC has yet to establish a record of effectiveness when it comes to its basic functions, such as apprehending defendants, protecting witnesses, and prosecuting cases already underway. Adding a new controversial crime, with deep political implications, could overburden the ICC and limit its effectiveness across the board.22

IV. Why Should the Office of The Prosecutor Care About US Objections?

This comment discusses how the OTP should approach its prosecution of the crime of aggression. We have examined several of the concerns held specifically by the US. Some, if not all, seem to be motivated by US self-interest. Why should the OTP care about the concerns of the US, which is not even a member state of the Rome Statute?

A. To Curry Political Favor?

The US is not a member state to the Rome Statute, so it is not required to contribute to the ICC. Furthermore, the US is prohibited, by US law, from giving direct financial contribution or specified other assistance to the ICC.23 However, the US has indirectly helped the ICC by financing rewards for the perpetrators of atrocities and using its military to train African militaries opposing the perpetrators of atrocities.24 Additionally, during the Obama administration, the US began to increase its engagement with the ICC.25 Some might argue that, to avoid a loss of assistance from the US and in an attempt to maintain its engagement with the ICC, the OTP should consider the political interests of the US.

However, any help that the US has provided the ICC has been relatively small. Additionally, any policies of engagement between the US the ICC are unlikely to grow further under the Trump administration. Already, President Trump has threatened to cease all engagement with the ICC.26 Therefore any political opportunity cost to the ICC of displeasing the US would be insignificant.

B. On the Basis of Legitimacy

The US goal to minimize the scope and effect of the crime of aggression as set forward in the Kampala Amendment can be viewed as self-interested and politically motivated. Its expressed concerns for harm to global security and the stability of the ICC might be seen as rationales for a self-serving and unpopular political positon. They are, nonetheless, legitimate concerns. The OTP should take them into consideration when determining how to prosecute the crime of aggression.

Whatever its motivations might be, the US’s complaints about the language of the Kampala amendments have merit. The definition of crime of aggression in the Kampala Amendment does have significant gaps and ambiguities. This can result in the crime of aggression losing legitimacy. It is important for the legitimacy of a rule that it is both clearly understood by those upon whom it will operate, and consistently applied. A broad and vague definition of crimes of aggressions may allow greater freedom of action for the OTP. However, that greater freedom comes at the cost of legitimacy. Without clarity in definition and consistency in enforcement, the OTP is open to accusations of arbitrariness, bias, or political motivation. Vagueness of definition transfers reliance on the law to reliance on discretionary decisions made by the OTP. Ultimately, this will call into question the legitimacy of the OTP, and the ICC as a whole.27

V. Conclusion

The OTP should carefully consider the concerns of the US (and states like it) even if they are not member states and their engagement in the court is minimal. The concerns of these states might be motivated by self-interest, but they may still be legitimate. Additionally, the OTP should adopt a cautious policy towards the prosecution of the crime of aggression with the goal of maintaining the legitimacy of the ICC and preventing the potential global issues raised by the concerns of the United States. The OTP could do this by deliberately restraining itself in some way. One option would be for it to rely exclusively on approval the UNSC in order to initiate prosecution for the crime of aggression. By removing the decision from the ICC to the UNSC, the OTP would avoid the questioning of its own legitimacy, and it would likely ensure that the prosecution of the crime of aggression was an uncommon occurrence, relieving concerns for global impact.

Another option is for the OTP to constrain itself in some manner. This would require it to set forward some system of rules in a clear manner for consistent application. If this were done in such a way that the rules were clearly understood and they were consistently applied, it would mitigate the threat against the ICC’s legitimacy. If the rules were deliberately narrow and limited the possibility of prosecution, then it could address concerns regarding the global impact of active prosecution of the crime of aggression.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    See Harold Hongju Koh & Todd F. Buchwald, The Crime of Aggression: The United States Perspective, 109 Am. J. Int’l L. 257 (2015), available online; see also Beth Van Schaack, ASIL Cables: The ICC Crime of Aggression and the Changing International Security Landscape, ASIL Blog, Apr. 16, 2015, available online.

  2. 2.

    Koh & Buchwald, supra note 1; see also Remarks by D. Stephen Mathias, in The Definition of Aggression and the ICC, 96 Proceedings of the Annual Meeting, ASIL 181, 182 (2002), paywall.

    (Koh & Buchwald cite remarks by Mathias).

  3. 3.

    Id.

  4. 4.

    See Report of the Special Working Group on the Crime of Aggression, ICC-ASP/7/20/Add.1 (Feb. 20, 2009) [hereinafter Special Working Group], available online.

  5. 5.

    See Koh & Buchwald, supra note 1; see also Definition of Aggression, G.A. Res. 3314, A/Res/29/3314, Dec. 14, 1974, available online.

  6. 6.

    See Koh & Buchwald, supra note 1.

  7. 7.

    See Koh & Buchwald, supra note 1.

    (Koh & Buchwald cite the Definition of Aggression, supra note 5).

  8. 8.

    Special Working Group, supra note 3.

  9. 9.

    Id.

  10. 10.

    See Koh & Buchwald, supra note 1; see also Proposal Submitted by Germany: The Crime of Aggression: A Further Informal Discussion Paper, PCNICC/2000/WGCA/DP.4, at 5 ¶¶ 20–21 (Nov. 13, 2000) [hereinafter Germany Proposal], available online.

    (Koh & Buchwald cite Germany Proposal).

  11. 11.

    Koh & Buchwald, supra note 1.

  12. 12.

    Definition of Manifest, Merriam-Webster, available online (last visited Dec. 13, 2017).

  13. 13.

    Koh & Buchwald, supra note 1.

  14. 14.

    U.S. Military Personnel by Country, CNN, available online (last visited Dec. 13, 2017).

  15. 15.

    See Ryan J. Vogel, Challenges for the United States with the Rome Statute’s “Crime of Aggression”, 1 UVU J. Nat’l Sec. 7 (Apr. 18, 2017), available online.

  16. 16.

    See Van Schaack, supra note 1.

  17. 17.

    Id.; see also Remarks by Sarah Sewall, Under Secretary for Civilian Security, Democracy, and Human Rights, Annual Meeting, ASIL (Apr. 9, 2015), available online.

    (Van Schaack references presentation by Sewall).

  18. 18.

    See Aidan Hehir, The Responsibility to Protect and International Law, in Critical Perspectives on the Responsibility To Protect: Interrogating Theory and Practice, at ch. 7 (Philip Cunliffe ed., 2011).

  19. 19.

    Van Schaack, supra note 1; and see remark on Sewall, supra note 17.

  20. 20.

    Tomer Broude, The Court Should Avoid All Considerations of Deterrence, Contributing to Crime Prevention by Buttressing a Durable, Consistent, Credible, and Legitimate Normative Environment in Which Serious Crimes are not Tolerated, ICC Forum (Oct. 6, 2011), available online.

  21. 21.

    Van Schaack, supra note 1, and see remark on Sewall, supra note 17.

  22. 22.

    Id.

  23. 23.

    American Servicemember’s Protection Act of 2002, Title II of Pub. L. No. 107–206, 116 Stat. 820 (Aug. 2, 2002), available online (as amended).

  24. 24.

    Marlise Simons, U.S. Grows More Helpful to International Criminal Court, a Body It First Scorned, N.Y. Times, Apr. 2, 2013, available online.

  25. 25.

    See Koh & Buchwald, supra note 1.

  26. 26.

    Alissa de Carbonnel, ICC Calls on Supporters to Rally if Trump Withdraws Backing, Reuters, Jan. 26, 2017, available online.

  27. 27.

    See Sean D. Murphy, Aggression, Legitimacy and the International Criminal Court, 20 EJIL 1147 (Nov. 1, 2009), available online.

Criteria for Legitimate Humanitarian Intervention

Introduction

Is a state action that is planned, prepared, initiated, or executed by a state’s leaders in the name of humanitarian intervention or the responsibility to protect (R2P) encompassed by the International Criminal Court’s (ICC) crime of aggression? In the past fifteen years, there have been expansions related to the law on humanitarian intervention, R2P, and to the International Criminal Court’s definition of the crime of aggression. From the definition of the crime of aggression, it is unclear how these areas of law relate to each other.

This comment supports a narrowly circumscribed understanding of what “humanitarian intervention” is, for fear that the entire crime of aggression be subsumed by an overly broad carve-out or, vice versa, too calloused decisions against intervention in desperately needed situations.

Humanitarian interventions are suspect because they may be used as a cover for hostile countries to manipulate, intimidate, or control bureaucratic and economic systems of countries they have inappropriate political or financial interests in. Nevertheless, atrocities such as mass rape, starvation, and genocide do occur, and they not only rattle the fundamental ethics of society, they trigger the responsibility to intervene to save defenseless people. The goal of the ICC should be to identify a set of criteria that will enable the international justice community to distinguish between intrusion as aggression or genuine humanitarian intervention.

Interventions that have been generally perceived to have a genuine basis in humanitarian aid over the past twenty years have expanded perspectives on the doctrine. These include:

  1. the crisis in Croatia and Bosnia in the former Yugoslavia in the early 1990s;

  2. the plight of the Kurds of Iraq in the wake of the Iraqi-Kuwait crisis in the early 1990s;

  3. the U.S. invasions of Grenada in 1983 and Panama in 1989; and

  4. the West African regional intervention in the carnage of Liberia from 1989 to 1996.

In contrast, responses to humanitarian intervention become more disapproving when actions are taken by a neighboring state, or a state that has affairs with the state, rather than by U.N. peacekeepers, or, at least, by a group of states within a regional organization. However, when widely publicized large-scale atrocities have happened and individual intervention occurred, intervening states have experienced approval, at least quietly through a lack of condemnation. Strong examples are the Tanzanian invasion of Uganda to oust Idi Amin in 1979, and the 1979 Vietnamese invasion of Kampuchea to oust the Khmer Rouge. While the legal validity of these interventions is an unanswered question, fundamentally humanitarian motivation was beyond any reasonable doubt.

The much more common and difficult situation encountered is the one in which the motivations and justifications for intervention, as declared by the invading state itself, are ambiguous and numerous. It can be difficult to determine which justification is most significant. Nevertheless, multiple competing reasons should not be determinative of the strength of argument made for humanitarian intervention. It is still necessary to include such cases in a general discussion of the doctrine and, eventually, to evaluate the strength of the claims made.

A review of the traditional doctrine of international law demonstrates that humanitarian intervention was intentionally never completely recognized as part of positive law.1 It was hypothesized by Sir W. V. Harcourt in 1863 that:

[I]n the case of intervention as that of revolution, its essence is illegality, and its justification is its success.2

Yet, it has remained an unanswered question if the justification for humanitarian intervention is meant to be evaluated exclusively in terms of its success, or if the ICC could include moral and legal justifications for intervention without relying solely on the results.

This comment has three parts. The thesis is that the criteria for legitimate humanitarian intervention should be narrowly subscribed and clearly defined. The analysis of the thesis is broken down into three sections. One, what the substantive criteria should be: a cost-benefit analysis of force used, weighed against the nature of violation occurring; analysis of the selfish interest the intervening state has in the region of the intervention; and that the de jure government is affected as minimally as possible to assure the stop of the violation of rights. Two, the procedural criteria should entail a declaration of intent to intervene as early as possible. And third, that collective intervention be preferred over individual or unilateral intervention. I conclude by holding that humanitarian intervention is necessary and needs to be clearly defined in order to stand the test of time. The ideas I have combined and put forth are a strong basis for the ICC to rely upon to define the criteria that distinguish humanitarian intervention from the crime of aggression, therefore ensuring that, in extreme situations, a state may be temporarily relieved from its U.N. Charter Article 2 (4) restraints so that, in the most dire situations, a state may take unilateral action to enforce basic human rights. As Lillich stated thirty-four years ago:

[T]o require a state to sit back and watch the slaughter of innocent people in order to avoid violating blanket prohibitions against the use of force is to stress black letter at the expense of far more fundamental values.3

Therefore, the Office of the Prosecutor must outline parameters that would help define the permissible forms and instances of humanitarian intervention.

Humanitarian intervention always stands in need of justification. Walzer, the moral philosopher, points out that the most common situations are, “mixed cases where the humanitarian motive is one among several.”4 There are clear rescue and emergency relief situations, but there is often issues of economic interest, strategic considerations, plain-faced expansionism, and “benevolent imperialism.” As he explains:

[W]e worry that, under the cover of humanitarianism, states will come to coerce and dominate their neighbors.5

Walzer has argued the following set of propositions:

[T]here exists an international society of independent states […]. International [s]ociety has a law that establishes the right of its members, above all the rights of territorial integrity and political sovereignty[…]. Any use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another constitutes aggression and is a criminal act[…]. Aggression justifies two kinds of violent response: a war of self-defense, and a war of law enforcement by the victim and any other member of international societ[…]. Nothing but aggression can justify war[…]. Once the aggressor state has been militarily repulsed it can also be punished.6

Because of this standard, if not done to repel an earlier aggression, military intervention by a state or group of states would constitute aggression even when initiated with the most altruistic of motives.

However, Walzer notes that the legalist paradigm contains within itself an exception known as the “the rule of disregard”,7 therefore we do not treat all interventions as a form of aggression. “The paradigm, unrevised, cannot account for the moral realities of military intervention.”8 For example, intervention could be part of collective self-defense of the victim of aggression. Or consider a situation of civil war where there is no clear aggressor. An intervention to prevent a massacre, mass starvation, enslavement, etc., would certainly represent a reasonable revision of the legalist paradigm. Walzer argues:

[W]hen the violation of human rights within a set of boundaries is so terrible that it makes talk of community or self-determination […] seem cynical and irrelevant.9

[W]hen a government turns savagely upon its own people, we must doubt the very existence of a political community to which the idea of self-determination might apply.10

Nonetheless, Walzer is correct in insisting that intervention must be justified, as it inherently threatens the territorial integrity and political independence of the invaded states. Walzer supports that the burden of proof should fall on any political leader who tries to manipulate domestic affairs or change any of the conditions of life in a foreign country. This burden should just as strongly apply to an international organization as well. For what one state cannot do, a group of states are not permitted to do just because they are more in number.

If the ICC concludes that the U.N. Charter did not remove the customary international law practice of humanitarian intervention, and that Articles 2 (4), 2 (7), and 51 could be read to allow intervention under certain circumstances, then the task for the international legal community must be to define the criteria for analyzing the legality of suspect cases of humanitarian intervention. This is where Fonteyne and like-minded scholars have made key contributions to international law by attempting to define criteria for assessing the legality of claims of intervention in aid of human rights protection. I propose that Fonteyne’s criteria serve as a basis for the ICC, and the international criminal law community at large, to base their criteria upon.

In 1910, Rougier was among the first writers to take on the responsibility of creating a list of criteria for permissible intervention. He favored collective and disinterested intervention.11 He lists three criteria for intervention:

  1. the motivation to intervene comes from acts of state and not of individuals;

  2. the acts in question violate the laws of humanity (rights to life, liberty, and legality), not merely national positive law; and

  3. that the intervention fulfills certain “circumstantial requirements,” such as opportunities for success, and the extent of the violation, etc.

Jean-Pierre Fonteyne, in his seminal 1973 article,12 appears to use Rougier’s framework and expand upon it to deliver some more detailed criteria for judging the validity of particular cases of humanitarian intervention. He broke down his criteria into three subcategories: substantial, procedural, and preferential.

I. Substantive Criteria

A. Cost-Benefit Analysis

A primary and dominate goal of humanitarian intervention needs to be finding a balance between the seriousness of the rights being violated and the magnitude of destruction caused by the intervention. As the unilateral use of force to prevent human rights violation is an extraordinary measure, it ought to be used only in response to substantial human rights violations on a large scale. However, gross violations to a smaller population may warrant the same reaction as lesser violations to a large population. Fonteyne’s ambiguous “cost-benefit” component of his criteria is basically that the severity of the violation (the nature of violation, amount of people affected, and persistence of violence) should be balanced against the degree of destruction necessary to halt the violations. If the violation is imminent or is taking place, a greater urgency for action exists, but the intervening state or organization must be certain that the violation is imminent and will occur without intervention.13

Fonteyne’s cost-benefit analysis refers to the need:

[T]o balance the destruction that intervention would cause, and the size of the group affected by the violations, as well as the fundamental character of the threatened human rights.14

The preservation of values to be achieved by intervention must be weighed against the extent of the disruption of internal structures and domestic processes that will necessarily result from the foreign action.15

This criterion is highly subjective and therefore difficult to apply. Fonteyne noted that this could lead to unsympathetic decisions against intervention in desperately needed situations:

Even in an extreme case of violation of the most fundamental human rights of a large group of people (such as in the case of the organized policy of genocide…), foreign intervention of a forceful nature would probably not be warranted if there is a reasonable prospect that the deprivations will end in the immediate future as a result of internal political or other processes.16

B. Disinterestedness of the Intervenors

Ideally, humanitarian intervention is altruistic. But, there is the tendency of most states not to get involved unless there is some political or national incentive for them. The ICC should consider the degree of self-serving interests of the intervenors have in the state or region intervened in. Factors include: the use of force, affection to government, and length of operation. Nevertheless, the “disinterestedness” standard should not be held as an absolute, if the superseding motive is the protection of human rights.17

C. Minimal Affection to Existing Government Structure

If force is necessary, it should be as unobtrusive as possible to the authority structures of the target state. In all aspects, the intervention should reflect humanitarian goals.18 In addition, there should be no unnecessary occupation of the intervened in state; the intervention ought to last only for the amount of time required to implement the humanitarian changes necessary to prevent the violation of human rights and to ensure the stability of such.

II. Procedural Criteria

Given the U.N.’s goal of conflict minimization, force must always be considered a last resort. To assure acceptable levels of disinterest on the part of the interventionist, the intervening state should have to declare their motives as soon as possible to the world and regional organizations for appraisal.19 Universal and regional organizations are best suited for humanitarian intervention in a manner that is consistent with the interests of the world or regional community. Unilateral intervention should be taken only after it is apparent that such an organization will not take any effective action.20

III. Preferential Criteria

A. Collective Intervention

Collective intervention21 is preferred over individual or unilateral measures.22 Unilateral intervention ought to be avoided if possible by obtaining the clear and unambiguous consent or invitation of the de jure government of the state where the intervention is to take place.23 Yet, absence of consent sought does not preclude the possibility of humanitarian intervention provided all the other requirements have been met.24

“Avoidance of any unnecessary affectation of the authority structures of the state intervened in” also requires clarification. There needs to be severe limitation on alterations by the interventionist of the internal authority structures of that state, and that any action in that direction should be limited to those situations where:

[T]he overthrow of the government in power or even secession of a part of the population appears to be the only available means of putting an end to ongoing or threatened human rights violations of particular gravity.25

If the protection of human rights requires the overthrow of authority structures it would seem best to require U.N. authorization as a prerequisite for action. Moore observed that:

To allow unilateral action in such cases would be to permit all manner of self-serving claims for the overthrow of authority structures.26

Conclusion

From the 1860s onwards, philosophers and legal scholars seemed increasingly receptive to the suggested legal validity of humanitarian intervention by individual states or group of states, acting outside the auspices of any international organization.27 In the period immediately preceding World War I, the majority of writers had apparently accepted the legality of humanitarian intervention, even though there were still strong opponents of this position.28 It seems fair to assert that immediately prior to the adoption of the U.N. Charter in 1945, humanitarian intervention was a fairly settled practice under customary international law, even if there was never unanimity on its legal status.

At the Nuremberg Trials in 1946, Sir Hartley Shawcross confidently declared that:

[T]he rights of humanitarian intervention on behalf of the rights of man, trampled upon by a state in a manner shocking the sense of mankind, has long been considered to form part of the recognized law of nations.29

Nevertheless, some scholars still disagree on whether this right of intervention survived the U.N. Charter, in view of the well-established principle of non-intervention codified in Articles 2 (4) and 2 (7) of the Charter.

Over the past two decades, there have been quite a few dramatic cases of unilateral military interventions, some of which have been castigated as self-serving and thus not motivated primarily by humanitarian goals. There have also been various U.N. peacekeeping operations, including those in former Yugoslavia and Rwanda, which had strong elements of humanitarian intervention.

When humanitarian interventions are undertaken not just in accordance with the U.N. Charter, but by U.N. peacekeepers or regional groups ratified by the U.N., the case for humanitarian intervention rests on even more solid ground. Only from a united perspective and protocol can robust peacekeeping humanitarian intervention serve its purpose as a necessary part of our moral and legal duty. Therefore, the Office of the Prosecutor must outline parameters that will help define the permissible forms and instances of humanitarian intervention. The criterium put forth by Fonteyne are the best foundation for the ICC to rely upon.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    See Hersch Lauterpacht, The Grotian Traditional in International Law, 23 Brit. Y.B. Int’l L. 1 (1946), available online.

  2. 2.

    Id.; William Vernon Harcourt, Letters by Historicus on Some Questions of International Law, Reprinted from “The Times” with Considerable Additions (MacMillian 1863), available online.

  3. 3.

    Richard B. Lillich, Forcible Self-Help by States to Protect Human Rights, 53 Iowa L. Rev. 325, 344 (1967), paywall.

  4. 4.

    See Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations 86 (2d ed. 1992), paywall.

  5. 5.

    Id. at 106.

  6. 6.

    Id. at 61–62.

  7. 7.

    Id. at 86.

  8. 8.

    Id. at 108.

  9. 9.

    Id. at 90.

  10. 10.

    Id. at 101.

  11. 11.

    See Antoine Rougier, La Théorie de l’Intervention d’Humanité, in La Revue Générale de Droit International Public 1 (1910), available online.

  12. 12.

    Jean-Pierre L. Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 Cal. W. Int’l L.J. 203, 204 (1973), paywall.

  13. 13.

    Id. at 260.

  14. 14.

    Id. at 259.

  15. 15.

    Id. at 260 n.244.

  16. 16.

    Id.

  17. 17.

    Id. at 262–63.

  18. 18.

    Id. at 265.

  19. 19.

    Id. at 266–67.

  20. 20.

    Id.

  21. 21.

    Id.

    (Notes the distinction between multilateral and unilateral humanitarian intervention).

    (“Multilateral intervention refers to action taken by or authorized under an appropriate international body, such as the United Nations or a regional organization such as the Organization of American States. […] Unilateral intervention refers to the use of force either by a collective group of states or a single state without the authorization of a relevant international organization.”).

  22. 22.

    Id.

  23. 23.

    Id. at 267.

  24. 24.

    Id. at 268.

  25. 25.

    Id. at 263.

  26. 26.

    John Norton Moore, The Control of Foreign Intervention in Internal Conflicts, 9 Va. J. Int’l L. 205, 264 (May 1969), paywall.

  27. 27.

    See Fonteyne, supra note 12, at 219.

  28. 28.

    Id. at 223.

  29. 29.

    The International Military Tribunal for Germany, Twelfth Day, 3 Nuremberg Trial Proceedings (Dec. 4, 1945), available online.

The Crime of Aggression and Aiding and Abetting: Examining How Article 25(C)(3) of the Rome Statute Can Apply to the Crime of Aggression

Abstract

Article 25(C)(3) of the Rome Statute establishes individual criminal responsibility for any person who purposely aids and abets in the commission of a crime under the jurisdiction of the ICC. With the adoption of the Kampala Amendments, the ICC now has jurisdiction over the crime of aggression, which encompasses a new possible crime for certain uses of armed force. With the introduction of this crime, the ICC now must decide to what extent it can prosecute certain groups or certain people for aiding and abetting in the context of crimes of aggression. This comment will examine some of the difficulties that may arise in this context.

I. Introduction

In 2010, at the Review Conference of the Rome Statute in Kampala, Uganda, amendments were added to the Rome Statute giving it jurisdiction over crimes of aggression.1 The crime of aggression, although limited to only state parties to the Rome Statute, includes a wide range of actions that could constitute criminal liability, including military invasion, bombardment of territory, and blockades of ports or coasts.2

With the implementation of the Kampala Amendments and the court’s newfound jurisdiction over crimes of aggression, the Rome Statute’s individual criminal responsibility section will come back into discussion.3 With the implementation of a new crime, the ICC will be expected to decide to what extent individuals can be prosecuted for aiding and abetting a crime of aggression. This will raise difficulties for the court, as the wide range of activities that are included under the crime of aggression leads to questions of criminal responsibility on numerous levels.

In this comment, I will examine how the Rome Statute’s article on individual criminal responsibility, specifically its article on aiding and abetting crimes, and the introduction of the crime of aggression will interact. In Part II of the comment, I will look at the history of aiding and abetting in the international criminal context, discussing how both the ICC and other international tribunals have decided to apply the standard in the past. In Part III, I will look forward at some of the difficulties that I believe will arise in the future in regards to criminal responsibility from aiding and abetting as the ICC begins to prosecute the crime of aggression. In Part IV, I will argue that, in order for the ICC to avoid as many of these issues as possible, they should keep their use of individual criminal responsibility in the context of aiding and abetting as limited as possible.

II. Aiding and Abetting history

In order to understand the issues that would arise when attempting to convict certain individuals for aiding and abetting a crime of aggression, we must first examine the history in convicting individuals for aiding and abetting in other international criminal contexts. Because the ICC has yet to decide many of the considerations behind aiding and abetting, looking at how other courts treat it may help predict how the ICC will act if these issues arise.

A. The International Tribunals

The ICTY (and the ICTR, which has identical language in its provisions) first dealt with the concept of aiding and abetting. Its own statute’s Article 7(1) states:

A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 5 of the present Statute, shall be individually responsible for the crime.4

The ICTY has taken this standard and compared it to international customary law in order to decide on both the mens rea and the actus reus of aiding and abetting in this context. The ICTY looks at aiding and abetting as accessorial liability, which means there must be a principal perpetrator who carries out the crime and has the sufficient actus reus and mens rea.5

The actus reus of aiding and abetting was established throughout case law during the time of the ICTY. The ICTY initially fleshed out the actus reus requirements in its Furundžija Trial Judgement and continued to apply it throughout future cases.6 The main tenet of the actus reus is drawn from international law and states that aiding and abetting can consist of practical assistance, encouragement, or moral support to the principal provided that there is substantial effect on the commission of the crime,7 although the assistance does not need to be criminal itself.8 The accused can aid or abet through active conduct or through omission, as seen in the Blaškić appeal, as long as the substantial effect still occurs.9 The aider and abettor does not need to be present at the crime.10 To find proof of substantial effect, the court can look at the cumulative effect of the acts,11 but does not need to find proof of but-for causation between the aider and abettor and the commission of the crime.12 This assistance can occur before, during, or even after the crime was committed.13 The ICTY is still at odds over whether or not the contribution needs to be “specifically directed” to the commission of the crime.14

The ICTY has found that for the mens rea requirement to be satisfied, the aider and abettor must know that his conduct will assist the commission of the specific crime and is also aware of the essential elements of the crime.15 The aider and abettor need not share the same mens rea as the principal or even be sure that the crime will ultimately be committed.16

B. The ICC and Article 25(C)(3)

The Rome Statute lays out its standard for individual criminal responsibility in Article 25. Article 25(C)(3), in particular, lays out the standard for criminal responsibility for aiding and abetting in the commission of a crime.17 It says that a person shall be criminally responsible and liable for punishment if that person:

For the purpose of facilitating the commission of such a crime, aids, abets, or otherwise assists in its commission or its attempted commission, including providing the means for its commission.18

The ICC has not established a hardline stance for its aiding and abetting actus reus requirement because it has yet to try any aiding and abetting cases.19 This means that the ICC will have power to make it extremely easy or extremely difficult to attach criminal responsibility to someone who assists the principal in the commission of a crime. There is some guidance, however, as its decision in the Lubanga trial in 2012, although not actually a trial over aiding and abetting, implies that they will also attach a “substantial effect” requirement to the actus reus of aiding and abetting.20 I will argue later in this comment that the ICC should make its definitions as narrow as possible in order to avoid convicting as many people as possible.

The ICC has also not established its hardline stance for the mens rea requirement, but there is language in the statute that shows that this requirement will be higher than what is required in the ICTY.21 However, issues are raised later on in the Rome Statute, when in Article 30, the Rome Statute explicitly states that a person shall be criminally liable if the material elements are committed with intent and knowledge.22 This would suggest a less strict mens rea than is suggested in Article 25(C)(3).

III. Issues with Aiding and Abetting

It can only be assumed that the ICC will begin to hear more cases involving aiding and abetting in the future, especially with the introduction of crimes of aggression, which opens up the floodgates for more and more litigation with its wide range of activities that would be considered illegal. The ICC will, in these scenarios, face issues that would allow it to define how narrowly it would like to define aiding and abetting.

A. Dealing with the Actus Reus and Mens Rea requirement

The ICC’s first major issue will be defining its own standard for the actus reus and mens rea for aiding and abetting. Although it may be difficult to figure out exactly where issues may arise when figuring this out, we can look at the textual language and use hypotheticals to see where there may be difficulty.

As addressed above, the ICC has yet to create any stance towards the actus reus of its crimes. This means that the ICC must address everything that the ICTY has already decided to address above. Similar to the ICTY, there is no textual indication on whether or not there needs to be a “substantial effect” on the commission of the crime,23 so the ICC could decide to include that as an element of its actus reus. It will have to also wrestle with other questions that the ICTY has already dealt with, including whether or not you can aid and abet through omission, if you can aid and abet in an ex post facto manner, and whether or not there the assistance needs to be “specifically directed” towards the commission of the crime.

Although it seems easier for the court to decide on its mens rea requirement due to the text of the statute, there are still arguments to be made that the ICC can go away from pure textual interpretation and institute a similar mens rea to that of the ICTY. Although the Vienna Convention on the Law of Treaties (VCLT) establishes textual interpretation as the main mode of interpreting a treaty, it is not the only means.24 The ICC, for example, could instead decide to look at custom as its means to interpret the treaty, and since other international courts have decided on a lower, knowledge-based mens rea, the ICC could consider that custom and apply it.25 It could also look to other sources of law, including domestic law, and apply those standards, which would vary depending on which state they looked at.26 If they decide to stick to a textualist interpretation, they still can decide on a softer mens rea, since a later article describes the necessary mens rea for any of the crimes mentioned in the Rome Statute as knowledge.27

B. Addressing the “Vertical” and “Horizontal” Reach

Looking at the language of the Kampala Amendments, it is clear that the crime of aggression is a relatively open ended crime and many acts could constitute a violation.28 For example, according to the text, any “bombardment” of a state by another state would constitute a crime of aggression.29 In a possible hypothetical, State A decides to launch missiles and send ground troops into State B, a neighboring state, although State A claims the act is out of self-defense. If the ICC were to accept jurisdiction and listen to a complaint from State B, they could decide that State A’s actions were not out of self-defense. If they decide, at this point, to bring forward indictments on individuals for crimes of aggression, they would have to figure out how far they want the criminal liability to stretch.

In what I would consider “vertical” criminal liability, the court would have to decide if it would want to extend liability “downwards” into lower level officials. For example, in the above scenario, it seems obvious that any general would be individually liable for a crime of aggression, especially with proof that they ordered troops to take illegal actions (assuming they would be liable under Article 25(B)(3) of the Rome Statute).30 However, could the ICC also indict, and convict, common soldiers for a crime of aggression? If they were given orders, it may seem unlikely, but the court could find that they acted with the necessary actus reus and mens rea, especially if those requirements are relatively lax.

One also has to ask how far the court will extend liability “horizontally.” For example, it seems obvious that the leader of State A could be individually liable for sending his troops into State B, even if he claimed it was self-defense. However, what if the leader of State A went through the necessary procedures to actually call it a war, including getting approval from whatever body they needed to domestically, like a Parliament? Could you indict those members for approving a war that was only under the guise of self-defense? If the mens rea requirement is lax, there could be a real argument to be made that these members could be indicted.

It can stretch “horizontally” even further, from state to state. For example, what if State C sold arms and missiles to State A, who has a reputation internationally for using force in illegal ways, and State A used those arms and missiles in attacking State B? Could State A and individuals in its government be indicted for crimes of aggression? If the mens rea requirement is lax enough, there is a possibility that these types of situations could lead to indictments, especially considering that other international courts have already attached liability to the sale of weapons.31

IV. How Should the ICC Approach this Issue?

With a list of roadblocks set forth, the ICC will have to decide how to set its actus reus and mens rea. I argue here that it would be in the ICC’s best interest to avoid many of the above issues and set a strict standard on both the actus reus and the mens rea of aiding and abetting. By setting a strict standard, the ICC can avoid over-extending its jurisdiction for a crime that is already highly politicized and may cause significant backlash against the ICC.

A. Setting a Strict Standard for the Actus Reus and the Mens Rea

Many of the issues of “horizontal” and “vertical” liability that I described above can easily be avoided if the ICC establishes stricter standards for aiding and abetting liability. When deciding the actus reus, the ICC would best be suited to follow the ICTY’s direction and set a “substantial effect” requirement. Although it may be difficult due to a lack of direct textual support, the ICC can look at international custom to show a basis for the “substantial effect” requirement.32 It would also be prudent to set the “specific direction” requirement that the ICTY is still debating, as it would add another level. Once it establishes these two standards, the ICC can either follow the ICTY on the other questions or continue to strengthen the standard. Setting the actus reus in this way does not make it impossible for the ICC to attach liability to people who legitimately aid and abet in the commission of a crime of aggression, but it does ensure that there will not be an overreach by the ICC.

The ICC can truly limit its reach by establishing a “purpose” mens rea, going against the ICTY and creating a stricter necessary element for liability. There should be no issue with the ICC going this route, as there is textual support and the VCLT gives preference to textual interpretation, as discussed above.33 There might be difficulty when also looking at Article 30 of the Rome Statute, which describes a “knowledge” standard for the mens rea.34 There are arguments made that the higher actus reus standard should be balanced with a lower mens rea standard because not only do some MPC jurisdictions do it that way, but also that raising the mens rea will essentially defeat the purpose of the statute.35 However, it would still be in the best interest of the ICC to limit its jurisdiction over these types of claims and adopt a stricter mens rea requirement.

Looking at the hypotheticals described above, instituting stricter mens reas would eliminate many of the more confusing, and possibly more criticism worthy, scenarios. For example, adopting a stricter mens rea would almost entirely eliminate scenarios in which states could be liable for the sale of goods or arms to another state. In the example stated above, State C could only be liable if it purposely sold arms to State A for their use in the crime of aggression. This would make it much less likely for State C or its actors to be considered criminally liable. Other tough scenarios, like deciding whether not to hold foot-soldiers liable, would also be limited, since most foot-soldiers act according to orders, and it would be difficult to find them criminally liable if they had to have the express purpose of assisting in a crime of aggression.

B. The Pros and Cons to a Limited Approach

Adopting a higher standard for the actus reus and mens rea for aiding and abetting a crime of aggression would have benefits for the ICC. The ICC, in its quest to establish itself as a legitimate international organization, needs to ensure that the international community at large thinks positively of it. Ensuring that it has a positive reputation in the community will allow the ICC to actually function and fulfill its duties much easier.

It would be in the ICC’s best interest to have as many people ratify the Rome Statute as possible. Doing this would allow them to increase their jurisdictional reach which, although I argue later that applying their jurisdiction too extensively would not be positive for the court, enjoying increased jurisdiction and using that power to indict legitimate war criminals would add a lot of international legitimacy to the court.

However, smaller, less powerful states would be more likely to ratify the Rome Statute and accept the legitimacy of the ICC if they knew they could not be held liable for aiding and abetting crimes of aggression. Many of the smaller states have an issue with how the ICC has thus far exercised its jurisdiction, with many African states threatening to withdraw from the Rome Statute.36 Many of these states believe that the ICC is simply a “tool for global power politics,”37 and the ICC extending its jurisdiction for crimes of aggression wider than already established would just confirm this to them. Instead, the ICC should confirm that it is not just an extension of Western power and not extend the reach of a highly-politicized crime much further than necessary.

Having smaller states ratify the Rome Statute is important, but having the big, powerful states like the United States and China ratify the Rome Statute could go a long way in giving the ICC legitimacy as well. Although it may seem very unlikely that the United States38 or China39 would ever sign the Rome Statute as it stands, extending aiding and abetting liability further than it already stands would push the United States and China even further. Adopting a soft requirement would disrupt legitimate arms trade. The United States has already expressed its distaste in the politicized nature of the crime, and extending aiding and abetting liability could legitimately spell the end of humanitarian intervention.40 If the goal of the ICC is to gain legitimacy, part of its future plan must involve getting these states to sign on. Many of these states already have an issue with the language of the statute, and extending liability further will damage the ICC’s efforts.

There are, of course, arguments to be made that fall in favor of creating a standard for aiding and abetting that is more similar to the ICTY’s softer standard. A soft standard, many will argue, will actively deter the aiding and abetting of crimes of aggression. Especially in the ICC, meant to be a court of last resort for serious crimes, extending liability may mean that some individuals second guess their actions if they know they could be liable. This is a sound argument, but one that is outweighed by the possible harm that can be done to the future of the court if a stringent aiding and abetting standard is not adopted.

Again, the ICC must be sure not to overstep its powers in adjudicating the crime of aggression, especially when attaching aiding and abetting liability. As shown in the ICTY, there will be aiding and abetting charges to go through, especially knowing that the statutory language of the crime of aggression is broad. Being that this, as described by Jamison S. Borek, is “fundamentally a crime of States, as to which the Security Council would have to play a central role,”41 it would be prudent for the ICC to adopt a more stringent standard as to not push this inherently political crime too far. Pushing it too far would only push states that already feel as though the ICC is just an organization meant to extend global power politics even further away from the ICC. If the ICC plans on continuing its quest for legitimacy in the international sphere, a good first step would be making sure not to alienate states that have already signed on to the Rome Statute. Adopting a stricter standard will also leave more room for the United States and other power states to join, who may have issues with how far the extension can push into activities like wars of liberation and humanitarian intervention efforts.

V. Conclusion

The ICC will have to decide how stringent of a standard for aiding and abetting it wants to set in the near future. With the recent introduction of crimes of aggression into their jurisdiction, the ICC now has a significantly tougher task ahead of them, with a much wider, more vague crime possibly leading to more situations in which an individual could be liable for aiding and abetting.

In order to maintain its legitimacy on the international stage, the ICC should adopt a strict standard for aiding and abetting in future cases. Adopting a similar actus reus to that of the ICTY will allow the ICC to limit the number of aiding and abetting cases it can hear. Adopting a “purpose” mens rea will have a similar effect.

Adopting stricter guidelines in these situations will allow the ICC to keep the crime of aggression as un-politicized as possible. The ICC will still be able to have jurisdiction over crimes of aggression without having to indict a wide range of people who would fall under the umbrella of aiding and abetting. Doing this will allow the ICC to maintain its relationship with many of its member states, while also keeping the possibility open of other states joining in.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Assembly of State Parties, The Crime of Aggression, RC/Res.6 (Jun. 11, 2010) [hereinafter Kampala Amendments], available online.

  2. 2.

    Id.

  3. 3.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 25 available online.

  4. 4.

    Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Enacted by UNSC Resolution 827, S/RES/827, 25 May 1993, at 6, available online (as amended Sep. 2009).

  5. 5.

    Barbara Goy, Individual Criminal Responsibility Before the International Criminal Court: A Comparison with the Ad Hoc Tribunals, 12 Int’l Crim. L. Rev. 1, 59 (2012), available online.

  6. 6.

    Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgment (Dec. 10, 1998), available online [hereinafter Furundžija]

    (Held that Furundžija was guilty of aiding and abetting outrages upon personal dignity as well as torture).

    See also Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgment on Appeal (Jul. 29, 2004), available online [hereinafter Blaškić]

    (Held that Blaškić was guilty of crimes against humanity for ordering attacks and not taking measures to prevent or punish crimes committed by his subordinates).

  7. 7.

    Goy, supra note 5, at 59. See also Furundžija, supra note 6, ¶¶ 234–235; Blaškić, supra note 6, ¶ 454.

  8. 8.

    Goy, supra note 5, at 60. See also Furundžija, supra note 6, ¶ 243.

  9. 9.

    Goy, supra note 5, at 59. See also Blaškić, supra note 6, ¶ 46.

  10. 10.

    Goy, supra note 5, at 59. See also Blaškić, supra note 6, ¶ 48.

  11. 11.

    Goy, supra note 5, at 60.

  12. 12.

    Goy, supra note 5, at 60. See also Blaškić, supra note 6, ¶ 48.

  13. 13.

    Goy, supra note 5, at 60. See also Blaškić, supra note 6, ¶ 48.

  14. 14.

    Guido Acquaviva, Aiding and Abetting International Crimes and the Value of Judicial Consistency: Reflections Prompted by the Perisic, Taylor, and Sainovic Verdicts, 1 Questions Int’l L. (Jun. 1, 2014), available online.

  15. 15.

    Goy, supra note 5, at 61. See also Blaškić, supra note 6, ¶ 45.

  16. 16.

    Goy, supra note 5, at 61. See also Prosecutor v. Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj, Case No. IT-04-84-A, Judgment on Appeal, ¶ 58 (Jul. 19, 2010), available online.

  17. 17.

    Rome Statute, Art. 25(C)(3).

  18. 18.

    Id.

  19. 19.

    Anna Olofsson, Aiding and Abetting International Crimes—In the Light of International Legal Pluralism, Thesis for Stockholm University, at 41 (2016), available online.

  20. 20.

    Id. at 42.

  21. 21.

    Rome Statute, Art. 25(C)(3).

    (In criminal law, a mens rea of purpose, which is adopted in the Rome Statute, is higher than that of knowledge, found in the statute for the ICTY and other international tribunals. Further, the mens rea requirement in the ICTY was further softened by the lack of a requirement that the accomplice share the same mens rea as the principal, meaning that to be liable for aiding and abetting in a genocide, one does not have to have the specific intent that the principal needs).

  22. 22.

    Rome Statute, Art. 30.

  23. 23.

    Rome Statute, Art. 25(C)(3).

  24. 24.

    Vienna Convention on the Law of Treaties, art. 31, May 23, 1969, 1155 U.N.T.S. 331, available online.

    (Article 31 states that preference shall be given to the ordinary meaning of terms in the treaty when it is being interpreted. However, a treaty can also be interpreted through any relevant rules of international law applicable).

  25. 25.

    Id.

  26. 26.

    Id. See also Model Penal Code, ALI (1962), available online.

    (For an example of a state using a “purpose” mens rea).

  27. 27.

    Rome Statute, Art. 30.

  28. 28.

    Kampala Amendments, supra note 1.

  29. 29.

    Id.

  30. 30.

    Rome Statute, Art. 25(B)(3).

  31. 31.

    Prosecutor v Elizaphan Ntakirutimana and Gérard Ntakirutimana, ICTR-96-10-A & ICTR 96-17-A, Judgment on Appeal (Dec. 13, 2004), available online.

    (Affirmed that Ntakirutimanas were liable for aiding and abetting in genocide after selling weapons to a group that had the appropriate mens rea for genocide and made their intentions known).

  32. 32.

    Goy, supra note 5, at 62–63.

  33. 33.

    Vienna Convention on the Law of Treaties, supra note 24.

  34. 34.

    Rome Statute, supra note 27.

  35. 35.

    Olofsson, supra note 19, at 43.

    (Olofsson disagrees with this sentiment, however, and does not believe that the ICC should follow the MPC, especially since the United States is not a party to the Rome Statute).

  36. 36.

    Franck Kuwonu, ICC: Beyond the Threat of Withdrawals, Afr. Renewal, May 16, 2017, available online.

  37. 37.

    Id.

  38. 38.

    David J. Scheffer, The United States and the International Criminal Court, 93 Am. J. Int’l L. 12 (1999), available online.

  39. 39.

    Bing Bing Jia, China and the International Criminal Court: Current Situation, 10 SYBIL 1 (2006), available online.

  40. 40.

    Harold Hongju Koh & Todd F. Buchwald, The Crime of Aggression: The United States Perspective, 109 Am. J. Int’l L. 257 (2015), available online.

  41. 41.

    Id. at 258.

New Frontiers for the ICC: Tackling Cyber Attacks Through the Crime of Aggression

I. Introduction

The state parties to the Rome Statute recently activated the crime of aggression by the approval of thirty states.1 The crime of aggression has been codified in the Rome Statute to prevent a state party from committing a “manifest violation of the Charter of the United Nations.”2 In this comment, I will argue that the crime of aggression, in the cyber context, should primarily be used to prevent catastrophic digital attacks by state actors and those under their control. Because the crime of aggression imports the UN Charter standards, the crime of aggression should be defined by the prevailing international criminal standards for aggression. Therefore, the crime of aggression should include, among other imparted responsibility standards, the responsibility of states to prevent attacks being launched from their territory if they had the ability to direct or control the non-State actor.

II. Defining the ICC Standard of Aggression through Analogous International Doctrines

The crime of aggression, as codified, sets an extremely high standard for what actions will be sufficient for prosecution. Article 8 bis of the Rome Statute states three distinct requirements for prosecution:

[A]n act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

Additionally, in drafting and activating the crime of aggression, it was noted that:

It is understood that aggression is the most serious and dangerous form of the illegal use of force.”3

Therefore, the crime of aggression, as drafted, should be understood as a grave offense not to be employed unless a serious aggressive act has occurred.

As codified, the crime of aggression imports the UN Charter standards and definitions; therefore, prevailing international norms regarding aggression should be imported into the statute regarding cyberwarfare. As seen above, the first standard set by the Kampala Amendments references manifest violations of the UN Charter.4 Additionally:

[A]ct of aggression” means 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. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression.

These two statements early in the body of the Kampala Amendment text show that the drafters sought to make clear reference to prevailing international norms in the drafting and activation of the crime of aggression.

Therefore, in defining the crime of aggression for the Rome Statute, we must first look to the prevailing international norms around cyber warfare, especially those promulgated by the United Nations and related organs. These legal standards themselves are somewhat sparse and largely imported by analogy from other fields of warfare law. States are bound not to use force against other states by the UN Charter; instead they are supposed to use diplomatic channels to resolve international disputes.5 In the international realm, uses of force are split into two categories as they relate to self-defense: uses of force and armed attacks.

The use of force standard employed by the United Nations is best defined by two sources: the ICJ Nicaragua judgment, and the UN Resolution defining aggression (which are incorporated into the Kampala Amendments; Article 8 bis Paragraph 2 (a–g)). The Nicaragua judgment used a test considering the scale and effects of an attack to determine if there was a use of force.6 As such, it determined that the United States’s actions—in arming, assisting, and training a guerilla force to depose the current government—constituted a use of force. The resolution defining aggression provided several examples of uses of force, e.g.:7

  1. 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;

  2. 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;

  3. The blockade of the ports or coasts of a State by the armed forces of another State;

  4. An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

  5. 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;

  6. 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;

  7. 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.

Therefore, we can assume that a cyber attack, which has the same scale and effects on a state as the above enumerated acts, would constitute a use of force for both international law and for the crime of aggression. It is important to note that these are merely examples of uses of force or aggression and not an exhaustive list. However, it is unclear if it would rise to the character, gravity, and scale requirements of the Article 8 bis test. Therefore, the best comparison for those actions which would meet the crime of aggression standard may be the traditional armed attack standard employed for determining whether a state’s right to self-defense has been triggered.

The armed attack standard is less defined by current international norms than the use of force; nonetheless, the Nicaragua judgment, Nuclear Weapons Advisory Opinion, and various international statements are informative. In the Nicaragua judgment, the ICJ considered whether Nicaragua had committed an armed attack against El Salvador to trigger El Salvador’s collective self-defense rights (thereby allowing the US to defend El Salvador).8 The ICJ noted that even where providing weaponry to dissident/rebellious forces was imputable to a nation state, that alone would not be considered an armed attack.9 Additionally, in defining armed attack, the court referred to an armed attack as “the most grave use of force” as distinguished from “other less grave forms.”10 Therefore, it seems to be proper for the crime of aggression to settle in between the armed attack standard and the traditional use of force standard.

III. Using International Norms of State Responsibility to Define the Scope of Possible Prosecution

The scope of those responsible for cyber warfare defies conventional norms of state actor responsibility. The Kampala Amendments institute a limited scope of persons to be held responsible in the case of an attack as follows:

[A] person in a position effectively to exercise control over or to direct the political or military action of a State.11

Though this scope is extremely limited in text, the possibility for enforcement in the cyber context goes far beyond traditional warfare. States, in governing, usually limit the ability for citizens to access means of employing force. For example, many European nations enforce gun control restriction’s, and few nations allow for private citizens to access military vehicles such as tanks or fighter planes. These restrictions are effectively enforced both at the state level and because of practical economic limitations of private citizens. As of a few years ago, a Sherman tank on the open market cost anywhere from $95,000 to $400,000, far beyond the ability of most private citizens to purchase even before considering the cost and difficulty in attaining the ammunition.12 Conventional military attacks generally involve many persons including the attackers themselves, their training/trainers, support staff, and logistical support. Therefore, it is hard to envision a conventional attack rising to the level imagined by the Kampala Amendments without some state involvement or support. Cyber attacks, by contrast, may be performed by as little as one person with hardware easily purchased.13 Therefore, the scope of potentially responsible persons committing cyber attacks is far greater than conventional warfare.

The text of the Kampala Amendments attempts to limit this pool of potential offenders to those who can control or direct the political or military action of a state. However, the text does not provide us with any guidance as to military action or political control. Therefore, we must look to prevailing international norms of state responsibility to determine those who will be potential cyber offenders. Though not an international treaty, the Responsibility of States for Internationally Wrongful Acts as adopted by the International Law Commission in 2001, attempted to codify prevailing customary law and has been adopted as the international standard of responsibility through custom. Under this framework, states are responsible for two categories of actions: those performed by the state itself and those attributable to the state through some other theory. State action directly is tested by whether the actions were taken by the organs of the state as determined by the state’s own definition of who may act on the state’s behalf.14 States may also later adopt an action of a party as their own.15 The state may also be held responsible for those who they directed, controlled, or acted in the absence of government authority.16 Therefore, many cyber actors may effectively control some part of the military apparatus of a state through the direct and control standards presented. For example, consider the US direction of the Contra Forces at issue in the Nicaragua judgment.17 The ICJ reasoned that US involvement was a necessary component and intended to assist the guerilla actions. As such, they were imputable to the United States.18

Consider Russia’s alleged attack on Georgia in 2008 where a large scale DDoS attack took place on Georgian government and public websites effectively slowed the internet to a crawl.19 As the digital attack took place, Russian troops moved into Georgia occupying the territory.20 Lists of attack targets were posted on the Russian internet at sites like StopGeorgia.ru, though the control server for the attack was actually located within the United States.21 Security researchers attributed the attack to a number of actors within Russia, but, upon questioning, the Russian government denied its own involvement.22 Digital security professionals opined that the attacks were too successful and coordinated to originate from amateurs, believing the attacks may have had some superior direction.23 The closest group associated with the attack was a Russian cybermafia group known as the Russian Business Network who contract out their digital services for cash.24 It is difficult to know whether these actions were at the direction of the Russian government itself; nonetheless, they certainly assisted with the Russian state’s aim of crippling the Georgian forces. If the RBN story is to be believed, then private individuals were a central component of a cyber attack on a foreign state. At the least, these acts are imputable to state actors, but there is the possibility that the actors themselves were sufficiently independent to fall under the direction of political or military action of the state as well. Therefore, the possible pool of persons responsible under a cyber aggression standard is much broader than conventional warfare.

IV. Applying the International Standard to Cyber

A. What Should the Prosecutor Do?

It is unclear whether the Kampala Amendments wanted the crime of aggression defined by severity requirements similar to a use of force or by the higher standard of armed attack given the gravity requirement instituted. Of course, the Kampala Amendments could have been setting out a different standard from these two internationally recognized standards as well. Likely, the standard was intended to mean use of force plus or severe uses of force. Therefore, in defining cyber aggression, the prosecutor should look to instances that would constitute a severe use of force but perhaps not meet the armed attack threshold, to determine those cases where prosecution should occur. The prosecutor should be especially conservative in the digital context where the law is already poorly defined given the young status of the court. Being conservative in this manner also respects the scale, gravity, and character requirements of Article 8 bis.

The prosecutor, considering the new era of cyber war, should not however feel beholden to follow the United Nations in its potential redefining of international law. Although, it may prove useful to observe the moving international standard of cyber attack, it is important for the court to define its own precedent that it believes best captures the intentions of the state parties to the Rome Statute. The ICC has the unique ability to define its own precedent, and that ability, coupled with the young era of cyber law, may allow the court to make its mark on international law. If the court feels as though there is a good case to tackle the new era of cyber warfare, then it should not shy away and wait for others to act first.

The prosecutor should pursue not only state actors responsible for military actions in the cyber space, but also be open to the pursuit of private individuals who carry out these attacks on a state’s behalf or with some state involvement. This would serve to increase the scope of the court’s effectiveness and its deterrent goals. It is especially important to note that state’s may be responsible for allowing their private citizens to host such attacks on foreign nations. It is easy to see how technologically advanced nations such as the United States, who have a strong internet infrastructure, could become a source for hackers working as mercenaries for international actors. The ability for the court to levy a deterrent effect on these private groups would severely limit states’ ability to perform cyber attacks and would serve as leverage in ascertaining the ultimately responsible party for any given attack.

Proper enforcement of the crime of aggression in the cyber context would pile on the already severe consequences of engaging in unwarranted armed conflict, as the aggressor must fear not only the invaded state’s response and international blowback, but also the threat of individual prosecution. This is especially true in the context of cyber warfare where private actors are more likely to be engaged than in conventional warfare. Additionally, it is an apt field for the court to consider governing the actions of states as they fail to control their citizens’ attacks on the citizens of other states.

B. Limitations

The prosecutor should, however, be cognizant of the political environment within which they act. This is especially important with cyber attacks, because the perpetrator is not always known and evidence may be hard to come by. Take, for example, the previously referenced attack on Georgia. Although there was strong suspicion that it was a Russian attack, in the immediate aftermath it looked as though the control server was located in the United States. Unlike conventional warfare, it is frequently hard to discern the exact origin point of a cyber attack. The political blow-back on the young court would be immense if they mistakenly identified a state as being the bad actor in an international attack. Therefore, perhaps it is best that prosecution in these cases be long after the attack has been fully understood by the international community. However, investigations must occur or any deterrent effect of the activation of the crime of aggression would quickly deteriorate.

Another concern for the prosecutor will be evidence gathering. Unlike conventional attacks, cyber attacks are likely to happen over a large number of countries simultaneously. Consider the previous example of the Georgia attack where United States’ servers were employed by Russian hackers to attack the Georgian networks. The prosecutor would have to appeal to Georgia, Russia, and the United States for evidence of the crime. The prosecutor would inevitably have to ask more countries for their assistance as cyber weapons could have traversed or hopped through various servers in various nations, vastly increasing the amount of countries to gather evidence in. However, this is not a new problem for cyber experts where much of the evidence gathering may be performed remotely with the consent of the controlling party. Therefore, the prosecutor should endeavor to keep states who may need to turn over evidence friendly with the court, and the prosecutor may wish to offer to reimburse these states for the significant potential costs associated with gathering the relevant digital evidence.

Finally, traditional notions of armed attack rely on the kinetic effects of an attack in determining gravity. Therefore, the prosecutor should expect some political push back in declaring a cyber attack of sufficient magnitude to investigate. If the prosecutor chooses a case where the effects are not easily shown to be analogous to previous kinetic attacks, then she risks invalidating the court and the crime’s serious nature. In many ways, the young court must be careful to treat the cyber field as a young crime which should rely not on hard cases but clear ones to set the proper precedent before engaging in overall enforcement.

C. Case Example: Stuxnet

Consider the somewhat recent actions of the United States and Israeli governments launching the “Stuxnet” virus in Iran.25 Let us leave aside the fact that neither the United States nor Israel are parties to the Rome Statute.2627 The governments were able to deploy a virus into the Iranian nuclear facilities that destroyed uranium centrifuges, eventually destroying 1,000 of 6,000 total centrifuges.28 This targeted attack served to delay potential weapons creation by Iran, though Iran has claimed the uranium was only to be used for power generation.29 Nonetheless, if such an attack occurred between states who were signatories to the Rome Statute, a crime of aggression would certainly have occurred. A nation causing kinetic damage to the military capabilities of another state falls squarely within Article 8 bis usage of weapons on the territory of another nation. Such a usage of weapons is especially grave as the attack targeted the military capabilities and utilities infrastructure of another state. Were such an attack to occur between state signatories to the Rome Statute, the prosecutor should step in to curb the aggressive behavior and hold those who commanded, and those who participated in the attack, accountable.

V. Conclusion

The crime of aggression should be equally employed in the cyber context as any other it might be used in. Despite some significant differences in application requirements, international law may generally apply by analogy to the cyber field. In fact, the cyber context presents a unique opportunity for the court to impact the actions of many states and expand its domain from the traditional African-focused sphere to operations occurring in other areas of the globe. However, the prosecutor should remain cognizant that the crime should only be charged in the most serious of cases where there are sufficient facts to constitute a jurisdictional hook for the court.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    List of States Who Have Ratified Amendments on the Crime of Aggression, U.N.T.S., [hereinafter List of Ratifying States], available online (last visited Feb. 14, 2018).

  2. 2.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 8 bis available online.

  3. 3.

    Assembly of State Parties, The Crime of Aggression, RC/Res.6, at Annex 3(6) (Jun. 11, 2010), available online.

  4. 4.

    Rome Statute, supra note 2.

  5. 5.

    Charter of the United Nations, Art. 2 ¶ 4, available online.

  6. 6.

    Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. U.S.), Merits, Judgment, 1986 I.C.J. Rep. 14 (Jun. 27, 1986) [hereinafter Nicaragua v. U.S.], available online.

  7. 7.

    Definition of Aggression, G.A. Res. 3314, A/Res/29/3314, at Art. 3 Dec. 14, 1974, available online.

  8. 8.

    Nicaragua v. U.S., supra note 6, at 191.

  9. 9.

    Id. at 230.

  10. 10.

    Id. at 191.

  11. 11.

    Rome Statute, supra note 2.

  12. 12.

    So, You Want to Buy a Sherman Tank, Military Trader, May 21, 2010, available online;

    Katie DeLong, Happen to be Looking for a 1941 Sherman Tank? There’s One for Sale on Good Hope Road!, Fox6 Now, Jun. 24, 2014, available online.

  13. 13.

    Kim Zetter, Teen Who Hacked CIA Director’s Email Tells How He Did It, Wired, Oct. 19, 2015, available online.

  14. 14.

    Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, A/Res/56/83 at Annex Art. 4, Jan. 28, 2002, available online.

  15. 15.

    Id. at Art. 11.

  16. 16.

    Id. at Arts. 8, 9.

  17. 17.

    Nicaragua v. U.S., supra note 6, at 111.

  18. 18.

    Id.

  19. 19.

    John Markoff, Before the Gunfire, Cyberattacks, N.Y. Times, Aug. 12, 2008, available online; Travis Wentworth, How Russia May Have Attacked Georgia’s Internet, Newsweek, Aug. 22, 2008, available online; David J. Smith, Russian Cyber Strategy and the War Against Georgia, Atlantic Council, Jan. 17, 2014, available online.

  20. 20.

    Id.

  21. 21.

    Id.

  22. 22.

    Id.

  23. 23.

    Id.

  24. 24.

    Id.

  25. 25.

    Ellen Nakashima & Joby Warrick, Stuxnet was Work of U.S. and Israeli Experts, Officials Say, Wash. Post, Jun. 2, 2012, available online.

  26. 26.

    List of Ratifying States, supra note 1.

  27. 27.

    (Although perhaps this could evidence an awareness by these countries that their cyber activities would be bound by relevant international law and the ICC’s individual accountability).

  28. 28.

    Nakashima & Warrick, supra note 25.

  29. 29.

    Id.