II. Does a Humanitarian Intervention fit the Definition of Crime of Aggression?

The first legitimate question is to determine whether a potential humanitarian intervention could even qualify as a crime of aggression, or if it is excluded from the scope of Article 8 bis.

The nature of an “act of aggression” is given at Article 8 bis (2). Such an act is defined as a:

[U]se 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.

The article then proceeds to a list of examples found in the resolution of the UN General Assembly 3314.7 According to this provision and the examples, it is beyond doubt that most humanitarian interventions would indeed qualify as an act of aggression, as such operations often involve “invasion or attack by the armed forces of a State of the territory of another State”, bombardment or “the use of any weapons by a State against the territory of another State”, blockades, attacks on “land, sea or air forces, or marine and air fleets of another State” etc.

At this stage, one could raise the argument that the Kosovo intervention for instance, was not conducted by one State but rather by “NATO forces”. Such situation is indeed not an easy one. Generally speaking, it is not disputed that States acting as a “group” remain liable individually.8 The situation of operations under the commandment or the auspice of a collective entity—international organization, or in the case of NATO, a military alliance—is different, at least in theory. Indeed, it is generally considered in the law of international responsibility that such collective organizations could be liable as such in case they exercise “effective control” on the troops involved in the military operation.9 However, the threshold for “effective control” is so high, that virtually all operations under the auspice of an organization such as NATO do not meet the criteria.10 Therefore, States remain individually liable and their leadership individually criminally responsible.

Pursuant to Article 8 bis (1) of the Rome Statute, the act of aggression must be of a:

[C]haracter, gravity and scale, [that] constitute a manifest violation of the Charter of the United Nations.

This formulation is often referred as the “threshold” clause.11 The intent was to avoid criminalizing any unlawful use of force, in line with the provision of Article 5 (1), that the Court’s jurisdiction is “limited to the most serious crimes of concern to the international community as a whole”.12 Analyzing these criteria reveals some of the main issues in assessing whether humanitarian interventions fit the definition of crime of aggression.

Some uncertainty remains as to the exact interpretation to give to Article 8 bis (1).13 However, it is safe to assume that the expressions “gravity” and “scale,” taken together, refer mainly to a quantitative analysis of the seriousness of the act of aggression.14 Again, the goal was to exclude minor operations from the scope of the crime of aggression. As noted by Trahan, this threshold requirement is similar to the one of “armed attack” as interpreted by the ICJ.15

The expression “characters” then refers to a qualitative analysis and designate according to Kreß and Von Holtzendorff, acts that are “unambiguously illegal.”16 The intention was to exclude the most contentious situations, that is to say, those falling within a “grey area,” “borderline cases”, and or of “questionable legal status”.17 As Trahan points out, this requirement leads to some uncertainty as to whether it can exclude humanitarian interventions.18 Indeed, the very essence of the concept of humanitarian interventions is that its legality is controversial, while many states support it, several other oppose it, and, similarly, there is no consensus in scholarship. If the intent was indeed to exclude debatable cases, then one would agree that humanitarian interventions would qualify as such. If so, the criteria of the crime of aggression would not be met, and any humanitarian intervention could therefore be excluded from the scope of Article 8 bis on this simple basis.19

The additional requirement of a “manifest violation” of the UN Charter is of no help to clarify the scope of the definition. McDougal suggests the expression simply means that the assessment of the unlawfulness of the act must be an “objective qualification”,20 whereas Trahan points out that the requirement of a “manifest” violation only make the assessment of the “character” more significant. Accordingly, if a doubt exists as to the unlawful “character” of the act, the potentially unlawfulness can de facto not be “manifest”.

As we can see, this interpretation would almost automatically exclude all humanitarian interventions, with the possible exception of clearly staged humanitarian intervention, aimed at disguising a hostile military intervention, provided there is nearly unanimous international condemnations.

However, as the US State Department Legal Adviser, Harold Koh, observed at that time, there are reasons to be concerned that “the apparent consensus on the wording of Article 8 bis marks sharp disagreement on particular points regarding the meaning of that language”.21

III. The Low Probability to see the Issue Arising in Practice

We saw that pursuant to Article 8 bis, it is unclear whether humanitarian interventions, that appear as genuine, could even meet the elements of the definition of crime of aggression. However, even in the event an intervention would be interpreted as meeting these requirements, a number of other obstacles and issues would arise, making it very unlikely that anyone could be prosecuted for a genuine humanitarian intervention. I will analyse briefly few of these elements, of both a procedural and substantial nature.

A. Strict Interpretation of a Crime

In the context of humanitarian intervention, and with regard to the discussion in the previous section, Article 22 (2) stresses, under the umbrella of the nullum crimen sine lege principle, that “definition of a crime shall be strictly construed” and further that “[i]n case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted”.22 No need to explain why this rule only makes the interpretation of Article 8 bis (1) more difficult and reinforces the interpretation of “character” and “manifest” as excluding actions of which the lawfulness would be disputed.23

B. Proof Beyond a Reasonable Doubt

Trahan also interestingly points to Article 66, that is to say the principle of the presumption of innocence.24 Article 66 (3) provides that “the Court must be convinced of the guilt of the accused “beyond reasonable doubt.” Although the provision is one of proof and not one of interpretation, it is likely to, again, add to the difficulty of ascertaining that a crime of aggression has been committed.25 Indeed, if the criminality of the act itself is difficult to determine, the criminality of the behaviour of the individual prosecuted for the act will probably be just as difficult to establish.

C. Seriousness Requirement

Article 1 provides that the Court has “the power to exercise its jurisdiction over persons for the most serious crimes of international concern”,26 meanwhile Article 17 (1)(d) specifies that a case must be ruled inadmissible when “it is not of sufficient gravity”. This is not to say that humanitarian interventions can never the “serious” enough—as the qualification of “humanitarian” is concerned the nature or intent of the operation, not its consequences. However, we can probably assume that these provisions implicitly require the Court, and the OTP, to focus their attention on most undoubted crimes.27 Conversely, as Trahan puts it “these provisions … suggest the Court should not pursue weak or debatable cases”.28 It must nonetheless be noted that real significance of these provisions remains disputed.29

D. Balancing the Crimes between Crime of Aggression and Initial Crimes

In line with the requirement of seriousness, it would probably be relevant to have regard for the circumstances of the military intervention. In particular, when it appears unequivocally that the intervention was decided in light of mass atrocities being committed in the territory of the “victim” state—including crimes under the Rome statute—which is most of the time the main rationale behind humanitarian interventions.30 Even more when the operation actually allowed the intervening state to put an end to the atrocities. In such a case, where the ICC would potentially also have jurisdiction on the core crimes committed in the territory of the “victim” state, would it really make sense for the OTP to launch proceedings against the intervening state? Additionally, if evidence clearly demonstrates that the latter state has rigorously respected jus in bello rules with a particular concern for the preservation of civilian lives, it would seem even more contradictory to prosecute this state for crime of aggression.

E. Lack of Mens Rea

Although Article 8 does not explicitly mention a requirement of mens rea, Article 30 stipulates that:

Unless otherwise provided, a person shall be criminally responsible … only if the material elements are committed with intent and knowledge.31

The legitimate question is therefore to determine what the “intent” must be in the case of crime of aggression, which is also one of those grey areas in the interpretation of the crime of aggression.32 Here, the argument could clearly be made that such mens rea does not exist in the case of a leader ordering a military operation with the purpose to stop mass human rights violation mass atrocities.33 This would be the case in particular where the intervening State has made its position clear in public statements, diplomatic forums, or that other sources such as planning documents or special rules of engagement show a particular concern for civilians lives.34

F. Mistake of Law

In the same vein as the lack of mens rea, some authors pointed to Article 32 (2) as a possible way out of the crime of aggression.35 The article announces that:

A mistake of law may … be a ground for excluding criminal responsibility if it negates the mental element required by such a crime.

The way this provision would exactly play out is unclear.36 Indeed, as noted above, the expression “manifest” in Article 8 bis should normally refer to an objective assessment of the violation of the UN Charter and therefore bar the use of the mistake of law defense. Some authors argue this argument could not in any circumstances be a valid defense,37 whereas others seem to leave the door open.38 In reality, the debate is the same as regarding the mens rea , therefore accepting that the crime of aggression contains a mens rea requirement would lead us to accept the potential argument of mistake of law. In any event, this would certainly constitute yet another hurdle to overcome.

G. The Specific Case of Defenses Under the Rome Statute

The last question to ask when assessing whether any prosecution for humanitarian interventions is likely to be achieved has regards for the applicability, in the case of the crime of aggression, of the defenses provided by the Rome Statute. In particular, many authors have pointed to self-defense, the state of necessity—or duress—as well as the possibility for the Court to find other grounds in other norms of international law.

1. Self-Defense

Murphy in particular suggests that Article 31 (1)(c) on self-defense could be used in an argument justifying a humanitarian intervention.39 Indeed, this provision justifies an operation the purpose of which would be to “reasonably … defend himself or herself or another person”, the article adding “in a manner proportionate to the degree of danger to the person or the other person”.40 We easily see how this provision could be used to justify a humanitarian intervention aiming at protecting not “another person,” but a whole civilian population of a third state, using proportionate means. As Murphy points out, we could even argue that the proportionality test becomes more flexible as the number of other “persons” increase, therefore allowing for operations potentially amounting to a crime of aggression when entire populations are at stake.41

2. Duress

Beside self-defense, Article 31 (1)(d) also provides some potential arguments for a defense based on duress and necessity in cases where the conduct:

[H]as been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person”, provided the response is necessary and reasonable and the person did not “intend to cause a greater harm than the one sought to be avoided.42

At first glance, it appears that a bona fide humanitarian intervention would meet the requirements of this provision, so long as it respects the standard of necessity and reasonableness set out in the article.

3. Article 31 (3)

Article 31 (3) is possibly the most interesting provision. Indeed this article allows for the Court to consider grounds of defense not explicitly specified by the Rome Statute, insofar as such grounds can be found in sources of international law listed in Article 21.43 Although the travaux préparatoires suggest the drafters did not foresee a potential argument on the basis of humanitarian intervention, it certainly does not bar the argument from being made. The main obstacle would actually to find textual support in international law for the legality of humanitarian intervention from which a relevant defense could be “derived.” Indeed, none of the arguments supporting the right of humanitarian intervention are based on any explicit international legal instrument.44 Such an argument would therefore mainly rely on human rights treaty, pointing to the rights potentially violated and thus justifying the intervention.45

While most of the arguments I have listed in this section would only come into play at the trial phase, it is certain that they would also necessarily inform the appreciation of the OTP when assessing the opportunity to initiate proceedings. Indeed, considering the sensitivity of the topic of humanitarian intervention, the OTP would probably, and quite rightly, be very careful in its choice to prosecute aggression appearing as justified by humanitarian concerns.

IV. Conversely is There Really a Risk of Abuse of States Arguing on the Basis of Humanitarian Intervention, the Case of Justifications?

After observing all the potential arguments in favor of the exclusion of humanitarian interventions from the scope of Article 8 bis, or in favor of potential defenses and justifications, one would wonder if these actually lead to a risk to see the humanitarian intervention argument being abused by states. Nevertheless, I do not consider such abuses to be a real risk in practice. Indeed, while the arguments I have pointed out, taken together, make a strong case for the assumption that it is unlikely to see the OTP taking action against leader of a state engaging in a humanitarian intervention, these arguments are not affirmative legal arguments automatically excluding any prosecution. Rather, they require a very specific set of circumstances. As noted above, one of the main elements the OTP will have to analyse is the way the operation was conducted: were there initial grave human rights violations or international crimes justifying the operation? Did the intervening state try to act first through the UN Security Council? Did the intervening state act on its own or as part as a coalition? Did the intervening state issue sufficient warning? Were the rules of jus in bello respected? Did the troops leave the territory of intervention as soon as the humanitarian situation was addressed? Did the operation receive widespread support or widespread condemnation at the international level, within the UN as well as other multilateral organizations? These are some of the questions the OTP and potentially the Court would need to look into in order to assess whether an operation is indeed what some authors have called a “bona fide” humanitarian intervention. As the argument of humanitarian intervention also remains an exception, at the trial stage, the onus will be on the accused to prove all these elements, while at an earlier stage, the OTP will interpret restrictively the elements I have raised in the previous section.

V. Conclusion: What Place for the ICC in the Debates on Humanitarian Intervention?

A last question one could legitimately ask is: is a case of aggression where a state was actually conducting a humanitarian intervention likely to ever arise before the Court? In particular in light of the limited jurisdiction of the Court, but also of the limited ratification of the Kampala amendment.46 First of all, it must be stressed that while the Court currently has a limited jurisdiction, the solutions regarding exceptions to the crime of aggression for humanitarian interventions must be thought of and designed to be able to address all situations, indeed the UN Security Council could refer cases normally outside of the reach of the Court’s jurisdiction, other states could voluntarily do so—although it remains unlikely—finally, other States could in the future ratify the Kampala amendment and/or accede to the Rome Statute and therefore extend the scope of the Court. In the current state of affairs however, although some uncertainty remains as to the extent of the jurisdiction among other things, it is clear that such a situation will probably not appear in the near future, for several reasons.47 Firstly, as Bosco observes, two third of the world’s military are currently beyond the reach of the ICC.48 Similarly, some of the states that intervene the most in military operations on foreign soil, such as the United States for instance, are not party to the Statute, while other States among the most involved in humanitarian intervention have not ratified the Kampala amendment, such as France and the United Kingdom. Secondly, genuine humanitarian interventions are not as common as a zealous international lawyer would sometimes tend to think. Indeed, many operations of a humanitarian nature are part of international efforts, or at the invitation of the country of intervention. Additionally, some authors actually point to an increasing “absence of the will to act at all”.49 Referral by the Security Council also seem rather unlikely, especially in the case of interventions conducted by one of the permanent members.50 In the same vein, even if the OTP were to move forward, the Security Council still has the power under Article 16 to defer an investigation, which would likely happen in a case of an operation receiving widespread support.51

The crime of aggression is inherently political—which is evidenced by the role given to the UN Security Council, an intrinsically political institution—and when state parties agreed to the Kampala amendment, they knew the Court would face many challenges in its implementation and would probably be put, in some situations, in a very difficult position. Very often, the decision will rest with the OTP through its prosecutorial discretion.52

Turning to the role of the ICC in the debate on the legality of humanitarian interventions, because of the extremely low probability that the issue arises in practice and proceeds beyond the stage of preliminary consideration of the issue by the OTP, I do not share the enthusiasm of some authors hoping that the Court will clarify the question; rather, it seems to me that the ICC will probably not dramatically change the current debate.53 Perhaps for the better as far as the Court is concerned.54

However, in light of the various arguments I referred to, and going forward, it would be advisable for the OTP to publish a new version of its “regulations of the office of the prosecutor”, detailing how it plans to enforce the prosecution of crimes of aggression, in particular with regard the situation of humanitarian interventions. This could also be clarified in the next strategic plan for 2018–2023.

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

1. 1.

   The International Military Tribunal for Germany, Judgment, 22 Nuremberg Trial Proceedings 410, 416 (Sep. 30, 1946), available online. ↩

2. 2.

   Sean D. Murphy, Criminalizing Humanitarian Intervention, 41 Case W. Res. J. Int’l L. 341, 360 (2009), available online. ↩

3. 3.

   Leslie Esbrook, Exempting Humanitarian Intervention from the ICC’s Definition of the Crime of Aggression: Ten Procedural Options for 2017, 55 Va. J. Int’l L. 791, 802 (2014), paywall. ↩

4. 4.

   Id. at 802.; Antonio Cassese, Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, 10 EJIL 23 (1999), available online; Nico Krisch, International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order, 16 EJIL 369 (2005), available online. ↩

5. 5.

   Tom Ruys, Criminalizing Aggression: How the Future of the Law on the Use of Force Rests in the Hands of the ICC, EJIL (Forthcoming 2017), available online; Elise Leclerc-Gagne & Michael Byers, A Question of Intent: The Crime of Aggression and Unilateral Humanitarian Intervention, 41 Case W. Res. J. Int’l L. 379, 385 (2009), available online. ↩

6. 6.

   Jennifer Trahan, Defining the ‘Grey Area’ Where Humanitarian Intervention may not be Fully Legal, but is not the Crime of Aggression, 2 J. Use of Force & Int’l L. 42 (Jun. 24, 2015), paywall. ↩

7. 7.

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

8. 8.

   Claus Kreß, The State Conduct Element, in The Crime of Aggression: A Commentary 412, 423 (Claus Kreß & Stefan Barriga eds., 2017). ↩

9. 9.

   Pierre Klein, The Attribution of Acts to International Organizations, in The Law of International Responsibility 289, 298–303 (James Crawford, Alain Pellet & Simon Olleson eds., 2010). ↩

10. 10.

    Kreß, supra note 8, at 423. ↩

11. 11.

    Keith A. Petty, Criminalizing Force: Resolving the Threshold Question for the Crime of Aggression in the Context of Modern Conflict, 33 Seattle U. L. Rev. 105 (2009), available online. ↩

12. 12.

    Gerhard Kemp, Individual Criminal Liability for the International Crime of Aggression 179 (2010), eponymous dissertation from 2008 available online; Oscar Solera, Defining the Crime of Aggression 409–414 (2007); Trahan, supra note 6, at 57. ↩

13. 13.

    Joshua L. Root, First Do No Harm: Interpreting the Crime of Aggression to Exclude Humanitarian Intervention, 2 U. Balt. J. Int’l L. 63, 81 (2013), available online; Beth Van Schaack, The Crime of Aggression and Humanitarian Intervention on Behalf of Women, 11 Int’l Crim. L. Rev. 477, 486 (2011), available online. ↩

14. 14.

    Van Schaack, supra note 13, at 486. ↩

15. 15.

    Trahan, supra note 6, at 59. ↩

16. 16.

    Claus Kreß & Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, 8 J. Int’l Crim. Just. 1179, 1207 (2010), available online. ↩

17. 17.

    Carrie McDougall, The Crime of Aggression Under the Rome Statute of the International Criminal Court 125–127 (2d ed. 2015); Trahan, supra note 6, at 60. ↩

18. 18.

    Trahan, supra note 6, at 60. ↩

19. 19.

    Claus Kreß, Time for Decision: Some Thoughts on the Immediate Future of the Crime of Aggression: A Reply to Andreas Paulus, 20 EJIL 1129, 1140 (2009), available online; Van Schaack, supra note 13, at 479. ↩

20. 20.

    McDougall, supra note 17, at 126–127. ↩

21. 21.

    Id. at 125. ↩

22. 22.

    William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute 410–411 (2d ed. Nov. 22, 2016); Sergey Sayapin, The Crime of Aggression in International Criminal Law 277 (2014). ↩

23. 23.

    Root, supra note 13, at 97. ↩

24. 24.

    Trahan, supra note 6, at 62. ↩

25. 25.

    Schabas, supra note 22, at 786–788; Richard May & Marieke Wierda, Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha, 37 Colum. J. Transnat’l L. 725, 754 (1998), paywall. ↩

26. 26.

    See also 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. 5 (1), available online.

    (Repeats language of “most serious crimes of concern to the international community”). ↩

27. 27.

    McDougall, supra note 17, at 132–137. ↩

28. 28.

    Trahan, supra note 6, at 63. ↩

29. 29.

    Schabas, supra note 22, at 348–349. ↩

30. 30.

    Erin Creegan, Justified Uses of Force and the Crime of Aggression, 10 J. Int’l Crim. Just. 59, 63–64 (Mar. 1, 2012), paywall. ↩

31. 31.

    Keith A. Petty, supra note 11, at 7; Gerhard Werle & Florian Jessberger, “Unless Otherwise Provided”: Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law, 3 J. Int’l Crim. Just. 35 (2005), paywall, paywall. ↩

32. 32.

    Kemp, supra note 12, at 186–187; Noah Weisbord, The Mens Rea of the Crime of Aggression, 12 Wash. U. Global Stud. L. Rev. 487 (Jan. 2013), available online; Solera, supra note 12, at 420–431. ↩

33. 33.

    Weisbord, supra note 32, at 503–506; Esbrook, supra note 3, at 832; Leclerc-Gagne & Byers, supra note 5, at 387–388; Van Schaack, supra note 13, at 485–486; Trahan, supra note 6, at 64. ↩

34. 34.

    Leclerc-Gagne & Byers, supra note 5, at 388. ↩

35. 35.

    Drew Kostic, Whose Crime is it Anyway? The International Criminal Court and the Crime of Aggression, 22 Duke J. Comp. & Int’l L. 109, 126 (2011), available online; Trahan, supra note 6, at 65. ↩

36. 36.

    Schabas, supra note 22, at 502–506. ↩

37. 37.

    McDougall, supra note 17, at 196–197; Sayapin, supra note 22, at 296; Kreß & von Holtzendorff, supra note 16, at 1200–1201. ↩

38. 38.

    Trahan, supra note 6, at 65; Weisbord, supra note 32, at 497. ↩

39. 39.

    Murphy, supra note 2, at 827–828. ↩

40. 40.

    Hannah Tonkin, Defensive Force Under the Rome Statute, 6 Melb. J. Int’l L. (2005), available online; Beatrice Krebs, Justification and Excuse in Article 31 (1) of the Rome Statute, 2 CJICL 382, 394–398 (2013), paywall. ↩

41. 41.

    Murphy, supra note 2, at 828. ↩

42. 42.

    Id. at 367.; Krebs, supra note 40, at 398–409; Schabas, supra note 22, at 490–491. ↩

43. 43.

    Schabas, supra note 22, at 492–493. ↩

44. 44.

    Carsten Stahn, Between Law-Breaking and Law-Making: Syria, Humanitarian Intervention and “What the Law Ought to Be”, 19 J. Conflict & Security L. 25 (Oct. 22, 2013), paywall. ↩

45. 45.

    Esbrook, supra note 3, at 830. ↩

46. 46.

    Murphy, supra note 2, at 359; Esbrook, supra note 3, at 839. ↩

47. 47.

    Esbrook, supra note 3, at 799; Andreas Zimmermann, Amending the Amendment Provisions of the Rome Statute: The Kampala Compromise on the Crime of Aggression and the Law of Treaties, 10 J. Int’l Crim. Just. 209 (Mar. 2012), paywall. ↩

48. 48.

    David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics 15 (Jan. 16, 2014), paywall. ↩

49. 49.

    Michael Byers & Simon Chesterman, Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law, in Humanitarian Intervention: Ethical, Legal, and Political Dimensions 177 (J. L. Holzgrefe & Robert O. Keohane eds., Feb. 2003), available online. ↩

50. 50.

    Murphy, supra note 2, at 364. ↩

51. 51.

    Esbrook, supra note 3, at 834–835. ↩

52. 52.

    Murphy, supra note 2, at 366–367. ↩

53. 53.

    Id. at 376. ↩

54. 54.

    Id. at 364; Matthew Gillett, The Anatomy of an International Crime: Aggression at the International Criminal Court, 13 Int’l Crim. L. Rev. 829, 853 (Jan. 31, 2013), available online. ↩

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.

   The 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 The 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 The 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.

    The 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. ↩

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. ↩