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Every month approximately, TRIAL will comment on a video concerning international justice or current news on international humanitarian law or human rights. This month's video is on the subject of the crime of agression.
This short extract from a film shows the invasion of Kuwait by Iraqi troops. In the early morning of 2nd August 1990 the ground troops assisted by the air force entered into Kuwait City. On the same day the United Nations Security Council adopted Resolution 660, condemning the Iraqi invasion and calling Iraq to withdraw from Kuwaiti territory. On the 6th August le Security Council imposed economic sanctions on Iraq (Resolution 661). Whereas Kuwait was the victim of a classical act of aggression, the reaction of the Security Council was hesitant. It refused to use the term “aggression”, preferring other more neutral terms such as “breach of peace and international security”, invasion, armed attack or aggressive act.
Background to Crime of Aggression
At the outset, a war of aggression was considered to be the contrary of a just war. War, which had its roots in the concept of State sovereignty, only began to have rules applied to its conduct at the beginning of the 20th century. With the creation of the League of Nations (LON) in 1919, attempts were made to compel States to withhold the start of hostilities until after the failure of attempts to reach a peaceful settlement. But it was outside of the LON, where the most significant progress was made in this area with the adoption, in 1928, of the Pact of Paris (the Briand-Kellog Pact), which outlawed war as a means of settling disputes. This text, which was to become almost universally accepted, after being signed by more than 60 States, did not, however, prevent the outbreak of the Second World War.
In the course of this conflict, Nazi Germany and Japan conducted wars of aggression against their neighbours, with such acts as the invasion of Poland or the attack on Pearl Harbour. At the end of the war, the allies established military tribunals to try the principal leaders of the Axis powers (IMT-Nuremberg and IMT-Far East) and it was during the course of these trials that the first verdicts for the crime of aggression were handed down and sentences imposed.
Article 6 of the Statute of the IMT-Nuremberg defined crime against peace as, “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing”.
The crime of aggression or crime against peace is an infringement of international law. According to the Prosecutor of the Nuremberg Tribunal it is even “the supreme international crime, only differing from other war crimes by the fact that it encompasses all of them” (judgement dated 30.09-01.10.1946). The Prosecutor of the IMTFE also added that it was a question of “the perverse nature of mankind. If it were possible to conceive of a war conducted under the most chivalrous and the most humane methods possible, the fact of waging such a war, if it were unjust, would nevertheless be a crime. The crime would be a crime against peace.” (Opening address of 3.05.1946)
As a result of this worldwide conflict, new measures were adopted concerning aggression and the use of force, notably by the United Nations Organisation (UNO)
Aggression and the Charter of the United Nations
Article 1 of the Charter of the United Nations (UNC) holds that in order to maintain international peace and security, the UN will take effective measures for the suppression of all acts of aggression. For its part, Article 2 § 4 prohibits the use of force in international relations between any State. Such use of force is only authorised in the case of legitimate self-defence (Article 51) or collective security (Article 52)
According to Article 7 of the Charter, the Security Council “shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations or decide what measures shall be taken” (Article 39). All Members of the United Nations agree to accept and carry out the decisions of the Security Council. (Article 25)
However, the Charter does not define “act of aggression”.
Attempts at definition and application
The first attempt at defining aggression came at the beginning of 1946 with the work of codifying “crimes against peace and the security of humanity”. The United Nations International Law Commission (ILC) proposed a preliminary project for codifying international infringements in 1956.
In 1974, The United Nations General Assembly proposed a definition of aggression in its resolution 3314. According to the wording of this text, aggression is “is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition”.
But this definition was the result of a compromise and its wording remains imprecise and unenforceable. Moreover, it does not take into account possible new kinds of indirect aggression which are very much on the increase today, such as terrorist attacks, foreign intervention in civil wars or other situations such as the occupation of another State in an agreement with a puppet government.
However, acts performed in the exercise of right to self determination of peoples and those whose aim it is to fight against colonial domination, foreign occupation or a racist regime are not acts of aggression as defined in Article 1 of the First Additional Protocol of the 1977 Geneva Conventions.
Despite the proliferation of texts prohibiting war, the second half of the 20th century was nevertheless witness to numerous conflicts resulting from aggression. For example this has been amply demonstrated by the war in Iraq, the conflict between the two Koreas and also the invasion of Kuwait by Iraq in 1990.
In 1996 the ILC put forward a Draft Code of Crimes against the Peace and Security of Mankind which contained a definition of aggression and conditions governing the responsibility of States and individuals. It also provided for the competence of a Criminal Court to judge crimes of aggression. This Court came into being in 1998 with the creation of the International Criminal Court.
Crime of Aggression and the International Criminal Court
By virtue of Article 5 § 1d of the Rome Statute, the Court is competent to judge crimes of aggression. Article 5 § 2 however stipulates that “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.”
In conformity with these dispositions, the definition of aggression could not be adopted, at the earliest, until 7 years after the Rome Statute came into force. A text is to be proposed in 2009 at the first conference scheduled to revise the Statutes of the Court. To this end a Special Working Group on Crimes of Aggression (SWGCA) was set up by the Assembly of States Parties in September 2002, and given the task to try to come up with a definition of crime of aggression and the conditions of competency of the ICC.
The SWGCA has not yet completed its task, but has made real progress. For example, according to the discussion document, presented by the President of the group at the June 2008 reunion, the proposal was made to add an Article 8 bis to the Rome Statute dedicated entirely to the crime of aggression. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to 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.”
This definition brings to the fore two elements: the act of aggression on the part of a State and the behaviour of an individual responsible for such act. Insofar as the definition of the act of aggression itself is concerned, the group maintained the definition contained in Resolution 3314 and put forward a list of actions which could fulfil these conditions: invasion of or attack against the territory of a State by the forces of another State; the bombing of another State; blockade; dispatch by a State or its proxy of gangs or armed groups to fight as armed forces on against another State… With respect to the responsibility of the individual, an agreement exists on the fact that only top leaders can be held responsible before the ICC.
A complex definition
The definition of crime of aggression raises even more problems when considering the pre-conditions concerning the Court’s jurisdiction and in particular the role of the United Nations Security Council. In the end the aim is to strike a balance between the political power of the Security Council and the judicial impartiality of the Court.
Certain States prefer that any determination of the existence of an act of aggression be under the exclusive jurisdiction of the Security Council as foreseen by the United Nations Charter. Others are ready to accept the role of the Security Council but would like to see other options in a situation where the Council, which is nevertheless a political body, does not recognise the existence of an aggressive act. Finally there are others States which ask that the same principles as those applied to other crimes set out in the Statute, to be applied to the crime of aggression. Indeed, according to Article 13 of the Statute of the Court, “a situation in which one or more of such crimes appears to have been committed” can be “referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations”.
Finally, it should be recalled that the jurisdiction of the ICC with respect to the crime of aggression and indeed to any other crimes that it might judge, is in complement to that of the States who retain primary responsibility, assuming their capability to do so, to prosecute the perpetrators of such crimes.
Bibliography
Michael W. Brough, John W. Lango, Harry van der Linden (eds.), Rethinking the Just War Tradition, Albany, NY, SUNY Press 2007.
François Bugnion, “Just wars, wars of aggression and international humanitarian law”, I.R.R.C, 2002 847(84), S.523-546.
Claus Kress, “The Iraqi Special Tribunal and the Crime of Aggression”, Journal of International Criminal Justice, 2004 2(2): S.347-352.
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