Some Challenges Facing the Crime of Aggression

Written by: Regina Paulose

The efforts by the international community to formalize the crime of aggression as a “core crime” should be applauded.[1] The atrocities that have resulted from different degrees of conflict have legitimated the need for this particular crime, especially since its first formal appearance at Nuremburg.  As with all crimes, the interpretation of its elements will develop as cases are brought forward. However, there are two issues that will deserve a closer examination by the ICC.

How will “self defense” be interpreted?

In article 2 of the UN Charter, states shall refrain from the threat or use of force against the “territorial integrity or political independence of any state.”[2] There are exceptions that are used to deviate from this accepted international legal principle. The first is article 42, which authorizes the Security Council to take measures to maintain and restore international peace and security.[3] Article 51 gives all nations the “collective right of self defense” if a member is attacked.[4]  The issue of self defense is broad, and so this post now focuses on three specific sub issues.

First, how will self defense be determined? How will article 51 be interpreted when it is clearly different from self defense in a “regular” criminal context? At what stage in the proceedings will a determination be made that a country was acting in self defense? Will the ICC Prosecutors make a determination be made prior to charges being filed, or will the onus be on the defendant to raise that as a defense during the course of the case? What period of time would be allowed for a self defense claim to be valid if raised under article 51?

This leads to the second issue, how will history play a part in these proceedings? For example, in the wars between India and Pakistan, it would be difficult for a Prosecutor to isolate a single event, without looking at the history between the two countries. (Of course there are other problems with this particular situation – like whether Pakistan is in “effective control” of the groups that attack the Indian army at the Line of Control). In the same vein, whose historical lenses will the ICC use to evaluate a self defense claim?

Finally, will physical responses to verbal provocations be considered legitimate acts of self defense? The status quo has many situations, e.g., Israel and Iran, North Korea and South Korea, which are ripe to examine. Of course, international criminal law mandates that self-defense is only lawful if it is necessary and proportionate, but the international community has not come to a consensus on “anticipatory” self defense and its appropriateness.[5] It seems evident that the ICC will create new ground in terms of interpretation with regard to article 51 and its limits.

Are SOFA’s (Status of Forces Agreements) prosecutable?

Article 8bis (2) (e) provides the following:

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.

Many countries utilize SOFA’s to conduct military exercises, afford military protection, and to utilize certain space in a receiving country for another country to operate their military bases. It does not take a hefty imagination to think of different hypothetical scenarios which could fall under this provision. What is difficult to grasp is how violations of these agreements in reality can be criminal acts. The language of the article states “in contravention of the conditions provided for in the agreement.”

The majority (if not all) violations of SOFA agreements would amount to contractual disputes. As with all contracts, state parties would have certain protocols in place in case of a breach. How would the ICC handle situations where SOFA agreements would in essence, lock out the ICC? What could preclude parties from agreeing on terms that parties will not prosecute cases before the ICC, but instead, agree to settle through other means? Does the ICJ have a role in this scenario if the contractual dispute involves two state parties and the jurisdictional reach of the ICC?

Another interesting point to be examined is whether military exercises, such as “war games” are prosecutable under the language of this article.  This particular provision will certainly provide interesting debates.  It is hard to fathom that the Security Council, (the permanent members) would provide referrals under this provision, given their military strength and postures.

In Conclusion

As the international criminal law community waits for more parties to ratify the crime of aggression, scholars will continue to study and debate this core crime and its elements. By 2017, these discussions will have allowed for a vibrant exchange of ideas and interpretation surrounding the issues that have been raised by interesting legal and political critiques. As the international community has responded to the Lubanga decision, it is predicted that the same will occur for the first case that tackles the crime of aggression.

[1] For good background reading on Article 8bis see Jennifer Trahan, The Rome Statutes Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference, International Criminal Law Review 11 (2011) 49-104.

[2] Article 2, para 4, UN Charter

[3] Article 42, Chapter 7, UN Charter

[4] Article 51, Chapter 7, UN Charter

[5] Cryer, Friman, Robinson, and Wilmhurst, An Introduction to International Criminal Law and Procedure, 323, (2010), citing Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), (2005), ICJ Rep, para 147