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Defining the crime of aggression: is there an answer to the international criminal court's dilemma?

 I. INTRODUCTION
 II. HISTORY OF THE DOCTRINE OF AGGRESSION
 A. Jus ad Bellum
 B. The Modern Concept of Jus ad Bellum
 C. Defining Aggression
 D. The Rome Statute and the International Criminal Court
 E. The U.S. Position on the ICC and Crime of Aggression
III. ANALYSIS
 A. Jurisdiction
 1. General ICC Jurisdiction
 2. Jurisdiction With Respect to the Crime of Aggression
 a. Security Council Determination as a Prerequisite
 b. Time Limit on Security Council Determination
 c. General Assembly or International Court of
 Justice Determination
 d. Independent Determination by the ICC
 B. Defining Aggression
 1. The Principle of Legality
 2. Linking the State Act With the Individual Act
 3. The Threshold Clause
 4. Actus Reus and Mens Rea
 5. Incorporation of General Assembly Resolution 3314 (XXIX)
IV. CONCLUSION


War is essentially an evil thing. Its consequences are not confined to the belligerent States alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole. (1)

I. INTRODUCTION

The Rome Statute established the International Criminal Court (ICC) in 2002. (2) The ICC is the culmination of decades of attempts to define aggression and set up an international court with jurisdiction to hold individuals responsible for what the state parties considered the most serious crime--the crime of aggression. (3) The Rome Statute confers subject matter jurisdiction with respect to "the most serious crimes of international concern": genocide, crimes against humanity, war crimes and the crime of aggression. (4) Although the Rome Statute defined the other three crimes, the definition of aggression led to many heated debates and subsequently, postponement of ICC jurisdiction for it until the state parties could agree on a definition and set out the conditions for jurisdiction. (5) In 2002, the Assembly of States Parties established the Special Working Group on the Crime of Aggression (Special Working Group) to propose a definition of aggression and establish the conditions for the exercise of jurisdiction. (6)

This article begins by examining the history of the doctrine of aggression starting with the ancient concept of jus ad bellum as defined by the Romans and Christian theologians. The article will then survey modern concepts of aggression as set forth in the Kellogg-Briand Pact, the Nuremberg Trials, and the Charter of the United Nations. Following this discussion, the article will examine the definition of aggression as set forth in General Assembly Resolution 3314 and the events leading up to the Rome Statute and the creation of the International Criminal Court (ICC). This article will also briefly examine the U.S. position regarding the ICC and the crime of aggression. Section III examines the Special Working Group's proposed jurisdictional conditions and definition of aggression.

The Special Working Group needs to resolve two major issues: (1) how is the ICC going to exercise jurisdiction over the crime of aggression; and (2) how to define aggression to satisfy a majority of the state parties. (7) Section IV of this article offers recommended changes to the Special Working Group's proposed definition of aggression, to include eliminating a Security Council determination of aggression as a prerequisite for jurisdiction. The ICC must act as an independent arbiter of justice if it is to provide a general deterrent to future crimes against peace and punish those who use armed force with impunity.

II. HISTORY OF THE DOCTRINE OF AGGRESSION

A. Jus ad Bellum

The concept of jus ad bellum or "just war" traces back to ancient Rome and the jus fetiale. (8) The Romans followed fetial law, believing they had to please the gods in order to wage war. (9) The fetiales were priests whose duties included determining whether sufficient reasons justified resorting to war. (10) According to Cicero, a war was not just unless the aggressor (1) made an official demand for satisfaction with a time allotted for a response; and (2) issued a formal declaration of war. (11)

Christian doctrine originally took a pacifist view toward war. (12) Christians were not even allowed to become soldiers. (13) However, this changed in the time of Constantine when he established Christianity as the official religion of the empire. (14) Christian theologians decided that good Christians were expected to fight for God; therefore, they needed to change their stance on war. (15) In his book, The City of God, St. Augustine formulated the fundamental principle that wars were a lamentable occurrence, but the suffering of victims of aggression necessitated the need for waging "just wars." (16) St. Thomas Aquinas expanded on this theory and opined that in order for a war to be just, three conditions must be met. (17) First, a prince must authorize the war. (18) Second, there had to be a just cause to go to war. (19) Finally, one must have the right intention to promote good over evil. (20) Aquinas believed violence was never justifiable unless its purveyor sought the greater good of the community. (21)

B. The Modern Concept of Jus ad Bellum

Modern theorists developed the jus ad bellum concept at the beginning of the 20th century after the devastation of World War I. (22) It was then that the international community first looked at prosecuting individuals for crimes against peace. (23) Articles 228-230 of the Treaty of Versailles mention prosecution of German combatants for violations of the laws and customs of war. (24) The Versailles Treaty formally arraigned Kaiser Wilhelm II, the German ruler who initiated World War I, for "a supreme offence against international morality and the sanctity of treaties." (25) The German Government never tried Kaiser Wilhelm II because he fled to Holland where the Dutch Government refused extradition. (26) Holland justified denying extradition because they believed the charges against the Kaiser were retroactive criminalization and violated the Dutch Constitution and international law. (27) This failed attempt to bring the Kaiser to justice for waging a war of aggression prompted the international community to attempt to criminalize aggression. (28)

In Paris in 1928, several nations signed the General Treaty for Renunciation of War as an Instrument of National Policy (known as the Kellogg-Briand Pact). (29) Although the Pact only contained three articles, it renounced war as a solution for international controversies and dictated that all disputes be settled by pacific means. (30) However, this step towards regulating state conduct failed to address individual criminal liability. (31) The Kellogg-Briand Pact "established the illegality of war as an instrument of national policy;" but it did not mention self-defense, set limits as to the legality of war as an instrument of international policy, or address forcible acts short of war. (32)

Despite the Kellogg-Briand Pact and its renunciation of war as a solution for international controversies, nations soon found themselves in the midst of another world war. After realizing the extent of the atrocities committed during World War II, the leaders of the Allied powers had one primary goal in mind with regard to prosecution of Nazi leaders--punish aggression. (33) Without a codified definition of aggression, the drafters of the Charter of the International Military Tribunal (IMT) struggled to formulate the legal basis for the crime of aggression. (34) One issue in drafting the IMT Charter was whether to state in detail the mens rea and actus rea of the offense or leave it for the judges to determine. (35) The U.S. contingent sought a definition of aggression to preclude potential defenses that the crime of aggression lacked precise elements. (36) France and the Soviet Union opposed the U.S. definition because they doubted that international law prescribed individual criminal responsibility for aggressive war. (37) The allies agreed that the process needed to be quick while maintaining the appearance of fairness and legality. (38) Although the result of the trial seemed pre-ordained, the judges wanted to create precedence for the future and hopefully prevent the waging of aggressive wars. (39) Justice Robert Jackson, Chief U.S. Prosecutor during the Nuremberg Trials, in the opening statement to the tribunal stated: "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well." (40)

Justice Jackson believed nothing justified going to war. (41) He stated that "[w]hatever grievances a nation may have, warfare is an illegal means for settling those grievances." (42) In October 1945, the Nuremberg Court served indictments on twenty-two Nazi leaders which became known as the Trial of the Major War Criminals. (43) The four victorious allies of World War II adopted the Charter of the International Military Tribunal after the Nazi leaders committed their crimes. (44) Because of this, the defense criticized the tribunal for violating the principle of nullem crimen nulla poena sine lege (there is no crime, nor punishment, without a law); (45) echoing Holland's excuse for not extraditing Kaiser Wilhelm II. (46) Critics also declared observed that the tribunals were not permanent and only represented the four allies, not the international community. (47) In its defense, the tribunal stated the Kellogg-Briand Pact set forth the prohibition for crimes against peace. (48) This was not about arbitrary justice by the victors, but an "expression of international law existing at the time of its creation." (49) Ultimately, the tribunal found the Nazi leaders guilty of planning and waging aggressive war. (50) In his report to the President of the United States, Justice Jackson stated, "at long last the law is now unequivocal in classifying armed aggression as an international crime instead of a national right." (51)

The Charter of the International Military Tribunal (IMT) became the foundation for the 1946 Charter of the Military Tribunal for the Far East. (52) This charter adopted the language regarding aggression with the addition that a war of aggression could be "declared or undeclared." (53) The tribunal added this clarifying language in order to block assertions that the Japanese had not technically been at war. (54) The IMT for the Far East indicted twenty-eight defendants for crimes against peace. (55) The Tribunal divided the crimes against peace charge into multiple counts to include the planning and preparation of wars of aggression, initiation of wars of aggression, and individual responsibility for conspiracy to commit murder as crimes against peace. (56) The defense argued that acts of the state do not trigger individual criminal responsibility under international law. (57) While the tribunal found most of the defendants guilty, accusations of political interference and prosecutorial bias surrounded the trials primarily because of the U.S. decision to exonerate the Emperor. (58) The arguments made by the defense in both the Nuremberg and Far East trials continue to surround the formulation of a definition of the crime of aggression.

Despite criticisms, the tribunals at Nuremberg and the Far East did much to set new legal standards of individual responsibility, particularly the elimination of the "just following orders" defense and the immunity of heads of state. (59) When the United Nations General Assembly affirmed the Nuremberg Principles, it effectively affirmed individual culpability for crimes against peace. (60)

C. Defining Aggression

Despite the successes of the Nuremberg and Far East Tribunals, neither of the tribunals' implementing documents actually defined aggression. (61) The judges decided whether a state had in fact committed aggression and then assigned individual blame for those acts. (62) Because the Kellogg-Briand Pact denounced war as an instrument of foreign policy, the IMT used this as its basis to criminalize aggression. (63) The tribunal stated: "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." (64) The court said in order for the prohibition of war to have any real effect, the international community must hold those individuals who commit these acts on behalf of the state responsible. (65) The Nuremberg and Far East trials held those at the policy-making level accountable; not the soldiers on the battlefield. (66)

Article 6 of the IMT Charter established jurisdiction over the crimes against peace, war crimes and crimes against humanity. (67) The IMT Charter defined crimes against peace as "planning, preparation, ignition or waging of 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." (68) Article 6 specifies that "leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan" to commit crimes against peace are responsible for the acts of those who executed the plan. (69) These provisions laid the foundation for the numerous attempts by the U.N. to codify the "supreme international crime." (70)

After World War II, the U.N.'s goal was to establish a permanent international criminal court and codify the definition of aggression. (71) Unfortunately, the U.N. committees pursued these tasks independently, instead of jointly. (72) In 1949, the International Law Commission (ILC) began work on the Code of Offences against the Peace and Security of Mankind. (73) The Nuremberg Principles taken from the Nuremberg Charter and affirmed by the U.N. General Assembly formed the basis for this code; yet the ILC only released draft codes with no formal resolution. (74) In 1950, the General Assembly established a special committee representing seventeen states whose purpose was to draft a convention for the establishment of an international criminal court. (75)

While the international community generally favored establishing an international criminal court, many of the world's major powers had reservations. (76) The United States and Soviet Union both felt an international criminal court threatened their sovereignty. (77) France favored an international criminal court, but was unwilling to commit resources. (78) The United Kingdom believed the world was not ready for such a court to exist. (79) The special committee eventually created a draft convention in 1951 and then another revision in 1953. (80) Political pressures from states caused the committee to revise certain provisions. (81) In particular, the new draft limited the new court's jurisdiction and allowed states to retain more control. (82) This debate over jurisdiction would reemerge forty years later in the establishment of the ICC, specifically concerning the crime of aggression. (83)

While the work on the international court continued, the International Law Commission (ILC) sent an approved draft code of offences to the General Assembly in 1954. (84) The draft contained thirteen international crimes. (85) Article 2(1) of the draft code stated that any act of aggression constituted an offense. (86) Article 1 declared that offenses contained in the code are "crimes under international law, for which the responsible individuals shall be punished." (87) However, the U.N. General Assembly postponed approval of the code due to disagreements over the definition of aggression. (88)

It was not until 1974 that the U.N. General Assembly finally agreed on a definition for aggression. (89) The U.N. General Assembly passed Resolution 3314 (G.A. Res. 3314) to guide the Security Council in making a determination of aggression under Article 39 of the U.N. Charter. (90) The definition differentiated between an act of aggression (creating international responsibility) and war of aggression (a crime against peace). (91) This indicated that acts of aggression short of war do not trigger individual responsibility. (92)

Article 1 of G.A. Res. 3314 defined aggression as "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." (93) This definition is similar to Article 2(4) of the U.N. Charter except that the threat of force is excluded, the adjective armed is inserted in front of force, and the victim is another state instead of any state. (94) Article 2 creates a rebuttable presumption in that the first use of armed force in contravention of the U.N. Charter is prima facie evidence of an act of aggression. (95) The Security Council can determine otherwise "in light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity." (96) Article 3 of G.A. Res. 3314 enumerates specific acts of aggression (97) and Article 4 states that the acts listed in Article 3 are not an exhaustive list in that the Security Council may equate other acts to aggression. (98) Article 5(2) states: "A war of aggression is a crime against international peace. Aggression gives rise to international responsibility." (99) This definition provides a generic definition of aggression in Article 1 with a non-exhaustive list of aggressive acts in Article 3. (100)

While the 1974 definition was a major milestone in the work towards criminalizing acts of aggression, many nations felt that the definition was only a guideline for the Security Council and not meant as a basis for criminal prosecution. (101) One aspect of the 1974 definition supporting this critique is that it does not go beyond the actus reus (criminal act) to provide a mens rea (criminal consciousness). (102) This concern that the definition was not sufficient to form a basis for criminalizing aggression is still apparent in the ongoing discussions of the Special Working Group on the crime of aggression. (103)

The ILC, charged by the General Assembly to formulate the Nuremberg Principles into a workable product, produced the draft Code of Crimes Against the Peace in 1996. (104) The ILC cited the Nuremberg Principles and the U.N. Charter as sources for individual criminal responsibility for acts of aggression, but not the 1974 definition. (105) The ILC claimed the 1974 definition was too political and legally imprecise. (106) The 1996 definition assigned responsibility to an "individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a state shall be responsible for a crime of aggression." (107) Despite the work of the ILC in 1996, it is the 1974 definition, along with the Nuremberg Principles, that forms the basis for the current debate within the ICC Special Working Group on how to define aggression, as will be discussed in detail in Section II of this article. (108)

In the multiple armed conflicts following World War II, no court has indicted a country for crimes of aggression. (109) The Security Council created ad hoc tribunals in response to the atrocities committed in the former Yugoslavia and Rwanda; however, their charters do not list crimes of aggression as crimes within their mandates. (110) These ad hoc tribunals focused on genocide, war crimes and crimes against humanity. (111)

D. The Rome Statute and the International Criminal Court

Almost sixty years after World War II and numerous attempts by the U.N. to create an international criminal court, the Rome Statute made the ICC a reality. (112) Only those nations who voluntarily become a party to the Rome Statute are bound by it. (113) Once again, major issues surfaced with respect to the crime of aggression at the Rome Conference. (114) The concerns centered around three basic questions: (1) whether or not to include aggression under the jurisdiction of the ICC, (2) how to define aggression, and (3) what role, if any, should the United Nations have in determining aggression. (115)

The delegates' opinions varied as to how to define aggression and whether or not the ICC should exercise jurisdiction without Security Council involvement. (116) Some delegates took the position that aggression should not be included within the jurisdiction of the court because it was a political determination and not a judicial one. Others felt that to not include the "supreme international crime" (117) would result in retroactive or ex post facto law and forfeit what Nuremberg had accomplished. (118) Some delegates wanted inclusion of aggression only if a precise definition could be agreed upon and others thought that the definition in G.A. Res. 3314 was sufficient. (119) Finally, some delegates felt that aggression should be expanded to include threats of the use of force and aggression to the environment. (120) What resulted was a last minute compromise proposed by Chairman Philippe Kirsch of Canada: include aggression and postpone resolution of a definition for another day. (121) Therefore, while Article 5(1) gives ICC jurisdiction over the crime of aggression, Article 5(2) states that "[t]he 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." (122)

This may seem like a workable compromise, but it will be difficult to achieve. After the Rome Statute's entry into force, (123) seven years had to pass before a Review Conference could convene to consider amendments; meaning 2009 was the first time an amendment could be considered. (124) While the Special Working Group concluded its discussion on the crime of aggression in February 2009, discussions continued during informal sessions as to other issues surrounding adoption of an amendment on aggression. (125) In concluding its work on aggression, the Special Working Group drafted a proposal for a provision on aggression that would be put forth to the Review Conference in May 2010. (126) An amendment requires two-thirds majority of parties to approve and then it will only enter force for the respective state party one year after it ratifies the amendment. (127) With all the political debates on aggression coupled with the numerous procedural requirements to approve an amendment, some doubt surrounds whether or not individual culpability for aggression will ever become a reality.

E. The U.S. Position on the ICC and Crime of Aggression

One of the initial proponents of the ICC was the United States. (128) However, the position the United States eventually took resembled the position of the Soviet Union almost fifty years earlier in that the United States felt the ICC threatened its sovereignty. (129) The U.S. delegation spokesman stated the United States was "subject to special responsibilities and special exposure to political controversy over [its] actions" and that the United States was "called upon to act, sometimes at great risk, far more than any other nation." (130)

One of the initial issues on defining aggression was whether or not to codify existing customary international law regarding aggression or create new law. (131) The United States did not want the definition of aggression to be based on G.A. Res. 3314 because the United States felt the resolution did not reflect customary international law at the time of its adoption. (132) Theodor Meron, a U.S. delegate to the 1998 Rome Conference, stated that "[t]o define a new crime by treaty, to follow the legislative approach, would open the door to governments and individuals contesting in the future the legitimacy of the ICC. This can and should be avoided, basing our work on [the] firm foundation of customary law." (133)

The United States signed the Rome Statute under the Clinton administration, but then unsigned it under the Bush administration. (134) Since the ratification of the Rome Statute, the United States pressured the Security Council to adopt a resolution that exempted states not party to the Rome Statute but who participated in U.N. operations. (135) Upon the renewal of this resolution, Ambassador James Cunningham, Deputy U.S. Representative to the United Nations, reiterated the U.S. concern that American personnel may find themselves subject to the ICC although the United States is not a party to the Rome Statute. (136) This concern included fear of prosecutions for aggression, which the United States believed must be determined by the Security Council prior to any action by the ICC. (137)

In 2008, the United States abstained from using its veto to block a U.N. Security Council resolution referring the situation in Darfur to the ICC. (138) This seemed contrary to the earlier position the United States took against the ICC. Yet, in fact, this is exactly how the United States wanted the ICC to work with the Security Council. (139) The United States has always believed that the Security Council can grant jurisdiction over particular matters. (140)

The current administration is taking a more cautious approach to the ICC as indicated by comments from Secretary of State Hillary Clinton. In her response to questions during the nomination process for Secretary of State, she stated "whether we work toward joining or not, we will end the hostility toward the ICC, and look for opportunities to encourage effective ICC action in ways that promote U.S. interests by bringing war criminals to justice." (141) During his election campaign, then Senator Obama gave his position on the ICC, stating that he "will consult thoroughly with our military commanders and also examine the track record of the court before reaching a decision on whether the [United States] should become a State Party to the ICC." (142) While it appears that the current administration is less hostile to the ICC, it also does not seem likely that the United States will ratify the Rome Statute any time in the near future.

III. ANALYSIS

A. Jurisdiction

1. General ICC Jurisdiction

Ratification of the Rome Statute on 11 April 2002 signaled a huge step in international criminal law. (143) After years of debate and political wrangling, were state parties finally ready to see international crimes punished on a world stage? The answer remains undetermined, but this article will look at some of the issues surrounding the inclusion of the crime of aggression.

One of the first big debates surrounding the formation of the ICC was jurisdiction and its exercise. (144) First, this article will look at ICC jurisdiction in general and then at the jurisdictional issues regarding aggression. The state parties made several compromises on jurisdiction in order to ensure ratification of the statute. (145) The first set of compromises, pushed by the United States, dealt with ratione temporis, substantive issues, and what can best be called political issues. (146)

Jurisdiction ratione temporis limits prosecution of crimes to those committed after the Rome Statute's entry into force. (147) The Rome Statute further limits the court's jurisdiction over state parties to their individual dates of ratification. (148) Therefore, the ICC will have no jurisdiction for crimes committed before July 2002--when the Rome Statute came into force--or even later for crimes committed by states who join later.

Substantive jurisdictional constraints, found in Article 1 of the Rome Statute, limit the ICC to prosecute only those "persons who commit the most serious crimes of international concern." (149) Article 5 lists those crimes as genocide, war crimes, crimes against humanity and crimes of aggression. (150) Article 5 goes on to reiterate that jurisdiction is limited to "the most serious crimes of concern to the international community as a whole." It also reiterates the "most serious crimes" limitation. (151) Some delegates to the Rome Conference argue that this adds an additional limitation to what crimes the ICC may prosecute. (152) For example, this could deny the ICC jurisdiction over isolated or small incidents of crimes against humanity, incidents that may not rise to the level of international concern. (153)

The political limitations on jurisdiction arise from the state parties themselves. Whether state parties or the ICC Prosecutor propio motu (of one's own accord) (154) refers cases to the ICC, several preconditions exist. (155) Article 12(2) requires either the territorial state (the location where the crime occurred) or the national state (the defendant's state of nationality) be a state party or accept jurisdiction with respect to the defendant. (156) This limits the ICC because in the current world, the most likely scenarios for international crimes involve violence conducted internally by states, instead of crimes committed by states against states. (157) In this situation, a state will not likely self-refer, thereby subjecting one of its citizens or government leaders to prosecution. In addition, the states committing international crimes are even more likely not parties to the ICC. (158)

The most traditional form of jurisdiction is found in Article 13. (159) The ICC exercises jurisdiction for cases referred to it by the Security Council under the Security Council's Chapter VII authority. (160) This type of referral bypasses the Article 12 prerequisite for the national or territorial state to be a party to the Rome Statute. (161) Under Article 13, the Security Council must have Chapter VII authority and the five permanent members of the Security Council would have to not exercise their veto power in order for the ICC to have jurisdiction. (162) This scenario also seems unlikely to occur, given the political dynamics of the permanent five members as well as the Security Council's reticence in labeling acts by states as aggressive. (163)

The second major compromise regarding jurisdiction, also pushed by the United States, involves the concept of complementarity. (164) Complementarity recognizes the primacy of the right of states to prosecute their own nationals. (165) The Preamble to the Rome Statute emphasizes "that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions." (166) The statute establishes that a case will be inadmissible before the ICC whenever it "is being investigated or prosecuted by a State that has jurisdiction, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution." (167)

Complementarity alleviated a major concern of some of the nations by preserving state sovereignty. The issue with leaving prosecution of a state's leaders to the state itself is political bias. (168) It is doubtful whether a state would ever prosecute one of its own leaders for a crime of aggression. However, Article 17 gives the ICC jurisdiction to open its own investigation if it feels that a state was simply shielding its own people. (169) A state is unwilling or unable to prosecute when the state prosecutes for the purpose of shielding the accused from proceedings before the ICC, where it unjustly delays prosecution or where the state fails to conduct independent or impartial investigations. (170) The problem with the ICC stepping in after such a determination is that the ICC depends on state cooperation. If the state refers a situation to the court, then cooperation is assumed; however, if the court initiates an investigation on the basis that the state was shielding its own people, then cooperation by the state may not happen. (171)

Whether or not the crime of aggression falls under the general provisions mentioned above for jurisdiction or under new provisions creating additional requirements for jurisdiction forms the basis for debate among the state parties. This article will now focus on the proposed amendments for the ICC to exercise jurisdiction for the crime of aggression as well as incorporating the basic provisions mentioned above.

2. Jurisdiction with Respect to the Crime of Aggression

Besides the basic limitations set forth in the Rome Statute discussed above, much heated debate specifically surrounded the crime of aggression and exactly how the ICC should exercise jurisdiction. (172) The Special Working Group held their final meeting to discuss the crime of aggression on 9-13 February 2009. (173) The general consensus was that Article 13 would apply to the crime of aggression allowing Security Council referral, state party referral, or initiation of an investigation by the prosecutor as triggers for an investigation of the crime of aggression. (174) The question remained as to what role, if any, the Security Council or other body of the United Nations would play in determining whether or not an act of aggression occurred. (175) The following discussion focuses on three options considered by the Special Working Group: (1) Security Council determination of aggression as a prerequisite for ICC jurisdiction; (2) failure of the Security Council to make a determination within a specified time limit; and (3) General Assembly or International Court of Justice (ICJ) determinations for aggression. A fourth option discussed, although not specifically delineated in the chairman's draft amendment is the independent authority of the ICC without any U.N. involvement. The chairman proposed the following language for presentation to the Review Conference:

Article 15 bis

Exercise of jurisdiction over the crime of aggression

1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, (176) subject to the provisions of this article.

2. Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents.

Alternative 1

3. In the absence of such a determination, the Prosecutor may not proceed with the investigation of a crime of aggression,

Option 1--end the paragraph here.

Option 2--add: unless the Security Council has, in a resolution adopted under Chapter VII of the Charter of the United Nations, requested the Prosecutor to proceed with the investigation in respect of a crime of aggression. (177)

Alternative 2

3. Where no such determination is made within [six] months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression,

Option 1--end the paragraph here.

Option 2--add: provided that the Pre-Trial Chamber has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15;

Option 3--add: provided the General Assembly has determined that an act of aggression has been committed by the State referred to in article 8 bis;

Option 4--add: provided that the International Court of Justice has determined that an act of aggression has been committed by the State referred to in article 8 bis.

4. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5. (178)

a. Security Council Determination as a Prerequisite

In the proposed amendment of Article 15 bis, paragraph two mandates that the prosecutor shall first consult the Security Council to see if they found that the state concerned committed an act of aggression. (179) Two alternatives discuss options for the prosecutor in the absence of a Security Council determination. (180) It is unclear what the prosecutor may do, if anything, if the Security Council makes a determination of an act of aggression. If the Security Council determines that a state did not commit an act of aggression, may the prosecutor proceed against an individual anyway? Will this create a defense for the state? If the Security Council determines that a state has committed an act of aggression, does this automatically give the prosecutor authority to proceed, or is there some requirement for an express authorization by the Security Council? The Security Council may determine a state committed an act of aggression, but in order to maintain international peace and security, decide that it is best not to pursue a criminal investigation against an individual of that state. At this point, the Security Council would be forced to adopt a resolution that requests the ICC to defer an investigation or prosecution under Article 16. (181)

Under Article 39 of the U.N. 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 in accordance with Articles 41 and 42, to maintain or restore international peace and security." (182) Article 24 of the U.N. Charter gives the Security Council "primary responsibility for the maintenance of international peace and security." (183) Article 5(2) of the Rome Statute requires the definition of the crime of aggression to be "consistent with the relevant provisions of the Charter of the United Nations." (184) Reading these provisions together one can argue that only the Security Council has the authority to determine whether or not an act of aggression has occurred before the ICC may exercise jurisdiction. (185) Because aggression is such a contentious topic, some scholars believe that making a determination as to whether a state act constitutes aggression is a political issue rather than a judicial one and more suitably made by the Security Council. (186) Alternative 1, Option 1 of the proposed amendment reflects this position. (187)

A counter argument to the Security Council having exclusive authority to determine acts of aggression is that Article 39 of the U.N. Charter authorizes the Security Council to determine aggression solely for maintaining international peace and security, not for establishing criminal responsibility. (188) Some international law scholars interpret Article 24 of the U.N. Charter to mean that the Security Council has primary, not exclusive, responsibility for maintaining international peace and security. (189)

The Security Council's analysis of what constitutes acts of aggression for political purposes is distinct from the criminal liability analysis of a judicial body. (190) Allowing the Security Council to make the determination of aggression would subordinate the ICC to the political views of the Council and potentially undermine the independence and credibility of the Court. (191) ICC dependence on the Security Council could give the Security Council a quasi-judicial role; a role it was not meant to take. (192) The Security Council is a political body, not a judicial one. (193) The U.N. Charter states that the International Court of Justice is the principal judicial organ of the U.N. (194)

Finally, the Security Council has a poor track record in determining acts of aggression; (195) instead the Council prefers the phrase "threats to international peace and security" rather than acts of aggression. (196) By making a Security Council determination a prerequisite for ICC jurisdiction, it could allow the five permanent members of the Council to insulate themselves or their allies from ever facing prosecution for acts of aggression. (197) This inconsistency makes setting any legitimate legal precedent for what constitutes an act of aggression almost impossible.

b. Time Limit on Security Council Determination

Alternative 2 of the proposed amendment allows the prosecutor to proceed with an investigation if, after six months after notification, the Security Council fails to make a determination of an act of aggression. (198) Six months was a suggested time frame and not a general consensus as indicated by the brackets. (199) Option 2 adds the additional requirement of the Pre-Trial Chamber authorizing commencement of an investigation in accordance with Article 15. (200) The arguments for and against Security Council involvement listed above also apply to this alternative. Allowing for a Security Council determination of aggression with a time delay could possibly hinder criminal prosecutions as well as produce duplicative efforts. (201) This alternative still does not resolve the question as to what the prosecutor may do if, within six months, the Security Council determines that a state did or did not commit an act of aggression.

c. General Assembly or International Court of Justice Determination

Finally, Alternative 2 adds the options of either the General Assembly or the ICJ making a determination on aggression. (202) Article 96 of the U.N. Charter stipulates that "[t]he General Assembly or the Security Council may request the ICJ to give an advisory opinion on any legal question." (203) Again, the proposed language gives a time limit of six months in which either U.N. body may make a determination or if not, the prosecutor may proceed. (204) Proponents for these options argue that the General Assembly and ICJ have previously determined acts of aggression in the absence of a Security Council finding. (205) Enabling the General Assembly or ICJ to make the determination alleviates the concern of a purely political determination based on the policies of one of the five veto holders of the Security Council. (206) Involvement of one of these U.N. organizations may allow for enforcement actions under Chapter VII of the U.N. Charter to be implemented, (207) thereby maintaining Security Council participation. (208)

Opponents to this option argue that the General Assembly is as much a political body as the Security Council, only without the veto power. (209) The General Assembly could refuse to make a determination or refuse to request an advisory opinion from the ICJ. (210) The ICJ could refuse to give an advisory opinion as well. (211) Another potential issue is that the General Assembly or ICJ standard for determining an act of aggression may differ from the ICC standard. (212)

d. Independent Determination by the ICC

The ICC is an independent organization formed by a treaty signed by over a hundred nations; it should not be subordinate to the U.N. (213) Proponents for ICC independence rely on the argument that the Security Council is not the sole authority to maintain international peace and security. (214) The U.N. organizations utilize different evidentiary standards from the ICC, which could taint the criminal case. (215) The U.N.'s role focuses on the acts of states, not individuals. (216)

Some of the concerns of having an independent determination of aggression made by the ICC include forcing the ICC into a political role and embroiling them in potential controversies between states. (217) The U.S. position in 2002 was that the ICC actually erodes the basic elements of the U.N. Charter and a nation's inherent right of self-defense. (218) By the ICC judging a nation's security decisions, the ICC places a chilling effect on a nation's willingness to project military power in self-defense. (219)

Another issue is the possible conflict between an ICC determination that a state committed an act of aggression and a Security Council determination that a state has not committed an act of aggression. Does a Security Council finding trump the ICC finding? May an individual use the Security Council's determination as a defense? This possible conflict could undermine any peace negotiations pursued by the United Nations. While the debate continues on the exact method for the ICC exercising jurisdiction; the more pressing issue that remains is how aggression will be defined.

B. Defining Aggression

This article will now examine a proposed definition of aggression and related issues.

1. The Principle of Legality

The principle of legality holds that nothing is a crime unless is it forbidden by law (nullum crimen, nulla peona sine lege). (220) To satisfy the principle of legality, a crime must be specific enough to give perpetrators fair notice of prohibited conduct. (221) The Rome Statute itself limits the scope of crimes: "A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court." (222) The Statute further states in Article 22(2) that the definition of a crime should be strictly construed and in cases of ambiguity, the ICC will interpret it in favor of the individual investigated. (223) To satisfy the principle of legality, the ICC must define the crime of aggression with enough specificity to enable perpetrators to know exactly what conduct is prohibited.

2. Linking the State Act With the Individual Act

The crime of aggression requires two acts: one by the state and one by an individual. (224) The international community generally agrees that an aggressive act of the state must occur before assigning culpability to an individual. (225) The Nuremberg Principles adopted by the U.N. affirmed individual culpability for acts of aggression. (226) The General Assembly's definition served as a guide to the Security Council in making determinations of state aggression, but not individual acts. (227) The ILC's 1996 definition linked the state act with individual culpability by incorporating a leadership requirement, which Section III(b)(4) will discuss in detail. (228)

In 2008, Chairman Christian Wenaweser drafted a discussion paper that built upon the previous Special Working Group's progress on defining aggression. (229) The Chairman proposed a definition using a general definition with a non-exhaustive list of aggressive acts. (230) The Special Working Group retained this definition in its proposed amendments in its final meeting on the crime of aggression. (231) The text states, in relevant part:

Article 8 bis

Crime of Aggression

1. For the purpose of this Statute, "crime of aggression" means the planning, preparation, initiation or execution, by a person in a position to effectively 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.

2. For the purpose of paragraph 1, "act 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.

Paragraph 1 sets forth the individual conduct that amounts to a crime of aggression by describing the conduct as "act[s] of aggression." (232) The Special Working Group prepared a draft paragraph to add to Article 25 that ensures the leadership requirement applies to all forms of participation. (233) This definition is similar to the one found in the Nuremberg Charter. (234) Paragraph 2 defines the state act of aggression and is identical to paragraph 2 of the 1974 definition. (235) Since paragraph 2 defines "act of aggression" as a state's use of armed force inconsistent with the U.N. Charter, the ICC must first find that a state used armed force, therefore making the state act an element of the crime of aggression. In the past, states used armed force to accomplish certain strategic goals. (236) Now these goals are accomplished by other nonmilitary means. (237) These indirect aggressive acts include economic and diplomatic pressure or aiding armed insurgents. (238) Through these indirect acts a state can still "effectively exercise control over or to direct the political or military action of a State." The use of the phrase "armed force" indicates that other acts of force such as economic force or computer attacks would not meet the definition of an act of aggression.

Assuming a U.N. organization first makes a determination of the state act of aggression, is the ICC bound by that determination? The answer to this question poses many issues. First, if binding on the ICC, this determination may violate a defendant's due process rights. (239) Article 67 of the Rome Statute entitles an accused to the right to confront any witness. (240) If a state act is an element of the crime and a binding determination of that element is made by a body of the U.N., how can an accused confront the U.N.? A predetermined, binding decision of an element of the crime may violate the accused's right to a presumption of innocence. (241) The Special Working Group addressed this issue and agreed that any determination of aggression by an outside organization would not bind the court; however this language needs to appear in the text. (242) Further, this could still permit an accused to use a prior determination by an outside organization as a defense.

3. The Threshold Clause

In the chairman's 2008 Proposed Amendment, the last sentence of paragraph 1 contains what is known as the threshold clause. (243) An act of aggression "constitutes a manifest violation of the Charter of the United Nations." (244) Proponents for the threshold clause argue that it limits the Court's jurisdiction to only the most serious acts under customary intemational law and excludes those acts of insufficient gravity. (245) This compromise allowed for the widest support of the definition. (246) At the 2009 meeting of the Special Working Group, the chairman emphasized the years of negotiation and compromises that led to the drafting of the threshold clause; and after much discussion, most delegates supported the draft as a balanced compromise. (247)

Those delegates opposed to the threshold clause felt it was too ambiguous and could lead to a broad array of interpretations. (248) Delegates argued that any act of aggression violated the U.N. Charter and to exclude acts would be inconsistent with the manifest purpose of the Charter. (249) Also, the threshold clause for individual culpability in paragraph 1 (manifest violation of the Charter of the United Nations) constitutes a higher threshold than that required for states in paragraph 2 (armed force in a manner inconsistent with the Charter of the United Nations). (250) Further, a qualifier is already built in the Preamble of the Rome Statute by limiting jurisdiction to "the most serious crimes of concern to the international community." (251) The other crimes in the Rome Statute do not have additional qualifying language in their definitions. (252)

4. Actus Reus and Mens Rea

Aggression, by its nature, requires action by someone in a position of leadership that controls the actions of a state. This is the actus reus. In order to be held criminally responsible, a person must plan, prepare, initiate or wage a war of aggression. (253) The Nuremberg trials also required a leadership component in order to convict for waging an aggressive war. (254) The Special Working Group's 2008 proposal includes an amendment that would add paragraph 3 bis to Article 25: "In respect of the crime of aggression, the provision of this article shall apply only to persons in a position to effectively exercise control over or to direct the political or military action of a State." (255) Article 25 sets out the requirements for individual criminal responsibility as it applies to those crimes within the jurisdiction of the ICC. (256) The delegates to the Special Working Group felt that adding paragraph 3 bis ensured application of the leadership requirement to not only the primary perpetrators, but to all those who participated. (257) This does not limit prosecution to military or government employees; therefore the ICC could prosecute civilians if their actions met the definition. The 2009 Draft Amendment to the Rome Statute of the International Criminal Court also retained the new language of Article 25 regarding leadership. (258)

In addition to the criminal act or actus reus, the Rome Statute requires all crimes within the jurisdiction of the Court to contain the mens rea or mental element. (259) Article 30 requires that material elements of crimes be "committed with intent and knowledge." (260) Knowledge means awareness of circumstances or consequences that will occur in the ordinary course of events. (261) The requisite criminal intent is crucial with crimes of aggression because not all acts of preparing for a war are accomplished with evil intent. (262) All nations prepare for war in some way or another simply by forming militaries and engaging in military exercises. In some cases the nations may not intend to wage an aggressive war, but simply engage in national defense. (263) The key for criminal culpability is the extent of knowledge of the aggressive plans, not just mere assistance in preparations for war. (264)

5. Incorporation of General Assembly Resolution 3314 (XXIX)

One of the issues the Special Working Group had to resolve was whether to use a general definition of aggression based upon the Nuremberg model, or to use a specific list based on G.A. Res. 3314. (265) After deciding to use a mixed model with a general definition and a list, the Special Working Group next dealt with the question of whether or not to specifically reference G.A. Res. 3314 or simply incorporate the list into the definition. (266) They compromised; the Special Working Group's draft definition paragraph 2 lists specific acts "in accordance with United Nations General Assembly Resolution 3314 (XXIX)" that qualify as an act of aggression. (267) Proponents for the inclusion of the reference felt it accomplished the best possible compromise in that the 1974 resolution had already been negotiated and reflected current customary international law. (268)

Delegates opposed to inclusion of the reference to G.A. Res. 3314 argue that in its current form, the reference appears to include all of the provisions of G.A. Res. 3314. (269) Article 4 of G.A. Res. 3314 states that the list of enumerated acts is not exhaustive and authorizes the Security Council to determine other acts that equate to aggression. (270) But, allowing the Security Council to determine other acts of aggression not listed may violate the principle of legality and infringe on the choice of state parties to be bound by a new definition. (271) Article 22 of the Rome Statute states that "a person shall not be criminally responsible ... unless the conduct ... [is] a crime within the jurisdiction of the Court." (272) If the Security Council, in accordance with Article 4 of G.A. Res. 3314, determines that the actions of a state constitute an act of aggression and that act is not included in the definition list, this could arguably be considered a crime not listed in the Statute and therefore, not "within the jurisdiction of the Court." However, this assumes that the act also did not fit within the general definition in paragraph 1.

IV. CONCLUSION

In order for the ICC to truly act as an independent, international criminal court, the major powers of the world must make compromises. Although tasked to promote the values of the U.N. Charter, the ICC is not subordinate to the U.N. To finally punish those leaders of states who use violence as a method of foreign policy, the ICC must act as an independent judicial body capable of determining aggressive acts without the political interference of the U.N. This will require powerful states, such as the United States, Russia and China, to take a look at its foreign policies and act in accordance with international law.

The United States has long argued that it upholds international law and in fact is one of the leading proponents for developments in international law, particularly with regard to human rights. (273) It is now time for the United States to take the step and acknowledge the ICC as an arbitrator of international justice. There are sufficient checks and balances in the Rome Statute that address most of the U.S. concerns.

The U.S. concern that its personnel may be subject to the ICC while conducting operations around the world is not convincing. The core crimes that the ICC can assert jurisdiction over are genocide, war crimes, crimes against humanity, and crimes of aggression. Based on the principle of complementarity, if any U.S. personnel engage in any of the core crimes, the United States will have the first opportunity to prosecute these individuals. It is only if a state is unable or unwilling to prosecute that the ICC will have jurisdiction. Further, only those in positions to affect the acts of a state commit crimes of aggression. This is in line with the principles of the Nuremberg Charter. (274) The United States should strongly reconsider its position on the ICC and ratify the Rome Statute. This would go a long way in improving the status of the United States as an international leader and promoter of human rights. In addition, by joining the ICC, the United States can help shape the definition of aggression instead of being merely an observer to the discussions.

No Security Council resolution should be required before the ICC exercises jurisdiction as to the crime of aggression. Subordinating the ICC to the politics of the Security Council undermines its legitimacy as an independent judicial authority. The responsibility of the ICC is international criminal justice, not diplomacy or politics. Inconsistent determinations of aggression by the Security Council necessitate an independent body intervening if there is to be any chance of punishing those who wage aggressive war and deterring future acts of aggression. The definition of aggression should contain a general definition followed by a non-exhaustive list of aggressive acts as suggested in the 2008 Chairman's Discussion Paper. This satisfies the principles of legality and allows the prosecutor sufficient room to argue that future unforeseen acts are aggressive and fall under the definition. The threshold clause should be deleted as it serves no purpose except to perhaps engender arguments as to its meaning. The crime of aggression should be in line with the other core crimes that do not add an additional gravity threshold other than the one set forth in the Preamble. The definition should not include reference to G.A. Res. 3314. The language and list of acts are already in the definition, so reference to G.A. Res. 3314 is unnecessary and could result in potential arguments as to which provisions are imported and which are not. Judicial interpretation may eventually modify it, but this basic definition is a necessary first step on the road to bringing those accountable for waging aggressive war to justice.

The success or failure of the ICC will depend upon its supporters. After suffering together through World War II, countries formed the United Nations to promote and maintain peace and international security. It is tragic to note that after all these years, most of these same countries cannot once again come together and agree on a definition of aggression.

(1) YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 120 (4th ed., 2005) (citing International Military Tribunal (Nuremberg Trial), Judgment (1946), 1 IMT 171, 219-23). This quote comes from a passage of the IMT judgment discussing the defendants' crimes of aggression. The phrase "supreme international crime" was again used in the IMT for the Far East judgment to describe the crimes of aggression perpetrated by the Japanese.

(2) Arash Abizadeh, Introduction to the Rome Statute of the International Criminal Court, 34 WORLD ORDER 2, 19 (2002-03).

(3) See WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT (2007).

(4) Rome Statute of the International Criminal Court, art. 1, 5, July 17, 1998, U.N. Doc. A/CONF. 183.9 [hereinafter Rome Statute].

(5) Mark S. Stein, The Security Council, The International Criminal Court, and the Crime of Aggression: How Exclusive is the Security Council's Power?, 16 IND. INT'L & COMP. L. REV. 1 (2005).

(6) Id. at 2.

(7) Keith A. Petty, Sixty Years in the Making: The Definition of Aggression for the International Criminal Court, 31 HASTINGS INT'L & COMP. L. REV. 530, 532; see also Benjamin Ferencz, Enabling the International Criminal Court to Punish Aggression, 6 WASH. U. GLOBAL STUDIES L. REV. 551, 553 (2007) (discussing the history of the crime of aggression leading up to the formation of the ICC).

(8) DINSTEIN, supra note 1, at 63. The concept of jus ad bellum refers to the conduct of belligerents in the generation of war. Id. at 74.

(9) ALEX J. BELLAMY, JUST WARS: FROM CICERO TO IRAQ 19 (2006).

(10) DINSTEIN, supra note 1, at 63.

(11) Id. See KURT A. RAAFLAUB, WAR AND PEACE IN THE ANCIENT WORLD 17 (2007), for a detailed discussion of war in the ancient world and the role of the fetiales. The demands set by Rome were usually non-negotiable and often set to an impossible standard so most states could not or would not accept them. BELLAMY, supra note 9, at 19; see also DINSTEIN, supra note 1, at 63; RAA LAUB, supra note 11, at 17.

(12) BELLAMY, supra note 9, at 39.

(13) DINSTEIN, supra note 1, at 64.

(14) Id.

(15) Id.

(16) Id.

(17) Id.

(18) Id.; see Petty, supra note 7, at 532; BELLAMY, supra note 9, at 39.

(19) DINSTEIN, supra note 1, at 64.

(20) Id.; see Petty, supra note 7, at 532; BELLAMY, supra note 9, at 39.

(21) BELLAMY, supra note 9, at 38.

(22) Petty, supra note 7, at 532.

(23) Id. at 4.

(24) Id.

(25) SCHABAS, supra note 3, at 3; see also NEIL M. HEYMAN, WORLD WAR I 167 (1997) (discussing in detail the life of Kaiser Wilhelm II and his role in WWI).

(26) Id.

(27) Id.; see also PETER J. VAN KRIEKEN & DAVID MCKAY, THE HAGUE: LEGAL CAPITAL OF THE WORLD 14 (2005) (discussing the Dutch position that the Kaiser had immunity for acts committed while he was the head of the German State).

(28) SCHABAS, supra note 3, at 3; see also DINSTEIN, supra note 1, at 117 (discussing Kaiser Wilhelm's acts as offenses not against international law, but of international morality).

(29) Treaty Between the United States and Other Powers Providing for the Renunciation of War as an Instrument of National Policy, Aug 27, 1928, 46 Stat. 2343, 94 L.N.T.S. 57 [hereinafter Kellogg-Briand Pact].

(30) DINSTEIN, supra note 1, at 83.

(31) Kellogg-Briand Pact, supra note 29.

(32) DINSTEIN, supra note 1, at 85.

(33) M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 17 (2d rev. ed., 1999).

(34) Id.

(35) Roger S. Clark, Nuremberg and the Crime Against Peace, 6 WASH. U. GLOBAL STUDIES L. REV. 527, 528 (2007).

(36) Id. at 531 (citing the Trial of the Major War Criminals, Judicial Decisions, International Military Tribunal (Nuremberg, Judgment and Sentences, 41 AM. J. INT'L L. 172, 221) (1947)).

(37) Id.

(38) BASSIOUNI, supra note 36, at 17.

(39) Id.

(40) Ferencz, supra note 7, at 552.

(41) Id.

(42) Id.

(43) SCHABAS, supra note 3, at 6.

(44) Id.

(45) Id. The tribunal rejected the defense argument saying that because the defendants occupied the positions they did in the German government, they must have known of the treaties signed by Germany and that they were acting against international law when they carried out their plans of invasion of other nations. See Nuremberg, Judgment and Sentences, 41 AM. J. INT'L L. 172, 221 (1947).

(46) SCHABAS, supra note 3, at 3.

(47) Michael O'Donovan, Criminalizing War: Toward a Justifiable Crime of Aggression, 30 B.C. INT'L. & COMP. L. REV. 507, 512 (2007).

(48) SCHABAS, supra note 3, at 3.

(49) Ferencz, supra note 7, at 552. The Tribunal found that the crime of aggression was customary international law prior to the beginning of WWII. ld.; see also Clark, supra note 35 (outlining a detailed history of the Nuremberg Tribunal and the cases of each of the defendants).

(50) Ferencz, supra note 7, at 552.

(51) Id.

(52) Id.

(53) Id.

(54) In re Hirohito and Others (International Military Tribunal for the Far East, Tokyo Trials, 1948), 15 ANN. DIG. & REP. OF PUB. INT'L LAW CASES 356, 373 [hereinafter Tokyo Trials].

(55) Noah Weisbord, Prosecuting Aggression, 49 HARV. INT'L L.J. 161, 165 (2008).

(56) Id.

(57) Id. at 166.

(58) Id.

(59) See DINSTEIN, supra note 1, at 142.

(60) International Law Commission of the United Nations, Principles of the Nuremberg Tribunal, Report of the International Law Commission Covering its Second Session, 5 June-29 July, 1950, Document A/1316, pp. 11-14 [hereinafter The Nuremberg Principles].

(61) Petty, supra note 7, at 534; see also Clark, supra note 35, at 531 (stating that one of the major elements of the Nuremberg Charter, aggressive war, was undefined).

(62) Petty, supra note 7, at 534.

(63) DINSTEIN, supra note 1, at 120.

(64) Ferencz, supra note 7, at 551.

(65) DINSTEIN, supra note 1, at 119. Charter of the International Military Tribunal, Annexed to the London Agreement for the Establishment of an International Military Tribunal art. 6, Aug 8, 1945, 9 Int. Leg. 632, 639-40 [hereinafter London Charter].

(66) SCHABAS, supra note 3, at 7.

(67) O'Donovan, supra note 47, at 512; London Charter, supra note 63, art. 6.

(68) DINSTEIN, supra note 1, at 119 (citing the Charter of the International Military Tribunal, Annexed to the London Charter Agreement for the Establishment of an International Military Tribunal, Aug. 8, 1945, 9 INT. LEG. 632, 639-40); see also Clark, supra note 35, at 536 (commenting on the Soviet Union proposal for individual participation using the language of directing and participating in the preparation of carrying out aggressive acts on behalf of the European Axis Powers--a term that would have limited the definition only to the Axis Powers instead of future conduct by other nations--one of the main goals of Justice Jackson).

(69) DINSTEIN, supra note 1, at 119.

(70) See supra note 1 and accompanying text.

(71) Id.

(72) See generally Weisbord, supra note 55, at 166 (setting forth a detailed history of the progress of the various committees).

(73) Id.; see also M. CHERIF BASSIOUNI, THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A DOCUMENTARY HISTORY 13 (1998) (presenting an introductory history leading to the formation of the ICC followed by a compilation of ICC documents).

(74) Id. at 12.

(75) Id. at 13.

(76) Id. at 12.

(77) Id. at 13.

(78) Id.

(79) Id.

(80) Weisbord, supra note 55, at 171.

(81) BASSIOUNI, supra note 73, at 13.

(82) Id.

(83) Id.

(84) Id. at 14; Draft Code of Offences Against the Peace and Security of Mankind, 1954, 9 UN GAOR Supp. (No. 9) at 11, U.N. Doc. A/2693 (1954) [hereinafter Draft Code of Offences, 1954].

(85) BASSIONI, supra note 73, at 13; Draft Code of Offences, 1954, supra note 88, at 11.

(86) DINSTEIN, supra note 1, at 124.

(87) Id. (citing the Draft Code of Offences against the Peace and Security of Mankind, Report of the International Law Commission, 6th Session, U.N. Doc. A/2693 (1954) reprinted in 2 Y.B. INT'L L. COMM'N 140, 149 (1954)).

(88) BASSIOUNI, supra note 73, at 14; see also DINSTEIN, supra note 1, at 124 (examining the progress of the international community in attempting to define aggression).

(89) DINSTEIN, supra note I, at 125.

(90) Id. at 126; G.A. Res. 3314 (XXIX), U.N. Doc. A/RES/3314 (Dec. 14, 1974).

(91) DINSTEIN, supra note 1, at 125.

(92) Id.

(93) G.A. Res. 3314, supra note 94, art. 1.

(94) DINSTEIN, supra note I, at 127.

(95) Id.

(96) Id. art. 2.

(97) Id. art. 3.

(98) Id. art. 4

(99) Id. art. 5.

(100) Id.

(101) Weisbord, supra note 55, at 168.

(102) DINSTEIN, supra note 1, at 136.

(103) Weisbord, supra note 55, at 168; Int'l Crim. Ct., Assembly of States Parties, Resumed sixth session, Report of the Special Working Group on the Crime of Aggression, ICC-ASP/6/20/Add.1/Annex II, 5 (June 2-6, 2008) [hereinafter Report of the Special Working Group].

(104) Weisbord, supra note 59, at 170; Draft Code of Crimes Against the Peace and Security of Mankind, 1996, 51 UN GAOR Supp. (No. 10) at 14, U.N. Doc. A/CN.4/L. 532, corr. 1, corr. 3 (1996) [hereinafter Draft Code of Crimes, 1996].

(105) Weisbord, supra note 59, at 170.

(106) Id.

(107) Id. (citing M. CHERIF BASSIOUNI & BENJAMIN FERENCZ, THE CRIME AGAINST PEACE IN INTERNATIONAL CRIMINAL LAW 313. 316 (M. Cherif Bassiouni ed., 2d ed. 1999)).

(108) Weisbord, supra note 55, at 168; Report of the Special Working Group, supra note 107.

(109) Weisbord, supra note 55, at 168; see also DINSTEIN, supra note 1, at 121 (stating that no indictments for crimes of aggression in violation of jus ad bellum have been brought against the numerous nations involved in armed conflicts since WWII). Dr. Lavers cites to only three instances where the Security Council has determined an act of aggression. Dr. Troy Lavers, [Pre]Determining the Crime of Aggression: Has the Time Come to Allow the International Court its Freedom?, 71 ALB. L. REV. 299, 303 (2008). The first was the situation involving South Africa and Angola in 1976. The second was the Israeli bombing of the PLO headquarters in Tunisia in 1985. The third determination by the Security Council was condemnation of acts of armed aggression perpetrated against the People's Republic of Benin in 1977. See S.C. Res. 387, [paragraph] 6, U.N. Doe. S/RES/387 (Mar. 31, 1976) (South Africa); S.C. Res. 573, [paragraph] 1, U.N. Doc. S/RES/573 (Oct. 4, 1985) (Israel); and S.C. Res. 405, [paragraph] 2, U.N. Doc. S/RES/405 (Apr. 14, 1977) (Benin). Other acts of aggression, such as the Falklands War and the U.S. invasion of Iraq, received no such condemnation by the United Nations, highlighting the political difficulty in the UN Security Council being responsible for identifying crimes of aggression. See Dr. Troy Lavers, [Pre]Determining the Crime of Aggression: Has the Time Come to Allow the International Court its Freedom?, 71 ALB. L. REV. 299, 303 (2008).

(110) DINSTEIN, supra note 1, at 121-122.

(111) Id.

(112) Rome Statute, supra note 4. Jelena Pejic, Conceptualizing Violence." Present and Future Developments in International Law: Panel II: Adjudicating Violence: Problems Confronting International Law and Policy on War Crimes and Crimes Against Humanity: The Tribunal and the ICC: Do Precedents Matter?, 60 ALB. L. REV. 841, 853-54 (1997).

(113) DINSTEIN, supra note 1, at 91 (citing the 1969 Vienna Convention on the Law of Treaties which states that an obligation may arise for a Third State from a provision of a treaty only if the Third State accepts the obligation expressly and in writing).

(114) Report of the Special Working Group, supra note 103.

(115) Lavers, supra note 109, at 302.

(116) IN. See generally BASSIOUNI, supra note 73 (documenting the formation of the ICC by providing a compilation of some of the Reports of the Preparatory Committee on the Establishment of the International Criminal Court that includes proposals by various States Parties).

(117) See supra note land accompanying text.

(118) Weisbord, supra note 55, at 171.

(119) Id.

(120) Id.; see DINAH SHELTON ET AL., JUDICIAL HANDBOOK ON ENVIRONMENTAL LAW 7 (2006) (discussing various cases in Latin American courts that consider living in a healthy environment a fight that is judicially enforceable; a fight to live in a place where the natural resources are preserved and free from pollution and waste).

(121) Id.; see also BASSIOUNI, CRIMES, supra note 33, at 31 (discussing the last minute work of the Drafting Committee in preparing the Rome Statute for signature in July 1998).

(122) Rome Statute, supra note 4, art. 5.

(123) Rome Statute, supra note 4.

(124) Id. art. 121(3).

(125) ICC, Assembly of States Parties, Resumed 7th Sess., Report of the Special Working Group on the Crime of Aggression, Annex II, 20 ICC-ASP/7/20/Add. 1 (Feb 9-13, 2009) [hereinafter Final Report of the Special Working Group].

(126) Id. at 29.

(127) Id. art. 121(5). The amendment procedure regarding articles 5-8 is different from that of the other articles of the Rome Statute in that all states are bound by subsequent amendments unless the state party chooses to withdraw from the statute altogether under article 121(6).

(128) See BASSIOUNI, supra note 73, at 19-26; see also Marc Grossman, Under Secretary for Political Affairs, Remarks to the Center for Strategic and International Studies: American Foreign Policy and the International Criminal Court, Washington D.C., May 6, 2002, available at http://www.state.gov/p/us/rm/9949.htm [hereinafter Grossman Remarks].

(129) Grossman Remarks, supra note 128; see O'Donovan, supra note 47.

(130) David J. Sheffer, The United States and the International Criminal Court, 93 AM. J. INT'L L. 12, 20 (1999).

(131) SEAN D. MURPHY, UNITED STATES PRACTICE 1N INTERNATIONAL LAW, VOL. I: 1999-2001, at 386 (2002).

(132) Id. at 386.

(133) Id. (citing Theodor Meron, U.S. Dep't of State, Statement on Crime of Aggression before the ICC Preparatory Commission, at 2-3 (Dec. 6, 2000)).

(134) Grossman Remarks, supra note 128.

(135) S.C. Res. 1422, [section] 1, U.N. Doc. S/RES/1422 (July 12, 2002).

(136) Press Release #85, U.S. Mission to the United Nations, Statement by Ambassador James Cunningham, Deputy U.S. Representative to the United Nations, on the Renewal of Resolution 1422 (June 12, 2003), available at http://www.amicc.org/docs/ US 1422Stmtl 2June03.pdf.

(137) MURPHY, supra note 131, at 382.

(138) RACHEL KERR & EIRIN MOBEKK, PEACE AND JUSTICE: SEEKING ACCOUNTABILITY AFTER WAR 67 (2007).

(139) MURPHY, supra note 137, at 382.

(140) KERR & MOBEKK, supra note 144, at 67.

(141) Questions for the Record, Senator John Kerry, Nomination of Hillary Rodham Clinton, Department of State, Secretary of State 66 (Jan. 13, 2009), available at http://www.foreignpolicy.com/files/KerryClintonQFRs.pdf.

(142) Senator Barack Obama, Response to Citizens for Global Solutions Questionnaire, Oct. 6, 2007, available at http://globalsolutions.org/08orbust/quotes/2007/10/31/quote484.

(143) See Ferencz, supra note 7, at 551.

(144) Lavers, supra note 109, at 302; see also Petty, supra note 7, at 533.

(145) Weisbord, supra note 55, at 171.

(146) Id.; William W. Burke-White, A Community of Courts: Toward a System of International Criminal Law, 24 MICH. J. INT'L L. l, 6 (2002).

(147) Rome Statute, supra note 4, art. 11(1).

(148) Id. art. 11(2).

(149) Id. art. 1.

(150) Id. art. 5(1).

(151) Id art. 5(1). The language referring to the most serious crimes is found in the Preamble and articles 1 and 5.

(152) Report of the Special Working Group, supra note 103, at 24.

(153) James Nicholas Boeving, Aggression, International Law, and the ICC: An Argument for the Withdrawal of Aggression from the Rome Statute, 43 COLUM. J. TRANSNAT'L L. 557, 578 (2008).

(154) KERR & MOBEKK, supra note 144, at 64. The Office of the Prosecutor is to act independently as a separate organ of the Court and is to be headed by the Prosecutor. The Prosecutor has full authority over the management and administration of the Office, including the staff, facilities and other resources. Rome Statute, supra note 4, art. 42.

(155) Rome Statute, supra note 4, arts. 14-15.

(156) Id. art. 12(2).

(157) Boeving, supra note 159, at 578.

(158) Id.

(159) Rome Statute, supra note 4, art. 13.

(160) Id. Under Chapter VII of the UN Charter, the Security Council (1) determines the existence of a threat to the peace, a breach of the peace, or an act of aggression in accordance with Article 39, and (2) recommends or decides what measures shall be taken to maintain or restore international peace and security in accordance with Articles 41 and 42. UN Charter art. 39.

(161) Id.

(162) Id.

(163) See Layers, supra note 109, at 303.

(164) Pejic, supra note 112, at 854.

(165) Burke-White, supra note 146, at 9.

(166) Pejic, supra note 112, at 855; Rome Statute, supra note 4, Preamble.

(167) Rome Statute, supra note 4, art. 17(a).

(168) Dan Derby, Enforcement of Nuremberg Norms: The Role for Mechanisms other than the ICC, in THE NUREMBERG TRIALS: INTERNATIONAL CRIMINAL LAW SINCE 1945, at 278, 282 (Herbert R. Reginbogin & Christoph J.M. Safferling eds., 2006).

(169) Id.; Rome Statute, supra note 4, art. 17(a).

(170) Id. art. 17(2).

(171) KERR & MOBEKK, supra note 138, at 64.

(172) Final Report of the Special Working Group, supra note 125, at 20.

(173) Id.

(174) Id, at 23-24.

(175) Id. at 24.

(176) Rome Statute, supra note 4, art. 13. Article 13 allows for the exercise of jurisdiction by Security Council referral, State Party referral, or initiation of investigations by the Prosecutor.

(177) Int'l Crim. Ct., Assembly of States Parties, Resumed sixth session, Discussion Paper on the Crime of Aggression Proposed by the Chairman, ICC-ASP/6/20/Add.1 13 n.5 (June 2-6, 2008) [hereinafter Discussion Paper]. This option is based on a discussion for a procedural "go-ahead" by the Security Council without a determination that an act of aggression has occurred. Weisbord, supra note 55, at 205.

(178) Int'l Crim. Ct., Assembly of States Parties, Resumed seventh session, Proposals for a Provision on Aggression Elaborated by the Special Working Group on the Crime of Aggression, ICC-ASP/7/20/Add.1/Annex II, 20 (Feb 9-13, 2009) [hereinafter Proposals for Amendment].

(179) Id.

(180) Id.

(181) Rome Statute, supra note 4, art. 16.

(182) UN Charter art. 39.

(183) Id., art. 24.

(184) Rome Statute, supra note 4, art. 5(2).

(185) Weisbord, supra note 55, at 198.

(186) See Lavers, supra note 109, at 309.

(187) Discussion Paper, supra note 177, at 13. Option 2 to alternative one is based on a discussion that gives the Prosecutor a sort of green light to proceed without the Security Council making a substantive determination that an act of aggression has occurred.

(188) Lavers, supra note 109, at 309; Weisbord, supra note 55, at 198.

(189) Lavers, supra note 109, at 309; see also Weisbord, supra note 55, at 198.

(190) See DINSTEIN, supra note 1, at 120 (citing J.I. Garvey, The UN Definition of "Aggression": Law and Illusion in the Context of Collective Security, 17 VA. J. INT'L L. 177, 193-4 (1976-77)).

(191) Pejic, supra note 112, at 859.

(192) Lavers, supra note 109, at 303.

(193) Id.

(194) U.N. Charter art. 92.

(195) Lavers, supra note 109, at 302-05. Dr. Lavers cites to only three instances where the Security Council has determined an act of aggression--South Africa and Angola in 1976, the Israeli bombing of the PLO headquarters in Tunisia, and condemnation of acts of armed aggression perpetrated against the People's Republic of Benin. See also S.C. Res. 232, [paragraph] 1, U.N. Doc. S/RES/232 (Dec. 16, 1966) (concerning the rebellion in Southern Rhodesia as a threat to international peace and security); S.C. Res. 660, [paragraph][paragraph] 1-4, U.N. Doc. S/RES/660 (Aug. 2, 1990) (determining a breach of international peace and security regarding the Iraq invasion of Kuwait); S.C. Res. 1368, [paragraph] 2, U.N. Doc. S/RES/1368 (Sep. 12, 2001) (condemning acts of international terrorism as threats to international peace and security).

(196) Layers, supra note 109, at 305.

(197) Stein, supra note 5, at 6. Because of the political nature of the Security Council, decisions would be inconsistent at best based on the veto power of the five permanent members. Id. at 9.

(198) Proposals for Amendment, supra note 178, at 32.

(199) See Report of the Special Working Group, supra note 103, at 8.

(200) Discussion Paper, supra note 177, at 13.

(201) Lavers, supra note 109, at 315.

(202) Proposals for Amendment, supra note 178, at 32.

(203) U.N. Charter, art. 96.

(204) Id.

(205) Weisbord, supra note 55, at 201. In the Uniting for Peace Resolution of 1950, the General Assembly exerted authority over determinations of the use of force and condemned armed attacks when the Security Council was unable to reach a consensus. See Uniting for Peace Resolution, G.A. Res. 337(V), U.N. Doc. A/RES/377 (Nov. 3, 1951). The ICJ in the Nicaragua Case of 1986 said that United States' first use of armed militia amounted to armed attack by finding that article 3 of GA Res. 3314, paragraph 3(g) "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 ... reflect[s] customary international law." See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.) I.C.J. 14 (1986); see also Stein, supra note 5, at 19-21 (posing the idea that the IJC was actually determining aggression by Nicaragua to determine the validity of the United States' claim of self-defense).

(206) See generally Stein, supra note 5, at 33 (discussing the pros and cons of either the General Assembly or the ICJ determining aggression as opposed to an exclusive role of the Security Council).

(207) For an explanation of Chapter VII authority, see supra note 160 and accompanying text.

(208) Stein, supra note 5, at 10.

(209) Weisbord, supra note 55, at 201.

(210) Id.

(211) Stein, supra note 5, at 33. Article 65 of the ICJ Statute states that the Court may give an advisory opinion on any legal question referred to it under the authority of the U.N. Charter.

(212) Weisbord, supra note 55, at 201; see also DINSTEIN, supra note 1, at 126 (discussing the G.A. Res. 3314 definition of aggression as used by the General Assembly and as a guide to the Security Council and how it is meant to determine State acts of aggression not individual criminal liability).

(213) Ferencz, supra note 7, at 557.

(214) See Weisbord, supra note 55, at 198 (stating that the argument is based on Article 24 of the U.N. Charter giving the Security Council "primary responsibility for the maintenance of international peace and security").

(215) Id. at 201.

(216) See Lavers, supra note 109, at 303.

(217) Boeving, supra note 157, at 578.

(218) Grossman Remarks, supra note 128.

(219) Id.

(220) Petty, supra note 7, at 544; see also DINSTEIN, supra note 1, at 119 (referencing the rejection of the defense's argument in Nuremberg that charging crimes against peace violated the principle of nullem crimen, nulla peona sine lege).

(221) BASSIOUNI, CRIMES, supra note 33, at 313.

(222) Rome Statute, supra note 4, art. 22(1).

(223) Id. art. 22(2).

(224) Weisbord, supra note 55, at 179; see also DINSTEIN, supra note 1, at 136 (discussing the importance of criminal intent as an element of crimes of aggression set forth in the High Command case).

(225) Weisbord, supra note 55, at 179; see also DINSTEIN, supra note 1, at 136; Petty, supra note 8, at 536.

(226) International Law Commission of the United Nations, Principles of the Nuremberg Tribunal, Report of the International Law Commission Covering its Second Session, 5 June-29 July, 1950, Document A/1316, pp. 11-14.

(227) Weisbord, supra note 55, at 179.

(228) Id. at 213; see also Petty, supra note 8, at 547 (noting that the Preparatory Commission required "a person to be in a position to effectively exercise control over or direct the political or military action of a State" (Int'l Law Comm'n, Draft Code of Crimes Against the Peace and Security of Mankind, with commentaries, U.N. Doe. A/CN.4/L.532, [paragraph] 42, (1996)).

(229) Weisbord, supra note 55, at 176.

(230) Id. at 182.

(231) Proposals for Amendment, supra note 178, at 30.

(232) Report of the Special Working Group, supra note 103, at 3.

(233) Id. The draft language reads: "In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State." Discussion Paper, supra note 179, at 14; Proposals for Amendment, supra note 178, at 30.

(234) Report of the Special Working Group, supra note 103, at 2. The IMT Charter defined crimes against peace as "planning, preparation, ignition or waging of 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." London Charter, supra note 65, at 63940.

(235) Report of the Special Working Group, supra note 103, at 5. Article 1 of G.A. Res. 3314 defines aggression as "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." G.A. Res. 3314, supra note 90, art. 1.

(236) Boeving, supra note 157, at 570.

(237) Id.

(238) Id.

(239) Weisbord, supra note 55, at 205.

(240) Rome Statute, supra note 4, art. 67(e). See generally Weisbord, supra note 55, at 205 (discussing potential violations of due process rights of an accused).

(241) Weisbord, supra note 55, at 218; Rome Statute, supra note 4, art. 66.

(242) Report of the Special Working Group, supra note 103, at 7.

(243) Discussion Paper, supra note 177, at 12; Petty, supra note 7, at 541-543.

(244) Report of the Special Working Group, supra note 103, at 4.

(245) Id,

(246) Id. There were some delegates who were indifferent to the threshold clause maintaining that it was irrelevant and did not add to the definition. Id.; see Petty, supra note 8, at 544.

(247) Proposals for Amendment, supra note 178, at 22.

(248) Report of the Special Working Group, supra note 103, at 4.

(249) Id.

(250) Id.

(251) Weisbord, supra note 55, at 186; Rome Statute, supra note 4, Preamble.

(252) Rome Statute, supra note 4, arts. 6-8.

(253) Report of the Special Working Group, supra note 103, at 2; see Petty, supra note 7, at 550.

(254) The Charter of the International Military Tribunal, Annexed to the London Charter Agreement for the Establishment of an International Military Tribunal, 1945, 9 Int. Leg. 632, 639-40. The IMT Charter defined crimes against peace as "planning, preparation, ignition or waging of 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. In the High Command Case, the Court held that criminality hinges on the actual power of an individual "to shape or influence" the war policy of his country and those acting as instruments of the policy-makers "cannot be punished for the crimes of others." U.S.A. v. Von Leeb et al, (the High Command Case) (Nuremberg, 1948), 11 NMT 462,486.

(255) Report of the Special Working Group, supra note 103, at 2.

(256) Rome Statute, supra note 4, art. 25.

(257) Report of the Special Working Group, supra note 103, at 3.

(258) Proposals for Amendment, supra note 178, at 32.

(259) Rome Statute, supra note 4, art. 30; see Petty, supra note 7, at 551; see also DINSTEIN, supra note 1, at 136 (stating that all international crimes contain the criminal act and criminal intent).

(260) Rome Statute, supra note 4, art. 30.

(261) Id.

(262) DINSTEIN, supra note 1, at 136.

(263) See generally id., at 137 (describing traditionally neutral nations such as Switzerland who arm and prepare for war). Dinstein also notes that the Nuremberg IMT acquitted Hjalmar Schacht (Minister of Economics in 1934, Plenipotentiary for War Economy in 1935, and President of the Reichsbank from 1923-1930 and 1937-1938), because creating an armaments division is in itself not criminal unless undertaken as part of a larger plan to wage aggressive war. See International Military Tribunal (Nuremberg), Judgment and Sentences, 41 AM. J. INT'L L. 172, 294 (1947). For more information on the defendants of the Nuremberg trials, see TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS (1992) and THE NUREMBERG TRIALS: INTERNATIONAL CRIMINAL LAW SINCE 1945 (Herbert R. Reginbogin & Christoph J.M. Safferling eds., 2006).

(264) DINSTEIN, supra note 1, at 137.

(265) Petty, supra note 7, at 534.

(266) Report of the Special Working Group, supra note 103, at 5.

(267) Discussion Paper, supra note 177, at 12; Proposals for Amendment, supra note 178, at 32.

(268) Report of the Special Working Group, supra note 103, at 5. Whether or not G.A. Res. 3314 reflects customary international law is still debated. The ICJ in the Nicaragua Case held that paragraph 3(g) of G.A. Res. 3314 "may be taken to reflect customary international law" on what constitutes an armed attack. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.) I.C.J. 14 (1986).

(269) Report of the Special Working Group, supra note 103, at 5.

(270) G.A. Res. 3314, supra note 90.

(271) Report of the Special Working Group, supra note 103, at 5.

(272) Rome Statute, supra note 4, art. 22.

(273) John Bellinger, Legal Advisor to the U.S. Sec'y of State, The United States and International Law, Remarks at the Hague (June 6, 2007), available at http://2001-2009.state.gov/s/1/2007/112666.htm.

(274) The Nuremberg Principles, supra note 60.

Major Kari M. Fletcher (B.B.A., Hardin-Simmons University (1990); J.D., Texas Tech University School of Law (1998); LL.M., The Judge Advocate General's Legal Center and School (2009)) is the Staff Judge Advocate, RAF Menwith Hill, United Kingdom. She is a member of the bars of the U.S. Supreme Court and Texas.
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